Conflict of Laws M.H. Hoffheimer
Final Exam University of Mississippi Law School
Spring 2005
General instructions
This is a closed book exam. Do not speak with any person other than the faculty member who is administering this exam until you have turned in your exam. Do not remove any exam materials, questions, or blue books from the room during the exam. After you complete the exam and turn in your blue books, you may take the questions with you when you exit the room.
The exam consists of two parts. You will have three hours to complete the exam, and recommended times are indicated for each part. Answer all questions.
Identify yourself on your blue books only by your exam number. By placing the exam number on your blue book and by submitting your blue book for credit, you are agreeing to the following pledge (as required by law school policy):
"On my honor I have neither given nor received improper assistance. And I will report any improper assistance that I am made aware of."
Definitions, terms and conditions
Reference to the first Restatement means the Restatement [first] of the Law of Conflict of Laws (1934). The term "state" means a state of the United States. The term "country" means a sovereign power that is neither a state of the United States nor the government of the United States.
No effort has been made to achieve legal verisimilitude, and laws that are included in questions should be considered accurate only hypothetically and for purposes of answering the questions on this exam. Do not assume any additional fact or law, except those laws studied in the course, without stating explicitly your assumption and explaining why such additional information is necessary for your answer.
PART I. SHORT ANSWERS (60 minutes for this part--or an average of ten minutes for each question)
Instructions. Write a coherent literate response to each of the following problems. Each problem in this part can be answered adequately with a response that is no longer than one paragraph.
1. Pam, citizen and resident of Olive Branch Mississippi, drove to the state of X to do some shopping. When she stopped to turn into a shopping mall, Dottie, citizen of state X, collided with the rear of her car. Pam was badly injured in the accident.
Pam claims she had turned on her turn signal, but Dottie claims Pam's turn signal was not activated. Accordingly, a factfinder could find either that Dottie's negligence was the sole cause of the accident or that Pam's negligence also contributed to the accident.
Mississippi has comparative negligence under which a plaintiff's negligence reduces but does not completely bar recovery. State X retains the common law doctrine of contributory negligence under which a plaintiff's negligence is a complete bar to any recover. Moreover, state X follows the first Restatement approach to choice of laws.
Pam's lawyer has comes to you for legal advice. Explain whether Mississippi would apply contributory or comparative negligence.
2. Same facts. The collision occurred in state X on February 1, 2002. State X's statute of limitations for personal injury actions is four years. Assume the applicable Mississippi statute of limitations for personal injury claims is three years.
Explain whether a Mississippi court will apply the statute of limitations from state X or from Mississippi.
3. Henry and Wilma, residents of Tennessee, got married in Jackson, Tennessee. They had one child, a daughter Wilmette. Six months after Wilmette's birth, Henry announced he had fallen in love with Maya over the Internet. He packed his bags and headed for Las Vegas, Nevada.
After Henry departed for Nevada, Wilma and Wilmette went to stay with Wilma's mother in West Virginia. There Wilma filed for a divorce in West Virginia, and she got a court order awarding her custody of Wilmette.
She then returned to Tennessee. Six months later Henry returned to Tennessee. He had gotten a divorce. When he asked to take Wilmette, Wilma explained that she had custody under the West Virginia decree.
Henry flew into a rage, seized Wilmette and drove to Mississippi.
Wilma located Henry and Wilmette in Mississippi and commenced a civil action in Mississippi state court attaching a certified copy of the custody decree from West Virginia. You are clerking for the Chancellor who is hearing the case. The Chancellor asks whether Mississippi must enforce the custody decree from West Virginia. Please explain.
4. A bus owned and operated by the state of Minnesota was en route to Florida where the University of Northern Minnesota baseball team, the "Skeeters," was scheduled to play. While in the state of Mississippi, the bus collided with and seriously injured Mr. Snopes, a Mississippi citizen.
Snopes commenced a civil action in federal court in Mississippi against the state of Minnesota. The state moved to dismiss on grounds of sovereign immunity. You are clerking for Judge Mills who asks you what to do. Please explain.
