Civil Procedure I University of Mississippi

Summer 1995 Law School

Exam M.H. Hoffheimer

General instructions.

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: two 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. Yorkie, citizen of New York, breached a contract with Cal, citizen of California, causing damages in the amount of $52,000. Cal has consulted you and asks if there are any ways to sue Yorkie in state court and prevent the action from being removed. Please advise.

2. What courts in Mississippi have jurisdiction to issue writs of certiorari?

3. Give examples of three kinds of cases in which the United States courts have original jurisdiction other than diversity of citizenship and federal question cases.

4. In early 1994 Debbie Debitson lived at home with her mother in Albany, New York. In January 1994 Debitson bought a bed from Surfside Waterbeds, a New York corporation, on credit. Unfortunately, by 1994 she was not able to make her monthly payments, and in August 1994 the seller referred the matter to Adjusters Corporation, a Pennsylvania corporation with its principal place of business in New Jersey, which is a collection agency in the business of collecting debts for private businesses.

Adjusters Corporation sent Debitson a threatening letter, pressing her to pay the debt to Surfside Waterbeds. Unknown to Adjusters Corporation, Debitson had in the meantime moved to Alaska in September 1994 to enroll as a student at the University of Alaska. Before leaving New York, Debitson had asked her mother to open all her mail and to read her anything important over the telephone.

When she called her mother on September 12, her mother read her the contents of the threatening letter. Debitson believes the letter may violate the Federal Fair Debt Collection Practices Act. She does not want to return to New York and, therefore, commences an action in federal court in Alaska against Adjusters Corporation. Adjusters engages in collection work in Alaska and has an office and permanent employees in Alaska for collection work.

Adjusters Corporation appears and moves to dismiss for lack of venue. Rule on the motion and explain.

5. Arkie, citizen of Arkansas, was driving a truck with a cargo of rice from Arkansas to Alabama. While driving in Mississippi, his tire blew out and he swerved out of his lane, colliding with a car driven by Miss Schippio, citizen of Mississippi. As a result of the collision, Schippio's brand new BMW was totally destroyed as was the fur coat in her trunk. She also suffered a broken wrist and other personal injuries.

Schippio commences a civil action against Arkie in Mississippi state court. Arkie appears and files an application for removal. After the action is removed, Schippio files a motion in federal court to remand the action to state court.

The federal court grants the remand. Arkie fires his lawyer and comes to you for advice. He asks whether he should appeal the ruling on the motion for remand. Please advise.

6. One Saturday in October, Chad, a citizen of Mississippi, was walking to the Square in Oxford, Mississippi. As he crossed the street, he was struck and injured by a bus.

Chad has learned that the bus was the University of Tennessee football team bus, which had driven to Oxford that day for a game. The bus was owned by the state of Tennessee, and it was driven by Taylor James, a Tennessee citizen and an employee of the state of Tennessee.

As a result of the injury, Chad suffered broken bones and other serious injuries and damages over one million dollars. The state of Tennessee has refused to answer any of his letters or phone calls, and he has come to you for advice. Research discloses that James has recently declared bankruptcy and has no assets, so any claim will have to be recovered from the state of Tennessee.

Which state and federal courts in Mississippi have subject matter jurisdiction over a case brought by Chad against Tennessee?

7. Grish Johnson published a best selling thriller, the Bed Chamber, about the torrid love affairs and fascinating legal work of young lawyers in a small town in Mississippi. One day he looked out his window and saw film crews in town. He soon discovered that Universe Films Corp. is making a movie with a plot that is almost exactly the same as Bed Chamber. Unfortunately, Universe never asked Johnson for permission, and his work is copyrighted.

Johnson, himself a lawyer, commences a civil action in Mississippi Circuit Court for copyright infringement and requests an injunction ordering Universe Films Corp. to stop making the film. Universe moves to transfer the case to Chancery Court. Its motion is denied, and the Circuit Judge enters an injunction against Universe.

