Bar Exam (Uniform) Quiz: Summary Judgment

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Summary JudgmentQuestion 1 of 20

A landlord sued a tenant in federal diversity court for unpaid rent. The tenant's answer admitted to signing the lease and not paying rent but raised the affirmative defense of breach of the implied warranty of habitability. After discovery, the landlord moved for summary judgment on his claim for unpaid rent. The landlord's motion and supporting documents established the existence of the lease and the amount of rent owed. The tenant filed no response to the landlord's motion.

How should the court rule on the landlord's motion for summary judgment? Select one.

Grant the motion, because the tenant's failure to respond means the landlord's asserted facts are deemed admitted and the landlord is entitled to judgment.

Deny the motion, because the tenant's answer raised an affirmative defense, which creates a genuine dispute of material fact that precludes summary judgment.

Grant a default judgment against the tenant, because the tenant failed to defend against the motion.

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.

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Bar Exam (Uniform) Quiz

Bar Exam (Uniform) Quiz: Summary Judgment

Practice Summary Judgment in Bar Exam (Uniform) with focused quiz questions that help you check what you know, review explanations, and build confidence with test-style prompts.

What this quiz covers

This quiz focuses on Summary Judgment, giving you a quick way to practice the rules, question types, and explanations that matter most for Bar Exam (Uniform).

How to use this quiz

Try each quiz question before looking at the correct answer. Use the explanations to review missed ideas, then come back to similar questions until the pattern feels familiar.

All questions

Question 1

How should the court rule on the landlord's motion for summary judgment? Select one.

Grant the motion, because the tenant's failure to respond means the landlord's asserted facts are deemed admitted and the landlord is entitled to judgment.
Deny the motion, because the tenant's answer raised an affirmative defense, which creates a genuine dispute of material fact that precludes summary judgment.
Grant a default judgment against the tenant, because the tenant failed to defend against the motion.
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. (correct answer)

Explanation: 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.

Question 2

A driver sued a car manufacturer in federal court under a theory of strict products liability, alleging a defective brake system caused his accident. After discovery, the manufacturer moved for summary judgment. The manufacturer's motion did not include any affidavits or expert reports. Instead, the motion pointed to the driver's deposition testimony, in which the driver admitted he had no specific knowledge of how the brakes failed and had not hired an expert to examine the vehicle. The manufacturer argued that because the driver lacked evidence of a specific defect, an essential element of his claim, summary judgment was appropriate.

What is the probable outcome of the manufacturer's motion? Select one.

It will be denied, because the manufacturer failed to produce any affirmative evidence, such as an expert report, showing the brakes were not defective.
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. (correct answer)
It will be denied, because the doctrine of res ipsa loquitur allows an inference of defect that the driver can argue to the jury.
It will be granted, because products liability claims cannot survive summary judgment without expert testimony.

Explanation: 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.

Question 3

A former employee sued her employer in federal court for wrongful termination, claiming she was fired in retaliation for reporting a safety violation. The employer moved for summary judgment, attaching a sworn affidavit from the employee's supervisor. The affidavit stated that the employee was fired for persistent tardiness, and it attached time-stamped entry logs showing the employee was late 15 times in the month before her termination. The employee had not yet deposed the supervisor.

What would be the employee's best response to the motion for summary judgment? Select one.

Argue that the supervisor's affidavit is self-serving and that the motion should be denied to allow a jury to assess the supervisor's credibility.
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. (correct answer)
Submit her own affidavit stating that the time logs are inaccurate and that she was never late.
Argue that the motion is premature because the employer, as the moving party, has not disproven her claim of retaliatory motive.

Explanation: 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.

Question 4

A plaintiff filed a lawsuit in federal court against a defendant for fraud. After the close of discovery, both parties filed cross-motions for summary judgment. The plaintiff's motion provided substantial evidence of the defendant's misrepresentations. The defendant's motion provided substantial evidence that the plaintiff did not actually rely on the misrepresentations. The court reviews both motions.

What is the most likely outcome of the cross-motions for summary judgment? Select one.

The court must grant one of the motions, because the filing of cross-motions indicates that the parties agree there are no genuine disputes of material fact.
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. (correct answer)
The court will grant the defendant's motion, because lack of reliance is a complete defense to fraud, regardless of whether misrepresentations were made.
The court will grant the plaintiff's motion, because the defendant's evidence on reliance does not negate the evidence of misrepresentation.

Explanation: 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.

