Civil Procedure I University of Mississippi

Summer 2009a 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. Turn in this page and the questions with your anwers.

Do not communicate 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, 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 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."

Please sign the following agreement:

As a nonresident student taking this exam for credit at both the University of Mississippi and another accredited law school, I agree to abide by the honor code and disciplinary rules of both schools. I promise that I have neither given nor received improper assistance. And I will report any improper assistance that I am made aware of. I promise not to discuss the exam with anyone before the other students have completed the exam (July 24 at noon). I understand that cheating or failing to report cheating can result in a failing grade and may also result in a failure to graduate from or expulsion from law school.

signed ________________________________________

I. SHORT ANSWERS (suggested time ten minutes each or one hour total)

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. Paulette, a citizen of Memphis, Tennessee, ran a stop sign and collided with Delbert, citizen of California, in California. Paulette commences a civil action against Delbert in federal court in California alleging that Delbert negligently caused the accident and demanding damages in the amount of one hundred thousand dollars. Delbert denies liability and claims that Paulette was at fault in causing the collision.

The case was tried to a jury, which returned a verdict for defendant. One year after final judgment was entered for defendant, Delbert sues Pauline in federal court in California. He claims that she negligently caused him serious disabling back injuries in the accident.

Paulette has received a waiver of service form with a copy of Delbert’s complaint. She has come to you for legal advice and asks if she should return the waiver of service form and whether she has any good defenses. Please advise.

2. Raj Patel, an African student at the University of Memphis, was refused service at a snack bar on campus. As a result he sued Big Food Corp., which operated the dining service, in federal court alleging that the food service had violated Patel’s rights under the Equal Protection Clause. He demanded damages in the amount of $100 and sought a permanent injunction ordering Big Food Corp. to stop discriminating on the basis of race.

Big Food Corp. agreed to settle the case by paying Patel $100 and agreeing to post a written notice. The corporation agreed that the notice would contain a promise not to discriminate and a toll-free phone number where customers could direct complaints in the event of future violations.

The corporation paid the agreed sum to Patel, and it posted the sign. In exchange, Patel dismissed his lawsuit.

For two weeks Big Food Corp. displayed the sign. Then it took the sign down. When Patel complained, the corporation’s spokesperson just laughed.

Patel comes to you for legal advice, asking whether he can sue Big Food Corp. again in federal court to enforce the promise. Please explain.

3. Shay Philippe, a lifelong resident of Memphis, Tennessee, was badly injured when she fell and struck her head at Masie’s Department store in Memphis. As a result of the fall, she incurred medical expenses of over $80,000, and she has been partly disabled for two years, though her doctors predict that she will probably recover fully in time.

Philippe has no memory of the fall, but she insists that there must have been some slippery object on the floor, because she would not have fallen otherwise. She contends that Masie’s was at fault in causing the fall. Consequently, she sues Confederated Storz, which owns and operates Masie’s. Confederated Storz is a corporation incorporated in Delaware with its principal place of business in Cincinnati, Ohio. Philippe’s complaint demands damages in the amount of $300,000.

After discovery has been completed, Philippe has identified no evidence supporting her claim that Masie’s caused the fall. In contrast, Masie’s has taken the deposition of two eyewitnesses who state that they saw nothing wrong with the floor. Masie’s also has produced records of its maintenance operations at the store. These records indicate that the floor area where Philippe fell had been swept ten minutes before Philippe’s fall. In addition, Masie’s has produced a videotape of the event that does not show any object on the floor.

Confederated Storz moves for summary judgment. Philippe opposes the motion, arguing that Masie’s employees are biased and that the fact that they did not see something does not mean it was not there. She also argues that the videotape is too fuzzy and might not reveal slippery foreign objects on the floor.

You are the trial judge. Rule on the motion for summary judgment and explain.

4. Same facts. Assume that the motion for summary judgment was denied (rightly or wrongly), and the case goes to trial before a jury. The evidence at trial is exactly what was produced during discovery. After both sides have presented all their evidence, Confederated Storz moves for judgment as a matter of law. You are the trial judge. Rule on the motion and explain.

5. While driving her official state vehicle, Deputy Sheriff Loretta, citizen of Crockett County, Tennessee, carelessly collided with a car. She damaged the car and injured its occupants, Merle and Earle. Merle is a citizen of Tennessee. Earle is a citizen of Kentucky.

Merle and Earle bring a civil action against Loretta in federal court. Merle alleges that he owned the car and that Loretta destroyed his property in violation of the Due Process Clause. In addition he asserts state law tort claims for damage to the car and for personal injuries. He demands one thousand dollars damages.

Earle’s claims are based exclusively on state tort law. He demands damages for personal injuries in the amount of four hundred dollars.

Loretta moves to dismiss for lack of subject matter jurisdiction. The trial court denies the motion. Is the ruling erroneous or appealable?

6. On June 28, 2009, your client Hounddog Bus Lines, was served with a summons and complaint in a civil action filed in Mississippi Chancery Court. The lawsuit stems from an accident in 2008 when a bus operated by your client got stuck in a bridge over the Tallahachie River in Mississippi. Twelve passengers have sued your client. Each plaintiff seeks damages of more than $500,000.

