Civil Procedure I § 2                   University of Mississippi

Fall 2006                              Law School

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.

    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 one hour or ten minutes each)

    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. On September 15, 2005 Mr Peters and Mr Dodge got into shouting match on the Oxford Square in Mississippi when Peters pulled into a parking place that Dodge was waiting for. When Peters returned to his car, he discovered a large scratch on the side of his car that formed the words "Eat my dust."

    Peters hired a lawyer who investigated the incident and located two eyewitnesses who are prepared to testify that they observed Dodge scratch Peters car with a screwdriver. Dodge denied liability and refused to pay for the repair.

    Peters commenced a civil action against Dodge in state court seeking compensatory and punitive damages. After the completion of discovery, Peters moved for summary judgment on the issue of liability. With the motion he attached affidavits signed by the two eyewitnesses. The affidavits affirmatively identify Dodge as the person who scratched Peters's car. Dodge responded to the motion denying that he scratched the car. He also attached his own affidavit in which he affirmed "I never scratched Peters's car and those who say I did are a bunch of dirty liars."

    You are clerking for the judge who asks you what she should do. Please advise and explain. For purposes of this question you may assume that the Mississippi standard for granting summary judgment is identical to that in Federal Rule of Civil Procedure 56.

    2. Able and Baker ate lunch together at the Countrifried Steakhouse in Memphis, Tennessee. Able and Baker claim the restaurant served them meat that contained pieces of broken glass, and they claim they suffered serious injuries as a result of ingesting the glass. Each contacted the restaurant and demanded one million dollars for his alleged injuries.

    After researching the claim, the restaurant's lawyer concluded that either Able and Baker were lying or they had ingested the glass from some other source. The restaurant refused to make any settlement offer, and its lawyer warned Able and Baker that the restaurant would consider bringing a defamation claim if Able or Baker continued to blame the restaurant publicly of serving glass.

    Able subsequently commenced a civil action for tort in Tennessee state court against Countrified Steakhouse alleging that the restaurant had caused serious injuries to him by serving broken glass. The defendant answered by denying liability. In addition, the defendant counterclaimed for defamation, alleging that Able intentionally and maliciously spread false stories about the restaurant's service.

    The case went to trial before a jury. The jury found against Able on his personal injury claim, and it found in favor of Countrifried Steakhouse on its defamation counterclaim. The trial court entered judgment accordingly, and the judgment was affirmed on appeal.

    After the Able's proceedings had ended, Baker commenced a second personal injury action against Countrifried Steakhouse in Tennessee state court. His complaint alleges that he was served broken glass at the same time as Able and was injured. The defendant has filed a motion to dismiss on the ground of res judicata. You are the trial judge. Rule on the motion and explain.

    3. Arthur Pent woke up one morning at his home in Jackson, Mississippi to find bulldozers preparing to demolish his house. The manager of the work crew showed Pent his written work order and would not believe Pent's statement that he owned the house.

    Pent reached his lawyer who has called you on your cell phone. The lawyer wants to know which courts in Mississippi have jurisdiction over actions seeking a preliminary injunction. Please advise.

    4. Tess Thompson died leaving a diamond ring in a safe deposit box at the New York Bank Co. in New York. The Bank is a corporation incorporated under the laws of Delaware with its principal place of business in New York. Two people claim they own the ring. Beth Thompson, Tess Thompson's daughter, who is a citizen of New Jersey, claims her mother gave her the ring during her lifetime. But Carol Carolton, Tess Thompson's nextdoor neighbor, claims she is the owner.

    The bank commenced an interpleader action in federal district court for the district of New York where the safe deposit box is located. The bank deposited the ring with the federal court and interpleaded Beth Thompson and Carol Carolton. All parties agree that value of the ring $2500.

    Carolton filed a motion to dismiss for lack of subject matter jurisdiction. The trial court denied the motion. You are representing Carolton. She asks you whether you should appeal this ruling. Please explain.

    5. Pat, a citizen of state X, and Don, a citizen of state Y, own recreational property next to each other in the state of Z. Don is an inventer and is working to develop a prototype for a new toy called the "sonic noise blaster." The device emits extremely loud noises in sudden bursts of directed sound waves. By pointing the noise blaster at birds and other wildlife, Don can startle, disable, and even kill small animals. The device's loud, unpleasant sounds are audible for up to three miles.

