- How should the court treat the affidavit from the in-house counsel when deciding the motion for summary judgment? Select one.
Answer: The court should disregard it, because an affidavit supporting or opposing summary judgment must be based on personal knowledge and set out facts that would be admissible in evidence.
The correct answer is B. FRCP 56(c)(4) requires that an affidavit used to support or oppose a motion for summary judgment must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. The in-house counsel's affidavit offers a legal conclusion ('clearly infringes'), not facts based on personal knowledge. Legal opinions and arguments are for briefs, not affidavits. The affidavit does not set out admissible factual testimony and is therefore improper. A and C are incorrect for this reason. D is incorrect because the fundamental problem is not a lack of formality but that the attorney is attempting to offer a legal conclusion as if it were factual evidence; deposition testimony would not cure this defect.
- Which of the following motions would be the most appropriate and effective for you to file at this stage? Select one.
Answer: A motion for sanctions under FRCP 37, requesting that the court dismiss the plaintiff's case with prejudice for failure to comply with a court order.
The correct answer is B. The most direct and appropriate procedural tool for dealing with a party's refusal to obey a discovery order is a motion for sanctions under Rule 37. When a party violates a motion to compel, the court can impose a range of sanctions, including the severe sanction of dismissing the case. This directly addresses the plaintiff's misconduct. A is a possible but less effective option. While a summary judgment motion could be filed on the basis that the plaintiff lacks evidence, the more direct cause is the discovery abuse, which is better handled under Rule 37. C is incorrect because a motion for judgment on the pleadings only considers the content of the pleadings (complaint and answer) and does not address discovery failures. D is a possible sanction under Rule 37, but dismissal is also an available and often more dispositive sanction for willful noncompliance.
- How should the court rule on the singer's motion for summary judgment? Select one.
Answer: Deny the motion, because the promoter's deposition testimony creates a genuine dispute of material fact as to whether the mistake was mutual.
The correct answer is C. Summary judgment is only appropriate when there is no genuine dispute of material fact. The singer claims a mutual mistake about the venue, supporting it with an affidavit about her belief. The promoter directly contradicts this by testifying that the specific venue was discussed. This creates a classic factual dispute: what was said and understood during contract negotiations? A reasonable jury could believe the promoter and find there was no mistake, or at least not a mutual one. Therefore, summary judgment must be denied. A is incorrect because mutual mistake requires more than one party's subjective belief; it must be shared. B is incorrect because while a lack of meeting of the minds prevents contract formation, the conflicting evidence means a jury must decide whether there was one. D is incorrect because the promoter has already created a sufficient factual dispute to defeat the motion; reasonableness would be part of the merits analysis by the fact-finder.
- How should the court rule on the plaintiff's motion for summary judgment? Select one.
Answer: Grant the motion, because the defendant's affidavit is conclusory and fails to set forth specific facts showing a genuine dispute.
The correct answer is B. To oppose a properly supported summary judgment motion, the non-moving party cannot rest on mere denials or conclusory statements. The defendant's affidavit, which simply denies the existence of a contract without providing any specific facts (e.g., describing negotiations that failed, explaining a misunderstanding), is insufficient to create a genuine dispute of material fact. A is incorrect because a 'swearing contest' requires conflicting testimony on specific facts, not just a specific allegation versus a general denial. C is incorrect because a plaintiff can obtain summary judgment based on an affidavit, even from an interested party, if it is uncontroverted by specific evidence from the other side. D is incorrect because there is no requirement for documentary evidence; a sufficiently specific affidavit could create a genuine dispute on its own.
- How should the court rule on the company's motion for summary judgment? Select one.
Answer: Grant the motion, because the homeowner's affidavit contains conclusory allegations and does not set forth specific facts creating a genuine dispute.
