Civil Procedure I § 2 University of Mississippi
Fall 1997 Law School
Practice Exam Michael H. Hoffheimer
You will have one-half hour to complete this practice exam. The following instructions will appear on the final exam and should be observed (except for time limits).
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."
Unfortunately, Tex forgot to treat Arkie's lawn during the months of June and July, so in August he covered the lawn with three times as much chemical spray as normal. Two days later, the entire lawn was dead.
Arkie learned that nothing would grow on his lawn for years. He spent over $75,000 adding new top soil to the property surrounding his house. Arkie commenced a civil action against Tex in federal court for the district in Texas in which Tex resides stating a claim for damage to the real property. Tex responded by filing a motion to dismiss citing the local action rule. The trial court denied the motion to dismiss. You are Tex's lawyer, and he wants to file an immediate appeal from the denial of his motion. Please advise him and explain.
3. Banking Corporation of the World, a Delaware corporation with its principal place of business in New York, operated banks all over the United States, including the Southern Charme Bank in Friars Point, Mississippi. It employed Bill Smith, a citizen of Arkansas, to operate the Southern Charme Bank. After Smith was arrested and charged with embezzlement, Banking Corporation of the World fired him. Smith was convicted of embezzlement, but his conviction was eventually overturned by the Mississippi Supreme Court.
Banking Corporation of the World commenced a civil action in Mississippi Circuit Court against Smith to recover $12,000, the amount he was accused of stealing from the bank. Smith answered the complaint and added a counterclaim against the bank for damages in the amount of $1,000,000 for wrongful discharge, libel, slander, and malicious prosecution.
Banking Corporation of the World has retained you as its new lawyer
and wants to know whether it can remove the action to federal court. It
received the counterclaim less that 20 days ago. Please advise and explain.
4. One morning in Lamarville, Mississippi, Bo walked up to Bubba and punched him in the face. Bubba subsequently commenced a civil action for assault and battery, seeking $5000 damages. Bubba filed the action in Chancery Court.
Bo filed a motion to transfer the action to Circuit Court, protesting that the Chancellor lacks subject matter jurisdiction and that he will be deprived of a jury trial. But the Chancellor told Bo that whether or not he has jurisdiction, he will not transfer the action to Circuit Court.
Bo has come to you for legal advice. What, if anything, can he do have the case transferred to Circuit Court?
Fall 1997 Law School
Practice Exam Answers Michael H. Hoffheimer
1. Examples of cases in which federal courts have jurisdiction exclusive of the states are actions for copyright infringement, to enforce patents, and for bankruptcy. Others include disputes between states, actions against the United States. States have jurisdiction exclusive of federal courts over actions to probate wills and for divorce.
2. The trial court lacks venue and its denial of the motion to dismiss is error. But the ruling cannot be appealed from immediately because it is not a final judgment.
3. A plaintiff cannot remove.
4. The Chancellor lacks subject matter jurisdiction, but the denial of the motion to transfer is not immediately appealable because it is not a final judgment. Moreover, the defendant cannot wait for a final judgment to appeal, because the errors regarding jurisdiction and denial of jury trial will not be reversible if they are the only errors. Thus he must to bring the matter before the supreme court before judgment by petitioning for an extraordinary writ of mandamus.