Your client is a corporation incorporated under the law of Delaware with its principal place of business in Arizona. The complaint served on your client lists the address and phone number for the plaintiffs’ lawyer, but does not list the addresses of the plaintiffs. Searching the Internet, you have found addresses for eight of the plaintiffs. Seven are street addresses in Mississippi, and one is an address in Nashville, Tennessee. You don’t know where the other four defendants live.

In house counsel for your client insists that you remove this action. What do you do and why?

II. LONG ANSWERS (suggested time 60 minutes each or two hours total)

Instructions. Consider the following problems carefully and write coherent, literate essays in your blue book that respond to them.

A. The Case of the Pill Pushing Panderer (suggested time 60 minutes)

Fred Peabody is a lifelong resident of Memphis, Tennessee. In 2005 he married Wilma Suzuki, a Japanese citizen. They lived happily at their home in Memphis. She did not become a United States citizen, nor was she admitted to permanent residence.

Fred worked at Fed Espresso, a coffee business in downtown Memphis. Wilma worked at a public library in Northhaven, Mississippi.

In 2007 Wilma was diagnosed with cancer. Rather than tell her husband or seek professional medical help, she searched the Internet at her workplace in Mississippi for non-traditional remedies. A Google search of “cancer cure” led her to a highly interactive Internet site titled “HealthWise.” The site appeared to be hosted by a large hospital. Consumers entered the site by clicking on an image of the hospital’s doors; the doors swung open to reveal images of doctors engaged in various sophisticated medical procedures.

From a menu of ailments, Wilma selected “Cancer.” This led her to an on-line questionnaire. After completing the questions, the screen displayed an “individual health care plan for Wilma Suzuki.” This plan contained advice about diet. It also prescribed a daily dose of Xylophonous Oxide pills. The site explained that the pills were available exclusively from HealthWise, and the site provided a convenient shopping cart format for ordering the pills on-line. The individual health care plan stated that “positive anti-cancer results are guaranteed.” But it warned consumers that they must not seek inconsistent medical help from traditional sources, or the pills would not work.

Wilma order the pills over the Internet from a desktop terminal at her workplace in Mississippi. She provided her workplace address for delivery.

Five days later, the pills arrived at Wilma’s workplace. She put the pills in her handbag and transported them to her home in Memphis. She took the pills for two months. Following the warning on the Internet site, she did not seek professional medical care while taking the pills. Five months later Wilma died from cancer. Medical experts agree that her life could have been prolonged indefinitely if she had sought medical help. They agree that the Xylophonous Oxide pills are a mixture of calcium oxide, sugar and trace amounts of ground ginseng. The experts agree that the pills did not have any effect on the progress of the cancer.

Zeke Torr, a citizen of Tennessee, has been appointed executor of Wilma’s estate. Fred and Zeke have investigated the source of the pills. They have learned that the HealthWise website was operated by Mexi-Health Corporation, a Mexican corporation with its principal place of business in Mexico City, Mexico. The corporation is wholly owned and operated by Cappy Blood. Blood is a United States citizen. Blood left the United States twenty years ago to avoid a prosecution for mail fraud, and he has not returned. He has lived in Mexico City for fifteen years where he has been married and divorced twice. He owns a condominium from which he operates the HealthWise site. The images of doctors and hospitals on the site are copied from various television shows.

Fred and Zeke commence a civil action in federal court for the Northern District of Mississippi, the district where Wilma worked, viewed the website and received the pills. They invoke the federal court’s diversity jurisdiction, naming Mexi-Health Corporation and Blood as defendants and asserting a variety of state law tort claims. Each plaintiff demands damages of more than one million dollars.

Defendants move to dismiss for lack of personal jurisdiction and improper venue. Discovery related to these issues reveals the following information. Blood traveled through the state of Mississippi once in 1976. Mexi-Health operates four different highly interactive websites that are accessible from all Internet-connected terminals in the state of Mississippi. As a result of these activities, over one thousand consumers have viewed Mexi-Health websites from terminals in Mississippi. Mexi-Health has completed six sales through the websites to consumers in Mississippi. The total revenue from the sales is $595.00, less than one percent of Mexi-Health’s total sales in the United States.

Based on this information, the trial court denies the motions to dismiss for lack of personal jurisdiction and improper venue. The case goes to trial and results in a judgment for the plaintiffs.

The defendants have threatened to appeal but have offered to settle by paying considerably less than the judgment. The plaintiffs are trying to decide what to do. The time for appeal has not expired, and the plaintiffs’ lawyer has contacted you for advice on whether the defendants have any meritorious grounds for appeal. Please advise.

B. The Eerie Erie Query (suggested time 60 minutes)

You are interviewing for a clerkship position with Judge Frederick McGavran who has just been appointed to the Sixth Circuit. Judge McGavran informs you over lunch that he has always been fascinated by the Erie Doctrine. He remarks, “The Erie decision restored sovereignty to state courts that the federal courts had usurped and thus radically altered the relationship of the state and the federal governments.” He then pauses, looks at you and asks whether you agree.

Please respond by either agreeing or disagreeing with the judge’s statement. Support your answer with a consideration of the law before and after the decision and by a discussion of specific case holdings that support your conclusion. Consider also any contrary authority.