Civil Procedure I

University of Mississippi

Fall 1994 Law School

Exam M.H. Hoffheimer

General instruction

This is a closed book exam.

Do not remove the exam, blue books, or any exam materials from the room in which you are taking the exam.

Do not speak with any person other than the faculty member who is administering this exam until you have turned in your exam.
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 the 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: one and one-half hours)

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. Jaques Lafite is a citizen of France who has been admitted to the United States as a permanent resident. In 1992 he was living in New Orleans, Louisiana and attending school full time. In early 1993 he met Maybelle Lamar. Ms. Lamar was born and raised in Jackson, Mississippi, where her family lives. She lived in Mississippi all her life till she went away to school in New Orleans.

Jacques and Maybelle decided to get married, and the marriage ceremony was performed at Maybelle's parents home in Jackson in December 1993.

Immediately after the marriage, Jacques and Maybelle returned to New Orleans. Jacques and Maybelle had not yet decided what they would do upon graduating; but because Jacques did not get along very well with Maybelle's father, Jacques and Maybelle had decided in January 1994 that they would not move to Jackson and would never live in Mississippi.

Upon returning to New Orleans they rented an apartment from Fritz Nichtgut, a citizen of Louisiana. Nichtgut was no good, and in February 1994, Nichtgut got drunk and broke into Jacques's and Maybelle's apartment while they were asleep. Nichtgut hit Jacques with a bottle, slapped Maybelle, and said offensive and false things about both of them.

In June 1994 Jacques and Maybelle graduated from college. Upon graduation Maybelle and Jacques moved to Baton Rouge, Louisiana where they rented an apartment and worked at a Piggly Wiggly grocery store.

In July 1994, Nichtgut sold all his property in Louisiana and moved to Jackson, Mississippi, where he bought a house and got a permanent job.

On December 5, 1994 Jacques and Maybelle commenced an action against Nichtgut in state court in Louisiana, alleging that his breaking into their apartment, assaults, and abusive language violated various state laws. Each plaintiff demands damages of one million dollars.

On December 6, Nichtgut removed the action to federal court. Judge Goode just happened to read about the case and its removal in this morning's paper. You are clerking for Judge Good, and the good Judge asks you whether federal court has subject matter jurisdiction. Please answer and explain.

2. What is a libel of ship in admiralty?

3. What is a dismissal with prejudice and how does it differ from a dismissal without prejudice?

4. Charles Alan Wright writes:

[S]urely the most desirable, method [of service of process on an individual] is to deliver the summons and complaint to the individual personally. Where this method is followed there can be no question whether defendant had notice of the suit.

Law of Federal Courts 444 (5th ed. 1994). Is what Wright writes right?

Give an example of a case where such a method of service does not satisfy the kind of notice required by the United States Constitution.

5. In 1992 Doctor Phibes performed surgery on Victor Tomb in a County General Hospital in Los Angeles. A surgical tool was left inside Tomb's body after the surgery and was not discovered until 1993 when it caused major medical problems and required emergency surgery.

Phibes was born in New York and lived most of his life there, but he was domiciled in California in 1992. Phibes died, domiciled in California, in 1993. Phibes died testate and under his will he appointed Roger Exeter executor of his estate. Exeter is a citizen of the state of Washington.

Victor Tomb is a citizen of the state of California. County General Hospital is owned and operated by Bigg Hospital Corporation, a corporation incorporated in Delaware, with its principal place of business in Texas. The corporations operates three other hospitals in California.

Tomb has commenced a civil action in federal district court in California for the district that includes the county of Los Angeles. His action states claims based on state tort law and contract law against both Roger Exeter, the executor and legal representative of the estate of Phibes, and Bigg Hospital Corporation. The complaint demands two million dollars damages and states that the court has diversity of citizenship jurisdiction.

The defendants returned waiver of service forms and have filed motions to dismiss on grounds of lack of subject matter jurisdiction.

Please rule on the motions and explain.

6. Does a federal court have supplemental jurisdiction over a permissive counterclaim for less than $25000? Explain.

II. Long Answers (suggested time: two hours)

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

A. The Case of the Bad Trip (suggested time: 45 minutes)

Pat, a citizen of Mississippi, went to Alaska in the summer of 1991 for a vacation. While she was driving her car in Alaska, she was struck from behind by a car driven by Drat. Drat is a citizen of Tennessee who was also in Alaska on vacation. Pat was badly hurt as a result of the collision, and her car was destroyed.

After returning to Mississippi, Pat commenced a civil action against Drat in federal district court in Mississippi for the district in which she resided.

Pat's complaint invoked the diversity jurisdiction of the federal court. It alleged that Drat had negligently injured her and demanded judgment in the amount of $100,000.