5. Pederson Ltd., a business incorporated under the laws of the United Kingdom, recovered a judgment from a Belgian court for a breach of contract claim against Industries Magnifiques, a French corporation.
Pederson could not satisfy the judgment in Europe and attempted to enforce it by suing Industries Magnifiques in New York state court. In New York, the defendant argued that the foreign judgment should not be recognized because the defendant had not had an opportunity to cross examine witnesses or exclude hearsay evidence in the Belgian court. The New York court refused to recognize the judgment. It retried the merits of the breach of contract claim and entered judgment for the defendant.
After New York entered final judgment for the defendant, Pederson recovered another judgment against Industries Magnifiques in Vermont state court for the same breach of contract.
Pederson has come to Mississippi where it is attempting to enforce the Vermont judgment (enforcing the original Belgian judgment) by executing on some farmland owned by the defendant. The defendant moves to dismiss arguing that the foreign country judgment is not valid and enforceable and that the Vermont judgment is void because it did not give full faith and credit to the New York judgment.
Rule on the defendant's motion and explain.
6. While visiting the country of Narnia, Paulsen went for a carriage ride provided by Drew Dawson, a carriage driver who was a resident of Narnia. Paulsen was injured when Dawson took a corner too fast and the carriage turned over. In addition, the horse subsequently nipped Paulsen.
A year later while Dawson was visiting Mississippi, Paulsen commenced a civil action against Dawson and served Dawson with process in the state. Paulsen's complaint states a cause of action for personal injuries allegedly sustained as a result of the carriage accident in Narnia. The complaint alleges that Narnia law applies and that Narnia law establishes strict liability for damages caused by providers of commercial transportation services. But the complaint identifies no source of Narnia law and appends no written documentation.
Dawson files a motion to dismiss for failure to attach a certified copy of the Narnia law or any other evidence of foreign law.
Rule on Dawson's motion and explain.
PART II. ANALYTIC ESSAYS (120 minutes)
Instructions. Write coherent, literate essays in the Blue Book that respond to the following problems.
A. The Case of the Hightech Hijinks
Psillicon Inc., a corporation incorporated under the laws of state of Confusion ("state C") with its principal place of business in state C. is in the business of providing computer assistance to small and medium sized businesses. Most of its customers are in state C.
In the late 1990s Psillicon learned of the development of a new program called the "Popup Killer" that was designed to eliminate popups from appearing on terminals connected to the Internet. The Popup Killer was being developed and marketed by Daidon Corporation, a business incorporated under the laws of state of Tradition ("state T") with its principal place of business in state T.
In January 1999, Psillicon Inc. emailed Daidon Industries for information about the Popup Killer. The resulting communications ripened into negotiations and eventually into a formal contract proposal. The communications were entirely by email between Psillicon's employee's acting within state C and Daidon's employee's acting within state T.
Under the terms of the contract, Daidon agreed to provide Psillicon with copies of the Popup Killer software. Daidon granted Psillicon permission to market the software to Psillicon's customers and to install the software on its customers' computer systems. The contract warranted that the software was safe and effective. And Daidon guaranteed that in the event that it breached the contract it would pay Psillicon one million dollars.
In February 1999, after many revisions to the contract, Daidon sent a copy of the "final proposed contract" by email to Psillicon. Psillicon's president reviewed the contract and emailed back the statement: "The contract is great as it is now written. We accept."
In addition to the provisions described above, the final form of the contract contained the following clauses:
This contract shall be construed according to the law of state Uncertainty ("state U").
All litigation arising out of this contract shall be commenced in a state or federal court in state T and in no other court.
State U is 500 miles from either state C or state T. State U is the state where Daidon Industries' patent and intellectual property lawyers are located, and state U has no other connection to the contract.
Unfortunately, the Popup Killer was not quite ready for production and marketing. When Psillicon installed the device on its clients' systems, it did not eliminate popups. Instead, it caused systems to crash whenever a popup was detected.
