Civil Procedure I University of Mississippi

Fall 2007 School of Law

Final Exam Michael H. Hoffheimer

General instructions

This is a closed book exam.

Do not remove the exam, blue books, or any exam materials from this room while you are taking the exam. When you have finished and turned in your answers, you may take these questions with you.

Do not speak with any person other than the faculty member who is administering this exam until you have turned in your exam answers.

This exam consists of two parts. You will have three hours to complete the exam. Answer all questions. Do not answer a question by referring to an answer to a different question.

Identify yourself on your blue books only by your exam number. By placing your 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."

I. SHORT ANSWERS (suggested time two hours for this part or ten minutes for each question)

Instructions. Answer each of the following questions in your blue book. Each question in this part can be answered adequately with a short well-written answer that is not longer than one paragraph.

1. Bob Buyer, a citizen of Illinois, entered into a written agreement with Sal Seller, citizen of Tennessee, to purchase a house located in Mississippi for the amount of $175,000. Buyer has learned that Sal has offered to sell the same property to someone else for $180,000. Buyer wants to file a lawsuit to specifically enforce the contract and compel Seller to sell him the house. What court or courts would have jurisdiction over such a civil action?

2. Mothra, a citizen of the state of Washington, died on April 1, 2007. At the time of her death, Mothra was renting a safe deposit box in San Francisco at the California National Bank, a Delaware corporation with its principal place of business in San Francisco, California. The contents of the safe deposit box include an envelop containing $50,000 in cash.

Rodan, a citizen of Japan admitted to permanent residence and domiciled in the state of Washington, was a lifelong friend of Mothra. Rodan claims that Mothra gave her the $50,000 before she died but continued to hold it in the safe deposit box at Rodan’s request. Rodan has written a letter to the bank demanding delivery of the cash.

Meanwhile, Xavier, a citizen of California, is named executor of Mothra’s estate in her will. Xavier claims title to all the assets owned by Mothra at her death and has written a letter to the bank demanding delivery of the cash.

The California National Bank commenced an interpleader action in federal court for the district of Washington where Rodan resides. The bank deposited the money with the court.

The parties filed answers setting forth their respective claims of ownership. They have not objected to the court’s jurisdiction or venue.

You are clerking for the trial judge. She is unfamiliar with federal interpleader law and asks if there are any problems with the case. Please advise.

3. Dobby Dobbers was charged by the state of Mississippi with sexual battery in connection with a sexual assault on Vic Patterson. Although Dobbers protested his innocence, the case against Dobbers included Patterson’s testimony, expert medical evidence and DNA evidence that an expert from the state crime lab testified identified Dobbers conclusively as the assailant.

A jury returned a verdict of guilty and Dobbers was sentenced to thirty years in prison. His conviction was affirmed by the Mississippi Court of Appeals and the Mississippi Supreme Court declined to review the appellate decision by writ of certiorari.

Subsequently, Patterson commenced a civil action against Dobbers in Chancery Court for assault, demanding total compensatory and punitive damages in the amount of three million dollars. Dobbers filed a motion to dismiss for lack of subject matter jurisdiction. Patterson filed a motion for partial summary judgment on the issue of liability, attaching a copy of the criminal conviction, and arguing that under res judicata and collateral estoppel Dobbers’s conviction of sexual battery conclusively establishes the elements of the intentional tort of assault. Dobbers argues that res judicata and collateral estoppel should not apply and that he has obtained new expert evidence that categorically refutes the earlier DNA identification. Rule on both motions and explain.

4. Outraged by the long delays experienced by persons attempting to collect back child support, state legislator Bub Varner has introduced the Child Support Enforcement Bill. The bill if enacted would authorize a parent owed child support to collect the amount due by commencing a special enforcement action in Justice Court by filing a claim form stating the amount owed. To enforce compliance, the bill provides that if the amount owed exceeds $10,000, the sheriff may immediately seize any motor vehicles owned by the debtor and sell them at public auction. The proceeds of the auction will be paid to the complaining parent to cover amounts past-due for child support, and any excess will be held by the court for the debtor. The debtor may challenge the procedure at any time by filing a motion in Justice Court.

You are on the committee to which Varner’s bill has been referred. Explain if there are any problems with it.

5. In the winter of 2006, Missy, a citizen of Mississippi, visited Colorado to ski at the Big Sky Ski Resort, Inc., a Delaware corporation with its principal place of business in Colorado. The resort’s business had been lagging, and the management had discussed strategies for increasing national awareness of the resort. They decided to target the emerging Xtreme ski market of skiiers who seek perilous slopes and avoid the use of safety gear. Accordingly, the resort modified one of the slopes by removing guardrails and other safety features. Unfortunately, they did not mark the trail with any warnings.

