Civil Procedure I University of Mississippi

Fall 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. Define a writ of mandamus and explain the difference between it and an injunction.

2. What is the trial jurisdiction of a United States Magistrate Judge?

3. Dr. Phibes, a Mississippi citizen, was injured in Memphis, Tennessee, when his car was driven off the road by a car driven by Denis Dumonde, a citizen of France, who is currently attending the University of Alabama as an exchange student. Phibes's car was destroyed, and Phibes suffered extensive personal injuries.

After returning to Lafayette County, Mississippi, Phibes commenced a civil action against Dumonde in Chancery Court, demanding $1,000,000 damages. Dumonde has never been in Mississippi, but Phibes obtained service of process upon Dumonde in Alabama by means of certified mail.

Dumonde removed the action to the United States district court for the northern district of Mississippi. He has filed a motion to dismiss for lack of personal jurisdiction and venue.

Rule on the motion and explain.

4. In Marshall v. State, No. 92-KA-01294-SCT, slip op. (Miss. Sept. 28, 1995), two criminal defendants, convicted at trial, appealed their convictions to the Supreme Court of Mississippi. When the court assigned their appeals to the new state Court of Appeals, the defendants objected to the assignment and moved for the remand of their appeals to the supreme court. Defendants challenged the legality of the new court, arguing that they had a state constitutional right to appeal to the Mississippi supreme court and that the new court was not an "inferior" court as required by the state constitution.

The Supreme of Mississippi rejected both arguments, overruled the objections, and denied the motions for remand. Assume that Jim Davis (attorney for both defendants) approaches you at this stage of the proceedings. He asks you whether he can get the Supreme Court of the United States to reverse the state supreme court's decision. Please explain whether the Supreme Court of the United States has jurisdiction.

5. Sue Peterson, was born and raised in Arkansas. After graduating from high school in Arkansas, she came to the University of Mississippi for college. While in college, her parents bought her a house in Oxford, Mississippi. She got a Mississippi drivers license, and registered to vote in Mississippi.

Now in her third year of college, she has become engaged to marry Sammy Houston, a citizen of Texas. She and Sammy plan to get married next year, and they hope to find jobs together in Memphis, Tennessee.

Ms. Peterson bought an alarm clock at Walmart in Oxford. Assume that Walmart in incorporated and has its principal place of business in Arkansas. Walmart has over six major stores in northern Mississippi, and each does millions of dollars worth of sales annually.

Ms. Peterson set her alarm clock for the next morning. The alarm went off at the right time, but when she tried to turn it off, she received an electric shock and was seriously injured. In addition to her pain, which was severe but short in duration, the injury required medical attention, which cost $150. Moreover, the injury occurred two days before her final exams, and Peterson believes that her grades suffered because the injury interfered with her opportunity to study. In fact, because of her performance on the final exam, she flunked one course, which she will have to take again, and, as a result, her graduation will be delayed by at least a semester.

Peterson comes to you for advice about commencing a civil action for personal injury damages against Walmart. Explain whether she can get personal jurisdiction over Walmart and explain what Mississippi state courts have subject matter jurisdiction.

6. Same facts. Ms. Peterson wants you to file her case in federal court in Oxford. Would the federal court have subject matter jurisdiction, personal jurisdiction, and venue? Explain.

7. In 1960, one hundred acres of land in Red Oak, Missouri, were divided into half-acre lots for development as residential property. The development was called Oakland Hills Estates. The deed to each lot in the development specified that the property was restricted and that no more than one single-family dwelling could ever be built on the lot.

In 1985, Don Duncan, the owner of adjacent lots number 12 and 13 in the development decided that he wanted to construct apartments on his property in violation of the restrictive covenant in his deeds to lots 12 and 13. He wanted to remove the restrictive covenants and, accordingly, commenced a civil action in Missouri state court to remove the restriction upon his land. His complaint named a few, but not all, of his neighbors in the development. And he served process by publication pursuant to Missouri law. The court, after a public hearing, entered a declaratory judgment that declared that the covenants were unenforceable and that Duncan's proposed apartments were not in violation of the development's restrictions.

