Examination number ____________



Civil Procedure I, 501L, Section 1


Professor Carl H. Esbeck Winter Semester 2004


Directions to Part II (60 minutes)



Write your answer in the bluebook provided.  Use a pen with blue or black ink. Write on only one side of each page.  Do not tear pages out of the bluebook.  Do not use the pages of the bluebook for scratch paper.  Do not insert your scratch paper in your bluebook.

Arrange your answers in the bluebook in sequential order; that is, put Question 1 first, then Question 2, and etc.

Place your student examination number in the upper, right-hand corner of this examination. When finished, return both your bluebook and this examination.

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Essay Questions (60 minutes)

Question 1 (15 minutes): Big Box Market files suit against Aaron in federal district court claiming Aaron defrauded the company in at least 14 transactions in 8 different states. Several months after Big Box sued, Aaron is criminally indicted in a federal district court for one of the transactions at issue in the civil complaint. Big Box had scheduled Aaron= s deposition. Citing the 5th Amendment right against self-incrimination, Aaron moves for a protective order seeking a stay of his deposition until the criminal proceedings against him are completed. Noting that it is interested in 14 transactions, not just the one on which Aaron was indicted, Big Box opposes the protective order on the basis that evidence will be lost and memories will fade. The trial judge grants the stay. Can Big Box immediately appeal the ruling?

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Question 2 (15 minutes): Paul, a citizen of Arizona, sues Denise, a citizen of Virginia, in a federal district court in Virginia for $80,000 in damages alleging a breach of contract. The case is tried to a jury. At the close of all the evidence Denise moves for a judgment as a matter of law, which is denied. The jury returns a verdict for Paul in the amount $70,000. Ten days later Denise files a notice of appeal with the district court clerk, assigning as error the denial of the motion at the close of all the evidence. The case is fully briefed and then argued before a panel of the court of appeals. The appellate court believes that the evidence was indeed insufficient to support a verdict for Paul. How should the court of appeals proceed and why?

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Question 3 (20 minutes): A skateboard ridden by Jay collides in Lowry Mall with a skateboard ridden by Ethan. Both are injured. Jay sues Ethan in a state court that has no FRCP 13(a) but does have a 13(b). Jay loses, with the jury returning special interrogatories stating that Ethan was negligent and that Jay was contributorily negligent. Judgment is entered on the verdict. Thirty-one days pass and there is no appeal. Ethan now sues Jay. Is there preclusion? Explain.

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Question 4 (10 minutes):

(A) By what standard would a court of appeals reverse the granting of a motion for new trial because the verdict is contrary to the weight of the evidence?

(B) What is meant when it is said that our system of civil procedure is A self-critical@ ?

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Turn in both your examination and your bluebook.