Civil Procedure I § 2
Fall 2002
Final Exam with Answers
Michael H. Hoffheimer
Universitiy of Mississippi - Law School

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 90 minutes 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. Sid Slick agreed in writing to sell Bob Beyer a house in Jackson, Mississippi for $50,000. When Beyer went to give Slick the money, Slick refused to sell and explained that he now had a better offer from Thurston Thirdparty who was willing to pay $100,000 for the house.

Beyer has come to you for advice, and you have explained to him that he may pursue remedies for breach of contract in the form of damages in the amount of $50,000 for the difference between the contract price and market value or in the form of specific performance. He asks you which courts would hear his case. Please explain.

2. Pete Plinker is an adult citizen of Arkansas. Dr. Von Dumas is a citizen of Memphis, Tennessee. Dr. Von Dumas is a psychiatrist specializing in mental and emotional problems of adolescents. He has two offices, one in Memphis, and one in Oxford, Mississippi.

On April 2, 2001, Sheriff Friendly discovered Plinker under a bridge on the bank of the Tallahatchie River in Mississippi. He took Plinker to the hospital where he was found to be suffering from two broken legs. The emergency room physician told the sheriff that Plinker must have broken his legs jumping from the bridge.

When interviewed by the sheriff, Plinker explained that he had jumped from the bridge because his doctor ordered him to do so. He identified his doctor as Dr. Von Dumas and demanded that the sheriff arrest Dr. Von Dumas. The sheriff contacted Dr. Von Dumas who denied knowing or ever treating Plinker. The sheriff learned from other sources that Plinker had a long history of mental illness, and the sheriff concluded that Plinker was delusional and took no further action.

In January 2002 Plinker commenced a civil action against Dr. Von Dumas in federal court for the Northern District of Mississippi. Plinker served process by leaving a summons and copy of the complaint at Von Dumas's office in Mississippi. The complaint alleged that Von Dumas is a citizen of Tennessee and Plinker a citizen of Arkansas. It further alleged that Von Dumas was a psychiatrist; that Plinker went to Dr. Von Dumas for psychiatric treatment in Memphis; that Dr. Von Dumas told Plinker to jump off a bridge and that Plinker subsequently injured himself when he jumped off a bridge in Mississippi. The complaint alleged that defendant's conduct was reckless and malicious, and it demanded $20,000 damages for medical treatment, $30,000 for lost wages, and $50,000 for punitive damages.

The defendant moves to dismiss for improper venue. The court denies the motion. Please advise your client whether the court's decision was correct and whether you can appeal it immediately.

3. Same facts. Assume that instead of appealing, the defendant decides to move to dismiss for insufficient service of process. Rule on that motion and explain.

4. Same facts. Assume that all motions having been denied, the defendant has answered the complaint, and all discovery has been completed.

The discovery includes depositions by Dr. Von Dumas and the doctor's Memphis office manager in which both deponents categorically denied that Plinker ever visited the office. Dr. Von Dumas further denied ever having met Plinker. Discovery also includes documents that were produced comprising Dr. Von Dumas's computer office records for the entire year 2001. These records contain no evidence of any appointments by or treatment of Plinker. The office manager explained in his deposition that any appointment would have been included in the records.

On the other hand, in Plinker's deposition, the plaintiff was unable to identify exactly when he visited the defendant's office other than saying it "must have been some time in 2001." Plinker nevertheless insists that he went to Von Dumas's office and that when he asked about a bridge, Von Dumas told him angrily to go jump off a bridge. Plinker admitted that he suffered a long history of mental disease characterized by delusions and hallucinations. And Plinker also admitted that he had unsuccessfully sued two psychiatrists in the past for malpractice.

Dr. Von Dumas identified an expert during discovery, Dr. Redhot. In her deposition Dr. Redhot opined that the plaintiff formed a delusional fixation on Dr. Von Dumas after viewing Dr. Von Dumas's billboards that contain a large photograph of the doctor with a picture of a bridge and the words "Bridge to a Better Life."

Plinker identified an expert during discovery, Dr. Glubble. In her deposition Dr. Glubble opined that a psychiatrist should not get mad at someone in his office and tell him to jump off a bridge.

Dr. Von Dumas has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. You are clerking for the federal judge who asks you what the standard for granting such a motion is and whether you think it is appropriate to grant one under the circumstances. Please explain.

5. On January 14, 1999, Pat Patterson, citizen of New York, was injured when a truck driven by Dick Driver, citizen of New Jersey, collided with Patterson's car at an intersection. At the time Driver was driving the truck, he was employed by and acting in the scope of his employment for Big Trucking, Inc., a corporation incorporated in Delaware with its principal place of business in New Jersey.

