Civil Procedure I University of Mississippi

Summer 2009 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, 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."

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. Pam Plaintiff commences a civil action against Deb Defendant in United States District Court for the Northern District of Mississippi. The complaint alleges that Plaintiff is a citizen of Mississippi and Defendant a citizen of Alabama, and it alleges that Defendant “hit Plaintiff and stole her man.” The complaint demands damages in the amount of one million dollars.

Defendant brings the complaint to her lawyer. She tells the lawyer that she is a lifelong resident of Mississippi, not Alabama, and further informs the lawyer that she has never met Plaintiff and does not know what the lawsuit is all about. The lawyer calls the Plaintiff (who is not represented by counsel), but she refuses to speak to the lawyer.

Accordingly, the lawyer files a motion for a more definite statement asserting that his client is not able to respond to the allegations. At the same time, the lawyer files a motion for sanctions under Rule 11, claiming that Plaintiff violated the rule by bringing a meritless claim against Defendant.

You are clerking for Judge Alexander to whom the motions have been assigned. She asks for your advice about how to rule on the motions. Please advise.

2. State Senator Pugnacious, a citizen of California and member of the California state senate, was offended when the New York Tattler, a newspaper published in New York, listed him as the single worst state legislator in America. Pugnacious brought a libel action in federal court against the New York Tattler Corp, the New York corporation that publishes the Tattler. He demanded damages in the amount of $100,000.

The court granted the defendant’s motion for summary judgment, concluding the statement was protected speech under the First Amendment. Pugnacious is outraged and feels that his right to a jury was violated. Accordingly, he has drafted a bill that he plans to introduce. The bill guarantees the right to trial by jury in all civil actions and bars any court from granting a motion for summary judgment in a case where a party has demanded a jury trial.

You are interning for the Senator. He wants to know whether this statute, if adopted as state law, will be binding in federal court. Please explain.

3. You lave landed your first job with the law firm of Marley and Marley. Mad Max Marley, the firm’s senior partner, has asked you to draft a complaint for a lawsuit to file in federal court. He tells you that the firm’s client, Patricia Peterson, was injured in a car accident when a car driven by David Day struck her from the rear while Peterson was stopped at a red light. He informs you that Peterson is a citizen of Arkansas and Day is a citizen of Missouri.

When you ask him about damages, he replies, “Don’t worry about the amount in controversy. As long as we demand more than seventy five thousand dollars in the complaint, we’ll be fine. Our client broke her wrist and missed some work. We’ll figure out how to add up more than enough damages after we get some discovery.”

Is there any problem with Mr. Marley’s plan?

4. What is the difference between a Motion for Summary Judgment and a Motion for Judgment as a Matter of Law?

5. You are at a pretrial conference in federal district court in Colorado. The plaintiff has sued a physician who now lives in Colorado for malpractice that occurred in Mississippi many years ago. The parties agree that the case is governed by the Mississippi statute of limitations (because that is what the Colorado state courts would apply). But there is uncertainty over whether the statute has been tolled until the plaintiff should have learned of the identity of the doctor or until he actually learned of his or her identity. If the lawsuit is not time barred, the parties agree that it will settle for $220,000.

The federal district judge turns to you, knowing of your expertise in Mississippi civil procedure, and asks if there is any way to get an authoritative answer from the Mississippi courts on the question of Mississippi law. Please explain if there is any possible solution.

6. Mack, citizen of Mississippi, and Al, citizen of Alabama, got drunk and started to discuss politics and religion. After a heated exchange of ideas, Al struck Mack with his fist, and Al threw a bottle that hit Al in the head.

Al commenced a civil action against Mack in Mississippi Chancery Court demanding money damages in the amount of $1,000. Mack served an answer, denying liability and raising the defense of self defense. Mack also included a counterclaim, alleging that Al assaulted him and demanding damages in the amount of one million dollars. Al removed the action to federal district court for the federal district where the Circuit Court action was pending. Mack moved to remand. Rule on the motion and explain.
II. Instructions. Consider the following problems carefully and write coherent, literate essays in your blue book that respond to them.