The correct answer is A. To survive a motion for summary judgment, the non-moving party must go beyond the pleadings and set forth specific facts showing a genuine issue for trial. The homeowner's affidavit merely states a conclusion ('I am certain...') without providing specific, admissible evidence of causation. This is insufficient to create a genuine dispute of material fact, especially against the defendant's specific expert evidence. B is incorrect because while timing can be circumstantial evidence, the homeowner's statement of 'before and after' is too vague and conclusory to establish a genuine dispute over causation on its own. C is incorrect because while credibility is a jury issue, the non-movant must first present some competent evidence that creates a factual conflict; otherwise, there is no credibility issue for the jury to weigh. D is incorrect because while an expert report would be the best way to rebut the company's evidence, there is no absolute requirement that a non-movant produce an expert report to survive summary judgment if they can create a genuine dispute through other admissible evidence.
- What would be your client's best response to the motion for summary judgment? Select one.
Answer: Argue that the motion should be denied because the credibility of the store's employees, as interested parties, is inherently a question for the jury.
The correct answer is A. Summary judgment is generally inappropriate when the case turns on the credibility of the moving party's witnesses, particularly when those witnesses are interested parties (like the defendant's employees). A jury could choose to disbelieve their testimony. The court must view the evidence in the light most favorable to the non-moving party, which includes drawing the inference that the employees might not be truthful. B is incorrect because the employees' presence does not establish constructive notice; in fact, their testimony negates it. C is incorrect because at the summary judgment stage, a party cannot rely on the allegations in their pleadings. D is incorrect because the absence of a 'wet floor' sign is only relevant if there is evidence of a spill to be warned about. The client's affidavit does not rebut the employees' testimony that no spill existed, which is the core of the defendant's motion.
- What is your most appropriate course of action in response to the summary judgment motion? Select one.
Answer: File a declaration under FRCP 56(d), explaining to the court why you cannot yet present facts essential to your opposition and requesting time to depose the specific witness.
The correct answer is C. FRCP 56(d) is designed for this exact situation. It allows a party opposing summary judgment to show the court that it needs additional time for discovery to obtain evidence essential to its opposition. The request must be specific about what discovery is needed (deposing the key witness) and why it is essential. This is the proper procedural mechanism to address the discovery oversight. A is a weak response that fails to present any evidence. B may be procedurally barred since the defendant has already filed a dispositive motion (and an answer), and it may have preclusion consequences. D is improper because the client's affidavit would be based on hearsay and speculation about what another witness would say, not on the client's personal knowledge. Therefore, it would not be admissible evidence to oppose the motion.
- What is the plaintiff's best argument in opposition to the defendant's motion for summary judgment? Select one.
Answer: The defendant's purchase of the property does not interrupt the continuity of the plaintiff's possession.
The correct answer is D. A key principle of adverse possession is that the transfer of title from one record owner to another does not, by itself, interrupt the continuity of an adverse possessor's claim. The statutory period continues to run against the new owner. The defendant's motion is based on a legally flawed premise—that the clock reset when she bought the property. The plaintiff's best argument is to point out this legal error. B mentions tacking, which is a valid doctrine, but it applies to successive adverse possessors, not successive owners. The plaintiff's best response is to attack the core legal flaw in the defendant's argument. A is incorrect because the defendant's motion isn't about whether the plaintiff was on the property, but about the legal effect of her ownership period. C is an overstatement; summary judgment can be granted in adverse possession cases if the facts are not in dispute.
- How is the court likely to rule on the defendant's motion for summary judgment? Select one.
Answer: Deny the motion, because the conflict between the plaintiff's two statements creates a genuine issue of material fact regarding his conduct, which must be resolved by a jury.
