Civil Procedure I § 2                   University of Mississippi

Fall 2004                              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 total for this part 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. Patterson, citizen of Mississippi, commenced a civil action against Dwayne, citizen of Alabama in United States District Court for the Northern District of Mississippi. The complaint contains two causes of action. The first is a tort claim for an automobile accident that allegedly occurred on Sept. 1, 2003 in Mississippi. The second is a tort claim for assault and battery that allegedly occurred at a football game in November 2004 in Tennessee. The claims are not related. Patterson demands personal injury and property damages in connection with the automobile accident in the amount of $50,000. He demands personal injury damages in connection with the assault in the amount of $25,000, and he demands punitive damages in connection with the assault in the amount of $50,000.

    Prior to serving an answer, Dwayne moves to dismiss for lack of personal jurisdiction pursuant to Rule 12. The trial court denies the motion, and Dwayne answers the complaint. Sometime after answering the complaint, Dwayne moves to dismiss for lack of subject matter jurisdiction.

    Patterson responds to the motion by arguing both that the motion is untimely and that even if it is not untimely the court has subject matter jurisdiction.

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

    2. Presley, citizen of Mississippi, entered into a written contract with Dudley, citizen of Tennessee, for the sale of 100 acres of land in Mississippi. The agreed purchase price was $100,000. The real estate agent, Paul, who was a citizen of Tennessee, was supposed to receive ten percent of the purchase price upon completion of the sale.

    Dudley refused to complete the purchase, and Presley and Paul jointly sued Dudley in federal court. Presley demanded damages in the amount of $90,000. Paul sought damages in the amount of $10,000.

    You are clerking for Dudley's lawyer. She has two questions. First, she asks whether the federal court has subject matter jurisdiction over Paul's claim. Second, she asks whether Dudley may file a counterclaim against Paul for alleged misrepresentations made in connection with the sale of land.

    Please answer the questions and explain.

    3. What is a jnov and who needs one?

    4. Phil Pinkerton was born and raised in Hinds County, Mississippi. He was a successful baseball player in high school and was actively recruited by several colleges. During Pinkerton's senior year in 1999, Robert Barker, a graduate of the University of Northern Tennessee (UNT) who lived in the northern part of Mississippi watched Pinkerton play baseball and arranged to visit Pinkerton and his parents at the Pinkertons' home. He persuaded the Pinkertons to visit the UNT campus and helped finance the visit.

    As a result of the visit, UNT sent Pinkerton a written offer of admission and an offer of an athletic scholarship. While Pinkerton was trying to decide what to do, Barker said, "I guarantee you won't regret signing with UNT." Pinkerton signed the contract in Mississippi and returned it by mail.

    In April 2001 during a home game at UNT, Pinkerton's hand was badly cut when it came in contact with the visor worn by a member of the visiting team. The visiting team was from the University of Southern Kentucky (USK). USK investigated the accident and learned that the hat had a sharp metal object in the visor. The hat was purchased by USK from A&B Sportswear. A&B Sportswear is partnership made up of Abe Able, a citizen of Wisconsin, and Bee Baker Inc., a corporation incorporated in Delaware with its principal place of business in Detroit, Michigan.

    Pinkerton has commenced a civil action in Mississippi Chancery Court for Hinds County naming Robert Barker and A&B Sportswear as defendants. The complaint asserts claims against both defendants based on tort and demands money damages in the amount of $1,000,000.

    A&B Sportswear has filed a notice of removal to federal district court for the Southern District of Mississippi, the district in which Hinds County is located. In the motion it argues that because the Mississippi three-year statute of limitations for torts has expired, Pinkerton's claim against Barker is invalid as a matter of law and Barker was fraudulently joined.

    The trial judge asks you two questions. First, he asks for your advice on how to rule on the motion to dismiss for fraudulent joinder. Second, he asks whether the fact that the action was commenced in Chancery rather than Circuit court affects the federal court's jurisdiction. Please advise.

    5. Same facts. Immediately after removing and before serving an answer, A&B Sportswear moves to dismiss on the ground that venue does not lie in the Southern District of Mississippi. Please advise the judge as to the federal court's venue in this action.

    6. Pam Peterson sued the state of Alabama in United States District Court for the District of Colorado for assault and battery and other torts in connection with her serving a prison sentence for a criminal conviction that was eventually reversed. The state responded with a motion to dismiss for lack of subject matter jurisdiction, which the trial court denied.

