Civil Procedure I University of Mississippi

Summer 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 or ten minutes each)

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. Pinky, a citizen of New Mexico, sued Dodie, a citizen of California, and Dinky, a citizen of New Mexico, in California state court, seeking damages from both jointly for breach of contract in the amount of $100,000. The defendants removed the action to federal court. Pinky filed a timely motion for remand, and the trial court denied the motion. Your client asks you whether the trial court ruling is erroneous or appealable. Please explain.

2. Pat, a citizen of Alabama, and Preston, a citizen of Arizona, were injured when the bus they were riding stopped suddenly. The bus was owned and operated by Big Bus Corp., a Delaware corporation with its principal place of business in New Jersey. The accident occurred in Jackson, Tennessee.

Pat sued Big Bus Corp. in state court in Tennessee alleging that the driver stopped negligently. The bus company defended, arguing that the driver was not negligent because it was forced to stop suddenly when a young child darted out in the street in front of the bus. The case was tried to a jury, and the jury found for the defendant. The trial judge entered a judgment for defendant. Pat appealed, but the judgment was affirmed by the state supreme court.

After the decision became final, Preston commenced a civil action in federal court for the district of New Jersey in which the corporation’s principal place of business is located. The defendant filed a motion to dismiss arguing that the Tennessee judgment is res judicata. Rule on the motion and explain.

3. The state of X has enacted an amendment to its state constitution that provides that all cases of law and equity must be tried to a jury. Accordingly, state courts in state X may no longer grant motions for summary judgment.

You are clerking for a federal judge for a district in state X. Before your court is a lawsuit arising from an automobile accident. Able, a citizen of state X, claims that Baker, a citizen of state Y, failed to stop at a red light and caused the accident. Able’s complaint demands damages in the amount of $100,000. Baker denies the allegations in the complaint and claims that he had a green light.

After the completion of discovery, Baker moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. Baker attaches affidavits and depositions from four eyewitnesses, all of whom are prepared to testify that Baker had the green light. In response to the motion Able files an affidavit that avers that he had the green light. But in Able’s deposition he testified that he was color blind. Although he claimed to be able to identify the color of the traffic signal from its location, he admitted that he “might be mistaken.”

The federal judge asks for your advice on two matters. First, must the federal court send the case to a jury under the state constitution? Second, if the federal court applies Rule 56, should it grant Baker’s motion for summary judgment? Please advise and explain.

3. Parker and Dottson are next door neighbors in LaFayette County, Mississippi. Parker claims that Dottson stole his dog Mutt, but Dottson denies the claim and says Mutt came to him of his own free will and refuses to leave.

Parker sues Dottson in Circuit court for the alleged theft and demands damages in the amount of $100. Before the complaint has even been served on Dottson, Parker moves for an injunction ordering Dottson to return Mutt. In support of the injunction, he files an affidavit that says, “Mutt is mine. I love him. I deserve to get him back and not have to wait for over a year for a trial.”

You are Judge Howorth’s law clerk. He asks what he should do about the motion. Please advise and explain.

4. Phil commenced a breach of contract action against Dennis in federal court for the district of Vermont. Jurisdiction was based on diversity of citizenship. Dennis moved do dismiss the action as time barred. Dennis pointed to Vermont state authority that the case would be governed by the two-year statute of limitations of the state of Ohio. Phil agrees that Vermont courts would apply the two-year Ohio statute of limitations. But he argues that since Vermont would not apply Vermont’s statute of limitations, the federal court should do what is most equitable under the circumstances and permit Phil to have his day in court. He further argues that the federal preference for jury decision making should outweigh an state interest in applying some other state’s statute of limitations.

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

5. Drew is a citizen of Canada admitted to permanent residence in the United States and domiciled in Memphis, Tennessee. Drew owned real estate in northern Mississippi and sold the property in 2005 to Missy, a citizen of Mississippi, Allie, a citizen of Alabama, and Mexie, a citizen of Mexico. The property was worth $150,000.

At the time of the sale Drew agreed to vacate a house on the land in which he was living temporarily. In 2006 Drew had still not vacated the house, so Missie, Allie, and Mexie jointly commenced a civil action against Drew in federal court for the Western District of Tennessee. Their complaint alleges that Drew is trespassing on their land and has breached the terms of their purchase agreement. The plaintiffs seek damages in the amount of $100,000 and also a court order compelling Drew to leave the house.

