The February 2015 Bar Exam: Federal Civil Procedure Question Analysis

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Bar Professors has discussed Federal Civil Procedure with many students and we have decided to do something new. We are going to post some Federal Civil Procedure questions here, a few times a week, on this blog. Once you have digested the question, please go to our facebook page, https://www.facebook.com/BarProfessors, and find the answer explanation. Here is the next question:

Carla Smith sued Dr. Jones for medical malpractice in a federal district court in Kentucky. Smith failed to serve an expert report regarding Dr. Jones’s actions, as required by Kentucky law. The district judge, therefore, dismissed Smith’s complaint with prejudice. Smith filed a motion for new trial on May 5, 2014, but the district judge overruled Smith’s motion in a signed order entered in the civil docket on May 12, 2014. Smith, however, did not receive notice of the district court’s entry of the order denying her motion for a new trial until June 24, 2014, because the court clerk did not mail notice of the entry of the order to Smith’s attorney, What, if anything, can Smith do to prosecute an appeal to the court of appeals?

A. Because the time to commence an appeal has expired, Smith cannot do anything.
B. Smith can file a motion for extension of time to commence the appeal within 90 days after the entry of the order denying Smith’s motion for a new trial.
C. Under Rule 60(b), Smith can ask the trial court to vacate the order denying the new trial so that the same order can be entered again to restart the appellate timetable.
D. Smith can move the trial court to reopen the appeal if the motion is filed within 180 days after the judgment or order is signed.



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