    You represent the state of Alabama. Your client wants to know whether the denial of its motion can be appealed. Please explain.

II. Long Answers

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

A. The Case of the Bad Hair Day (suggested time 60 minutes)

    Red Henna Shampoo is manufactured in Thailand by Red Henna Manufacturing Corp., a corporation incorporated under the laws of Thailand. The shampoo is imported and distributed in the United States by Mega Mart Stores, Inc., a corporation incorporated in Delaware with its principal place of business in New Jersey.

    The manufacturer advertises its products in magazines like Sixteen and Metrogirl that are aimed at teenage female readers and widely distributed throughout the United States. Its advertisements claim that Red Henna shampoo will add red streaks and highlights to hair. The manufacturer also hosts a web site with various interactive features that allow browsers to learn more about the company's products. Although its products cannot be purchased directly from the company over the Internet, the web site does contain an icon that permits browsers to send and email directly to company employees in Thailand.

    Red Henna's shampoo is packaged in a box with the logo "For the New American Girl! For the New American You!" The shampoo is advertised as containing all natural ingredients, including "red henna." The box contains a 1-800 telephone number for customer communications. However, the telephone number printed on the box does not exist, and the company never obtained a toll-free number to facilitate telephone communications with customers.

    Missy Harrison is a fifteen-year old girl who was born in Canada but is an alien admitted to permanent residence domiciled in Lamarville, Mississippi. Missy always wanted red hair. One day while shopping for shampoo at the local Mega Mart Store, she was attracted by the claims on the packaging on Red Henna shampoo. She bought a bottle, took it home, applied it as directed, rinsed, and repeated.

    When she brushed her hair, Missy was horrified to find large clumps of bright orange hair falling off her scalp. She suffered chemical burns from synthetic (non-natural) ingredients in the shampoo, and has to have two expensive and painful medical procedures. Moreover, her boyfriend dumped her the day before the prom.

    Missy has commenced a civil action against Red Henna Manufacturing Co. and Mega Mart Stores, Inc. in United States District Court for the Northern District of Mississippi, the district where Lamarville is located. She demands damages in the amount of one hundred thousand dollars. Defendants have moved to dismiss for lack of personal jurisdiction, lack of subject matter jurisdiction, and improper venue. Rule on the motions and explain.


B. The Case of the Ten Thousand Dollar Question (suggested time sixty minutes)

    Mrs. Mergatroid was born and lived her entire life in Memphis, Tennessee. She owned one valuable item of jewelry, her engagement ring. During the last three years of her life, she lived at Happy Time Retirement Center in Memphis. She died on December 9, 2003.

    Mrs. Mergatroid had three daughters, Anne, Beth, and Cathy who also lived in Memphis. She promised at different times to leave her ring to each daughter. In a will executed in 1999, she left the ring to Anne. But when Anne forgot her birthday in 2000, Mrs. Mergatroid sent a note (written entirely in her own handwriting) to Beth which ended, "By the way I hereby revoke all prior wills and leave you my engagement ring." On Mother's Day in 2001, after Beth forgot to send her mother a card, Mrs. Mergatroid handed the ring to Cathy and said, "I always knew you loved me best. Here is the ring. Put it somewhere safe for me and when I die it is yours."

    Cathy took the ring and placed it in a safe deposit box that she rented at a branch of Southaven National Bank in Southaven, Mississippi. The Bank is incorporated under the laws of Delaware and has its principal place of business in Southaven, Mississippi.

    In 2002 Mrs. Mergatroid executed a new will revoking all prior wills but making no reference to the ring. Her 2002 will appointed her brother Bob Mergatroid as executor of her estate. At the time she executed the will in 2002 Bob Mergatroid was a lawyer who lived and practiced in Memphis. But in 2003 Bob Mergatroid retired and moved to a retirement community in northern Mississippi.

    During 2003 Mrs. Mergatroid became increasingly forgetful. On separate occasions, she promised the ring to a large number of health care providers and fellow residents at Happy Time Retirement Center. Over one hundred persons (some of whom have died) received such promises. Most of these people did not believe she meant to give them a ring. But a few people may have believed they had a special relationship with Mrs. Mergatroid and might really have expected her to leave them the ring.

