Civil Procedure I                                                                  University of Mississippi

Fall 2008                                                                             School of Law

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, and do not use abbreviations.  If you assume any additional facts, explain why it is necessary to do so.


          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 ten minutes each or two hours total)


          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.  Plaintiff commences a civil action against Defendant in the United States District Court for the District of Colorado.  Plaintiff’s complaint alleges that Plaintiff is a citizen of Colorado and that Defendant is a citizen of the United States and not a citizen of Colorado.  It further alleges that Defendant threw a shoe at Plaintiff and called Plaintiff names and alleges that the amount in controversy is $75,000.  Defendant moves to dismiss for lack of subject matter jurisdiction.  Rule on the motion and explain.



          2.  In early 2008 Pam Pendleton retained Larry Lawson as her lawyer in connection with a car accident that occurred in early 2006.  During the first client interview, Pendleton described the accident in detail.   She claimed that Doris Durango ran a stop sign and crashed into her car.  Pendleton explained that neither party filed a police report.  She also showed Lawson copies of letters she had sent to Durango and to Durango’s insurance company.  And she showed Lawson letters she received from Durango and Durango’s insurance company in 2007 refusing to pay.  Pendleton also delivered to Lawson a box of documents showing extensive medical expenses she had incurred from 2006 to 2008 as a result of injuries she suffered in the collision.  The medical expenses exceeded $30,000.

          Lawson determined that Pendleton is a citizen of Mississippi and that Durango is a student from New York who is attending school in Mississippi.  Based on all this information, Lawson commenced a civil action in federal court in Mississippi.

          The defendant files a motion to dismiss on grounds of res judicata.  The defendant attaches to the motion a copy of a criminal conviction of Pendleton for driving under the influence in connection with the crash involving Pendleton.  Defendant also attaches a copy of a judgment from a Mississippi Circuit Court granting Durango judgment as a matter of law in a lawsuit brought by Pendleton in connection with the crash.

          At the same time that Durango’s lawyers serve the motion to dismiss, they serve a motion for sanctions against Lawson under Rule 11.  The memorandum attached to the motion argues that Lawson failed to investigate the case properly before suing.

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



          3.  Widgetco, a Delaware corporation with its principal place of business in Teaneck, New Jersey, entered into a contract with Acmeco, a Michigan corporation with its principal place of business in Lansing, Michigan.  In the contract, Widgetco agreed to deliver 1200 widgets to Acmeco at its place of business before January 12, 2008.  Due to a heavy snow storm, the delivery was delayed until January 14.

          Acme sued Widgetco for breach of contract in federal court in Michigan.  The defendant raises the defense of substantial performance and argues that the contract did not specify that time was of the essence.

          Assume that one Michigan state supreme court decision from 1880 holds that a two day delay in delivery caused by a snow storm is a material breach and not  substantial performance.  New Jersey state decision and most other state court decisions in the last century have found that delayed delivery under such circumstances is not a material breach unless the contract expressly states that time is of the essence.

          You are clerking for the trial judge.  She asks what law she should apply.  The Michigan case has never been overruled, but she feels that it is inherently unfair and is inconsistent with modern business realities.  She asks if she can disregard the Michigan decision and apply either the New Jersey law or create a federal rule that will achieve substantial justice.

          Please advise.



          4.  A diversity case is tried before a jury in federal court in state X.  After the jury has heard all the evidence, the defendant moves for judgment as a matter of law.  The trial judge believes that the evidence overwhelmingly favors the defendant and the defendant should be entitled to judgment on the facts.  But the plaintiff argues that the state X guarantees a right to trial by jury.  The state supreme court in state X has held that the state constitution prevents the entry of judgment by a judge before a jury has returned a verdict.

          Explain how the judge should rule on the motion.



          5.  Pat Plaintiff, citizen of Virginia, sues  Don Defendant, citizen of Missouri in state court in Virginia asserting claims for common law breach of contract and demanding damages of fifty thousand dollars.  One year and one day after filing the lawsuit, Plaintiff amends the complaint, adding a claim based on violation of federal civil rights law and increasing the demand for damages to one million dollars.  Defendant removes the action promptly to United States District Court.

          Plaintiff files a motion for remand.  The trial court grants the motion for remand.  You represent Plaintiff who asks whether the ruling is correct or appealable.  Please explain.



          6.  You represent the David Crocket Bank, a Tennessee corporation with its principal place of business in Nashville, Tennessee.  The bank has ten branches, including one in Como, Mississippi.

