Civil Procedure I § 2                   University of Mississippi

Fall 2005                              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. Suits to quiet title were within Chancery jurisdiction in England. What Mississippi state courts have jurisdiction? Is there a right to a jury trial? Please explain.

    2. The sheriff is holding John Doe without charging him with any crime. What procedure is available to challenge this in Mississippi state courts? What courts have jurisdiction? Is there a right to trial by jury? Please explain.

    3. Tess Tatrix, a lifelong resident of DeSota County, Mississippi, died. Her will named David Crocket, her lawyer, as the executor of her will. At the time Tatrix executed her will, Crocket was a Mississippi citizen and maintained an office in Mississippi near Tatrix's home. Prior to Tatrix's death, Crocket retired and moved into a condominium in Memphis, Tennessee.

    Tatrix's will left a ring to her elder daughter Lucy. The ring once belonged to Elvis Presley and is valued at $100,000. But after executing the will, she wrote a letter to her younger daughter Bev, promising her the ring.

    Lucy is a citizen of Arkansas. Bev is a citizen of Mississippi.

    Bev demanded the ring from Crocket, but when he indicated that he would distribute the decedent's property according to the terms of the will, she commenced a civil action in Tennessee state court naming Crocket as a defendant in his capacity as executor of Tatrix's estate. Her complaint demands delivery of the ring or, in the alternative, damages in the amount of one hundred thousand dollars.

    Crocket has come to you for legal advice. He wants to know whether he can remove the action to federal court. Please explain.


    4. Dan and Patricia were dating each other. One night they drove to the mall in separate cars. While Dan was following Patricia, his brakes failed and he collided with the rear of her car.

    Patricia sued Dan in state court for personal injuries allegedly sustained in the collision. At trial Patricia's experts testified that the accident was caused when Dan's brakes failed. Although the brake failure established negligence per se because a statute requires all cars to have operating brake systems, the experts also testified that the failure to maintain brakes was negligent because an inspection of the brakes would have revealed that they were about to fail. The jury found Dan liable and found damages in the amount of $100,000. Dan appealed, arguing that the verdict was not supported by the evidence, but the appellate court affirmed.

    After the judgment became final, Dan sued Best Brake Co. in state court. Dan alleges that the day before the accident he had his brakes inspected at Best Brake Co. and that Best Brake Co.'s mechanic had informed him that his brakes were in fine working condition.

    Dan has filed a motion for summary judgment arguing that the trial court should enter judgment for him in the amount of $100,000 because Brake Co.'s negligence and damages are res judicata.

    Please explain how should the trial court rule on this motion.

    5. Pat, a citizen of Kentucky, and Terry, citizen of Canada, are involved in a bitter dispute over the ownership of a valuable race horse, which is currently stabled at the RR Ranch in Nevada. Pat commences a civil action in federal court for the district of Nevada, seeking a declaratory judgment that he owns the horse. At the same time he files the complaint and before it has been served, Pat applies for an ex parte temporary restraining order to prevent Terry from removing the horse from the ranch until the court determines who owns the horse.

    Appended to the application for a T.R.O. is an affidavit that asserts that Pat owns the horse, that money damages will not be an adequate remedy for the loss of the horse because it is unique personal property, and that removal of the horse from the ranch would cause irreparable injury by threatening removal of the horse to a distant, inconvenient location that would prevent Pat from ever recovering the horse.

    You are the trial judge. Explain why you will or will not grant the requested temporary restraining order.

    6. X sued Y for medical malpractice in state A, and Y timely removed the action to federal court for the district in which the state court was sitting. The trial judge has distributed a draft pretrial order that among other things limits the amount of time for closing arguments to thirty minutes for each party.

    The proposed time limit conflicts with the practice in state A courts. In fact the supreme court of state A recently reversed a trial court decision in a case where the trial court limited closing arguments to forty minutes. The court's opinion stated, "Under the constitution of state A, a plaintiff is entitled to an opportunity to make a full presentation of his or her case. The closing argument is a critical part of the trial process, and arbitrary time limits on closing argument are an abuse of discretion and a violation of the plaintiff's rights under the state constitution."

    The plaintiff's trial lawyer believes closing argument will be especially important in the case and believes he will need more than thirty minutes to motivate the jury to return ample damages. The lawyer has consulted you as a civil procedure expert and wants to know if the recent state supreme court decision is binding on the federal court? Please advise.