Universe appeals the injunction on the basis that Circuit Court has no jurisdiction to issue an injunction. The appeal is pending in the Mississippi Supreme Court. Justice Praether has told you all these facts and asks what the court should do. Please explain.

8. Jane Happless, citizen of Kentucky, has come to you for advice and has brought a shoebox full of crumpled papers. Your examination of the papers reveals that they consist of a copy of a complaint in a civil action that has been commenced against Happless in federal court for the northern district of Mississippi. The complaint alleges that Happless drove to Mississippi in 1994 and, while in the state, ran over a prize horse valued at over $100,000.

Jane tells you that she has never been in Mississippi before she visited your office for advice. But she tells you that her car was stolen one weekend in 1994, and that when it was recovered, abandoned in Tennessee, the front bumper was damaged. Along with the complaint in the box, you find a request for waiver of service form and an envelop in which it had been delivered to Jane by Federal Express courier service. Sent to Jane on July 1, the request gave her thirty days to respond.

She asks you whether she should respond to the request for waiver of service. Advise and explain to her the advantages, disadvantages, and legal consequences of waiving service.

9. Peter, citizen of Louisiana, operated a farm. On adjacent property, there was an oil well owned and operated by Badoco Oil, a corporation incorporated under the laws of Delaware with its principal place of business in New Jersey.

One day the oil well sprung a leak, and oil seeped onto Peter's farmland, ruining the crops and permanently damaging the soil. Peter commenced a civil action against Badoco in federal court for the district where the land is located seeking damages of a half million dollars.

Badoco, in addition to answering the complaint, served a third-party complaint against Shoddy Wells, a citizen of Louisiana. Its third party complaint alleges that Shoddy was responsible for maintaining and inspecting the oil well, that Shoddy carelessly failed to maintain the well and, as a result, is liable to Badoco for any damages they will be required to pay Peter.

Peter has come to you for advice. He has never heard of such an impleader and asks: 1) does the court have jurisdiction over Badoco's claim against Wells? and 2) can he amend his complaint to add a claim against Wells? Please advise.

10. Dan, citizen of Mississippi, promised to sell Philip, citizen of Michigan, a farm for $250,000. Dan changed his mind and instead sold the farm to Trish for $350,000. Philip commenced a civil action against Dan in federal court in Mississippi for the district in which the land is located. He served process on Dan by leaving a summons and a copy of the complaint at Dan's house with Dan's adult live-in girlfriend. He did not follow up with any other service, mailing, or notice to Dan.

Dan has filed a motion to dismiss for insufficiency of process, insufficiency of service of process, and lack of jurisdiction over the person. Dan argues that under Mississippi law residence service was improper. Rule on Dan's motion and explain.

11. Same facts. But assume that Dan voluntarily submitted to the court's jurisdiction and filed an answer. Philip did not want a jury trial, but Dan wanted a jury trial.

Federal Rule of Civil Procedure provide that a party may file a jury demand and that failure to file such a demand "constitutes a waiver by the party of trial by jury." Fed. R. Civ. P. 38 (d).

Mississippi law guarantees civil litigants a jury trial in actions like Philip's, and under Mississippi law parties may waive their rights to a jury trial only if they file a "specific, written stipulation." Miss. R. Civ. P. 38(b).

Dan argues that Mississippi law should apply and the case should be tried to a jury. You are working for the federal judge scheduled to try the case, and she asks what to do and why. Please tell her.

12. The Republican National Committee has hired you for legal advice. They are interested in enacting a new federal statute of limitation that would require that all products liability cases in both federal or state court be commenced within 2 years of the discovery of the injury or ten years after the manufacture of the product (whichever is sooner).

Several senators have raised concerns. They point out that state tort laws creates the causes of action for defective products. And they have questioned whether federal courts could disregard state statutes of limitations that apply to causes of action created by state law and apply a shorter (or longer) federal statute. Please explain whether the proposed federal statute of limitations would displace state statutes of limitations in federal courts.

