CIV PRO 2:.PROBLEM FIVE
Al and Bob sign a contract. Bob promises to sell real property, known as Blackacre, to
Al for $100,000.00. Al then gives Bob a $10,000.00 check as a down payment. When
Al subsequently offers the balance to Bob, Bob refuses to deed Blackacre to Al.
Al sues Bob in federal court. Bob responds by filing a motion to dismiss Al’s
complaint—on the basis that Al’s suit lacks subject matter jurisdiction. Al
immediately reacts by dismissing Al’s own complaint, prior to the hearing on Bob’s
motion. Al refiles Al’s suit against Bob in the same court, raising the same issues. The
only difference is that Al cures the jurisdictional defect. Bob responds with a motion
to dismiss this second suit, on the basis that Al’s second suit is barred by the doctrine
of res judicata—that is, Al is suing Bob again on the same claim (and in the same
court). [I know—we have not yet studied res judicata. But you should be able to
answer the voluntary dismissal question anyway.] This motion is denied.
Bob then files a general denial of liability for breach of contract. The case proceeds to
trial on the merits. Al’s lawyer presents Al’s case, in which Al’s lawyer places the
contract into evidence; testimony from Al that Al gave Bob the down payment; and
that Al was “ready, willing, and able” to give Bob the balance—but Bob refused to
perform.
Bobs lawyer then presents Bobs trial evidence, which is: (a) identical to Al’s
deposition testimony; (b) that Al did not actually tender the down payment for this
contract; and (c) that Bob was thus not required to perform the contractual obligations
claimed by Al. Al’s testimony included that Al wrote a good check which did not
bounce. Bob then makes a motion for judgment. The judge denies Bob’s motion.
The judge then proceeds to give jury instructions. These include: (1) Al’s jury
instructions on the applicable law of contracts; and (2) Bob’s defense instructions on
the statute of frauds, and the statute of limitations. All requested instructions are
contained in the Book of Approved Jury Instructions (i.e., not generally subject to
attack on the basis of either form or substance). The judge reads all requested jury
instructions to the jury. The jury returns a general verdict for the defendant.
1. Can Al properly dismiss his first suit, without court approval—
....and should Bob’s motion attacking Al’s second suit be granted?
2. Is there a right to jury trial in this case?
3. Did the judge err, when ruling on Bob’s pre-verdict motion for judgment?
4. Did the judge err regarding the instructions phase of this trial?
....(Assume that the form & content of the instructions are not objectionable.)
This is the deposition of Plaintiff Al, taken in San Diego, on May 5, 2014, by counsel for the
defendant (whose name is Larry Lawyer). Al Plant is represented by plaintiff’s counsel, who
makes no remarks other than an objection on the record below:
Al R. Plant, Plaintiff
)
v.
)
Bob Deftman, Defendant )
UNITED STATES DISTRICT COURT
Southern District of California
San Diego, California
No. 654321-EBG
DEPOSITION OF PLAINTIFF
***
Q: Now that you have been sworn, and I have explained why we are here today, let’s cut right to
the chase so that you can get a taste of what it’s going to be like in trial, should you decide not to
dismiss your case after this deposition or settle for the peanuts that its worth. [No, this isn’t
recommended but there’s no reason we can’t make this exercise interesting!]
A: Yeah, right.
Q: Have you taken your meds today?
A: Objection.
Q: Let me rephrase that—are you feeling ok today, so that we can take and conclude this
deposition today?
A: Yeah, uh-huh, yeah.
Q: Please respond orally when I ask questions. That’s because the deposition reporter can’t
readily record hand gestures during this proceeding. First, what do you want in this lawsuit?
A: Orally.
Q: No, no—I meant just answer with verbal responses, in your own words, without relying upon
hand gestures as a response. Ok?
A: Yeah, uh-huh, yeah. Sure, think I got the picture.
Q: Mr. Plant, do you get watered twice a week?
A: Objection, Larry...that’s argumentative!
Q: Strike my question—What do you want from Bob Deftman in this lawsuit?
A: Like, justice, man. I mean, you know, he ripped me off.
Q: Like how, dude?
A: Well, like he won’t give me Blackacre and I gave him 10 “Gs” already.
Q: Could you be more specific?
A: Yes I could (long deafening pause, with no further explanation by witness).
Q: Let me help you, if that is possible: Was the $10,000.00 a down payment?
A: Yes. I still owe him 90 “Gs” & he owes me the deed.
Q: If you were unable to prove your case at trial, would you expect the return of your down
payment?
A: Depends on whether I can go hunting with Bob, sometime. He really took advantage of me
on this one.
[At this point, counsel conducted an off-the-record discussion, regarding further deposition
answers by the deponent Al.]
Q: Mr. Plant, did your agreement with Mr. Deftman provide that you would be entitled to the
return of your down payment if this deal was not completed?
A: Right. Sorry, no. I mean, yes.
Q: Your answer to my question is “Yes?”
A: Like, yes.
Q: Well is that “like” yes, or just yes?
A: Just yes, yeah, uh-huh, yes.
Q: So could Bob keep the $10,000.00 down payment if, for any reason, this deal didn’t work
out?
A: That’s absolutely correct, and one of the many reasons why I sued the bast—I mean Bob.
In fact there should be a contract provision, stating that I am entitled to the money back if this
land deal fails to get consummated.
Q: By the way, did you actually give Bob the $10,000.00 down payment before your deposition?
A: Huh?
Q: Did you give the money to Bob? Would you like me to break my question down further for
you? Let me restate the question, Mr. Plant: Did you give Bob the down payment for Blackacre?
A: Well, not exactly.
Q: What do you mean by “not exactly?”
A: I gave him a check that bounced. He’s working on collecting it as we speak. It may have
cleared just today. Then he’s definitely got my money and of course I’m entitled to its return if I
don’t get a judgment in my favor. At least that’s what my counsel over there tells me.
Q: Thank you, Mr. Plant. That will be all for today. I don’t want to tax you any further.
.........................................................................* * *
[Closing stipulations re deponents signature, etc.].