On January 3, 2002, Patterson commenced a civil action against Driver and Big Trucking, Inc. in federal district court, alleging that they were jointly and severally liable and demanding total damages in the amount of $80,000.

Driver then served a cross claim on Big Trucking, Inc., alleging that Big Trucking had paid Driver less than other comparably qualified and experienced drivers because of his religion. He demanded actual damages for pack bay in the amount of $50,000 plus $25,000 punitive damages plus attorneys fees.

Big Trucking Inc. moved to dismiss both the claim and cross claim against it. You are the trial judge. Rule on the motion and explain.

6. Same facts. But assume the motion was denied. Dick Driver served an answer in which he denied that he was negligent. He also asserted a counterclaim for damage in the amount of $2000 for medical expenses and $5000 for pain and suffering that he claims he suffered as a result of the collision.

The state in which the accident occurred and in which the federal court is sitting has a three year statute of limitations for personal injury actions. Both the complaint and counterclaim were timely filed.

On September 1, 2002, the day before trial was to begin in federal court, Patterson dismissed his complaint against both Driver and Big Trucking Inc., because Big Trucking's insurance company agreed to pay Patterson $50,000 in settlement of all claims.

But Driver still feels he was wronged by Patterson, and refuses to dismiss his counterclaim, especially since it has been more than three years since the collision. Patterson moves to dismiss. Rule on the motion and explain.

7. Paul Bunyan was a Minnesota citizen who provided tree cutting services throughout the United States. Missy Pippin, a Mississippi citizen, who owned 10,000 acres of forest in Marshall County Mississippi, called Bunyan and asked him to clear cut her land.

Unfortunately, Bunyan wrote down the wrong address for the land. Instead of clear cutting trees on Pippin's land, he cut all the trees on the adjacent land in Marshall County that was owned by Arkie Sawyer, a citizen of Arkansas. Before the mistake was discovered, Bunyan took the timber to a nearby pulpwood mill, where it was turned into paper.

Unfortunately, the trees on Arkie's land were not being grown for pulpwood. Rather Arkie was growing a rare new genetically modified variety of black walnut. He planned to harvest the wood and use it to make high quality ukuleles. He claims that the total value of the trees on his land was over one million dollars. And he claims that he lost future profits of tens of millions of dollars in anticipated ukulele sales.

Arkie has commenced a civil action against Bunyan in federal district court for the district of Minnesota alleging diversity of citizenship and demanding over one million dollars in damages. He obtained service of process by personal delivery on Bunyan by a process server.

You are representing Bunyan. Please identify available defenses.

8. On June 10, 2001, Amy commenced a civil action against Bob in state Chancery Court seeking an annulment of their marriage on the grounds that Bob had a sex-change operation prior to their marriage. Bob's answer admitting the allegation but responded that Amy knew that he had a sex-change operation when they got married; and Bob further alleged that Amy, too, had a sex-change operation.

Assume that the state statute requires persons to be of different sexes in order to get married but does not otherwise define sex, and there are no cases dealing with the status of persons who have had sex-change operations. On June 20, 2002, Bob got leave of Chancery Court to amend his answer to include a new defense and to add a counterclaim against Amy. In the defense he argues that permitting an annulment due to his sex-change status would violate his rights to equal protection under the United States Constitution. In his counterclaim, Bob alleges that Amy has conspired with persons unknown to deprive Bob of equal protection of the laws in violation of the United States Constitution and federal statutes.

Immediately upon being served with Bob's amended answer and counterclaim, Amy removed the action to federal court. Bob has filed a motion for remand. Rule on the motion and explain.

9. Pam and Dan live next to each other in Lamarville, Mississippi. Dan liked to play his electric ukulele at all hours of the night. When Pam repeatedly explained to Dan that she had to get up early for classes and asked him to turn the volume down, Dan just laughed and turned up the volume.

Finally, Pam filed a complaint against Dan in Chancery Court seeking an injunction ordering Dan to stop playing the ukulele at night and demanding damages in the amount of $300.00.

This got Dan's attention and he promised Pam to stop playing the ukulele after 9:00 pm if she would dismiss her lawsuit and agree to give up her claim for damages.

Pam agreed. And Dan brought her a settlement agreement for her signature. The agreement states the terms of their agreement and adds that Pam promises to dismiss her complaint against Dan "with prejudice."