    Don's repeated operation of the device has now caused most wildlife to flee the area. Moreover, Don has disrupted Pat's sleep many night by operating the device late at night to test its effect on bats.

    Pat repeatedly asked Don to make the toy quieter or to limit his use of it, but Pat just laughed and said "Get a life, old man."

    Pat commenced a civil action in state court in the state of Z alleging that Don's operation of the sonic noise blaster is a nuisance and also that Don's use of the device constitutes intentional infliction of emotional distress. The complaint does not seek damages but requests an injunction ordering the permanent silencing of the noise blaster and any similar noise creating devices.

    Don removed the action to the federal court for the district of state Z in which the state action was pending. His removal notice asserts that the amount in controversy exceeds $100,000 because his ability to research the sonic noise blaster is essential to his livelihood and a marketable version of the toy will be worth millions of dollars.

    Pat has filed a motion for a preliminary injunction. Under case law in state Z, a plaintiff seeking a preliminary injunction is not required to post a bond. Don has moved the court to require Pat to post a bond in the amount of $10,000 to compensate him for the loss of use of his property in the event she does not prevail at trial. Pat contends she cannot afford such a high bond and is not required to post a bond under state law. She asks the court not to follow state law and instead to use its discretion either to dispense with the bond requirement or to impose a lower amount.

    You are the judge. Rule on the motion for bond and explain.

    6. Same facts. The bond issue has been resolved, and the federal court must now decide whether to grant the preliminary injunction. There are two separate issues.

    First, the defendant raises a defense of laches under state law, arguing that the plaintiff knew that the defendant was installing expensive noise testing equipment and unreasonably delayed bringing a civil action until such an action would cause real economic hardship to the defendant. Under the case law of state X, laches is available as a defense in any action seeking equitable relief. But the plaintiff argues that the federal court should disregard this procedural rule which is based on caselaw. The plaintiff argues that the only binding rule is found in the state X statute of limitations, which has not expired.

    Second, the defendant argues that a preliminary injunction is not appropriate under the law of state Z because of a state Z case that requires proof of an irreparable injury. The plaintiff concedes that state Z's irreparable injury requirement may be hard to meet but urges the court to employ federal remedial standards under which a preliminary injunction may be granted if the plaintiff can demonstrate that serious questions are raised and the balance of hardships tips sharply in plaintiff's favor.

    Please explain whether the federal court must apply state X's defense of laches and whether it should apply the state or federal standard for issuing a preliminary injunction.

II. Instructions. Consider the following problems carefully and write coherent, literate essays in your blue book that respond to each.

A. The Case of the International Confusion (suggested time 60 minutes)

    Pedro Paramo, a citizen of Mexico, and Bub Varner, a citizen of Mississippi, were classmates at the University of Mississippi. In January 2005 Paramo and Varner drove to Memphis, Tennessee to have dinner and see a movie. While they were driving in Memphis, they were struck from behind by a truck driven by Duddley Doright. Varner and Paramo were injured in the collision, and Varner's car was damaged.

    At the time of the collision Doright was a citizen of Canada (not admitted to permanent residence).

    In May 2005 Paramo and Varner commenced a civil action against Doright in federal court for the Northern District of Mississippi. The complaint demands damages in the amount of $75,000 for Paramo and $50,000 for Varner. On July 4, 2005, Doright's legal status changed and he became an alien admitted to permanent residence. He resides in Jackson, Mississippi.

    After filing the complaint, the plaintiffs mailed the defendant a request for waiver of summons with the appropriate accompanying documentation. When defendant failed to respond, Paramo arranged for personal delivery of service by a professional process server at a cost of $200.00. The process server delivered the summons and complaint to the defendant in Jackson, Mississippi in June 2005.

    In October 2005, the defendant filed a motion to dismiss for lack of personal jurisdiction. The trial judge denied the motion, and the case was eventually tried to a jury, which returned a verdict for the plaintiffs. The court entered judgment for Paramo in the amount of $75,200.00. The judgment included damages plus the expenses associated with service or process. The court entered judgment for Varner in the amount of $50,000.