As a result, by January 2000, Psillicon was forced to refund to its customers all the money it collected for installing the Popup Killer. In addition, it spent time and money removing the defective Popup Killer from customer's computers. It lost two customers as a result of the defective program. It estimates its costs and lost future profits in the range of twenty to forty thousand dollars.
Under the law of state C and state T a contractual stipulation for damages (liquidated damages) is unenforceable unless it is reasonably related to actual damages. Under the law of state U, a contractual stipulation of damages is enforceable between commercial parties.
State C's statute of limitation for written contracts is six years. The applicable statutes of limitations of states T and U are five years. Assume that the cause of action arose or accrued five and one-half years ago.
State C follows the Second Restatement. State T follows the first Restatement. State U follows the Better Rule approach.
The owner and president of Psillicon has come to you for advice. She thinks she would like to litigate in state C and would also like to get the benefit of the choice of law provision since the million dollar stipulated damages would be recoverable under the chosen law.
Please advise Psillicon, address the following issues and number your answers:
1. Explain what statute of limitations state C courts would apply.
2. Explain what law state C courts would apply regarding the stipulation about damages.
3. Explain whether state C courts would enforce the forum selection clause if the defendant asks them to do so.
4. Explain what would happen if Daidon removed an action from state C courts to a federal court and if the federal court granted a motion to transfer to a federal court in state T under section 1404(a). Would the transferee court apply the law of state Confusion or state Tradition?
5. Explain what statute of limitations state T courts would apply.
6. Explain what law state T courts would apply regarding the stipulation about damages.
7. Describe the restrictions placed by the United States Constitution on a state's choice of law, and explain whether the application of the law of state C, state T, or state U would violate the Constitution in this case.
B. The Case of the Ungrateful Guests
Patrick, Pete and Dan, citizens of the state of East Dakota, went on a car trip to the state of West Dakota. While in West Dakota, they picked up a friend, Phil, who was a citizen of West Dakota. While Dan was driving in West Dakota, he lost control of the car and struck a utility pole. Patrick, Pete and Phil were all injured badly.
The state of East Dakota has a guest statute that bars a passenger from suing a host driver unless the host driver was grossly negligent. Dan was not grossly negligent. The East Dakota courts apply the statute only to accidents that occur in the state of East Dakota. West Dakota has no such statute and permits a recovery for personal injuries upon a showing of simple negligence.
West Dakota follows the interest analysis approach to choice of laws. East Dakota follows the first Restatement approach.
Case no. 1. Patrick commenced a civil action against Dan in East Dakota. Dan appeared, fully litigated the issues of negligence, causation, and damages. Over Dan's objection, the judge instructed the jury to apply West Dakota law, and the jury found Dan liable for the accident and returned a verdict in the amount of $120,000. The East Dakota court entered judgment on the verdict and Dan did not appeal.
Case no. 2. After the accident, Pete moved to West Dakota where he has bought a house, taken a permanent job and gotten married. After Patrick's litigation ended in East Dakota, Pete commenced a civil action against Dan in West Dakota. After discovery was completed, Pete and Dan both filed motions. Pete moves for partial summary judgment on the issue of liability, attaching a certified copy of the judgment entered against Dan in the East Dakota case brought by Patrick. Dan moves for summary judgment arguing that the law of common domicile should apply. In response to Dan's motion, Pete argues 1) that the guest statute is inapplicable since in this case East Dakota does not apply its own guest statute, and 2) the law of common domicile should not apply because he is no longer a resident of East Dakota.
Case no. 3. Phil has also commenced a civil action against Dan in West Dakota. Discovery has been complete, and Phil has filed a motion for summary judgment on the ground that his claim is governed by West Dakota law. Dan resists, arguing both that West Dakota law does not apply under interest analysis and that the application of West Dakota law would violate Privileges and Immunities and Equal Protection clauses of the Constitution.
The West Dakota court has consolidated cases 2 and 3. Rule on all pending motions and explain.