Missy was badly injured when she slipped off the side of a cliff where a guard rail had been removed. She commenced a civil action in federal district court for the district of Colorado. Her complaint claims the defendant’s acts were wanton, reckless and malicious, and she demands $50,000 compensatory damages, $25,000 punitive damages, and attorneys fees and costs.

A Colorado statute authorizes punitive damages when the defendant acted recklessly or maliciously. But state law specifically prohibits including a demand for punitive damages in the complaint. Instead, state law requires a party seeking punitive damages to later amend the complaint to insert a demand for punitive damages. The purpose of the prohibition is apparently to discourage plaintiffs from inflating their claims and from seeking media coverage. Attorneys fees are recoverable under state law only if punitive damages are awarded by the jury.

The defendant files a motion to dismiss arguing that the court lacks subject matter jurisdiction. In addition the defendant files a motion to strike the punitive damages claim pursuant to the Colorado statute. Finally, the defendant files a motion to strike the demand for attorneys fees. Although Colorado state law may permit the recovery of such fees (when punitive damages are recovered), the defendant argues that federal courts should not permit parties to recover fees because neither the Federal Rules of Civil Procedure nor any Act of Congress provide for attorneys fees under these circumstances.

Rule on the motions and explain.

6. A number of religious groups believe that scriptural prohibitions about taking blood mean that it is a serious sin to draw blood samples for any purpose. As a result, the state of West Dakota has enacted the Blood Freedom Liberty Act of 2006. The act provides: “Under no circumstances, shall any person be required to provide a blood sample or submit to any other medical examination as a prerequisite to securing any legal right or privilege when doing so violates the doctrines of his or her faith.” The state constitution also provides, “The state shall make and enforce no law that hinders any person in the free exercise of his or her religion.”

Preston, a citizen of West Dakota, brought a civil action in state court against Big Hospital Corp., a West Dakota corporation. Preston claims that the hospital violated various federal constitutional rights when it gave Preston a blood transfusion without his permission while he was unconscious. Preston also claims he suffers various adverse affects from the blood transfusion.

The defendant removed the action to federal court. During discovery, the defendant moved the trial court to order Preston to submit to a medical examination that will include the drawing of blood pursuant to Federal Rule of Civil Procedure 35: “When the mental or physical condition (including the blood group) of a party. . .is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner. . .”

Preston opposes the motion. He cites two state supreme court decisions that have refused to order plaintiffs to submit to blood tests under provisions of the 2006 act and state constitution. Moreover, he argues that the reason he commenced the action in state court was precisely to avoid the effects of Federal Rule of Civil Procedure 35 and that the federal court’s refusal to apply state law will provide a powerful incentive for forum shopping.

You are the federal judge. Rule on the motion and explain.

7. Under state common law, the state of X courts have ruled that a party may no longer seek or recover nominal damages in an action for libel or slander under state X law unless the defendant has refused to apologize for the alleged defamatory statement prior to the commencement of the action.

P sues D in United States District Court for the Southern District of X for libel. D moves to dismiss for failure to state a claim upon which relief can be granted, attaching an affidavit that avers that “P has never asked for an apology.” State X courts routinely dismiss under such circumstances, but P argues that the state requirement is procedural and conflicts with the longstanding practice of federal courts and the overwhelming authority from other state courts.

Rule on the motion and explain.

8. National Widget Company, Inc., a Mississippi corporation with its principal place of business in Bruce, Mississippi, commenced a civil action in Mississippi Circuit Court against Dodge Dodgerson, a former bookkeeper employed by the corporation. The complaint alleged that Dodgerson embezzled $7000 from the corporation. Dodgerson served an answer, denying the allegations in the complaint and also served a counterclaim alleging that National Widget Company discriminated against him in violation of federal civil rights laws and demanding compensatory and punitive damages in the amount of $2,000,000. Within thirty days of receiving the counterclaim, National Widget removed the action to federal court. Dodgerson filed a timely motion to remand. Rule on the motion and explain.

9. Pat, citizen of New York, commenced a civil action in federal court against Don, citizen of Connecticut, alleging that Don negligently injured Pat in a car accident when Don’s car failed to stop. The complaint demands damages in the amount of $200,000. Don denied liability and also served a counterclaim on Pat. The counterclaim contained two causes of action. The first alleged that Pat negligently caused the car accident and caused property damage to Don’s car in the amount of $500. The second alleged that Pat alienated the affections of Don’s wife, causing emotional distress and damages in the amount of $1,000,000.