    The defendant appeals from the judgment and raises the following issues: lack of subject matter jurisdiction, lack of personal jurisdiction, and improper venue. You are clerking for the appellate judge who asks how she should rule on these issues. Please write a memorandum fully advising the judge on all issues.

B. The Case of the King's Kiss All (suggested time 60 minutes)

    Bob Bookseller was born and lived his entire life in Los Angeles, California. In the late 1990s Bookseller started an on-line book service that specialized in rare books and manuscripts. He advertised his inventory on a website that was hosted by a local computer service provider and that was accessible anywhere in the world.

    Bookseller's website consisted of an alphabetical list of his inventory. He regularly updated the listing, and it usually included 200 books and manuscripts. The website also feature about ten photographs of items for sale. The site was interactive only to the extent that when a viewer clicked on a book title or photograph, the website generated an e-mail query to Bookseller's email address.

    From 1998 to 2005 Bookseller sold 2000 books over the Internet. The Internet site resulted in sales of three books to purchasers in Mississippi, and these three sales generated income totalling $300.

    At the bottom of Bookseller's website appear the words in small print "terms and conditions." By clicking on these words, a balloon appears on screen containing the following text: "All disputes arising in connection with sales of items listed on this website must be commenced only in state or federal courts located in California and nowhere else."

    Parker Park is a citizen of Tennessee who was enrolled in business school at the University of Mississippi. One day while Park was surfing the Internet in his dorm in Mississippi, he encountered Bookseller's on-line inventory. He was especially interested in a rare manuscript that purported to be an autobiography entitled "Kiss All and Tell" by Elvis Presley. The website description stated that the manuscript was written entirely in Elvis's handwriting and that it also contained sketches and doodles in the margin by Elvis. The manuscript was offered for sale for $4,000.

    Park clicked on the image and contacted Bookseller by filling out and sending an email requesting more information. Bookseller replied to all of Park's questions by email. Park then called Bookseller long distance at his home phone number in California. The two discussed the history of the manuscript at some length and haggled over the price. Finally, Park agreed orally to buy the manuscript for $3,200. He then sent an email to Bookseller that stated, "I will buy your Elvis manuscript for $3200." Bookseller sent a return email that said, "Agree. Send check and shipping instructions." Park never viewed the text on the website under "terms and conditions," nor was any mention of the terms and conditions made by Bookseller during email exchanges or oral negotiations with Park.

    Park immediately sent a check by U.S. mail along with instructions to mail the manuscript to his home address in Tennessee. Bookseller neither cashed the check nor mailed the manuscript. Instead he sold it to a collector in California for $400,000.

    Park commenced a civil action against Bookseller in federal district court for the Northern District of Mississippi. The complaint alleges diversity of citizenship and demands damages in the amount of $396,800.00. The plaintiff is representing himself and arranged for service in two different ways. First, he mailed a summons and copy of the complaint to the defendant in California by certified mail as authorized by Mississippi rule. Second, he personally delivered the summons and complaint to the defendant at a Memphis book fair that Bookseller was attending. Bookseller has never visited Mississippi, but the convention center where he was handed the process is located less than one hundred miles from the federal court where the action is pending in Mississippi.

    Bookseller has filed motions to dismiss for lack of personal jurisdiction, improper venue, and insufficient service of process. He has also filed a motion to dismiss pursuant to the website language that requires all litigation to take place in California. In the alternative, Bookseller has filed a motion pursuant to 28 U.S.C. section 1404(a) to transfer the case to federal court in California for the district where the defendant resides.

    The trial judge asks you to research and write a memorandum on all the issues raised by the defendant's motions. In addition the judge tells you the federal court is extremely overworked and asks whether the court can certify these questions to the Mississippi supreme court. Please write a memorandum advising the judge fully.

Civil Procedure I § 2                   University of Mississippi

Fall 2006                              Law School

Final Exam Answers                     Michael H. Hoffheimer


    1. Motion for summary judgment denied. The defendant's affidavit creates a genuine issue of material fact so that the defendant is not entitled to judgment as a matter of law.

    2. Motion to dismiss on grounds of res judicata denied. Claim preclusion does not apply because B is a different party and B's claim for damages is a different claim. Issue or fact preclusion does not apply because B has not had his day in court and the fact was not decided against him.