Question 5

A plaintiff sued a defendant for negligence in federal court. The defendant's answer included a counterclaim against the plaintiff for negligence arising from the same incident. The plaintiff moved for summary judgment, but only on the defendant's counterclaim. The plaintiff's motion included evidence that, if believed, would show the defendant could not prove an element of his counterclaim. The defendant did not respond to the motion for summary judgment on the counterclaim, focusing instead on prosecuting his own case against the plaintiff.

If the court grants the plaintiff's unopposed motion for summary judgment on the counterclaim, what is the effect of that ruling? Select one.

The entire case is concluded, and the defendant's claims are dismissed.
The ruling is a non-final, interlocutory order that has no immediate effect until the plaintiff's claim is resolved.
The court's ruling establishes the defendant's negligence for the purposes of the plaintiff's original claim through issue preclusion.
The defendant's counterclaim is dismissed, but the plaintiff's original claim against the defendant proceeds to trial. (correct answer)

Explanation: 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.

Question 6

A bicyclist sued a driver in federal court, alleging the driver negligently ran a red light and struck him in the intersection. The driver moved for summary judgment. In support, the driver attached a certified copy of his own conviction for reckless driving from a state criminal court, which arose from the same incident. The driver argued that because he was convicted of reckless driving, which requires a higher degree of culpability, his negligence is established as a matter of law and the bicyclist cannot contest this fact.

How should the court treat the driver's motion for summary judgment? Select one.

The court should deny the motion because the driver, as the defendant, is improperly using his own conviction against the bicyclist. (correct answer)
The court should grant the motion because the criminal conviction has a preclusive effect, establishing the driver's fault.
The court should deny the motion because a conviction for reckless driving is not admissible evidence in a subsequent civil trial.
The court should treat the motion as one for partial summary judgment on the issue of breach of duty, as the driver has confused his liability.

Explanation: 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.

Question 7

You represent a plaintiff who was injured after slipping and falling on a wet floor in a grocery store. The complaint, filed in federal court, alleges the store's employees were negligent in failing to clean up a spill. The store has moved for summary judgment. In support of its motion, the store submitted deposition testimony from two employees who stated they had inspected the aisle five minutes before the plaintiff fell and saw no spill. The store argues that this evidence shows it acted with reasonable care. You have no eyewitnesses or other direct evidence to rebut the employees' testimony.

What would be your client's best response to the motion for summary judgment? Select one.

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. (correct answer)
File a cross-motion for summary judgment, arguing that the store has admitted its employees were in the area and thus had constructive notice of the spill.
Argue that the motion should be denied because the complaint sufficiently alleges the elements of negligence, creating a triable issue.
Submit an affidavit from your client stating that he did not see any 'wet floor' signs, creating a factual dispute over the store's negligence.

Explanation: 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.

Question 8

What would be the employee's best response to the motion for summary judgment? Select one.

Argue that the supervisor's affidavit is self-serving and that the motion should be denied to allow a jury to assess the supervisor's credibility.
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. (correct answer)
Submit her own affidavit stating that the time logs are inaccurate and that she was never late.
Argue that the motion is premature because the employer, as the moving party, has not disproven her claim of retaliatory motive.

Question 9

A corporation sued a former executive in federal court for breaching a non-compete agreement. The executive filed an answer and then immediately moved for summary judgment. In her motion, the executive argued that the non-compete agreement is legally unenforceable as a matter of public policy because its geographic scope is unreasonably broad. The motion attaches a copy of the agreement but no affidavits or other evidence. The corporation opposes the motion, arguing that summary judgment is improper before any discovery has taken place.

How is the court most likely to rule on the executive's motion? Select one.

Deny the motion, because the motion is premature as no discovery has occurred.
Convert the motion to a motion to dismiss for failure to state a claim, because it was filed before discovery and relies only on the pleadings and an attached exhibit.
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. (correct answer)
Grant the motion, because public policy strongly disfavors overly broad non-compete agreements.

Explanation: 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.

Question 10

A plaintiff sued a defendant in federal court over a breach of contract. The plaintiff moved for summary judgment on the issue of liability. In support, the plaintiff submitted a sworn affidavit stating that the contract was formed and that the defendant failed to perform. The defendant, in opposition, submitted his own sworn affidavit. The defendant's affidavit stated, "I deny the plaintiff's allegations. We did not have a contract, and I did not breach any duties." The defendant's affidavit did not provide any further details or supporting facts.