Drew moves to dismiss for lack of subject matter jurisdiction and improper venue. You are the trial judge. Rule on the motion and explain.

6. Peters, citizen of Michigan, sues Dodge, citizen of Illinois, for personal injuries arising from an automobile accident in Illinois. Peters alleges damages in the amount of $100,000. Peters commences the action in federal court for the district where the accident occurred.

Dodge denied liability but filed no counterclaim. The case eventually resulted in a final judgment on the merits for Dodge. After winning the federal action, Dodge suffered disabling back pain. His doctor informed him that the pain was the result of a back injury sustained at the time of the accident with Peters. Accordingly, Dodge has commenced a civil action in federal court against Peters demanding damages in the amount of one million dollars.

Peters has received a request for waiver of service of process in the lawsuit. He comes to you for legal advice and asks 1) Must he waive service of process? 2) Will he need to defend? and 3) Does he have any good defense? Please advise.

7. Frankie, citizen of Virginia, commenced a civil action against Johnnie, citizen of North Carolina, in federal court alleging breach of contract of marriage. The complaint demands damages in the amount of $75,000 and also seeks an injunction ordering Johnnie to marry Frankie. As a matter of law, however, contracts to marry are not specifically enforceable.

Frankie moves for a preliminary injunction. Johnnie moves to dismiss based on lack of subject matter jurisdiction. The court denies both motions. Explain whether the rulings are erroneous and whether they are appealable.

8. Pam Plaintiff and Big Insco have jointly commenced a civil action in federal court against Defendant. Pam Plaintiff is a citizen of Colorado; Big Insco is a Delaware corporation with its principal place of business in Big Valley, Wyoming; and Defendant is a citizen of Wyoming. Their complaint states three claims, two by Pam Plaintiff and one by Big Insco.

Plaintiff’s first cause of action stems from a patent infringement action. Plaintiff claims he holds a valid patent for crystalizing widgets. Plaintiff claims that Defendant infringed the patent by using the patent process to crystalize widgets in 2004. The plaintiff demands damages in the amount of $50,000 for patent infringement.

Plaintiff’s second cause of action stems from an automobile accident that occurred in 2005 in the parking lot of the post office. Plaintiff demands compensatory damages in the amount of $70,000.

Big Insco’s cause of action states a claim for $15,000 for money it has paid on behalf of Plaintiff to Plaintiff’s doctors for medical expenses incurred as a result of the 2005 accident.

Defendant moves to dismiss both Plaintiff’s and Big Insco’s claims for lack of subject matter jurisdiction. Rule on the motion and explain.

9. In what kinds of cases do federal courts still actively engage in common law making after the adoption of the Erie doctrine?

10. Jane gave Tom a ride to the Senior Prom and injured him when she collided with a school bus. Tom has sued Jane in federal court. You are representing Jane, who is furious and feels betrayed. She says she wants to teach Tom a lesson and instructs you to deny all the allegations in his complaint. She also instructs you to file an interrogatory asking Tom to identify all the persons with whom he has had sexual intercourse. What do you tell Jane?

11. A state statute provides that an executor of an estate may bring an action to discharge all debts and liabilities of the decedent by publishing notice in a newspaper of general circulation. Under the statute, the published notice must clearly identify the decedent as well as any persons named as beneficiaries in the will. The notice must identify the court and the date scheduled for the discharge hearing, thus giving all claimants an opportunity to appear and present any claims against the estate. If claimants do not appear and object, the state court is authorized to enter a discharge order that discharges the executor and the estate from any and all liability to creditors..

A trade association representing lending institutions has retained you and asks whether the statute is valid. Please advise.

12. Paul sued Donald, an alien admitted to permanent residence domiciled in New Jersey, for copyright infringement, demanding damages in the amount of $75,000. The alleged infringing activity took place in New York city. Paul commenced the action in federal court for the district of Hawaii. Donald had never visited Hawaii and had no contacts with the state.

Donald moved to dismiss for improper venue. After the court denied that motion, Donald moved to dismiss for lack of personal jurisdiction and lack of subject matter jurisdiction. Please rule on the motions and explain.

