Civil Procedure II Prof. Weston Practice Exam Question (60 minutes) Spring 2004 Petunia Peters sued Darkhorse Corporation in federal district court in the state of Nevada, alleging that defendant wrongfully fired her last year. Jurisdiction was based on diversity of citizenship: Petunia is a citizen of California and Darkhorse of Nevada, where it also has its principal place of business; the amount in controversy requirement is satisfied. Petunia’s complaint alleges breach of contract; she seeks reinstatement in her job and back pay. Nevada has a one-year statute of limitations for oral contracts and a four-year statute for contracts in writing. Darkhorse answers, denying critical allegations in the complaint and alleging as an affirmative defense that the statute of limitations has run on the breach of contract claim because the dismissal occurred more than a year before suit was filed. 1. As a result of an early pretrial conference devoted to the statute of limitations issue, Darkhorse learns that Petunia’s lawyer contends there was a written contract in effect. It thereupon requests that she produce all documents constituting the alleged contract. Petunia’s lawyer believes that some of the statements in Darkhorse’s personnel manual, combined with some oral statements about the manual, are sufficient to constitute a written contract for statute of limitations purposes. Petunia refuses to produce the required documents, her lawyer claiming that they are work product because their disclosure would reveal counsel’s legal strategy. Darkhorse moves to compel production and for attorney fees covering the cost of the motion. How should the court rule?
2.
With her complaint, Petunia filed a demand for jury trial. Darkhorse opposes this demand. Should a jury be impanelled? If so, what should the judge ask it to decide? After several pretrial conferences, Petunia’s lawyer decided the judge would be fair and withdrew her jury trial demand. Petunia won the ensuing bench trial, the judge ruling that the personnel manual did constitute a contract and that she was dismissed in breach of its promises; he ordered reinstatement and back pay. Thereafter, Petunia’s filed a new lawsuit in state court, alleging claims for wrongful termination in tort and sexual discrimination in employment against Darkhorse and seeking compensatory and punitive relief. Petunia also files a motion for summary judgment, contending that the Darkhorse is estopped from relitigating the wrongful termination issue, which was decided in the first action. How should the defendant Darkhorse respond?
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