A. The Case of the Peripatetic Pedagogue (suggested time 60 minutes)

Arkie Traveller was born and raised in Helena, Arkansas. In 2003 Arkie enrolled as a graduate student at the University of Mississippi and moved into a dorm in Oxford, Mississippi. On March 2, 2004, Arkie was walking back to his dorm after class. While crossing a large open paved area in front of the student union, he suddenly he heard a loud buzzing noise and saw a motorcycle driving directly towards him. The motorcycle’s speed was more than fifty miles per hour, over two times the posted speed limit on campus of 18 miles per hour.

Arkie stopped and stood still, hoping the motorcyclist would avoid him, but the driver continued to drive directly towards Arkie. Arkie jumped aside just as the motorcycle reached him. He was struck by an object protruding from the motorcycle and fell to the ground. The motorcycle driver then stopped, looked at Arkie, laughed and sped away.

Arkie’s elbow was broken as a result of the fall. After two surgeries, Arkie recovered most but not all of his former mobility. His doctor tells him that he will never be able to play tennis again or engage in certain other activities. Moreover, the elbow causes him considerable pain, especially when the temperature falls below freezing.

In spring 2005, Arkie completed his graduate degree and began to teach classes part time at the University of Mississippi. After Arkie graduated, he could no longer live in the dorm, so he returned to his family’s house in Helena and commuted to Oxford on the days when he was teaching. In the summer of 2005 Arkie met and began to date Nurse Friendly, one of the nurses who had provided medical treatment for his elbow. Nurse Friendly lives and works in Oxford.

In August 2005, Arkie began to spend the night at Friendly’s apartment on Tuesdays and Thursdays, the days when he taught classes. He also stayed at her apartment on an average of two additional nights each week. In mid September, Arkie moved his toothbrush, some of his clothes and his CD collection from Helena to
Friendly’s apartment. He also got an Oxford library card. However, he continued to return to Helena regularly. He kept his Arkansas drivers license; he had the university deposit his pay into a bank in Helena, Arkansas; and he left his pet snake Snape at his family’s house in Arkansas.

On October 1, Arkie’s lawyer commenced a civil action in the United States District Court for the Northern District of Mississippi naming as defendants Louis Philippe and Ives Courier Corp. The University of Mississippi campus is located in the Northern District of Mississippi. The complaint alleges that Philippe recklessly and criminally injured Arkie while making a delivery for Ives Courier Corp. The complaint demands fifty thousand dollars compensatory damages, fifty thousand dollars punitive damages, attorney fees and costs.

The complaint invokes the court’s diversity jurisdiction. It states that plaintiff if a citizen of Arkansas; defendant Philippe is a citizen of Canada who has been admitted to permanent residence and is domiciled in Mississippi; and defendant Ives Courier Corp. is a Delaware corporation with its principal place of business in Mississippi.

You are representing the defendant corporation. Your research discloses the following information. On December 5, Arkie and Friendly got married and bought a condominium in Oxford, Mississippi. Ives Courier Corp. has its main office in Northhaven, Mississippi at space that it rents at an office park. The Northhaven, Mississippi address is printed on the corporation’s stationery. But the corporation’s fleet of trucks and motorcycles, its training and its repair facilities, and the warehouse it owns are all located in West Memphis, Arkansas.

Your client returned a waiver of service form. It wants to know if there are good defenses to the court’s subject matter jurisdiction, personal jurisdiction or venue. Please explain.

B. The Case of the Bad Burner (suggested time 60 minutes)

Kung Fu Candle Novelties Corp. is a Chinese corporation with its principal place of business in Shanghai, China. It specializes in selling candles and candle related merchandise to vendors in the United States.

In 2006, Kung Fu developed a new product, the “Olde West Candle Burner,” a wooden candle holder designed to appeal to nostalgic American consumers. The corporation purchased a large quantity of old fence posts from farmers in the United States. It shipped these to its factory in China where it sliced the fence posts into cylindrical segments and carved a well at one end large enough to insert a votive candle. It then decorated the candle holders with barbed wire, cactus and other Western themes.

The candle holders were all imported into the United States by Worldwide Candles, Inc., a Delaware corporation with its principal place of business in California. Worldwide provided boxes and packaging for the candle holders and sold them to three different catalog vendors. In each box, Worldwide inserted instructions. The instructions included the following warning: “Candles are flammable. Olde West Candle Burners are constructed of dried, aged wood, which is inflammable. Candles burned in the candle holders should be inserted in a flameproof glass or ceramic candle holder insert. The candles must be watched at all times while burning.” The candle holders were sold with candles but without the flameproof glass or candle holder inserts.