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

A. The Case of the Sales Rep’s Bad Rep Rap (suggested time 60 minutes)

The Harvest Fruit Farm Family (HFFF) is a Delaware corporation with its principal place of business in Maine. The corporation sells fruit baskets and dried floral arrangements. Formed in 2002, HFFF has grown from a two-person business serving the local Maine market into a business with twelve employees that makes most of its sales to mail order and Internet customers outside of Maine.

HFFF today distributes 100,000 catalogues through the US mail. Customers can order its products through a toll-free 1-800 telephone number. HFFF also maintains an interactive Internet site through which customers can identify different sales items and complete purchases by using credit cards.

In 2003 HFFF interviewed Tiffany Patterson for the position of telephone sales representative. At the time of the interview Patterson lived in Maine. Impressed by her performance at the interview, HFFF offered Patterson the job. She filled out the necessary forms, quit her old job at Big Burger restaurant, and prepared to begin her duties at HFFF in November 2003.

When Patterson arrived for work, she was informed that her services would not be needed. Patterson asked why she had been fired, and the Human Resources manager showed her a letter from the owner of Big Burger. The letter accused Patterson of lying to her employer and stealing. The letter also said Patterson constantly used the “F” word and treated customers and coworkers disrespectfully.

Patterson protested that the letter was inaccurate, but HFFF refused to relent. The Human Resources manager offered to pay Patterson for two weeks work if she signed a release form agreeing not to sue. Patterson replied, “I’m not going to sign this and I’m not going to say the ‘F’ word, but I might be thinking it.”

Unable to find work in Maine, Patterson relocated to Oxford, Mississippi in 2005. In December 2006 she commenced a civil action against HFFF in federal court for the Northern District of Mississippi where she lived. Her complaint alleges diversity of citizenship jurisdiction and asserts one claim for breach of contract and one claim for defamation. She seeks damages for each claim in the amount of $50,000.

HFFF moves to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, and improper venue. The trial judge ordered limited discovery on the issues raised in the motion to dismiss. This discovery revealed that HFFF engages in some business in Mississippi. It mails 5,000 catalogues to residents of the state, and it has filled 76 telephone orders between 2002 and 2006 from catalogue recipients. In addition, it maintains an active Internet site accessible from any location in Mississippi. From 2002 to 2006 HFFF filled 253 Internet sales to purchasers in Mississippi. The total income HFFF derived from sales to Mississippi purchasers was $17,108.00. This comprised one percent of HFFF’s income for the period.

Margot Marker, HFFF’s Marketing Director, testified in a deposition that she was fully aware of sales to Mississippi purchasers. She testified that she hoped HFFF would sell even more of its products to Mississippi customers in the future. When asked whether she was aware that HFFF might be subject to jurisdiction in Mississippi, Marker replied, “Huh? What does that mean?”

You are the trial judge. Please rule on the motions and separately discuss the federal court’s subject matter jurisdiction, personal jurisdiction and venue.

I. SHORT ANSWERS

1. The federal court committed error when it refused to remand because it is not removable because there is no complete diversity and because one of the defendants is a citizen of the state in which the action was commenced. But the ruling is not appealable now because it is neither a final decision nor the kind of interlocutory decision that is appealable.

2. The motion to dismiss must be denied. Claim preclusion is not available because there is no identity of parties, and issue preclusion (or collateral estoppel) is not available because the party against whom it is being asserted did not have his day in court on the issue.

3[a]. The federal court must follow Federal Rule 56 under Hanna v. Plumer. The rule clearly applies to the issue and is procedural in the sense of really regulating procedure–the way issues are presented to and decided by courts. But the Rule 56 motion should be denied because there is a genuine issue of material fact (even if the evidence is weak and inconsistent).

3[b]. Judge Howorth should not grant the motion for an injunction. First, the motion requests provisional relief without any notice or opportunity to be heard to the adversary in violation of the defendant’s due process rights under Fuentes v. Shevin. Second, the Circuit Court may lack subject matter jurisdiction to grant equitable relief since the state constitution vests equity jurisdiction in Chancery Court.

4. Under Guaranty Trust v. York, the federal court must apply the law that the state court where its sits would apply to the issue of whether the action is time barred, whether the state finds that law in statutes or judicial. decisions.

