Remedies (Law 642) M.H.
Hoffheimer
Fall 2009
Final Exam
General
instructions
This is a
closed book exam. Do not communicate 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.
Write complete answers in full
sentences for each question. Do not
answer by referring to answers to other questions, and do not use
abbreviations. If you assume any
additional facts, explain why it is necessary to do so.
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."
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. Gwen and Veda sued Professor Hoffdoodle for
intentional infliction of emotional distress for calling them by the wrong
names in public. The court has granted
their motion for summary judgment and entered a judgment for nominal damages in
the amount of one dollar plus costs.
Meanwhile, Gwen and Veda (who have passed the bar) have filed a motion
for reasonable attorney’s feels for the value of the time that they devoted to
the litigation.
The good
professor comes to you for legal advice.
He wants to appeal the judgment because he thinks the law does not
support the claim. But he is not too
worried about the amount of the judgment and thinks it would be smart to wait
to see what the court does about the motion for fees before appealing. What should Hoffdoodle do?
2. Daft Drafter, a lawyer in
Benny’s lawyer
writes a letter to Drafter demanding damages in the amount of $120,000, the
current appraised fair market value of the land. Drafter sends the demand letter to BigInsCo.,
his malpractice insurance company. The
company asks you for your opinion.
Should it pay the $120,000? Why
or why not?
3. The plaintiff proposes the following punitive
damages jury instruction in a lawsuit pending in Mississippi Circuit Court
arising from the alleged retaliatory firing of an employee:
Ladies and
Gentlemen of the Jury, in addition to plaintiff’s demand for compensatory
damages, the plaintiff is requesting punitive damages. As soon as you determine the amount, if any,
of actual compensatory damages, you may consider whether to award punitive
damages. You may award punitive damages
only if you find beyond a preponderance of the evidence that the defendant
acted with reckless disregard of plaintiff’s legal rights.
In determining
the amount of punitive damages, you shall consider, to the extent relevant, the
defendant’s financial consideration and net worth, the nature and
reprehensibility of the defendant’s wrongdoing, the defendant’s awareness of
the amount of harm and the defendant’s motivation, the duration of the
defendant’s conduct and whether the defendant attempted to conceal such
misconduct, and any other circumstances that bear on determining a proper
amount of punitive damages.
The primary
purpose of punitive damages is to punish the wrongdoer and deter similar
misconduct in the future by the defendant and others while the purpose of
compensatory damages is to make the plaintiff whole.
No award for
punitive damages shall exceed two percent of the net worth of the defendant.
You are trial counsel for the
defendant. Explain whether the
instruction is objectionable. Assume the
claim is meritorious and focus solely on the measure of damages.
4. When Trevor bought a house in a residential
neighborhood in
For two
months, Toni has lived at Trevor’s house.
On most days, Trevor keeps Toni inside.
On warm, sunny days, he lets Trevor out in the yard and secures him to a
large oak tree by a rope.
Most of the
neighbors like Toni. Toni has become a
tourist attraction, and he is popular with all the children in the neighborhood
except for Kate. Kate thinks Toni is somehow
responsible for the unexplained disappearance of Fifi, her pet poodle.
Arthur has
become more worried. He feels insecure
living next door to a four hundred pound carnivore. And he has read lots of stories on the
Internet about injuries caused by tigers.
He has researched the Sleepy Grove city ordinances and learned that they
prohibit the keeping of any animal within the city limits except for “dogs,
cats and other household pets.” Arthur
showed Trevor a copy of the ordinance and asked him to remove Toni, but Trevor
just laughed. Trevor pointed at the word
“cats” in the ordinance and said, “Toni’s a cat. Look it up, Dude.”
The next day Arthur
filed a complaint in Chancery Court alleging that Trevor’s keeping Toni in the
neighborhood is a nuisance and that Trevor’s conduct constitutes intentionally
infliction of emotional distress. His
complaint demands both damages and a permanent injunction ordering the removal
of Toni. Immediately after filing the
complaint, and without notifying Trevor, Arthur goes to the Chancellor’s
chambers and moves for a temporary restraining order to compel Trevor to remove
Toni from the neighborhood pending the litigation. In support of the motion he submits a
handwritten, signed memorandum that asserts that keeping the tiger is in
violation of the law, that he is afraid of the tiger, and that the tiger’s
presence will lower property values.
You are the
Chancellor. Do you grant the TRO? Explain.
(The requirements for a TRO under
5. Same facts.
After granting (or refusing to grant) the motion for a TRO, the case
comes before the Chancellor on a motion for a preliminary injunction. Evidence includes the following: 1) a
certified copy of the city ordinance; 2) a public opinion poll showing that the
majority of neighbors like Toni; 3) an expert witness’s testimony that there
have been more than 50 serious injuries and deaths in recent years from tigers
in captivity; 4) an expert witness’s testimony that property values will
decrease by up to 10 per cent in the immediate vicinity of an area where
dangerous animals are kept; 5) testimony from Trevor that the nearest place
where he can board Toni is over 50 miles from his house and that the costs of boarding
Toni will be over $400 per week.
Explain
whether you grant the motion for a preliminary injunction, and, if you do so,
whether you impose any conditions.