Don also impleaded Big Brake Co., a New York corporation with its principal place of business in New York, alleging that the company had recently repaired his brakes and if he is liable to Pat, then Brake Co. should be liable to him for the amount of any damages.

Pat moves to dismiss the counterclaims and the impleaded party. Rule on the motion and explain.

10. Paul, a citizen of Hawaii, went to Scotland for a vacation. While traveling by bus in Scotland, Paul was injured when a suitcase fell from an overhead rack and struck him on the head. The bus was owned and operated by Highland Fling Tours, a Scottish partnership owned by Angus and Fergus McFarland. Paul was hospitalized for two weeks in Scotland. The local Scottish police investigated the accident and concluded that the driver and bus company were not negligent.

Paul’s insurance company, Big Insurer Co., a Connecticut corporation with its principal place of business in Connecticut, paid $80,000 for various medical expenses resulting from the accident.

After attempts to settle out of court failed, Paul and Big Insurer commenced a civil action against Highland Fling Tours in Hawaii state court. They served one of the partners while the partner was vacationing in Hawaii.

The defendant removed the action to federal court for the district of Hawaii and then filed a motion to dismiss on grounds of forum non conveniens. Rule on the motion and explain.

11. Pete, citizen of Mississippi, slipped and fell on a banana peel while shopping at Big Mart Co., an Arkansas corporation with its principal place of business in Arkansas. Pete has sued Big Mart in federal court demanding damages in the amount of $100,000. Big Mart’s local manager has explained to you that the store carried liability insurance that will cover losses of up to one million dollars. But he is convinced Pete is lying about his injuries and he does not want Pete to learn about the amount of the insurance coverage because he fears it will only encourage Pete to increase his demand for damages. He asks for your advice. Please advise.

12. Able and Baker were born and raised in Mississippi. They lived next door to each other as adults. In 2005 they went on a car trip to Missouri. While Able was driving in Missouri, Baker misread a road sign and told him to turn onto a highway exit ramp where the car promptly collided with an oncoming tractor trailer. The tractor trailer was driven by Tom Trucker, a citizen of Tennessee. Able, Baker and Trucker were all injured. Able and Baker each insist the other was responsible for the accident.

After the accident Able moved to Nevada where he got married, bought a house and started a new job. In 2006 Able returned to Mississippi temporarily in order to sue Baker. The lawsuit was quickly settled and dismissed with prejudice. In 2007 Trucker commences a civil action against Able and Baker in Mississippi state court. Baker moves to dismiss for lack of personal jurisdiction. Rule on the motion and explain.

Short

1. Courts with subject matter jurisdiction include federal district court (based on diversity of citizenship), Mississippi Chancery Court (equity), and County Court (concurrent equity up to $200,000).

2. Federal court must dismiss sua sponte because of no subject matter jurisdiction. Rule interpleader is not available because the amount in controversy does not exceed $75,000, and statutory interpleader is not available because there is no minimal diversity among the claimants because the executor takes the citizenship of the deceased (Washington) and the alien admitted to permanent residence takes the citizenship of the place of domicile (Washington).

3. First, Chancery court lacks subject matter jurisdicition, but this action at law for damages should be transferred to Circuit Court, not dismissed. Second, collateral estoppel (or issue preclusion) should apply because the same issue (the defendant’s identity as the assailant) was actually determined in the criminal case; the issue was necessary to the judgment; the party against whom it is now asserted had his day in court; and the party had similar incentives and opportunities to litigate the issue.

4. The proposed interim seizure of defendants’ cars violates the rifght of persons to due process, which requires notice and an opportunity for a hearing before a taking of property. The procedure also enlarges the jurisdiction of Justice Court beyond what is currently authorized by statute.

5. Federal subject matter jurisdiction is good. The amount in controversy exceeds $75,000 because attorneys fees can be counted (unless they are not permitted as a matter of law). The Federal Rules require an allegation of the basis of the court’s jurisdiction and the amount of damages. This rule regulates how issues are presented to courts and is thus within the power of the courts to adopt rules of “procedure” under the Rules Enabling Act. [Alternative: the federal rules do not govern because they do not explicitly state what items of damages must be included, and the state rule governs under Erie because it significantly affects the outcome in a way that encourages forum shopping?] The state law regarding fees applies because there is absolutely no valad source of a contrary federal practice, and there is no general federal common law authority to create a different rule.