          In 2004 Ma Varner leased a safe deposit box at the bank’s branch in Jackson, Mississippi.  She placed two original, autographed photographs by Eudora Welty in the safe deposit box.  In 2005 she promised the photographs to her daughter Anne.  In 2006 she promised the photographs to her daughter Beth.  On separate occasions, both daughters visited the bank with their mother.  Anne and Beth each claim that they held the photographs and that delivery was completed.

          In 2007 Ma died.  Her daughter Chelsea is executrix of  Ma’s estate.  Chelsea claims that the photographs were not given away during Ma’s life and form part of the estate.

          Anne, Beth and Chelsea have each written a letter to the bank demanding the delivery of the photographs.

          The photographs are worth $10,000.  Ma died domiciled in Jackson, Mississippi.  Anne and Beth are life-long residents of Mississippi.  Chelsea has moved to St. Charles, Louisianna, where she owns a home and practices law.

          The bank does not claim any interest in the contents of the safe deposit box and does not want to be involved in litigation over the ownership of the photographs.  Its president asks you if there is any way out.  Please advise.



          7.  Explain the local action rule; give an example of a case that violates it; and explain what jurisdictions follow it.



          8.  Donna Donor established a trust for her minor child Kiddy.  Donor gave $100,000 to Tom Trustee with directions that Trustee was to invest the money prudently and to deliver all the investments and accumulated profits to Kiddy when Kiddy reached his twenty-fifth birthday.

          Instead of prudently investing the money, Trustee took all the money to a casino where he lost it.

          Donor asks you what state courts in Mississippi will have subject matter jurisdiction over a lawsuit against Trustee for breach of fiduciary duties in connection with his conversion of the trust assets.  Please advise.



          9.   Cal Calson, citizen of California, visited Chicago, Illinois where, he claims, he was served a bad Polish sausage at Hotdog World Restaurant.  The waiter that served the burger in question is Sam Servor, a citizen of Illinois.  The company that owns the restaurant is Consolidated Servocorp., a Delaware corporation with its principal place of business in New York City.

          Calson commenced a personal injury action in state court in Pennsylvania.  Servor’s former wife lives in Pennsylvania, and Calson arranged for personal delivery of service of process on Servor while Servor was in the state of Pennsylvania visiting his children.

          Consolidated Servocorp does not operate restaurants in Pennsylvania, but it heavily uses Pennsylvania roads to transport its sausages.  Because of the size and activity of its truck fleet, Consolidated Servocorp has equipment and cargo continuously located in the state of Pennsylvania in excess of one million dollars.  Its truck drivers regularly buy gas and other merchandise in Pennsylvania.  Calson gets service of process on Consolidated Servocorp pursuant to a state statute that authorizes service by publishing notice of the lawsuit in a newspaper for three consecutive weeks.

          Calson wins default judgments against both Servor and Consolidated Servocorp.  Are the judgments valid and enforceable?  Explain.


          10.  Boris sued Karlov in United States District Court for the District of Hawaii.  The complaint stated a cause of action for intentional infliction of emotional distress and demanded damages in the amount of one million dollars.  Boris filed the lawsuit and served process on April 1, 2005.

Although the complaint alleged diversity of citizenship, at the time the action was commenced, both Boris and Karlov were citizens of Oregon.  Boris was visiting Hawaii as a tourist and Karlov was living there temporarily while attending school.

Karlov defended himself pro se and did not raise the defense of lack of subject matter jurisdiction in an answer or motion to dismiss.  On July 10, 2006, Karlov married a Hawaii citizen, bought a house with her in Hawaii, and accepted an offer of permanent employment with a surf shop in Hawaii.  On August 10, 2006 the case was tried to a jury and Boris recovered a judgment of seventeen dollars.

Karlov has appealed on the ground that the trial court lacked subject matter jurisdiction.  You are a judge on the United States Court of Appeals.  How do you decide and why?



11.   Same facts except instead of appealing Karlov does nothing.  The judgment becomes final.  When Boris attempts to execute the judgment by garnishing Karlov’s savings account at a bank in Oregon, Karlov objects on the ground that the Hawaii judgment is void because the court lacked subject matter jurisdiction.  Explain whether Karlov is correct.



12.  Bill Penn, a citizen of  Pennsylvania, was seriously injured in Scotland when the single-engine plane in which he was traveling experienced engine failure and crashed into Loch Ness.   The pilot was Wally Scott, a citizen of Scotland.  The plane was owned and operated by Scottish Aeroservices, Inc., a corporation incorporated under the law of the United Kingdom with its principal place of business in Glasgow, Scotland.  The plaintiff was hospitalized for three weeks in Glasgow General Hospital in Scotland.

