Civil
Procedure I
Summer
2008
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. Plaintiff sued Defendant in federal court
based on diversity of citizenship. The
complaint alleged that Defendant hit Plaintiff and caused damages in the amount
of $100,000. The Defendant moved to
dismiss arguing that the allegations were too vague to show that Plaintiff was
entitled to relief. Alternatively,
Defendant moved for a more definite statement.
Rule on the motion and explain.
2. Bob Beier ordered a 16 ounce jar of mustard
over the Internet from mustardblaster.com.
The seller charged Beier’s credit card but did not send the
mustard. After repeated complaints, the
seller sent Beier on 8 ounce jar of mustard.
After
reading about other similar complaints on the Internet, Beier sued seller for breach of contract and
fraud, seeking actual damages of $3.50 for the failure to deliver the 16 ounce
size that he ordered and also seeking
$50,000 in punitive damages for fraud.
The seller’s answer acknowledged the truth of the allegations about
breach of contract but denied all accusations about fraud. The seller claims it was all an honest
mistake.
During
discovery, Beier seeks the production of documents, including all
correspondence and email communications that the seller received from other
customers in which the customers complained about the merchandise they
received. The seller moves for a
protective order, arguing that such documents are not proper discover or that,
if they are, it will be too burdensome to produce them. You are the trial judge. Rule on the motion for a protective order and
explain.
3. Able and Baker went for a ride on Able’s
motorcycle. While Able was driving, a
large truck operated by Charlie pulled
out into the road in front of them, causing Able to lose control and collide
with a brick wall. Able sued Charlie in
the local small claims court for damage to the motorcycle. Charlie answered the lawsuit and contended
that he was not legally responsible for the accident. Charlie lost, and the court entered a
judgment against Charlie in the amount of $750.
The
following week, Baker sued Charlie in a state court of general jurisdiction
seeking to recover $40,000 damages for personal injuries. Charlie moved to dismiss the lawsuit on the
ground of res judicata, arguing that Baker’s claim merged with Able’s. Rule on the motion and explain.
4. One evening, Harry Plaintiff was walking home
along the side of I-55 in
The
plaintiff appealed the failure to instruct on punitive damages to the
Mississippi Supreme Court. The
Mississippi Supreme Court assigned the case the Mississippi Court of
Appeals. After briefing and oral
argument, the Mississippi Court of Appeals affirmed the judgment of the trial
court.
Plaintiff
comes to you for advice and wants to know whether she can appeal the decision
to the United States Supreme Court.
Please advise.
5. Barry and Cherry Pandowdie are citizens of
Cherry
has come to you for legal advice. She
wants to know what courts in
6. John Smith is a wealthy citizen of
In
2007 Smith proposed marriage to Betsy Fickle.
Fickle agreed to get married, and Smith gave her as an engagement
present the world-famous Heart Diamond.
The diamond is conservatively valued at more than two million dollars.
Fickle
was born and raised in
In
the early summer 2008, Fickle told Smith that she changed her mind and would
not marry him. He requested that she
return the diamond and leave the apartment, but she has refused to do either.
In
late July 2008 Smith brought a civil action against Fickle in federal district
court in
You
are the trial judge. Rule on the motion
and explain.
7. Westy, a lifelong resident of
Westy
took the diamond ring to Fritz Lang Jewelers in
Fritz
has received three phone calls. First,
Westy has asked him to mail him the diamond ring. Second, Westy’s employer Lawnsogreen has
instructed Fritz not to return the ring because the employer claims that it
owns the property because it was discovered while Westy was working for
it. Third, Thurston Peters, a citizen of
Fritz
has come to you for legal advice and asks whether federal interpleader is
available, and, if so, where the action should be filed. Please advise.
8. Cal, a citizen of
Acme
contracted to purchase 500 widgets from Suzuki Importers, Corp. a
Acme’s
suppliers fail to deliver the widgets as agreed, causing Acme to breach its
contract with
The
impleaded parties move to dismiss for lack of subject matter jurisdiction. Rule on the motion and explain.
9. Same facts.
Assume the court (rightly or wrongly) denies the motion to dismiss. Thrifty Widget Services comes to you for
legal advice. The action is pending in
federal district court in
10.
The state of
Paul
suffered serious injuries. He is
considering bringing a civil action in federal court based on the theory that
the attack violated federal civil rights laws.
What federal districts will have proper venue in an action against both
Thugson and his employer Sekurco?
11. A
state statute in the state of X provides, “Exemplary or punitive damages may be
awarded in all cases where the defendant’s wrongful conduct was malicious, willful
or reckless.” The state supreme court
has interpreted the statute as not permitting punitive damages in claims for
breach of contract.