The correct answer is B. On a motion for summary judgment, the court's role is not to weigh the evidence or determine credibility. Here, there are two conflicting pieces of sworn testimony from the plaintiff. A jury must decide which version to believe. The prior statement can be used to impeach the plaintiff's credibility at trial, but for summary judgment purposes, the contradiction itself creates a genuine dispute of material fact. The court must view the facts in the light most favorable to the non-movant, which means crediting his current deposition testimony for purposes of the motion. A is incorrect because testimony from a prior case is generally not a binding judicial admission in a subsequent case. C is incorrect; the 'sham affidavit' doctrine applies when a party submits an affidavit to contradict their own prior deposition testimony in the same case without explanation. It does not apply as readily to conflicting testimony from two different proceedings. D is incorrect as prior sworn testimony is generally admissible and can be used to support a summary judgment motion.
- How should the court rule on the officer's motion for summary judgment? Select one.
Answer: Deny the motion, because when facts are in dispute, the court must adopt the plaintiff's version of events for the purpose of the qualified immunity analysis.
The correct answer is B. When deciding a summary judgment motion based on qualified immunity, the court is required to view the facts in the light most favorable to the non-moving party (the plaintiff). Here, there is a direct conflict in evidence: the officer claims the plaintiff had a weapon, and the plaintiff claims he was unarmed. The video evidence is not conclusive and does not 'blatantly contradict' the plaintiff's story. Therefore, the court must assume the plaintiff's version of the facts is true and then determine if, under those facts, the officer violated clearly established law. Because the factual premise is in dispute, summary judgment must be denied. A is incorrect because under Scott v. Harris, video evidence only trumps testimonial evidence if it is so clear that it blatantly contradicts the testimony. A grainy, unclear video does not meet this standard. C is incorrect because it resolves the factual dispute in the officer's favor. D is an overstatement of the law; the reasonableness of force depends on the totality of the circumstances.
- How should the court treat the driver's motion for summary judgment? Select one.
Answer: The court should deny the motion because the driver, as the defendant, is improperly using his own conviction against the bicyclist.
The correct answer is A. The driver's motion is procedurally and substantively nonsensical. A party cannot move for summary judgment against itself to establish its own liability. The driver appears to be confused, essentially arguing for summary judgment in the plaintiff's favor. Issue preclusion (collateral estoppel) is used to prevent a party from re-litigating an issue they lost in a prior case; it cannot be used offensively by the party who lost. B is incorrect because the driver cannot use preclusion against the bicyclist based on the driver's own conviction. C is incorrect because a criminal conviction is often admissible, typically as an exception to hearsay. D is plausible in identifying the confusion, but the motion itself is fundamentally flawed. Denying it is the most direct and proper course of action because the movant is not seeking a judgment in his favor, which is the purpose of a summary judgment motion.
- What is the most likely outcome of the surgeon's motion for summary judgment? Select one.
Answer: The motion will be granted, because the patient failed to provide expert testimony to create a genuine dispute on the element of breach of the standard of care.
The correct answer is B. In a medical malpractice case, the plaintiff must typically prove the relevant standard of care and that the defendant's conduct breached that standard. These are matters that require expert testimony because they are beyond the knowledge of a layperson. The surgeon met his initial burden by providing an expert affidavit stating he met the standard of care. The burden then shifted to the patient. Her own affidavit about her injuries speaks to damages, but it does not create a factual dispute about the standard of care or breach. Without her own expert, she cannot create a genuine dispute on this essential element. A is incorrect because a dispute about damages is immaterial if the plaintiff cannot first establish liability. C is incorrect because without conflicting expert testimony, there is no factual dispute for a jury to resolve and no basis to challenge the expert's credibility. D mentions res ipsa loquitur, which can sometimes apply in medical cases ('the thing speaks for itself'), but it would not apply here where the issue is the surgeon's specific conduct during a complex procedure, and even if it did, the patient would need to raise it.
- What is the most likely outcome of the cross-motions for summary judgment? Select one.
Answer: The court will likely deny both motions, because each party has presented evidence creating a genuine dispute of material fact regarding different essential elements of the fraud claim.
