OR Bar Civil Procedure 3

Question 1

Under the federal pleading standard established in Iqbal and Twombly, a complaint must contain what to survive a 12(b)(6) motion?

Accepted Answer

A short and plain statement showing the pleader is entitled to relief with enough facts to state a plausible claim

Answer

Post-Twombly/Iqbal, a complaint must allege sufficient factual matter to state a claim that is plausible on its face, not merely conceivable.

Question 2

Defendant fails to raise improper venue in its initial motion to dismiss or answer. What is the consequence under FRCP 12(h)?

Accepted Answer

The defense is waived and cannot be raised later

Answer

Under FRCP 12(h)(1), defenses of lack of personal jurisdiction, improper venue, insufficient process, and insufficient service are waived if not raised in the first responsive motion or pleading.

Question 3

A plaintiff seeks to amend the complaint after the statute of limitations has run to add a new defendant. Under FRCP 15(c), the amendment relates back to the original filing date only if:

Accepted Answer

The new defendant, within the Rule 4(m) period, knew of the action and knew but for a mistake would have been named originally

Answer

FRCP 15(c)(1)(C) requires the new party to have received notice within the Rule 4(m) service period and to have known that but for a mistake they would have been named.

Question 4

During discovery, plaintiff seeks production of internal emails between defendant corporation and its outside counsel discussing litigation strategy for the current lawsuit. Defendant asserts attorney-client privilege. Which element is most critical to evaluate?

Accepted Answer

Whether the communications were made for the purpose of obtaining legal advice and kept confidential

Answer

Attorney-client privilege protects confidential communications between attorney and client made for the purpose of seeking or providing legal advice.

Question 5

A party fails to supplement its discovery responses after learning that a prior answer is materially incomplete. Under FRCP 26(e), what is the most severe sanction a court may impose?

Accepted Answer

Exclusion of the undisclosed evidence at trial under FRCP 37(c)

Answer

FRCP 37(c)(1) provides that failure to supplement under Rule 26(e) may result in exclusion of the undisclosed information or witness at trial.

(OR Bar) Oregon Bar Exam Practice Test

(OR Bar) Oregon Bar Exam Practice Test

OR Bar Civil Procedure 3