A
diversity action is brought in federal court in state X alleging that the
defendant willfully and maliciously breached the contract. The complaint demands $100,000 compensatory
damages and $50,000 punitive damages under the state X statute. The defendant moves to dismiss the claim for
punitive damages, citing the state supreme court decision. The plaintiff argues that the federal courts
are fully capable of properly construing the state statute and are not bound by
the procedural decision of the state supreme court. Rule on the motion and explain.
12. The Federal Rules of Evidence provide:
“Cross-examination should be limited to the subject matter of the direct
examination and matters affecting the credibility of the witness. The court
may, in the exercise of discretion, permit inquiry into additional matters as
if on direct examination.” Fed. R. Evid.
611(b).
In
contrast, the state rules of evidence in state X provide, “Cross examination
shall not be limited to the subject matter of the direct examination and
matters affecting the credibility of witnesses.” The supreme court for the state of X has held
that state X’s constitution guarantees
litigants a right to cross examine a witness on any subject, whether or not it
was raised during direct examination.
A
case in brought in federal court located in state X stemming from the alleged
faulty construction of a commercial mall.
Witness Doe testified on direct examination for the plaintiff about the
quality of the roofing materials. On
cross-examination, the defendant asks Doe to testify about the Plaintiff’s
failing finances. This matter was not
raised on dir3ect examination and does not relate to the credibility of the
witness. Instead it relates to the
defendant’s theory that the lawsuit was a desperate effort by the plaintiff to
avoid bankruptcy.
The
plaintiff’s lawyer objects on the ground that the cross-examination exceeds the
scope of direct examination. The
defendant’s lawyer insists that the federal court is bound by the state rule on
the scope of cross examination.
Please
rule on the objection and explain.
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 Bad Trip
(suggested time 60 minutes)
Ann, Ben, Carlos and David were friends and fellow
students at he
After
entering
Ann,
Ben, Carlos and David commence a civil action in federal court in the Northern
District of Mississippi against Canada Tours and Edward. The complaint alleges diversity
jurisdiction. In the complaint, Ann
demands personal injury damages in the amount of $50,000 and property damages
in the amount of $15,000 for damage to her car; Ben demands personal injury
damages in the amount of $60,000; Carlos demands $40,000 damages for personal
injury; and David demands $12,000 damages for personal injury.
The
plaintiffs’ lawyer mailed Canada Tours a request for waiver of service form,
which Canada Tours signed and returned.
The plaintiffs’ lawyer arranged for service of process on Edward by
hiring a nonparty over age eighteen who personally delivered a summons and copy
of the complaint to Edward while he was present in
Edward
has never been to the state of
Canada
Tours, Inc. and Edward move to dismiss on the following grounds: 1) lack of
subject matter jurisdiction, 2) lack of personal jurisdiction, 3) insufficient
service of process, and 4) improper
venue. Please consider all issues raised
in these motions. Also consider whether
any of the pleadings or motions in this lawsuit may violate Rule 11.
Answers
1.
The motion is denied. Federal
Rule 8 requires only a short and plain statement showing the plaintiff is
entitled to relief. A more definite
statement is not required to answer this complaint, and the defendant can learn
more about the alleged details and plaintiff’s legal theory during discovery.
2.
The motion is denied. The
information is discoverable because it is not privileged and is relevant
because evidence of other frauds will refute the defendant’s contention that it
committed an honest mistake. It is also
discoverable because it may lead to the discovery of relevant information,
including possible witnesses. The
defendant has made no showing of undue burdens, but a court has discretion to
split costs of discovery.
3.
Motion denied. Merger is a form
of claim preclusion. It applies only
when there is a valid final judgment deciding the same claim between the same
parties. Here the parties are different
and the claim is different.
4.
There is no right of appeal (petition of certiorari) to the U.S. Supreme
Court. That Court lacks jurisdiction for
two reasons. First, the decision is not
from the highest state court in which a decision could be had. (A petition to the state supreme court is
either still possible or was waived.)
Second, it is not a decision that questions the validity of a state
statute as repugnant to the U.S. Constitution or federal laws or where any
issue is raised under federal law.
5.
The Chancery Court has exclusive jurisdiction over divorce, alimony and
minor’s matters. The Chancery Court also
has jurisdiction over equity (injunctive relief) but the County Court if there
is one has concurrent equity jurisdiction up to $200,000.
6.
Motion for TRO without hearing is denied. Nothing is alleged or tends to show that the
plaintiff will suffer immediate and irreparable harm during the short period of
time before a hearing on a preliminary injunction could occur.
7.
This one has two possible answers depending on whether you answered the
question as written or based on the version we covered in class. I was really not trying to be sneaky–the
change was the result of a mistake.
(Kudos to those of you who read the facts carefully enough to find it!)
As written: there is no
interpleader jurisdiction. There is neither
complete diversity nor an amount in controversy for Rule interpleader, and
there is no diversity among two claimants as required for statutory
interpleader. (Those who concluded there
was minimal diversity among two claimants also got credit. . .)
