KY Bar Civil Procedure 3 — Questions and Answers
Question 1: A defendant is served with a complaint in federal court and does not file a waiver of service. How many days does the defendant have to serve an answer?
- 21 days after being served with the summons and complaint (Correct answer)
- 30 days after being served
- 14 days after being served
- 60 days after being served
Correct answer: 21 days after being served with the summons and complaint
Rule 12(a)(1)(A)(i) gives a defendant 21 days after service of the summons and complaint to respond, absent a waiver of service.
Question 2: A plaintiff seeks to amend her complaint 15 days after serving it, before the defendant has filed any response. What must she do?
- Nothing beyond filing the amendment, because she may amend once as a matter of course (Correct answer)
- Obtain leave of court
- Obtain the defendant's written consent
- Wait until the defendant answers
Correct answer: Nothing beyond filing the amendment, because she may amend once as a matter of course
Rule 15(a)(1) allows one amendment as a matter of course within 21 days of serving the pleading or within 21 days of a responsive pleading or Rule 12 motion.
Question 3: During discovery, a party fails to disclose a witness required by Rule 26(a) initial disclosures without substantial justification. What is the presumptive sanction at trial?
- The party may not use that witness unless the failure was substantially justified or harmless (Correct answer)
- The court must dismiss the case
- The court must declare a mistrial
- The opposing party automatically wins the issue
Correct answer: The party may not use that witness unless the failure was substantially justified or harmless
Rule 37(c)(1) provides automatic exclusion of undisclosed witnesses or information unless the nondisclosure was substantially justified or harmless.
Question 4: A federal jury returns a verdict for the plaintiff. The defendant moves for judgment as a matter of law after trial, but never made such a motion before the case went to the jury. How should the court rule?
- Deny the renewed motion, because a pre-verdict Rule 50(a) motion is a prerequisite (Correct answer)
- Grant the motion if the verdict was against the weight of the evidence
- Grant the motion, because timing is irrelevant
- Deny the motion only if the plaintiff objects
Correct answer: Deny the renewed motion, because a pre-verdict Rule 50(a) motion is a prerequisite
A Rule 50(b) renewed motion for judgment as a matter of law is available only if the party moved under Rule 50(a) before submission to the jury.
Question 5: A plaintiff sues in federal court, loses on the merits, then files a new suit against the same defendant on a different legal theory arising from the same transaction. What doctrine bars the second suit?
- Claim preclusion (res judicata) (Correct answer)
- Issue preclusion (collateral estoppel)
- The law of the case doctrine
- Judicial estoppel
Correct answer: Claim preclusion (res judicata)
Claim preclusion bars relitigation of all claims arising from the same transaction that were or could have been raised in the first action between the same parties.
Question 6: A corporation incorporated in Delaware with its headquarters and executive offices in Louisville, Kentucky is a citizen of which state(s) for diversity purposes?
- Both Delaware and Kentucky (Correct answer)
- Delaware only
- Kentucky only
- Every state in which it does business
Correct answer: Both Delaware and Kentucky
Under 28 U.S.C. § 1332(c), a corporation is a citizen of its state of incorporation and the state of its principal place of business, its 'nerve center' under Hertz.
Question 7: A party moves for summary judgment. To defeat the motion, the nonmoving party must do what?
- Show a genuine dispute of material fact through evidence in the record, not mere allegations (Correct answer)
- Rest on the denials in its pleadings
- Demand a jury trial
- File a motion to dismiss in response
Correct answer: Show a genuine dispute of material fact through evidence in the record, not mere allegations
Under Rule 56 and Celotex, the nonmovant must point to specific record evidence creating a genuine dispute of material fact and cannot rely on pleadings alone.
KY Bar Civil Procedure 3
A defendant is served with a complaint in federal court and does not file a waiver of service.
How many days does the defendant have to serve an answer?