6. Rule 35 covers the issue and is “really procedural” in that it regualtes how issues are presented to court. Accordingly, it governs in federal court.

7. The court will apply state common law of libel and dismiss. There is no general federal common law authoirity to develop a different libel law in federal courts. The state practice is substantive because it substantially affects the outcome and disregarding it would encourage forum shopping.

8. Remand granted. Plaintiffs cannot remove.

9. The counterclaims and impleader are all proper. The $500 counterclaim arises from a common nucleus of operative fact. It is compulsory and within the court’s supplemental jurisdiction. The $1,000,000 counter claim is unrelated to the plaintiff’s claim so it is permissive and not within the court’s supplemental jurisdiction. But the counterclaim independently satisfies the requirements for diversity of citizenship jurisdiction. The impleader is authorized by Federal rules and because it arises from a common nucleus of operative facts is also within the court’s supplemental jurisdiction regardless of the lack of diversity.

10. Forum non conveniens is denied. As stated in Piper Aircraft, a plaintiff’s choice of forum is rarely disturbed. Here both the plaintiffs and the forum state have powerful and legitimate interests in providing a convenient forum for the plaintiffs without requiring them to travel to a foreign country. (The facts were different in Piper where the real plaintiffs in interest were foreign parties seeking a legal advantage in a U.S. forum.)

11. Federal rules require the automatic disclosure of any insurance that may be available to satisfy any part of the claim. See Fed. R. Civ. P. 26(a)(1)(D). The information must be providied. Rules of Professional Conduct prohibit a lawyer from making any false statement to a third person.

12. The defendant as a Mississippi citizen is subject to general personal jurisdiction in that state.

Long

A good long answer would identify and fully discuss the following:

subject matter jurisdiction

The corporation’s citizenship (not residence or domicile!) is both Tennessee and Delaware

The individual defendant’s citizenship is her domicile at the time of commencement of the action

A person changes domicile by being phyiscally present at the new domicile and concurrently having the intent to remain there indefinitely

The plaintiff bears the burden of establishing the federal court’s jurisdiction and thus of proving facts necessary to show change of domicile

The defendant’s statement conclusively establishes that Mississippi is her new domicile if it is true, but it may be self-serving, and nothing requires the court to believe her

personal jurisdiction

The personal jurisdiction of the federal court is the same as a Mississippi state court

The individual defendant will be subject to general personal jurisdiction if domiciled in Mississippi

The corporation will be subject to personal jurisdiction if the long-arm statute applies and does not violate due process

The long-arm may not apply: the tort was not in the state; the contract was not to be performed in the state; and the defendant might not be conducting any nature of work or service or business in state.

If the long arm applies, it is due to conducting business in state (advertizing).

The cause of action does not arise out of the business that is the basis of the court’s jurisdiction, so general jurisdiction is required based on systematic and continuous business activity.

The quantity of the business is far less extensive than that found to sustain general jurisdiction in the LL Bean case in California.

Service

Service on the individual is insufficient. She did not voluntarily waive and no subsequent service was attempted. Service on the corporation is sufficient because it was waived validly.

Venue

The issue of venue was waived when no consolidated with other Rule 12 motions.

Forum selection clause

Mandatory forum selection clauses are valid and enforceable most places if they are reasonable. The forum selected in this clause is unreasonable. Its sole purpose appears to be to increase the plaintiff’s difficulty in litigating.

II. Instructions. Consider the following problem carefully and write a coherent, literate essay in your blue book that responds to it.

The Case of the Bungling Boutique’s Bad Back Business (suggested time 60 minutes)

Pinky Pinkerson is a lifelong resident of New Albion, Mississippi. New Albion is a town of 10,000 people in northern Mississippi, 35 miles south of Memphis, Tennessee. On June 1, 2007, Pinky complained to his neighbor, Flem Snopes, about back pain. Flem urged Pinky to visit the Feelgood Wellness Boutique at the South Memphis Mall in Memphis, Tennessee.

Following this advice, Pinky traveled the next day to the South Memphis Mall and entered the Feelgood Wellness Boutique. There he met Denise Dolittle, who introduced herself as a certified wellness coordinator. Dolittle asked Pinky several questions about his back pain, his general health and his credit rating. Then she asked him to fill out several long forms. Pinky read the forms quickly and signed them.