Pam has come to you for legal advice. She specifically wants to know what dismissing a complaint with prejudice means and whether she should agree to do so. Please advise.

II. Long Answer

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

A. The Tortfeasor Relief Bill (suggested time 30 minutes)

George Schrubb, a state legislator in a state somewhere in the mid South, is keenly interested in tort reform. Sick of malpractice litigation and convinced that plaintiffs' lawyers are making a killing off wrongful death actions, Schrubb has several bold ideas for deterring plaintiffs from bringing nonmeritorious and inconvenient malpractice litigation in the state's courts.

First, to discourage plaintiffs from bringing cases with weak ties to the state, Schrubb proposes a statutory modification of the doctrine of forum non conveniens. Under his proposed statute, a state court would be required to dismiss any malpractice action where the acts or omissions giving rise to the alleged injuries did not occur in the state; where a defendant can show that a state court in another state has jurisdiction over the claims and over all defendants; where the statute of limitations has not expired in that other state court; and where the defendants have no more contacts with Schrubb's state than in that other state. Under such circumstances, Schrubb's proposed statute would make dismissal mandatory not discretionary.

Second, Schrubb proposes that as a prerequisite to filing any civil action alleging medical malpractice a plaintiff must attach to the complaint and file with the court a certificate of a licensed physician that certifies that the physician has evaluated the medical claims at issue in the case and finds that there is a "good faith and medically sound argument that the plaintiff suffered injuries as a result of improper medical treatment." The penalty for commencing an action in violation of this new certificate requirement would be dismissal of the plaintiff's claim and a $5000 fine.

Third, Schrubb proposes revising the state rule of civil procedure 11. That rule currently follows the federal rule and gives a trial judge discretion to award attorneys fees as a sanction against a party who files frivolous pleadings. Schrubb proposes making the award of such sanctions mandatory rather than discretionary.

Schrubb is concerned about whether any of his proposed reforms would induce plaintiffs to seek a federal forum and asks your expert opinion as to whether his three proposals would be enforced by federal courts. Please advise and explain.

B. The Case of the Bad Uke (suggested time 60 minutes)

In May 1999, after retiring from teaching for many years at the University of Mississippi, Professor Hoffdoodle, who was born in California, decided to open a music store in Oxford, Mississippi. Hoffdoodle visited Nashville, Tennessee in order to obtain inventory for his store. Among the places he visited was Novelty Ukes Corporation, a business incorporated under the laws of Mississippi but with its principal place of business in Nashville, Tennessee.

Hoffdoodle was attracted to Novelty Ukes because he had seen the company's advertisements in Uke Player Magazine, a nationally distributed magazine aimed at amateur musicians. The magazine had 100,000 subscribers in the United States and 2500 subscribers in Mississippi, including Hoffdoodle. Hoffdoodle had also visited Novelty Ukes's website on the Internet from his office in Mississippi. Hoffdoodle liked the fact that the company maintained a toll-free number but he never contacted it by telephone.

Hoffdoodle was especially interested in two ukulele models manufactured by Novelty Ukes that he saw depicted on the website. The first, called the "Rebel Uke," was painted in vivid red and blue colors with a picture of a bearded Confederate colonel kicking a bulldog. The second, called the "Bulldog Uke," was painted in maroon and white and depicted a bulldog biting a Confederate colonel figure. Hoffdoodle was sure that the rebel and bulldog mascots, associated with Mississippi universities, would guarantee high sales during football season.

The ukuleles came in two designs. A traditional acoustic design had a list price of $400. An electric design had a list price of $600. The electric instrument incorporated a new system with speaker and amplifier on the instrument, which plugged directly into a wall outlet.

During his visit to the Novelty Ukes facility in Nashville, Hoffdoodle learned that Novelty Ukes had manufactured only seven Rebel and Bulldog ukuleles. Two were still available for purchase but the other five had been sold over the Internet and shipped to proud purchasers in Mississippi. Hoffdoodle also learned that Novelty Ukes had sold a total of ten other undecorated ukuleles to purchasers in Mississippi who had responded to ads either in Uke Player or on the Internet.

After being assured that Novelty Ukes had all necessary permission to use the rebel and bulldog logos, Hoffdoodle agreed to purchase the two available rebel and bulldog ukuleles. The bulldog model incorporated the new electric system, and the rebel model was an acoustic instrument. Novelty Ukes agreed to ship these items to Hoffdoodle in Mississippi so that he could avoid paying Tennessee sales tax.