    3. Preliminary injunctions are equitable remedies, so the Chancery Court has jurisdiction, and a County Court (if there is one for the county) will have concurrent jurisdiction up to $200,000. A federal district court will have jurisdiction to issue an injunction only if there is federal jurisdiction--e.g., based on diversity of citizenship or federal question jurisdiction.

    4. The denial of the motion to dismiss is obviously reversible error (because there is neither statutory interpleader where claimants are non-diverse nor rule interpleader where the amount in controversy is $2500), but the decision is not appealable now because it is not a final judgment.

    5. Because Rule 65 appears to require a bond for issuing any preliminary injunction, this requires a guided Erie analysis. First, the federal bond requirement appeals to expressly cover the issue (though this may be uncertain because some federal courts do not require the bond despite the rule's plain language). Second, the requirement of a bond appears to be "procedural" under the broad test proposed by Hanna v. Plumer: it really regulates how issues are presented to courts. [An analysis applying exactly the same rules and authorities to reach the contrary result would be possible.]

    6. The Erie decision made clear that federal courts must follow state case law as well as statutes, and York made clear that state rules governing the termination of claims are binding in federal decisions. [The state law of laches is substantive.]

II. A. The Case of the International Incident

A good answer would have to analyze the following:

Subject matter jurisdiction is not waived.

The time of commencement is the time for evaluating subject matter jurisdiction.

At the time of commencement there is neither diversity nor alienage jurisdiction because the action is not exclusively between citizens of the U.S. with aliens as additional parties.

The defect is not cured by D's later qualification as an alien admitted to permanent residence because his place of citizenship would then be the same as P's, destroying complete diversity.

The amount in controversy must exceed (not be equal to $75000). This amount excludes costs and, excluding the $200 recovery for service, is not satisfied.

The amount cannot be met by adding claims of different parties (absent a claim for a common right).

Supplemental jurisdiction is not available because there is no claim over which the federal court has original jurisdiction.

Valid personal jurisdiction is generally established by in hand delivery in state--either because that method is traditional and thus comports with due process (Justice Scalia's view) or because that method is usually accompanied by minimum contacts establishing reasonable expectations of amenability to suit (Justice Brennan's view). There are no facts here to suggest that in hand service would violate due process. On the contrary, D's establishment of residence shortly after service strongly suggests a connection with the forum state.

Venue was waived because it was not included in the pre-answer motion to dismiss for lack of personal jurisdiction.

B. The Case of the King's Kiss All

Personal jurisdiction requires a consideration of the Miss. long-arm statute. The contract provision does not apply because the contract was not with a Mississippi resident (nor to be performed in state). The defendant may, however, be subject to the provision that reaches parties engaging in any character of work or service in state.

If the long-arm applies, then it is necessary to consider whether exercise of personal jurisdiction is supported by minimum contacts. Specific personal jurisdiction over a claim arising from the web transaction is uncertain. Under the facts here it appears that the buyer merely learned of the item on a passive web display and that P initiated contacts from Miss. (It is even possible that the D did not know he was dealing with someone located in Miss.) This might not be enough to establish acts purposely directed towards the forum state. General jurisdiction is also uncertain. The Internet cases emphasize that passive websites are not enough. General jurisdiction is also uncertain. But three unrelated sales of modest inventory hardly seem to establish continuous and systematic activity so that the seller could be forced to answer civil actions in the jurisdiction for any legal claim. The quantity of sales do not compare with the facts in cases like LL Bean involving millions of dollars.

Service by certified mail is okay (because the federal rules incorporate the state service rules of the state in which the federal court sits). The in hand service (out of state) is not valid because a party to the action cannot serve.

Venue is arguably appropriate in Mississippi because significant acts of omissions giving rise to the claim there, including negotiation of the contract.

Forum selection clauses are enforceable when they are reasonable (Carnival Cruise's rule is widely followed), but the party must first agree to the clause. Under the facts the plaintiff did not agree to the clause. Unlike Carnival Cruise, it is not clear that the party had adequate legal notice or that the clause was incorporated into the contract.

No certification is authorized by the Mississippi Rules of Appellate Procedure when the issue is pending in federal trial court. It applies only to federal circuits and to the Supreme Court.