    After Mrs. Mergatroid's death, Bob Mergatroid wrote a letter to Cathy demanding that she surrender the ring to the estate. When she refused, he wrote a letter to Southaven National Bank warning it that the estate of Mrs. Mergatroid claims an ownership interest in the ring and demanding that the bank surrender the ring or at least refrain from releasing it to Cathy.

    Mrs. Mergatroid believed that the ring was worth one million dollars, but experts agree that the value of the ring is exactly ten thousand dollars.

    Southaven National Bank has come to you for advice. First, the president asks whether federal interpleader will provide a remedy.

    Second, the president is concerned about the claims of the large number of persons to whom Mrs. Mergatroid promised to leave the ring. The president is aware that Federal Rule of Civil Procedure 23 authorizes class actions in certain cases. The president thinks it may be desirable to certify a defendant class of all the non-relatives to whom Mrs. Mergatroid made oral promises to give the ring. But the president is aware that Mississippi rules and case law do not authorize such class actions.

    The president is especially interested in litigating in federal court rather than Mississippi state court because of the benefits of the class action. The president asks whether a federal court sitting in Mississippi would follow Mississippi or federal law with respect to class actions.

    Please explain fully whether federal interpleader is available and what law a federal court sitting in Mississippi would follow with respect to class actions.

Civil Procedure I § 2                   University of Mississippi

Fall 2004                              Law School

Exam model answers                     Michael H. Hoffheimer


    1. The motion is timely because subject matter jurisdiction can be raised at any time. Subject matter jurisdiction is good because a plaintiff an aggregate unrelated claims against a single defendant and the amount claimed in good faith controls unless it is insufficient to a legal certainty.

    2. The federal court may have subject matter jurisdiction over Paul's claim based on supplemental jurisdiction because it is part of the same constitutional case as Presley's claim. (Jurisdictions are divided over this application of the supplemental jurisdiction statute). There is supplemental jurisdiction over a compulsory counterclaim because it is part of the same constitutional case.

    3. Jnov comes from the Latin for judgment "non obstante verdicto," which means judgment notwithstanding the verdict. It is now referred to a judgment as a matter of law and is needed by a party who has suffered an adverse verdict that is not proper as a matter of law or because no reasonable jury should have reached the verdict.

    4. There is no fraudulent joinder if there is a "common defense" available to the diverse and nondiverse defendants. The lack of Chancery Court jurisdiction does not prevent removal jurisdiction.

    5. Venue is proper under the removal statue in the district where the state action was pending.

    6. A denial of a motion to dismiss, while error, is not appealable under the final judgment rule.

II. Long Answers

A. The Case of the Bad Hair Day

    A good answer would need to address the following issues:

    1. Application of Mississippi long arm statute to a tort committed in the state

    2. Application of Mississippi long arm statute to any character of work or service performed in state.

    3. Evaluation of minimum contacts established by sale in state.

    4. Possible general jurisdiction due to systematic and continuous business activity in state due to volume of sales.

    5. Stream of commerce satisfying Brennan plurality test in Asahi.

    6. Stream of commerce plus marketing, interactive website possibly satisfies O'Connor plurality in Asahi.

    7. In state defendant establishes strong state interest and supports reasonableness of personal jurisdiction--unlike Asahi.

    8. Plaintiff alien admitted to permanent resident will not be treated as state citizen where doing so creates diversity (though circuits are split).

    9. No alienage jurisdiction due to aliens as both plaintiff and defendant.

    10. For venue corporation is "resident" of district where subject to personal jurisdiction.

    11. Venue is appropriate in district where significant acts or omissions giving rise to claim occurred.

    12. Venue is proper against Red Henna as alien in any district.


B. The Case of the Ten Thousand Dollar Question

A good answer would need to address the following issues:

    1. Amount in controversy is not met for Rule 22 interpleader where jurisdiction is based on diversity of citizenship.

    2. In determining the diversity of parties, the citizens of the executor will be the citizenship of the deceased.

    3. Statutory interpleader requires minimal diversity among the claimants (which is not present).

    4. The amount in controversy for statutory interpleader ($500 and up) is met.

    5. Evaluation of applicability of Fed. R. Civ. P. 23 requires a guided Erie analysis (the test in Hanna v. Plumer):

    6. The Federal Rule adopted under the Rules Enabling Act is on point and covers the issue.

    7. The rule is valid as procedural because it "really" regulates procedure, i.e., the way issues are presented to courts. Under this test, the fact that it may significantly affect the result and even encourage forum shopping is irrelevant.