Hoffdoodle also discussed the possibility of ordering up to 100 more such ukuleles in the future. Novelty Ukes promised (in writing) to provide such instruments at the cost of $150 each if he ordered within three months, and Hoffdoodle said he would decide soon. The written offer stated clearly that "all sales and future orders will be governed by the law of the state of Tennessee."

Hoffdoodle returned to his store in Oxford, Mississippi. A few days later the two ukuleles arrived by mail. On May 30, Jane Kalamitof, a customer at Hoffdoodle's store suffered a serious electric shock while trying to play the electric bulldog model ukulele. Kalamitof is a citizen of Russia who has been admitted to the United States for permanent residence. She is a doctor who lives and works in Memphis, Tennessee. Her injuries, including burns and permanent loss of function in two fingers, prevented her from sitting for a medical board certification exam as planned and will prevent her from being able to perform certain surgical procedures in the future.

In mid June Novelty Ukes sent Hoffdoodle a bill for the two ukuleles and asked if he wanted to buy any more. Hoffdoodle sent the bill back with a note saying that he refused to pay because the instruments were defective. Hoffdoodle also posted a warning on an Internet listserv accusing Novelty Ukes of selling dangerous products. As a result of Hoffdoodle's warning, music stores across the country have cancelled orders for Novelty Ukes's merchandise and returned inventory to it.

In September 1999 Novelty Ukes commenced a civil action against Hofdoodle in federal district court for the Eastern District of Tennessee. The complaint sought $1050 for the purchase price and shipping costs of the two instruments it shipped to Hoffdoodle. It also sought $75000 for allegedly defamatory statements about its products that Hoffdoodle published over the Internet. Unable to get personal service in the state of Tennessee on Hoffdoodle, it effected service of process by publication. Hoffdoodle read the published notice but ignored the case, and final judgment was entered against him in January 2000 in the amount of $76050 (plus costs).

In January 2000, Kalamitof commenced a civil action against Hoffdoodle in federal court for the Northern District of Mississippi, for injuries suffered in his store, demanding two million dollars in damages for medical expenses, pain, suffering, lost earnings, and lost future earnings. Hoffdoodle impleaded Novelty Ukes Corp. on the theory that, if he is liable to Kalamitof, Novelty Ukes is liable to him. After Hoffdoodle impleaded Novelty Ukes, Kalamitof amended her complaint to state a tort claim directly against Novelty Ukes for negligence and defective product.

Novelty Ukes has filed a motion to dismiss on four grounds. First, it argues that its final judgment against Hoffdoodle is res judicata and collateral estoppel of his claims because such claims were either claims or defenses that were decided against him in the previous case or they were compulsory counterclaims that had to be raised at that time. Second, it argues that the court has no personal jurisdiction over it. Third, it argues that the court has no subject matter jurisdiction over Hoffdoodle's claim. Fourth, it argues that the court has no subject matter jurisdiction over Kalamitof's claim against it. Rule on the motion addressing all grounds and explaining fully.

1. Circuit Court has subject matter jurisdiction over the claim for damages. Chancery Court has subject matter jurisdiction over the suit for specific performance. County Court (if one is available) has concurrent jurisdiction over the action form damages (which do not exceed $75000); County Court would also have concurrent jurisdiction over the equitable claim for specific performance but only if the value of the equitable relief did not exceed $75000.

2. Venue is correct. Federal district courts have venue where a significant part of the events or omissions giving rise to a claim occur--here causation and damages. The decision is not appealable because it is not a final decision.

3. Motion to dismiss for insufficient service must be denied. Service was originally insufficient but that defense was waived when omitted from the prior Rule 12 motion.

4. The standard for granting summary judgment is that there must be no genuine issue of material fact and the moving party must be entitled to judgment as a matter of law. Fact issues here include credibility of witnesses and probably prevent such a motion being granted.

5. 1) Motion to dismiss the claim is denied; there is complete diversity and the amount in controversy requirement is met. 2) Motion to dismiss the cross claim is granted; it does not arise from the transaction or occurrence that is the subject matter of the original action and is thus not authorized by federal rule.

6. I would probably dismiss. The federal court had supplemental jurisdiction over the compulsory counterclaim arising from a common nucleus of operative facts, but 28 U.S.C. § 1367 gives the court discretion to dismiss such claims when it has dismissed the claim over which it had original jurisdiction. Moreover, the opinion in Gibbs stated that a court "should" dismiss under such circumstances. And the statute of limitations is not a problem since the statute tolls the state statute for 30 days after the claim is dismissed, thus allowing the claim to be refiled in state court.