The correct answer is B. When considering cross-motions for summary judgment, the court evaluates each motion independently, viewing the evidence in the light most favorable to the respective non-moving party. Here, the plaintiff has evidence for the misrepresentation element, and the defendant has evidence negating the reliance element. Because a reasonable jury could find for either party on these disputed elements (misrepresentation and reliance), genuine disputes of material fact exist. Therefore, summary judgment is inappropriate for either party. A is incorrect because the filing of cross-motions does not mean the parties agree on the facts; it simply means each party believes it is entitled to judgment as a matter of law based on its own version of the facts. C and D are incorrect because the court cannot grant summary judgment for one party when the other has presented sufficient evidence to create a jury question on an essential element of the claim or defense.
- If the court grants the plaintiff's unopposed motion for summary judgment on the counterclaim, what is the effect of that ruling? Select one.
Answer: The defendant's counterclaim is dismissed, but the plaintiff's original claim against the defendant proceeds to trial.
When you encounter a question about summary judgment on part of a case, focus on understanding that civil cases can have multiple claims that are resolved separately. Summary judgment disposes of specific claims when there's no genuine dispute of material fact, but it doesn't automatically affect other pending claims.
Here, the court granted summary judgment specifically on the defendant's counterclaim. This means the counterclaim is completely resolved and dismissed - the defendant can no longer pursue that claim against the plaintiff. However, the plaintiff's original negligence claim against the defendant remains entirely unaffected and will proceed to trial. Think of it like clearing one item off a multi-item agenda; the remaining business continues.
Answer A is wrong because only the counterclaim is dismissed, not the entire case. The plaintiff's original claim is still pending. Answer B incorrectly characterizes this as an interlocutory order with no immediate effect. While summary judgment orders can sometimes be interlocutory, this one has immediate effect by conclusively disposing of the counterclaim. Answer C makes a fundamental error about issue preclusion - summary judgment on the counterclaim doesn't establish facts that bind other claims. The ruling only determined that the defendant couldn't prove his counterclaim, which doesn't automatically prove the defendant was negligent for purposes of the plaintiff's separate claim.
Remember that in multi-claim litigation, each claim stands or falls on its own merits. Summary judgment resolves individual claims definitively, but other claims continue independently unless they're factually or legally dependent on the resolved claim.
- What would be the employee's best response to the motion for summary judgment? Select one.
Answer: File a motion under FRCP 56(d), arguing that she cannot present facts essential to her opposition without deposing the supervisor about his motives and the authenticity of the logs.
The correct answer is B. Under FRCP 56(d), if a non-movant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may defer considering the motion or allow time for discovery. Here, the employee needs to depose the supervisor to challenge his stated reason for the termination and inquire about his knowledge of her safety report, which is crucial for proving retaliatory motive. A is incorrect because while credibility is a jury issue, a non-movant cannot simply rest on assertions that a witness might be lying; they must provide a basis for that challenge, which often requires discovery. C is a valid response, but B is a better response because it addresses the procedural reality that the employee has not yet had the key discovery needed to fully oppose the motion. D is incorrect because the employer, as the movant, does not need to disprove the employee's claim; it only needs to show an absence of evidence for her claim or provide a legitimate, non-retaliatory reason for the firing, which it has done.
- How is the court most likely to rule on the executive's motion? Select one.
Answer: Grant or deny the motion on its merits, because the reasonableness of a non-compete covenant can be a pure question of law that does not depend on further factual development.
The correct answer is C. A motion for summary judgment can be filed at any time until 30 days after the close of discovery. The central issue raised by the executive's motion is the legal enforceability of the contract's terms, a question of law. If the court can determine from the face of the agreement that it is unreasonable as a matter of law, it can grant summary judgment without the need for discovery. Conversely, if the reasonableness determination depends on industry standards or other facts, the court might deny it or allow for discovery. The key is that the court can rule on it. A is incorrect because prematurity is not an automatic bar; summary judgment can be granted if the issue is purely legal. B is incorrect because the motion is properly a summary judgment motion since it relies on evidence outside the pleadings (the agreement itself), even if it is attached to the complaint. It tests the legal sufficiency based on undisputed facts, not the sufficiency of the allegations. D is an overstatement and addresses the ultimate merits rather than the procedural appropriateness of the motion; while courts are wary of such agreements, granting the motion is not automatic.