5. Motion to dismiss for lack of subject matter jurisdiction is granted. The presence of aliens as both plaintiffs and defendants destroys alienage jurisdiction. Motion to dismiss for improper venue is granted under the local action rule.

6. 1) Defendant is not required to sign the waiver of service form but will bear the costs of subsequent service if he does not do so. 2) Defendant will need to raise defense or will risk entry of default judgment. 3) He has a good defense because the counterclaim was compulsory, as it arose from the same transaction or occurrence, and was waived when it was not raised in the first action.

7. The motion for the preliminary injunction was correctly denied but is appealable, because interlocutory decisions denying injunctions are appealable. The motion to dismiss was erroneously denied because the amount in controversy is less than the statutory amount to a legal certainty. The denial of the motion is not appealable now because it is not a final decision.

8. The motion to dismiss is denied with respect to the patent infringement action. There is federal question jurisdiction over that claim. The motion is also denied with respect to the other claims. There is diversity of citizenship jurisdiction over the claims by Plaintiff because a plaintiff can add together unrelated claims against a single defendant to satisfy the amount in controversy. While there is no diversity jurisdiction over Big Insco’s claim, that claim is part of the same constitutional case as Plaintiff’s second cause of action because it arises from a common nucleus of operative facts and is thus within the federal court’s supplemental jurisdiction. [If there is no diversity jurisdiction over Plaintiff’s second claim because the diversity claims must separately satisfy the amount in controversy irrespective of the federal question claim, then Plaintiff’s second cause of action must be dismissed, and Big Insco’s claim must be dismissed, too, because there would not be supplemental jurisdiction.]

9. Federal courts retain special common law making authority in a number of areas including interpreting federal statutes and Constitutional provisions, admiralty cases, disputes between states, international relations, and cases involving government rights and liabilities in cases in which the U.S. government is a party.

10. Tom’s sexual history has nothing to do with this case and is not information that might lead to the discovery of relevant information, so it is not discoverable. The Mississippi Rules of Professional Conduct require a lawyer to exercise independent professional judgment and do not permit a lawyer to do whatever a client demands. Moreover, the rules of conduct and Rule of Civil Procedure 11 prohibit a lawyer from controverting an issue without a good reason. The pleading rules likewise prohibit general denials. The Rules of Professional Conduct expressly prohibit a lawayer from using means that have no substantial purpose other than to embarrass, delay or burden a third person.

11. Applying the proposed discharge statute to creditors that are either known to the estate or whose identities could reasonably be ascertained would violate the notice requirement set forth in Mullane.

12. Motion for lack of personal jurisdiction is denied. Although there would not have been personal jurisdiction at the outset, Donald waived that defense when he omitted it from his motion to dismiss for improper venue. The motion to dismiss for lack of subject matter jurisdiction was not waived but is denied. Since copyright infringement is a federal question, the court has proper subject matter jurisdiction regardless of the amount in controversy. [The court properly denied the motion to dismiss for improper venue because the defendant is an alien, and venue is, accordingly, proper in any district.]

II. ESSAY

A good essay would address the following issues:

Subject matter jurisdiction

jurisdiction determined at time of filing

party’s citizenship is determined by domicile

[so there is diversity between the parties]

the amount in controversy is determined by the amount claimed in the complaint unless the court can say the amount is less to a legal certainty

one plaintiff can add the amounts of different claims against a single defendant to satisfy the amount in controversy

[so the amount in controversy is also satisfied]

Personal jurisdiction

the only part of the Mississippi long arm statute that might apply is the provision that establishes jurisdiction over a defendant who conducts any business in the state

the application of the long arm must also satisfy Due Process

Specific jurisdiction does not apply because the claim does not arise from any of defendant’s business in the state

General jurisdiction requires continuous and systematic activity

The Internet cases adopt a sliding approach, finding interactive Internet sites establishing more contacts

But the general jurisdiction cases based on Internet activity in the case book (like the LL Bean case) all involved far more extensive contacts, and those courts observed that the finding of jurisdiction was close

Venue

Venue in cases based on diversity is proper in a jurisdiciton where defendant resides

A corporation resides where it is subject to personal jurisdiction

Venue is also proper where a substantial part of the events or omissions giving rise to the claim occurred, but no such events or omissions occurred in any district in Mississippi

Accordingly, venue will be proper in only if there is personal jurisdiction in Mississippi