Penn sues Scottish Aeroservices, Inc. in federal court in Pennsylvania alleging diversity of citizenship or alienage jurisdiction.  His theory is pilot negligence.  Aeroservices’ chief defense is that the pilot acted carefully and that the engine failed due to an act of God when it was struck by lightening.

The physical evidence relating to the accident is located in Scotland as are all eyewitnesses and documents relating to equipment maintenance and the pilot’s certification and training.  Aeroservices moves to transfer to the court in Scotland pursuant to section 1404(a).  Alternatively, it moves dismiss on grounds of forum non conveniens.  Rule on the motions and explain.

II.  Instructions.  Consider the following problem carefully and write a coherent, literate essay in your blue book that responds to it.


The Case of the Humdinger Blowout (suggested time 60 minutes)



Paul, a citizen of China admitted to permanent residence in the United States, lives and works in Burbank, California.  He is married to Kali, a citizen of California.  In the summer of 2006 Paul and Kali were traveling in New York state.  When their car broke down, Paul decided to purchase a used Humdinger Behemouth.

          Paul bought the car from Sellers Used Cars Corp. in Cooperstown, New York.  Sellers is incorporated under the law of Delaware.  Bob Ohner, the president of the corporation and its  main stockholder, lives in Connecticut.  Ohner makes various business decisions from his home in Connecticut and keeps most of the business records and tax forms at his home in Connecticut.  All the corporation’s assets—its inventory of used cars, office and bank accounts—are in Cooperstown, New York.

          Sellers advertises in local New York newspapers.  Over 90 per cent of its customers are New York residents.  Most of the other customers are non-resident students who are attending New York colleges.  Five residents of California and one resident of Mississippi have bought cars from Sellers in the years 2006 and 2007.  These sales accounted for less than two percent of Sellers’ income for those years.

Before he bought the car, Paul told the salesman that he planned to drive the car back to California.  The salesman, Bub Varner, was originally from Mississippi.  Varner told Paul, “This Humdinger will get you back to California without any problems.”  Varner encouraged Paul to return to California by the scenic route through Mississippi.

          Paul and Kali decided to take Bub’s advice and drive through Mississippi on their way back to California.  Before they entered the state, the Humdinger’s left front tire began to make a funny noise and wobble.  Consequently, Paul stopped in Memphis, Tennessee at Memphis Tire Town to have the tire inspected.  Memphis Tire Town is a Delaware corporation with its office and only retail store in Memphis.  It does not advertise in Mississippi or have any contacts in Mississippi.  The Memphis Tire Town employee who inspected the tire said, “I don’t see any problem.”

          Paul and Kali then drove into Mississippi.  Just after crossing into the state, the Humdinger experienced a tire blowout.  Paul lost control of the car and crashed into a tree.  The Humdinger was destroyed.  Paul suffered serious burns and other injuries.  Kali suffered a broken wrist.

          The Humdinger cost $14,000.  Paul’s medical bills totaled $40,000.  Kali’s medical bills totaled $2500.

          The tire that caused the accident was manufactured by China Tire Co., a Chinese corporation with its headquarters and manufacturing facility in Shenzhen, China.  China Tire Co. manufacturers all the tires sold on new Humdinger cars and several other models.  There is a Humdinger dealership in Jackson, Mississippi that sells thousands of Humdingers each year, almost all to Mississippi customers.  In addition, Mississippi residents travel regularly to Humdinger dealerships in Memphis and Louisiana to buy Humdingers equipped with tires manufactured by China Tire Co.  China Tire Co. extensively advertises its products in trade magazines, including “Tire Magazine.”  There are seventy-two subscribers to the magazine in the state of Mississippi.

          Paul and Kali commence a civil action in the United States Court for the Northern District of Mississippi.  Their complaint names Sellers Used Cars and China Tire Co. as defendants.  The complaint states tort claims based on strict liability for a defective product and based on negligence.  Paul demands $14,000 damages for the destruction of the car and $70,000 damages for personal injuries.  Kali demands $10,000 damages for personal injuries.

          The lawyer for Paul and Kali sent waiver of service forms to the defendants.  They were returned in due course.  The defendants subsequently move to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction and improper venue.  The defendants file cross claims against each other.  In addition, Sellers Used Cars impleads Memphis Tire Town and arranges for service of process by personal delivery on the owner-manager at the Memphis Tire store in Memphis.  This location is 76 miles from the federal court in the Northern District of Mississippi.  Memphis Tire Town moves to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction and improper venue.