How should the court rule on the plaintiff's motion for summary judgment? Select one.

Deny the motion, because the conflicting affidavits create a classic swearing contest that must be resolved by a jury.
Grant the motion, because the defendant's affidavit is conclusory and fails to set forth specific facts showing a genuine dispute. (correct answer)
Deny the motion, because the plaintiff, as the party with the burden of proof, cannot obtain summary judgment based solely on the testimony of an interested party.
Grant the motion, because the defendant failed to submit documentary evidence, such as emails or letters, to support his denial of the contract.

Explanation: 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.

Question 11

A concert promoter sued a famous singer in federal court for breach of contract after the singer cancelled a performance. The singer moved for summary judgment, arguing the contract was void under the doctrine of mutual mistake. In support, the singer submitted an affidavit stating that she believed the concert was to be held at a large outdoor amphitheater, while the promoter's documents show it was booked for a small indoor club. In his deposition, the promoter testified, "We discussed the venue multiple times. I specifically mentioned the name of the club, and she never objected or seemed confused." The promoter attached this deposition testimony to his opposition.

How should the court rule on the singer's motion for summary judgment? Select one.

Grant the motion, because the singer's affidavit establishes her subjective mistaken belief, which is the key element of mutual mistake.
Grant the motion, because the conflicting evidence shows there was no meeting of the minds required for contract formation.
Deny the motion, because the promoter's deposition testimony creates a genuine dispute of material fact as to whether the mistake was mutual. (correct answer)
Deny the motion, but only if the promoter also submits evidence that the singer's mistake was not reasonable.

Explanation: 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.

Question 12

A patient sued a surgeon for medical malpractice in federal court. The surgeon moved for summary judgment. In support of the motion, the surgeon attached an affidavit from a renowned medical expert. The expert's affidavit reviewed the patient's medical records and concluded that the surgeon's conduct complied with the applicable standard of care. The patient, in opposition, filed her own affidavit describing the surgery and her resulting injuries. The patient did not include an expert affidavit.

What is the most likely outcome of the surgeon's motion for summary judgment? Select one.

The motion will be denied, because the patient's testimony about her injuries creates a factual dispute regarding damages.
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. (correct answer)
The motion will be denied, because the credibility of the surgeon's expert can only be assessed by a jury at trial.
The motion will be granted, because the doctrine of res ipsa loquitur does not apply when the defendant provides expert evidence of non-negligence.

Explanation: 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.

Question 13

A company sued a competitor in federal court for patent infringement. The competitor moved for summary judgment, arguing non-infringement. In support, the competitor submitted a detailed affidavit from its lead engineer explaining why its product did not contain a key element of the company's patent claim. In opposition, the company submitted an affidavit from its own in-house counsel. The affidavit stated: "Based on my review of the patent and the competitor's product schematics, it is my legal opinion that the competitor's product clearly infringes on our patent."

How should the court treat the affidavit from the in-house counsel when deciding the motion for summary judgment? Select one.

The court should give it full weight, as an attorney is qualified to offer an opinion on the legal issue of patent infringement.
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. (correct answer)
The court should treat it as creating a genuine dispute of material fact, because it directly contradicts the conclusion of the competitor's engineer.
The court should allow the company to supplement the affidavit with deposition testimony from the counsel to establish personal knowledge.

Explanation: 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.

Question 14

A plaintiff brought a quiet title action in federal court concerning a parcel of land, claiming ownership by adverse possession. The relevant state statute requires possession to be 'open, notorious, continuous, and hostile' for 15 years. The defendant, the record title holder, moved for summary judgment. The defendant attached land registry records showing she purchased the property 10 years ago. The defendant argued that since she was the owner for the last 10 years, the plaintiff could not possibly meet the 15-year statutory period against her.

What is the plaintiff's best argument in opposition to the defendant's motion for summary judgment? Select one.

The defendant's evidence is insufficient because it does not prove the plaintiff was not on the property.
The doctrine of 'tacking' allows the plaintiff to add the period of a predecessor's adverse possession to his own, which may satisfy the 15-year requirement.
Summary judgment is never appropriate in adverse possession cases because the 'hostile' element is a question of intent for the jury.
The defendant's purchase of the property does not interrupt the continuity of the plaintiff's possession. (correct answer)

Explanation: 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.