For many years Duncan did nothing. But in 1994 he began building apartments. His neighbor, Pam Friendly, the owner of lot 14, wants to stop Duncan from building apartments and wants to enforce the restrictive covenants in the deeds. Duncan showed her a copy of the 1985 judgment, and she has come to you for advice.

After researching the applicable law and the court records, you have concluded that in Missouri such covenants run with the land--that is, they are binding on the property owners and are enforceable by other property owners in the development. You have also found that Friendly's predecessor in title (from whom she bought lot 14) was named in Duncan's 1985 lawsuit.

Please explain to Friendly whether she can stop Duncan's construction of the apartments and why.

8. Jason Pastori, citizen of Mississippi and high school student in Lamarville, Mississippi, was dating the teenage sister Officer Badd, citizen of Mississippi and a police officer on the Lamarville police department.

Badd did not like Pastori and warned him not to date his sister any more. In response, Pastori spit in Badd's face. Badd immediately arrested Pastori. He did not charge him with any crime but kept him locked up in the town jail for one night.

Furious at this mistreatment, Pastori commenced a civil action against Badd alleging that Badd deprived him of liberty without due process and demanding one thousand dollars damages.

Badd has come to you for advice. He wants to know whether he can get the action dismissed from federal court and also whether he can present a claim in federal court for damages stemming from the assault of Pastori's spitting in his face.

Please advise.

9. Suppose that the Supreme Court rules advisory committee has announced a proposed amendment to Federal Rule of Civil Procedure 3 that would read:

A civil action is commenced when filed. For purposes of satisfying a statute of limitations, an action is timely filed if it is commenced within the period prescribed by statute, provided that service is obtained within 120 days or within any extension granted pursuant to rule 4.

Your client, Large Insurance Corp., asks you whether this differs from the present rule and how it might alter practice in federal court in Mississippi. Please advise.

10. Same facts. Would the proposed amendment be valid? Why or why not?

11. State Senator Snopes is angered by the number of frivolous appeals in Mississippi state courts and by the waste of public resources devoted to appellate litigation. He has drafted a bill designed to cut down on frivolous appeals by requiring the permission of the trial judge who heard the case as a prerequisite for appeal.

Senator Snopes asks you whether the bill, if enacted by the legislature, would cut down on frivolous appeals in diversity cases involving Mississippi law that are commenced in or removed to federal courts sitting in Mississippi. Please advise.

12. Inspired by Snopes's bill in the previous question, the United States Supreme Court rules advisory committee is thinking about proposing a new rule of appellate procedure that would make trial court permission a prerequisite for appeals in all cases. The committee asks you for advice. Please advise.

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.

Dennis Dobbers, resident of New York, owns and publishes Fleshtime, a monthly magazine that consists almost entirely of photographs of naked women. The offices and photography studios of the magazine are located in New York, New York. Its printing press and distribution center are located in Sunnytown, New Jersey.

Dobbers persuaded Pat Patterson to pose for photographs to be published in the magazine. Patterson was reluctant at first, but she agreed to pose when Dobbers offered to pay her $10,000. One of her photographs subsequently appeared on the cover of the January 1995 issue of Fleshtime. Four other photographs were printed inside the issue.

The magazine is distributed all over the country. Dobbers shipped over 10,000 to 15,000 copies of the January 1995 issue to Exotica Imports, Co., in Jackson, Mississippi. Over 9000 copies of the January issue were ultimately sold in Mississippi.

In March 1995 Patterson moved to Gulfport, Mississippi. Dobbers never paid her as agreed, and he has not responded to any of her letters. Patterson is also annoyed that some men she meets have been looking at her funny and making references to the cover of the magazine.

Patterson has approached your law partner, Ann Bogado, for legal advice. You partner wants to commence the action in federal court in Mississippi, because she thinks a federal judgment will be easier to collect in New York or New Jersey. She asks whether you she should join to her breach of contract claim (seeking damages of $10,000) a defamation claim (demanding damages of over $40,000).

Your research convinces you that there is no factual support for the defamation claim. But Bogado says that, even is that claim is "weak," she will join it to the contract claim if it will help to establish jurisdiction.

Please advise Bogado fully, considering both the advantages of joining the defamation claim and the problems.