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 Stolen Guitar (suggested time 60 minutes)

    Sam Stakeholder operates a music store in Lamarville, Mississippi. He bought a guitar at a trade show in Memphis that was in poor condition. After returning to Mississippi, he searched the Internet and learned that the guitar had once belonged to Johnny Cash and that the instrument had been stolen from Countrytime Museum in Nashville, and the museum claims it owns the guitar. He also learned that three individuals also claim they own the guitar and have cases pending in Tennessee state courts to determine ownership of the guitar.

    Stakeholder is a citizen of Mississippi and resides in the Northern District of Mississippi. The individuals claiming they own the guitar are Abe, Baker and Charlie Claimant. Abe, Baker and Charlie Claimant are Tennessee citizens who have never been to Mississippi.

    Countrytime Museum is a Tennessee Corporation with its principal place of business in Nashville. Its business in Mississippi is limited to placing ads in magazines encouraging people to visit the museum and to purchasing office stationery from a company in Tupelo, Mississippi. In the years 2000 to 2004 it spent $1200 on ads in Mississippi magazines, and it bought $900 in office supplies from the business in Tupelo. Its total annual budget is over one million dollars, and seventeen percent of the museum's visitors are from Mississippi.

    After learning that the guitar was stolen, Stakeholder disclaims any property interest in the guitar, but he does not want to be subject to legal liability if he gives it to the wrong person. Accordingly, he commences a federal interpleader action in the United States District Court for the Northern District of Mississippi. His complaint claims that the court has jurisdiction both under section 1332 (diversity of citizenship) and under section 1335 (federal interpleader). The complaint avers that Stakeholder has no interest in the guitar, alleges that the guitar is worth $75,000, and names as defendants Countrytime Museum, Abe Claimant, Baker Claimant and Charlie Claimant. He deposits the guitar with the court. And he arranges for service of process by publication notice.

    Countrytime Museum and all three Claimants file motions to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, and insufficiency of service of process. The trial judge has asked you to write a memorandum advising the court how to rule.

B. The Case of the Stranded Barge (suggested time 60 minutes)

During Hurricane Katrina, a barge owned by Barge Corp., was propelled inland by flood waters and left stranded in the front yard of a home in Gulfport, Mississippi owned by Lamar Varner. Barge Corp. is a Delaware Corporation with its principal place of business in Baton Rouge, Louisiana. Varner is a citizen of Mississippi.

    Varner repeatedly visited Barge Corp.'s offices in Baton Rouge where he attempted to persuade Barge Corp.'s president to agree to remove the barge. During his last visit, Varner accidentally spilled a cup of coffee on the office rug. After numerous delays, Barge Corp.'s president finally explained, "The barge is worth nothing to us. As far as we are concerned, you now own it. If you want to get rid of it, then you are going to have to pay to move it yourself."

    Varner commenced a civil action against Barge Corp. in United States District Court for the district in which Baton Rouge is located. The complaint alleges diversity of citizenship jurisdiction (not admiralty) and states a claim for trespass to Varner's land in southern Mississippi.

    The complaint demands damages in the amount of $50,000 and prays for a permanent injunction ordering the defendant to remove the barge. The alleged cost of removing and disposing of the barge is $40,000.

    Rather than serving a summons, Varner mailed Barge Corp. a copy of the complaint pursuant to Federal Rule of Civil Procedure 4(d) with a request that the defendant waive service. The plaintiff's request for waiver did not provide the defendant with a prepaid means of compliance, as required by Fed. R. Civ. P. 4(d)(G). Nevertheless, the defendant signed the enclosed waiver form and returning it by attaching its own 37 cent stamp.

    After returning the waiver, Barge Corp. filed a motion to dismiss for lack of personal jurisdiction and improper venue. After the trial court denied this motion, it filed an answer in which it denied ownership of the barge and asserted various defenses including "act of God" and insufficiency of service of process. In addition it added a counterclaim against Varner in the amount of $100.00, which was the cost it alleged it incurred in cleaning the rug. Varner responded to the counterclaim by admitting spilling the coffee but denying that his act caused damages in the amount sought.

    At the pretrial conference Barge Corp. moved to dismiss for lack of subject matter jurisdiction and insufficiency of service due to plaintiff's failure to enclose a prepaid envelope with its waiver request. The plaintiff's lawyer responded by handing the defendant's lawyer 37 cents in the courtroom, and the trial judge denied the motions.

    The plaintiff moved to dismiss the counterclaim for lack of subject matter jurisdiction. The trial court denied its motion.