Question 15

You are representing a plaintiff in a breach of contract action in federal court. The defendant has moved for summary judgment. The motion is well-supported with affidavits and documents that appear to show your client's claim has no merit. After reviewing the motion, you realize you made a mistake during discovery and failed to depose a key third-party witness whose testimony would directly contradict the defendant's evidence and create a genuine dispute of material fact.

What is your most appropriate course of action in response to the summary judgment motion? Select one.

File an opposition arguing that the defendant's evidence is not credible and that a jury should decide the case.
File a notice of voluntary dismissal under FRCP 41 to avoid a judgment against your client and re-file the case later.
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. (correct answer)
File an opposition with an affidavit from your client, stating what he believes the third-party witness would say if deposed.

Explanation: 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.

Question 16

A homeowner sued a pest control company in federal court, alleging that the company's negligent application of pesticides caused significant damage to his rare orchid collection. Discovery has concluded. The company moved for summary judgment, arguing that the homeowner has no evidence that the company's pesticide, rather than some other environmental factor, caused the damage. In support, the company attached an expert report stating that the damage was inconsistent with pesticide exposure. In response, the homeowner submitted an affidavit stating, "I am certain the pest control company killed my orchids. They were fine before the company sprayed, and they were dying afterward."

How should the court rule on the company's motion for summary judgment? Select one.

Grant the motion, because the homeowner's affidavit contains conclusory allegations and does not set forth specific facts creating a genuine dispute. (correct answer)
Deny the motion, because the timing of the orchid damage creates a sufficient factual dispute for a jury to resolve.
Deny the motion, because the credibility of the company's expert is a matter for the jury to determine.
Grant the motion, because the homeowner failed to produce his own expert report to rebut the company's expert.

Explanation: 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.

Question 17

How should the court rule on the landlord's motion for summary judgment? Select one.

Grant the motion, because the tenant's failure to respond means the landlord's asserted facts are deemed admitted and the landlord is entitled to judgment.
Deny the motion, because the tenant's answer raised an affirmative defense, which creates a genuine dispute of material fact that precludes summary judgment.
Grant a default judgment against the tenant, because the tenant failed to defend against the motion.
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. (correct answer)

Question 18

In a federal court case, the plaintiff alleged that the defendant, a police officer, arrested him without probable cause. In his deposition, the plaintiff testified that he was standing peacefully on a corner when the officer arrested him for no reason. The defendant moved for summary judgment and attached the plaintiff's deposition testimony from a prior, unrelated civil case. In that prior testimony, the plaintiff had stated, "I was shouting at passersby and blocking the sidewalk right before I was arrested." The defendant argues that this prior inconsistent statement proves he had probable cause for a disorderly conduct arrest.

How is the court likely to rule on the defendant's motion for summary judgment? Select one.

Grant the motion, because the plaintiff's prior sworn testimony is a binding judicial admission that he cannot now contradict.
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. (correct answer)
Grant the motion, because the court is permitted to disregard testimony it finds to be a 'sham' designed to create a factual issue.
Deny the motion, because evidence from a prior, unrelated case is inadmissible to support a summary judgment motion.

Explanation: 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.

Question 19

A homeowner sued an insurance company in federal court after the company denied a claim for fire damage. The insurance policy contained an exclusion for fires 'caused by arson by the insured.' The company moved for summary judgment. It produced a report from the fire marshal stating the fire was 'incendiary in origin' (arson) and evidence that the homeowner was in severe financial distress. In opposition, the homeowner submitted an affidavit in which he swore he did not set the fire. He also pointed to the fire marshal's deposition, in which the marshal admitted he could not identify who set the fire.

How should the court rule on the insurance company's motion for summary judgment? Select one.

Grant the motion, because the undisputed evidence of arson and motive is sufficient for a reasonable jury to conclude the homeowner set the fire.
Deny the motion, because the fire marshal could not identify the arsonist, meaning an essential element of the company's defense is missing.
Grant the motion, because the homeowner failed to provide an alternative theory for the cause of the fire supported by expert testimony.
Deny the motion, because the homeowner's sworn denial that he set the fire creates a genuine dispute of material fact. (correct answer)

Explanation: 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.

Question 20

How should the court treat the affidavit from the in-house counsel when deciding the motion for summary judgment? Select one.

The court should give it full weight, as an attorney is qualified to offer an opinion on the legal issue of patent infringement.
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. (correct answer)
The court should treat it as creating a genuine dispute of material fact, because it directly contradicts the conclusion of the competitor's engineer.
The court should allow the company to supplement the affidavit with deposition testimony from the counsel to establish personal knowledge.