As it was in class: there is no
Rule interpleader (for the same reason), but there is statutory interpleader
jurisdiction because the value of the property is for $500 or more, two
claimants are diverse per section 1332, and the property (or bond for its value)
can be deposited with the court. Venue
lies either in Missouri or Arkansas, where a claimant resides.
8.
Motion denied. Impleader does not
require either diversity or an amount in controversy. It is authorized by supplemental. The federal court has original jurisdiction
over plaintiff’s claim against defendant (there is diversity and the amount in
controversy is met). The defendant’s
impleader claims are part of the same constitutional case under Article III
because they arise from a common nucleus of operative facts. None of the grounds set forth in section 1367
for excluding supplemental jurisdiction apply.
9.
The final judgment is embedded in a valid act of Congress and it is
binding on federal courts. Accordingly,
the motion to dismiss is not appealable because it is not a final judgment as
it does not end all claims against all parties.
Personal jurisdiction sounds like a great defense, but it was waived
because it was not joined to the motion to dismiss for lack of subject matter
jurisdiction.
10. Venue in the federal question case against
both defendants lies in the federal judicial district (in Iowa?) where
defendant Thugson resides because all defendants reside in the same state. This
is because a corporation resides (for purposes of venue) where it is subject to
personal jurisdiction, and the corporation is subject to personal jurisdiction
where Thugson resides (unless he resides in Alaska, Hawaii or Maryland). Venue also lies in the district in Illinois
where the alleged assault took place because that is where a substantial part
of the events or omissions giving rise to the claim occurred.
11. Motion to dismiss granted. Erie establishes that the state law as
authoritatively construed by its courts is binding on federal courts where the
law establishes a right or defense. The
federal courts lack constitutional authority to develop a different rule of
decision. The state law is substantive
as it significantly affects the outcome of litigation, and disregarding it
would dramatically affect forum shopping and lead to unequal application of law
depending on parties’ citizenship.
12. The source of the federal rule is a Federal
Rule of Evidence, promulgated pursuant to the Rules Enabling Act. The rule is valid because it is a rule of
practice and procedure in that it regulates how issues are presented to and
decided by courts. The discretion is
accords to federal judges appears to conflict with the per se scope of cross
examination in state X court.
Accordingly, the federal court will follow the federal practice.
Long answer
Good answers will identify and
discuss the relevant authority for the following:
1.
There is no subject matter jurisdiction
No
diversity or alienage jurisdiction because it is not an action between citizens
of different states in which aliens are joined as additional parties, and
aliens appear on both sides.
No
amount in controversy because parties cannot aggregate their separate claims,
and no plaintiff individually states a claim for more than $75000.
2.
Personal jurisdiction
Federal
court’s personal jurisdiction is linked to the state’s. (The 100 mile bulge does not apply.)
There
is no personal jurisdiction over Edward
not
served in the state
not
covered by any of the four of long-arms...
does
not have any minimum contact with state
Federal
court proably has no personal jurisdiction over Canada Tours (corp.)
Long
arm analysis needed. The defendant
appears to be doing some character of work or service in the state, though that
is not the basis of the claim.
If
the long-arm applies, then there is a question of its constitutionality. Due process requires minimum contacts. Because the claims do not arise from the bus
trips in the state, the corporation must be engaged in continuous and systematic
business activity in the state to support general jurisdiction. This is unclear, but it does have the
extensive contacts or derive the sort of revenue from business in the state
that L.L. Bean derived from California, and the court found L.L. Bean’s contacts
to be a “close question.” I think
minimum contacts are not met but I’m not sure.
Even
if there are minimum contacts, the four reasonableness factors–the burden to
the defendant, the plaintiff’s need for the forum to assure complete relief,
the needs of the interestate and international system, and the shared interests
of the different states may weigh against the constitutionality of exercising
personal jurisdiction.
3. Service on Edward by personal delivery is a
valid method Edward pursuant to Rule 4 (and pursuant to state law of the state
where served and the state law of the place where the action is pending). Service on the corporation was satisfied by
the return of the waiver of service form.
4. Venue is proper because an alien may be sued
in any district.
5. Rule 11 establishes that by signing and
submitting a pleading or motion, an attorney represents that he or she has
conducted an inquiry reasonable under the circumstances and that the claims,
defenses or other contentions are either warranted by existing law or by the
nonfrivolous argument for changing the law.
The
complaint violates this standard because a reasonable inquiry into the facts
and law clearly demonstrates that the federal court lacks subject matter
jurisdiction.
The
motion to dismiss for lack of venue violates the standard because a reasonable
inquiry clearly establishes that venue is proper against aliens in the
district.
[Some
of the other motions probably also violate the rule for the same reason.]
[1] Should
have been Missouri (as it was on the practice exam), and the student who
answered this question assuming it was Missouri got full credit.