II. Long Answers (suggested time: one hour)

Instructions. Consider the following problem carefully and write a coherent, literate essay in your blue book in response to it.

Frank Dollard, citizen of Tennessee, owns an antique store in Memphis, Tennessee. He advertises in a number of papers with regional distributions, and every year he makes about six sales to purchasers from northern Mississippi. He sometimes delivers the furniture to the buyers, and he has made four or five deliveries in Mississippi. He has also come into Mississippi about twenty times to attend auctions at which he has purchased furniture for his store.

Frank lives with his adult daughter, Tanya, in an apartment in Tennessee. On Christmas Eve, 1993, Tanya was invited to a party in northern Mississippi, and Tanya invited Jack Klughless, a young man who lived in the adjacent apartment, to take her to the party. On the day of the party, Jack's car would not start, so Tanya asked her father to borrow his pickup truck to go to the party. It did not occur to her to tell him that the party was in Mississippi.

Frank was reluctant to lend Tanya the pickup truck, because he knew that Jack was a bad driver and had a drinking problem. Accordingly, he told Tanya that she could use the pickup truck, but he told her not to let Klughless drive. Tanya and Jack were very excited about the party, because neither had ever been in Mississippi before.

Tanya had a wonderful time at the party. Unfortunately, Jack drank too much and insisted on driving home from the party, and Tanya let him drive the pickup. While still in Mississippi, Jack drove recklessly, smashed into a car driven by Phyllis Presley, a citizen of Alabama, and killed her.

As a result of the collision, Jack was arrested and charged with several criminal offenses. Before Tanya left Mississippi, the sheriff served her with a subpoena ordering her to appear March 1, 1994, as a witness for the state in the criminal prosecution of Jack. The district attorney contacted Frank in January 1994 to ask whether he would appear voluntarily for the state in the prosecution of Jack, and Frank agreed.

In late February 1994 Presley's estate commenced a wrongful death action against Frank, Tanya, and Jack in Mississippi state court. Each of the three defendants was separately served by certified mail at his or her residence in Tennessee. In addition, in late February, the sheriff served process in hand on Jack in the Mississippi jail where he was in custody waiting for his criminal trial. On March 1, Frank and Tanya drove together to the Mississippi court house for Jack's trial. On the court house steps, a process server served them personally with summonses and copies of complaints in the civil action that had been commenced against them.

Please evaluate fully (and separately) the court's personal jurisdiction over Frank, Tanya, and Jack.

Civil Procedure I University of Mississippi

Summer 1995 Law School

Exam Model Answers M.H. Hoffheimer

Short answers

1. To prevent removal jurisdiction, the plaintiff could sue the defendant in state court either in defendant's state of citizenship (New York) or the plaintiff could demand damages of $50,000 or less.

2. In Mississippi, the supreme court has jurisdiction to issue writs of certiorari, as do courts of appeals (in cases assigned to them). Circuit courts, as courts of general jurisdiction, would also have jurisdiction to issue these common law writs to inferior courts of record (if any).

3. In addition to diversity and federal question jurisdiction, Article III gives federal courts original jurisdiction in cases affecting ambassadors, cases of admiralty and maritime jurisdiction, controversies between states, citizens claiming lands under grants of different states.

4. The motion to dismiss for lack of venue is denied. Venue lies federal court where the defendant resides, and the statute states that corporations are deemed for purposes of venue to reside where they are subject to personal jurisdiction. The defendant here is engaged in systematic and continuous activity in Alaska and is, accordingly, subject to personal jurisdiction.

5. No, I do not advise an appeal. A decision granting a motion to remand is not appealable.

6. The action for damages against the state of Tennessee over $1,000,000 must be brought in circuit court. Under the 11th amendment, federal courts have no jurisdiction in actions against a state by citizens of another state.

7. The supreme court must dismiss for lack of subject matter jurisdiction, because actions for copyright infringement are exclusively federal.