Pat arranged for service of process by certified mail. The relevant part of the Mississippi long arm statute provides:

Any nonresident person. . .who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident. . .of this state. . .shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this state.

Miss. Code Ann. § 13-3-57 (1994 Supp.).

In response to the complaint and before filing an answer, Drat filed a motion to dismiss for lack of personal jurisdiction, arguing that 1) the statute did not apply, and 2) even if it might, he did not have any contacts in Mississippi and that, even if he did have a few contacts, they were completely unrelated to the cause of action, so the exercise of jurisdiction under the statute would be unconstitutional.

In fact the first time Drat ever entered Mississippi in his life was when he drove into the state in 1993 to attend the hearing on his motion to dismiss. Drat was delighted when the trial judge ruled from the bench, granting his motion and dismissing Pat's lawsuit against him. To celebrate his legal victory, Drat took his lawyer out for lunch to a restaurant across the street from the federal courthouse. The restaurant is located in Mississippi.

While Drat was finishing his lunch, a woman dressed as a waitress handed him an envelope. Drat opened the envelope to find a copy of a summons and complaint. The woman was a process server serving Drat with process in a civil action that Pat had just filed, only a few minutes earlier, in the Mississippi Chancery Court down the street. The complaint in her new action is virtually identical to the one she filed in the action that was just dismissed in federal court for lack of personal jurisdiction.

Drat returned to his home in Tennessee without finishing his lunch. After firing his old lawyer, he has come to you for legal advice. He asks:

1. Should he ignore the complaint? (Consider specifically whether he can raise defenses of lack of personal jurisdiction, lack of subject matter jurisdiction, and the expiration of the statute of limitations in such a collateral attack, and, if so, whether he will prevail on any ground.)

2. What would happen if he defends in Mississippi state court? (Consider specifically whether the action would be dismissed for lack of subject matter jurisdiction).

3. Does a Mississippi statute grant him immunity from service while he was in the state?

4. Is there any way to get the place of trial moved to Tennessee.

Please answer and advise fully.

B. The Case of the Disputed Farm (suggested time: 45 minutes)

Pierre Lapin and Robert McGregor own adjacent farm land in Michigan. For years they have argued about the property line. In 1993 Lapin entered the disputed property and removed a large quantity of vegetable crops planted by McGregor.

McGregor is a citizen of Wisconsin. Lapin is a citizen of Minnesota. The garden is located in Michigan.

McGregor has brought a civil action in federal court in Minnesota (in the district in Lapin resides). The action demands $5000 for the conversion of the crops and $5000 for trespass to the land. In addition McGregor seeks an injunction prohibiting Lapin's future trespass; McGregor also prays for a declaratory judgment that declares that he, not Lapin, owns the property in dispute. Lapin is prepared to testify that the value of the property in dispute is $45000. But Lapin's brother, a real estate expert, is prepared to opine that the property in dispute is worth no more than $30000. Both opinions are admissible as evidence, but you may fairly assume that the opinion of a non-party expert would be much more believable to a factfinder.

In Lapin's answer to the complaint, Lapin denied liability and specifically denied the allegation that the property in dispute belonged to McGregor. Lapin also added defenses of lack of subject matter jurisdiction and lack of venue.

Lapin has also separately served on McGregor a motion for sanctions under Rule 11, asserting that the claims of jurisdiction and venue in the complaint were not warranted by existing law.

Annette Flopsy is an attorney who represents Lapin and who signed and filed the complaint in this action. She has come to you for independent legal advice. In an opinion letter, please advise her whether to withdraw the challenged pleading. Discuss fully any problems with the pleading; and explain what the lawyer's potential liability may be under Rule 11.

C. The Case of the Eerie Query (30 minutes)

Victor Yoss was just elected to the state legislature. During his campaign he promised to introduce legislation to discourage civil litigation and to reduce the costs of defending civil cases. He has drafted two proposed bills. Bill One will impose on the losing side an additional penalty of $1000 for each day of trial. This penalty will be collected by the court and paid to the winning side to help cover fees and expenses of trial. Bill Two will provide that no depositions can be taken in a civil action without a judicial finding of necessity.

Yoss is concerned that his legislation may encourage forum shopping, because federal courts under longstanding judicial practice do not normally impose fees on the losing side and because Federal Rules of Civil Procedure allow the use of depositions in all civil actions without any finding of necessity. He is also worried that the differences, particularly with respect to the availability of depositions, will influence the outcome of a lawsuits.

Yoss asks you whether federal courts in Mississippi would have to follow the new state laws if his Bills One and Two are enacted. Please advise.