Dolittle then took Pinky into a separate room. She asked him to take off his shirt and lie on a mat on the floor. She massaged his back for several minutes and then she stood on his back.

As she stepped onto his back, Pinky heard a cracking sound and felt a sharp, shooting sensation. He cried out in pain. Dolittle jumped off his back, laughed and said, “Don’t worry, sometimes that happens.” Dolittle then sold Pinky a small bottle of vitamins and told him to return the following week.

When the pain increased the next day, Pinky visited a physician and learned that he suffers from a slipped disk. The doctor informed Pinky that Dolittle’s acts probably aggravated his condition and may well have caused him permanent pain and disability.

On September 1, 2007 Pinky commenced a civil action in United States District Court for the Northern District of Mississippi. The complaint names as defendants Denise Dolittle and Feelgood Wellness Boutique, Inc. and alleges diversity of citizenship jurisdiction.

After filing the complaint, Pinky assembled copies of the complaint and waiver of service forms as prescribed by Federal Rule of Civil Procedure 4. He asked his nineteen-year-old cousin Bette to personally deliver a copy of the complaint and waiver of service forms to Dolittle while Dolittle was in the state of Mississippi. When Bette handed Dolittle the papers in Mississippi, Dolittle tore them up and threw them in Bette’s face.

Pinky also mailed a copy of the complaint and waiver of service forms to the corporate defendant at its mailing address. The corporation’s lawyer signed and returned the forms to Pinky in the prepaid envelope provided.

Prior to serving an answer, the defendants filed a motion to dismiss on the following grounds: 1) lack of subject matter jurisdiction, 2) lack of personal jurisdiction and 3) insufficient service of process. The defendants also moved at the same time to dismiss under a forum selection clause contained in the forms Pinky signed when he visited the Wellness facility. The following language was contained in fine print on the second page of the forms: “Parties to this contract agree that any litigation must occur only in the Caiman Islands.”

At the hearing on the motions to dismiss, the following facts were established. The complaint alleges that Dolittle is a citizen of Tennessee. Dolittle was born in Tennessee. In June 2007 Dolitte was living in Tennessee in an apartment near the Feelgood Wellness Boutique. In July 2007 Dolittle became engaged to marry Stud Trainer, an employee of the Boutique who lived in Desoto County, Mississippi. At that time she started spending three to four nights a week at Stud’s home in Mississippi. Pinky’s cousin Bette delivered the papers to Dolitte at this location.

In September 2007, Dolittle married Trainer and moved most of her belongings to his house in Mississippi. She continued to spend several nights a week at her apartment in Tennessee until her lease expired at the end of September 2007. At the end of September she moved all her belongings to Mississippi. Dolittle testified, “On the day Stud and I got engaged, I considered Mississippi to be my main home, and I planned to spend the rest of my life there.” Nevertheless, exhibits document the fact that in late July Dolittle renewed her Tennessee drivers license and continued to use her Memphis library card..

The complaint alleges that Feelgood Wellness Boutique, Inc. is a Tennessee citizen. In fact, Dolittle is the sole owner of all of the shares of stock in Feelgood Wellness Boutique, Inc., which is a corporation incorporated under the laws of Delaware with its principal place of business at the South Memphis Mall in Memphis.

Feelgood Wellness Boutique, Inc. solicits business by placing advertisements and discount coupons twice a year in the Memphis Glider. The Glider is a free newspaper that is distributed in the greater Memphis area, which includes northern Mississippi. At least 100 copies of the Glider are distributed every week at stores in northern Mississippi. The corporation also places radio advertisements on a Memphis radio station that can be heard from any location in northern Mississippi, and the business posts information on several Internet sites that are accessible from northern Mississippi. Flem Snopes learned about the Wellness boutique from his wife who had visited the boutique after reading an ad in a copy of the Memphis Glider that was distributed in northern Mississippi. Approximately ten percent of the boutique’s customers in 2006 and 2007 are residents of northern Mississippi.

Pinky admitted that she signed the forms containing the forum selection clause, but she testified that she did not recall reading the forms she signed, did not understand the forum selection clause and did not know where the Caiman Islands are located.

Based on this information, the trial judge denied all motions. The case went to trial and resulted in a judgment for plaintiff.

The corporation’s attorney has come to you for legal advice about the possibility of appealing and specifically asks you to discuss the following: 1) the trial court’s subject matter jurisdiction, 2) the trial court’s personal jurisdiction over each defendant, 3) sufficiency of service, 4) venue and 5) the validity of the forum selection clause. Please write a memorandum analyzing all issues.