Elsewhere in the instructions were the words: “All litigation concerning this product must be commenced in courts located in Shanghai, China, and not elsewhere.”

Paul Patterson, lifelong resident of Salty Plains, Utah, received an Olde West candle burner for his birthday from his sister, Sissy Patterson. Sissy had ordered the candle from a Wilde West Wardrobe catalogue that was mailed to her apartment in Utah. Patterson placed the candle burner on a table in the living room of his home in Utah. He lit the candle and went to chop wood. He did not read the instructions. The candle burner burnt down his house and caused him personal injuries.

In a separate occurrence, Peter Preston, a citizen of New Mexico, bought one of the Olde West candle burners from a catalog. The product was delivered to Preston’s home address in New Mexico. Preston took the product on a camping trip to Utah where the burner caused a fire that destroyed his tent.

Patterson and Presley are represented by the same law firm. The firm brought a civil action in federal court in Utah naming as defendants both the manufacturer, Kung Fu Candles Novelty Corp., and the importer, Worldwide Candles, Inc. The complaint invoked the federal court’s diversity of citizenship jurisdiction and stated both negligence and product liability claims. The complaint demanded damages in the amount of $210,000 for property damage and personal injuries sustained by Patterson. It demanded property damages suffered by Preston in the amount of $600.00.

Prior to serving an answer, the defendants moved to dismiss for lack of personal jurisdiction. The court permited limited discovery relevant to personal jurisdiction. The record indicated that a total of over 100,000 products manufactured and imported by defendants have been sold to consumers in Utah. This is less than three percent of the total sales in the United States. In addition, about half the fence posts from which the burners were constructed were originally purchased from Utah farmers. Approximately 4,000 candle burners have been sold in Utah. This is more than ten percent of the total sales in the United States. Based on this record, the trial court denied the motions to dismiss for lack of personal jurisdiction.

The defendants then moved to dismiss for improper venue and lack of subject matter jurisdiction. They also moved to dismiss under the forum selection clause. The defendants argued that Presley’s claim failed to satisfy the amount in controversy and that a federal court in Utah is not the proper forum for his claim or for both Patterson’s and Presley’s claims.

In addition, defendants argue that the law governing joinder should be Utah state law, not federal law, and they contend that Utah law does not permit joinder of the two plaintiffs’ claims because Utah law seeks to deter product liability claims. Applying federal rules of procedure rather than state law, the trial court denied all defense motions. The case is scheduled for trial. The defendants come to you for legal advice. Are the court rulings on personal jurisdiction, subject matter jurisdiction, venue, the forum selection clause and joinder correct? Can they be appealed? Please explain, addressing all issues.

Short answers

1. Deny the motions for a more definite statement and rule 11. A complaint need only contain a short and plain statement showing plaintiff is entitled to relief. Defendant is able to either deny allegations or state that she lacks information and belief and thus denies them. The rule 11 motion may not be filed together with the other motion and requires service before filing and a delay of 21 days to give the adverse party an opportunity to correct any violation.

2. The statute will not be binding in federal court. Rule 56, adopted pursuant to the Rules Enabling Act, requires judgment without a jury in certain situations. The rule is procedural because it regulates how issues are presented to and decided by courtys, so it will be applied in federal court even if the state procedure would affect the outcome of cases.

3. There are two major problems with waiting to figure out what facts support a claim for damages. First Rule 11 requires an inquiry reasonable under the circumstances , and submitting a claim for an amount constitutes a certification that the claim has evidentiary support. If a claim lacks evidentiary support, the attorney must specifically identify the issue as one that will likely have evicentiary support after further investiagion or discovery. Second, a plaintiff must provide a computation of each category of damages in his or her initial disclosure.

4. A motion for summary judgment is made before trial after completion of discovery. It will be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. A motion for judgment as a matter of law is made during or after a jury trial. It is made after the opposing party has been fully heard. It should be granted when a judge finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party. When made during trial, the judge may postpone ruling until after the jury returns its verdict.