6. Sean Parnell was denied public housing by
Parnell found
alternative housing that was better and cheaper. Although he is Protestant, he feels strongly
that his constitutional rights were violated.
Accordingly, he commences pro se a section 1983 action in federal court
against
Although
Parnell has
come to you for legal advice. He wants
to know whether you are interested in becoming counsel of record for the
plaintiff. Explain.
Part II. Long Answers
Instructions. Consider the following problems
carefully and write coherent, literate essays in your blue book that respond to
each.
A. The Case of the Outlaw Barbie (60 minutes)
Barbará
Quijote attended the
Customers
soon began to joke that Ms Quijote looked like a Barbie doll. In fact, Ms Quijote was tall and extremely
thin. She favored heavy eye makeup and
long fluffy hairdos. She also wore high
heels, which caused her to walk with a slightly jerky motion. Young girls in particular enjoyed visiting the
restaurant because they thought that Ms Quijote looked exactly like their
plastic Barbie dolls. Customers were
delighted when Ms Quijote married her boyfriend Ken Kenderson, because “Ken”
was the name of Barbie doll’s fictional boyfriend.
As you
probably know, Barbie dolls have been manufactured for fifty years by Mattel,
Inc., a toy manufacturer. Mattel has
protected the market for its dolls by trademarking the name Barbie and by
copyrighting many features of the Barbie doll, including the head sculpture of
different lines of Barbies. Mattel also
markets or licenses related merchandise, including clothing, games, books and
videos. Income from Barbie merchandise
and licensing fees is a significant portion of Mattel’s income.
When Ms
Quijote first opened the Barbie-que restaurant in August 2006, she was not
aware that she was appealing to customers who were familiar with Barbie
dolls. In early 2007, as the restaurant
became increasingly popular with families with young girls, Ms Quijote began to
appeal deliberately to her young customers’ fondness for Barbie dolls. She installed a glass case at the front of
the store in which she displayed a collection of Barbie dolls wearing aprons
and chefs hats and engaged in a variety of cooking activities. In June 2007 Ms Quijote began a policy of
giving all girls age ten and younger a free Barbie doll when they dined with
their families at the restaurant on their birthdays. This policy proved especially profitable as
many young girls started hosting Barbie themed birthday parties at the
Barbie-que Restaurant.
By
December 2007, the Barbie-que restaurant was so successful that Ms Quijote
moved it to a larger facility at a new location. At the new location she installed an
illuminated sign. The sign contained the
restaurant’s name in block letters next to an image of a Barbie doll holding a
plate with a sandwich.
From
fall January 2008 to fall 2009, the restaurant became increasingly
successful. During these months, after
paying all expenses, including salaries, the profits were always at least $1000
per month. Ms Quijote paid herself a
monthly salary of $5000 per month from January to December 2008. She paid herself a monthly salary of $20,000
from January to October, 2009.
It
never occurred to Ms Quijote that she was doing anything wrong. In fact, Mattel’s lawyers learned about her
business when she herself sent Mattel a copy of a newspaper story discussing
the success of Barbie themed parties at the Barbie-que and about the rise in
sales of Barbie dolls at local retailers due to the restaurant’s success. She thought that Mattel would be amused.
Far
from being amused, Mattel has hired an outside law office to evaluate possible
claims against Ms Quijote for trade mark and copyright infringement. You are working for the firm. Other lawyers have been assigned the tasks of
researching whether or not there are legal claims and, if so, which courts have
jurisdiction and venue. You have been
asked to draft a memorandum evaluating Mattel’s possible remedies based on the
assumption that there have been continuous violations of Mattel’s trade mark
and copyrights since Ms Quijote opened the restaurant. Please prepare a memorandum on remedies. Your memorandum should separately identify
possible remedies, set forth the legal requirements for recovering on them, and
explain whether any of the identified remedies are cumulative or whether Mattel
would be required to elect among them.
Explain also, in the event that a settlement cannot be reached and
litigation is necessary, whether Mattel could recover its costs and attorney
fees.
B.
The Case of the Ruby Red Roadster (60 minutes)
Note that your answer to this question
should have two parts.
Robert Beier
signed a written purchase agreement with Pedro Sellers in which Beier agreed to
buy a brand new red Toyota Prius model XL convertible for $30,000. Beier gave Sellers $2,000 cash and agreed to
deliver a certified check for the balance the next day when he would pick up
the car. The next day Beier changed his
mind when he saw an ad in the local newspaper in which a dealer was offering to
sell identical cars for $27,000. Beier
is sitting in Sellers’s office, demanding the return of his $2,000 deposit.
You are
Sellers’s lawyers. Sellers is calling
you from another room on his cell phone.
He wants to know what to do. The
first part of your answer should explain your response to Sellers. Specifically, what questions do you ask
Sellers and why? What general advice do
you give him?
After you have
given Sellers your considered opinion, you learn that Sellers has been looking
at the Internet while you were talking to him on his cell. Sellers says the Internet says he can resell
the car and recover the difference between the resale price and the amount
Beier promised. He says he thinks he
will sell the car to his nephew Salt Sellers for $10,000. The second part of your answer needs to
respond to this specific problem. Is Sellers’s
scheme to sell to Salt sound? Why or why
not?