.....................CIV PRO TWO.....PROBLEM
THREE
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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 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 the 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--when Bob refused to perform. Bob's lawyer then presents Bob's trial evidence, which is identical to Al's deposition testimony, and that Al did not tender the money due on this contract, and that Bob was thus not required to perform the contractual obligations claimed by Al. Bob then makes an oral motion for judgment in the presence of the jury. The judge warns Bob's lawyer that "your motion had better be airtight, because your client's case is very shaky." The judge denies Bob's motion. The judge then proceeds to give jury instructions. These include Al's requested jury instructions on: (1) the applicable law of contracts; and (2) that Al ultimately wrote a good check which did not bounce. Bob's requested defense instructions on failure to tender payment of the balance due, statute of frauds, and statute of limitations. All requested instructions are contained in the Book of Approved Jury Instructions (i.e., not subject to attack on the basis of either form or substance in such cases). 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-- |
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..........................................SUPPLEMENTAL FILE ............................UNITED STATES DISTRICT COURT .........................Southern District -- San Diego, California |
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...Al
R. Plant |.........v. .........................................................................................Case # 654321-EBG ...Bob Deftman |
| Note: This is the deposition of Plaintiff Al, taken in San Diego, on March 1, 200_, 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 which follows: |
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....................................................................* * * 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 it's worth. [No, this isn't recommended but there's no reason we can't make this 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, uhhuh, yeah. Q: Please respond orally when I ask questions. That's because the deposition reporter can't readily record hand gestures during this proceeding. Now, 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, uhhuh, 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 "G's" already. Q: Could you be more specific? A: Yes (long 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 "G's" & 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, uhhuh, 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's 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 yet? 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 downpayment 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. .........................................................................*
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