7. The local action rule provides a defense.

8. Grant the motion to remand. Plaintiffs cannot remove.

9. Dismissal with prejudice operates as a decision on the merits and prevents refiling the same claim. Accordingly, the plaintiff should not agree to dismiss with prejudice so that if the defendant violates the settlement agreement she can file the claim again.

A. Tortfeasor Relief Bill

1. The proposed statute modifying state forum non conveniens would promote forum shopping because it would probably not be applied in federal court. Federal courts in transferring cases properly before them to federal courts in other states are governed by a federal statute, 28 U.S.C. § 1404(a). This statute gives federal judges broad discretion to consider the interests of justice and the convenience of parties and witnesses in transferring. Such broad discretion directly conflicts with the proposed state law and displaces it in federal court. Stewart Org. v. Ricoh.

2. Whether the proposed state requirement for a medical certificate will be binding on the federal court will depend on whether there is any federal statute or Federal Rule of Civil Procedure that can be found that directly conflicts with such a requirement. Perhaps the general pleading requirement in the Federal Rules of Civil Procedure that mandate only a short and plain statement of plaintiff's claims would be found to directly conflict with the state rule. If so, the federal rules will govern under Hanna v. Plumer because such rules really regulate how issues are presented to the courts and are thus within the Rules Enabling Act's grant of power to adopt rule of "procedure."

In the absence of such a federal statute or Rule of Civil Procedure, Erie will require adoption of the state practice. First, the proposed state practice may create a substantive right under state law. The fine, especially if payable to the opposing party, starts to look like a cause of action or damages, whichErie may directly require to be recognized in federal court. But even if the certificate and fine are viewed a procedural, the resulting costs, burdens, and strategic disadvantages experienced by plaintiffs would significantly affect the outcome of litigation and provide a powerful incentive for forum-shopping, so federal courts would adopt the state practice under Byrd.

3. The new state mandatory rules for sanctions would (the question says) conflict with discretion that the federal rules explicitly give to federal judges under Federal Rule of Civil Procedure 11. According to Hanna the federal rule, adopted pursuant to the Rules Enabling Act, must apply so long as it is consistent with the act's authorization of rules of "procedure." Rule 11's grant of discretion is "procedural" in that it regulates how issues are presented to the court. So federal courts would apply the federal rule, and this would also encourage forum shopping.

B. The Bad Uke

Motion to dismiss Hoffdoodle's third party complaint denied on all grounds. Motion to dismiss Kalmitof's amended complaint granted.

A good answer would need to consider all the following:

1. Res judicata or collateral estoppel:

No preclusive effect can be given the prior default judgement because it is void because the publication notice was not a method reasonably calculated to give defendant notice and opportunity to appear and be heard. Mullane. This defense was not waived because Hoffdoodle did not appear in the action but took a default judgment.

There are also questions as to whether Hoffdoodle had the required minimum contacts with Tennessee to require him to answer the suit. Generally purchases and related trips are not enough to establish personal jurisdiction. The choice of law (NOT choice of forum) was in an offer not an ongoing contract and is thus distinguishable from that in the multimillion dollar commercial contract in Burger King.

2. Personal jurisdiction is good over Ukes.

First, Ukes is a Mississippi Corporation and thus subject to general personal jurisdiction in the state. Second, specific jurisdiction exists because the cause of action arose out of Ukes's contacts in the state. Ukes sent (allegedly) defective goods directly into the state where they caused serious injuries. Mississippi's long arm would apply as this would be causing tort in the state, entering into contract with a Mississippi resident to be performed in part in state, and doing any character of business in the state. The direct mailing of dangerous items into the state establishes a minimum contact. It is purposeful and the defendant derived a benefit from it.

(This was not a stream of commerce scenario!)

3. Subject matter jurisdiction over impleaded third party defendant

Absent diversity, there is still subject matter jurisdiction over the impleaded third party defendant. There is original jurisdiction over Kalamitof's cause of action based on diversity. The federal rules authorize a defendant to implead a party who may be liable to him if he may be liable to plaintiff. By definition, such a claim for indemnification is part of the same constitutional "case" as the initial cause of action and is, therefore, authorized by the Supplemental Jurisdiction statute.

4. Subject matter jurisdiction over plaintiff's amended complaint against third-party defendant

Section 1367(b) provides an exception to the exercise of supplemental jurisdiction. It applies in actions based on diversity of citizenship only and prevents plaintiffs (only) from asserting new claims against parties that have been joined (including by impleader) when so doing would violate the rules of complete diversity. In this case, plaintiff's amended complaint would destroy complete diversity.