5. The federal trial court cannot certify the question to the Mississippi Supreme Court, so the judge should make a ruling on the Mississippi statute of limitations. If he or she dismisses, the final decision is appealable, and the federal court of appeals can now certify the issue to the Mississippi Supreme Court under the rule that permits certification of controlling questions of unsettled Mississippi law. If the federal trial court denies the motion, the decision is not appealable as a final decision, but he or she should enter an order stating that there is a controlling question of law on which there is substantial ground for difference of opinion and an immediate appeal to the federal court of appeals will materially advance the ultimate termination of lititigtaion. The federal court of appeals may permit an appeal under section 1292(b) and certify the issue to the Mississippi Supreme Court.

6. There is some confusion over which state court this action is pending in. Chancery court lacks subject matter jurisdiction over an action at law for money damages. But this does not prevent removal when the requirements are met. The requirements are not met here because plaintiffs cannot remove.

A. The Case of the Peripatetic Pedagogue

A good answer would identify and fully analyze the following:

The complete diversity problem

Time of filing rule

Plaintiff citizenship is place of domicile. This is a fact question requing a finding of the place where he intended to remain indefinitely at time of filing.

Necessary to evaluate evidence.

In this case the plaintiff’s burden of establishing federal jurisdiction might be decisive.

Defendant Phiippe will be a citizen of Mississippi as an alien admitted to permanent residence domiciled in Mississippi.

The Defendant Corporation will be a citizen of Delaware and of its principal place of business. Its principal place of business may vary depending on which test the court uses. The nerve center test suggests Mississippi; the muscle test, Arkansas.

In other words, there will be no complete diversity if either 1) the plaintiff cannot prove an intent to remain in Mississippi on the date of commencement or 2) the court uses the muscle test.

No amount in controversy problem. A plaintiff can add compensatory and punitive damages.

Venue is proper because a substantial part of the events or omissions giving rise to the claim occurred in the district.

The court has personal jurisdiction. General personal jurisdiction over Philippe in his state of residence. General personal jurisdiction over the corporation because it is engaged in systematic and continuous business activities in the state.

B. The Case of the Bad Burner

A good answer would identify and fully analyze the following:

Diversity jurisdiction exists over Patterson’s claim because there is complete diversity and the amount in controversy is satisfied.

No diversity jurisdiction over Preston’s claim because he does not separately satisfy the amount in controversy. But Preston can bring his action under supplemental jurisdiction because the court has original jurisdiction over Patterson’s claim IF his claim is part of the same constitutional case.

It is part of the same constitutional case only if it arises from a common nucleus of operative facts. Here the accidents happened at different times in different states to different people. There are similar issues, but that may not be enough. If it is not part of the same constitutional case, the federal court lacks subject matter jurisdiction over the second case.

Personal jurisdiction

Less than 3 percent sales and some purchases do not establish systematic and continuous business activity so as to make either defendant subject to general jurisdiction.

Preston’s claim does not arise from the Defendant’s contacts in Utah. The product was taken to the state by the unilateral act of a third person. So there is no personal jurisdiction. World Wide Volkswagen.

Patterson’s claim is stream of commerce. Four members of the Supreme Court found that stream of commerce by itself establishes minimum contacts. A fifth member found that stream of commerce plus a quantity of other sales establishes minimum contacts. Four other members found that stream of commerce alone did not establish minimum contacts. But those four opined that stream of commerce would establish minimum contacts when other facts were present, including designing the product specifically for the forum. It could be argued that the western decorations were designed to appeal specifically to the market in Utah and other western and US states. If so, everyone on the court would find minimum contacts. (There is no problem with the additional requirement of fairness or reasonableness here, because the plaintiff is a citizen of the forum state.)

The issue of venue has been waived because it was not raised at the time the defendants filed a motion to dismiss for lack of personal jurisdiction.

Carnival cruise enforced a mandatory forum selection agreement but did so when it was part of a contract. The Court cautioned that it might not apply to consumer sales. In any event such contracts are subject to scrutiny for reasonableness and fundamental fairness. Here the consumer never agreed to the “agreement” and enforcing it would deprive the plaintiff of any real forum, so it would be fundamentally unfair.

The federal joinder standard applies. It is part of the Federal Rules of Civil Procedure, adopted under the Rules Enabling Act, and it regulates procedure, how issues are presented to and decided by courts (achieving federal procedural goals of efficient litigation).

None of the courts rulings are appealable because they are not final.