- How should the court rule on the insurance company's motion for summary judgment? Select one.
Answer: Deny the motion, because the homeowner's sworn denial that he set the fire creates a genuine dispute of material fact.
When you encounter a summary judgment question, remember that the standard is whether there's a genuine dispute of material fact that requires a jury trial. The moving party must show no reasonable jury could find for the non-moving party, but any reasonable inferences must be drawn in favor of the non-moving party.
Here, the insurance company must prove the homeowner committed arson to invoke the policy exclusion. While they have evidence of an incendiary fire and the homeowner's financial motive, this creates only circumstantial evidence. The homeowner's sworn affidavit denying he set the fire directly contradicts the inference that he's the arsonist. This sworn testimony creates a genuine factual dispute about who started the fire, which must be resolved by a jury, not by summary judgment.
Answer A incorrectly suggests circumstantial evidence alone is sufficient when direct contradictory evidence exists. The homeowner's denial prevents any reasonable jury from being compelled to conclude he set the fire. Answer B misunderstands the legal standard - the fire marshal's inability to identify the arsonist doesn't defeat the company's case, since circumstantial evidence could still support their position absent the homeowner's denial. Answer C improperly shifts the burden to the homeowner to prove an alternative theory, but as the non-moving party, he only needs to create doubt about the company's theory.
On summary judgment questions, look for sworn testimony or other admissible evidence that directly contradicts the moving party's version of events. Such contradictions almost always create genuine disputes requiring jury resolution.
- How should the court rule on the landlord's motion for summary judgment? Select one.
Answer: Deny the motion, because the landlord, as the moving party, failed to submit evidence negating the tenant's affirmative defense of breach of the warranty of habitability.
The correct answer is D. When a moving party (here, the landlord) has the burden of proof at trial, it must do more than just present its prima facie case. To obtain summary judgment, the movant must also show that there is no genuine dispute of material fact regarding any of the non-movant's properly pleaded affirmative defenses. Here, the landlord's motion only addressed his own claim (the unpaid rent) and failed to present any evidence to foreclose the tenant's affirmative defense regarding habitability. Therefore, the landlord has not met his full burden as the movant. A is incorrect because even if the tenant does not respond, the court cannot grant summary judgment unless the movant has met its initial burden of showing it is entitled to judgment as a matter of law. B is incorrect because merely pleading an affirmative defense is not enough; the non-movant must eventually produce evidence to support it, but the initial burden is on the movant to show the defense is not a triable issue. C is incorrect because failure to respond to a summary judgment motion is not a default; the court must still analyze the merits of the motion.
- What is the probable outcome of the manufacturer's motion? Select one.
Answer: It will be granted, because the manufacturer met its initial burden by showing that the driver has insufficient evidence to support an essential element of his claim.
The correct answer is B. A party moving for summary judgment who does not bear the burden of proof at trial (like the defendant here) can meet its initial burden in two ways: (1) by submitting affirmative evidence that negates an essential element of the non-moving party's claim, or (2) by demonstrating that the non-moving party's evidence is insufficient to establish an essential element of their claim. The manufacturer has successfully done the latter by pointing to the driver's own deposition and lack of expert testimony. The burden then shifts to the driver to produce evidence of a defect, which he apparently cannot do. A is incorrect because a movant without the trial burden is not required to produce affirmative evidence. C is incorrect because res ipsa loquitur is a negligence doctrine, not typically applied in strict liability cases, and even if it were, the driver would need to lay a foundation for it, which he hasn't done. D is incorrect because while such claims often require expert testimony, there is no absolute rule; a defect could sometimes be proven by other means. However, the key issue here is the movant's burden, which was met.