    After a trial on the merits, the court granted a permanent injunction ordering the defendant to remove the barge. In addition the jury found for the plaintiff and returned a verdict for damages in the amount of $20,000. The jury found for the defendant on its counterclaim and returned a verdict for damages is the amount of $5.00. The trial court entered judgment for plaintiff in the amount of $19,999.95.

    The defendant appeals from the trial court's denial of its motions to dismiss for lack of personal jurisdiction, venue, subject matter jurisdiction, and sufficiency of process. The plaintiff cross-appeals denial of its motion to dismiss the counterclaim. You are clerking for the court of appeals. Write a memorandum that explains how the court should rule on all issues.

Civil Procedure I § 2                   University of Mississippi

Fall 2005                              Law School

Final Exam                             Michael H. Hoffheimer

Model Answers

    1. Chancery court has subject matter jurisdiction over suits to quiet title. If there is a County Court, it will concurrent jurisdiction over such suits up to $200,000.

    2. Habeas corpus will be available to challenge an unlawful detention. It is an extraordinary writ at common law and thus falls within the Circuit Court's jurisdiction. A County Court, if one exists, will have concurrent jurisdiction. There is no right to jury trial for extraordinary common law writs.

    3. For purposes of diversity jurisdiction, the executor's citizenship is that of the testatrix, and there is no original jurisdiction because the parties are all from the same state. Since there is no original jurisdiction, the action cannot be removed. (Even if there was diversity, the case might not be removable because of the probate exception.)

    4. There is no claim preclusion because the cases involve different claims and different parties. There is no issue preclusion because the issue of the Brake Company's negligence was not actually decided and necessary to the prior litigation and the judgment in that case was not against Brake Co., so it never had a day in court.

    5. The court must not grant a TRO. The application neither provides an explanation of the efforts made to serve the defendant nor gives a reason why it is necessary to issue an order without notice to defendant. It also does not provide a bond.

    6. The state court decision is probably not binding. In the absence of a rule adopted pursuant to the Rules Enabling Act, the federal court will apply an unguided Erie analysis. Under Byrd this will require a balancing of the federal courts' interest in controlling their courtroom by managing the docket and the timing of different parts of the trial. This interest may well be found to outweigh the general Erie policies in avoiding forum shopping. If the Erie policies are more important, then the federal court will follow the state practice.

A. The Case of the Stolen Guitar

A good answer will contain an identification and full evaluation of the following issues:

Diversity jurisdiction (§ 1332):

    amount in controversy is not met by claim equal to $75000

    Miss. long arm statute (any character of work or service) may apply to Museum but not to individual defendants

    venue is properly laid in district where the property in dispute is located

    sufficiency of service of process is problematic because publication is not enough: where the identification of property owners is known, service by publication is not a method reasonably calculated to apprize the parties of the pendency of proceedings and give them an opportunity to appear and present objections. This defect in notice is not removed by actual knowledge.

Federal interpleader (§1335)

    minimal diversity is not established where all claimants are citizens of the same state

    personal jurisdiction is established by nationwide service of process

    venue is good where any claimant resides


The Case of the Stranded Barge

A good answer will contain an identification and full evaluation of the following issues:

    Defense of subject matter jurisdiction is late but not waived as it can be raised at any time prior to final judgment

    The defense of subject matter jurisdiction fails because diversity and amount in controversy are present

    Defense of personal jurisdiction was properly raised at trial and has not been waived, but the defense fails because there is general personal jurisdiction over the corporation in the state where its principal place of business is located (and it is engaged in systematic and continuous business activity there)

    The defense of lack of venue was properly raised and is not waived.

    The motion to dismiss for lack of venue should have been granted because under the local action rule the action for trespass must have been brought in the district where the real property is located.

    The defense of insufficiency of service was waived when it was not raised with other pre-answer motions.

    The defendant's motion to dismiss the counterclaim is not waived (as a challenge to subject matter jurisdiction can be raised at any time prior to judgment).

    The counterclaim should have been dismissed. Because the counterclaim does not independently satisfy the requirements for diversity jurisdiction, the federal court has supplemental jurisdiction only if the counterclaim is part of the same constitutional case as the claim. The test from UMW v. Gibbs is whether the counterclaim arises from a common nucleus of operative fact. None of the facts in the counterclaim going to duty, breach, cause or damages involving the spilled coffee have anything to do with the facts giving rise to the trespass claim.