8. I advise her to return the waiver of service form. If she does not, then the plaintiff will be forced to get service by some other method before getting a valid judgment, but the plaintiff will almost certainly be able to do so, and the costs of service will be taxed to the defendant. Moreover, if she waives she will get more time to answer the complaint than if she is served. There is not disadvantage to waiving service, because she can still appear and challenge personal jurisdiction (just not the method of service), which she will be forced to do after she is served properly.

9. There is supplemental jurisdiction over impleader (regardless of diversity or amount in controversy) because the claim for indemnification is so related to the principal claim that is it part of the same constitutional case. The supplemental jurisdiction statute prohibits a plaintiff in a diversity case from asserting claims against an impleaded defendant unless the claims are supported by diversity jurisdiction (which they are not in this case).

10. If an act of congress constitutional, is applies under the supremacy clause. [The Erie doctrine has nothing to do with acts of congress.]

Long Answer

Long arm jurisdiction over Frank. Since Frank did not cause a tort in Mississippi or cause injuries while driving a car in the state, the only provision of the long-arm statute that could apply would be the one authorizing service out of state on nonresidents who perform business or any character of work in the state. If that statute is interpreted broadly, it would seem to cover Frank, since his advertisements, sales, and purchases in the state constitute some work or business.

Assuming that the statute applies, we need to evaluate whether its application would violate Frank's due process rights. Due process requires minimum contacts, and for a general jurisdiction statute like this, which may not require that the jurisdictional contacts are related to the cause of action, the contacts must rise to a greater level such as systematic and continuous business activity. It is questionable whether Frank's business in Mississippi rises to the necessary level, because most of his contacts with the state are trips to attend auctions. The supreme court has held that purchases and related trips involving millions of dollars are not enough to establish general jurisdiction. Nor would the purchases in Tennessee by Mississippi residents establish contacts, for those would be the unilateral acts of others. But perhaps the advertising and the occasional sales and deliveries in Mississippi would support general jurisdiction.

Personal service on Frank. The personal service on Frank is probably good to establish jurisdiction. The state authorizes it (Miss. R. Civ. P. 4) and the state immunity statute has no application to a person who come to the state voluntarily. For some justices (Scalia, et al.), this exercise of state jurisdiction would require no further constitutional scrutiny. For a majority (?), in hand service requires minimum contacts but presence in the state establishes a presumption of validity. Under the facts here, moreover, Frank's presence in the state was related to the original death, since he has come to the resulting criminal trial. Having been served once and having notice of the action, he arguably should have reasonably foreseen being subjected to the court's personal jurisdiction.

Long arm service on Tanya. Long arm service on Tanya is authorized under two different statutes: by letting a drunk drive her car for her, she comes under the nonresident motorist; and by letting a drunk drive her car, she has committed a tort in the state. The exercise of long arm jurisdiction against nonresident motorists was held to be constitutional even before International Shoe [in Hess v. Pawloski] on a theory of implied consent, and the tort-related contacts establish minimum contacts to personal jurisdiction.

Personal service on Tanya. Though the state authorizes personal service in general, there is a statute that provides immunity for persons who have come into the state to testify in a criminal case in response to a summons. Tanya would have immunity under the statute. If she did not, the service would be constitutional. Even if in hand-service in a state is not always valid (as Justice Scalia thinks), the minimum contacts are satisfied in this case (as explained for the long-arm statute).

Long arm service on Jack. Jack is properly subject to personal jurisdiction under the nonresident motorist and tort-committed-in state long-arm statutes. The contact that is the basis for liability is also the basis for the long-arm jurisdiction, and satisfies due process.

Personal service on Jack. In hand service in the state is authorized by state law (Rule 4). It is constitutional here, either because due process does not require minimum contacts, or because due process is satisfied (for the same reasons the long-arm is). The fact that Jack may not be in the state voluntarily at the time of service is irrelevant when he entered the state voluntarily, especially when he is in custody as a result of the wrongful behavior that is the very basis of his lawsuit. He has no immunity under the statute.