          You are the United States Magistrate Judge.  Rule on the motions, consider all issues that have been raised, and explain.



          1.  The complaint must be dismissed for lack of diversity of citizenship.  It does not properly allege diversity because it does not allege that defendant is a citizen of any state, and it fails to satisfy the amount in controversy because it does not demand more than $75000.


          2.  The complaint must be dismissed under res judicata.  It is barred by claim preclusion since the judgment in the prior civil action involved the same claim and same parties.  The rule 11 motion is denied because it must be presented separately from any other motion and must be served on the other party 21 days before it is filed with the court.


          3.  Erie requires the court to apply the law (Michigan or New Jersey) that the Michigan court would apply because there is no general federal common law.  The federal court must try to predict what the Michigan court would do today, and it may certify the question if the state has a procedure that permits this.



          4.  Federal Rule of Civil Procedure 50 appears to cover this issue.  It permits a federal court to grant a judgment as a matter of law in a jury case when a party has been fully heard on an issue and a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.  This Rule appears to be within the authority conferred by the Rules Enabling Act because it regulates procedure—how issues are presented to and decided by courts.  Accordingly, the federal court should follow Rule 50.



          5.  The remand is erroneous because a federal question may be removed within 30 days after receipt of the amendment making it removable even after one year.  But remand orders are not appealable pursuant to the remand statute.




          6.  There is not federal statutory interpleader because the executrix takes the citizenship of the decedent and thus all claimants are from Mississippi.  There is no federal rule interpleader because the amount in controversy is not sufficient for diversity jurisdiction.   An interpleader  action could be brought in Mississippi state court.


          7.  The local action rule is a doctrine of venue that states that a “local action” must be brought in the court where the land is located.  A “local action” is a civil action subject to the rule.  Such actions include lawsuits for trespass to land and damage to land.  An example would be where Livingston sues Jefferson for trespass to land located in Louisiana.  The lawsuit must be brought in the court where the land is located.  Federal courts and many state courts follow the rule.



          8.  Chancery court in Mississippi has full  jurisdicition over matters of equity, including disputes involving trusts.  County court (if there is one) will have concurrent jurisdiction because the amount of the dispute does not exceed $200,000.



          9.   The judgment is valid and enforceable against Servor.  Personal jurisdiction is valid over Servor.  The facts are squarely within the holding of Burnham.   The judgment is not valid against the corporation because the service by publication as authorized by state statute does not provide notice reasonably designed to apprize the party of the pendency of the litigation and give it an opportunity to appear.  It thus violates due process under Mullane.


          10.  There is no subject matter jurisdiction.  The parties were not diverse at the time of commencement—the time for determining diversity.  The lack of subject matter jurisdiction can be raised at any time before the trial court or on appeal.


          11.  The judgment is enforceable.  Because the party appeared and had an opportunity to litigate the issue, it cannot be raised in a collateral attack according to Chicot.


          12.  The section 1404(a) motion is denied.  This section authorizes transfer only between different federal district courts.  The forum non conveniens motion is denied.  Plaintiff’s choice is entitled to substantial deference.  There is no authority for depriving a plaintiff of the legitimate choice of his home court.  The case must be distinguished from Piper where plaintiffs were citizens of a foreign country seeking a U.S. state forum for tactical advantage, not for convenience.


II.  The Case of the Humdinger Blowout



A good answer would identify and discuss fully the following matters:


1) federal courts are divided over whether there is diversity (alienage) jurisdiction where a foreign citizen is admitted to permanent residence, domiciled in a state, suing a foreign citizen.  The diversity statute states that the permanent resident under these circumstances is a citizen of the state where domiciled.  A literal application of this language appears to create diversity.  But the legislative purpose of the statute was to reduce not expand diversity.  There is also a question as to whether the statute is constitutional if it permits diversity under these facts.



2) Kali’s claim is not within federal diversity jurisdiction and cannot be added to Paul’s. Separate claims by separate plaintiffs cannot be aggregated.  (This is not a joint indivisible claim.)


3)  Kali may bring her claim under supplemental jurisdiction if and only if the federal court has original diversity (alienage) jurisdiction over Paul’s separate claim.  This is because her claim arises from a common nucleus of operative facts and is thus part of the same constitutional case.


4)  The Mississippi long arm statute may give personal jurisdiction over the defendants because part of the tort was committed in state where the accident occurred.


5)  There are no minimum contacts over Seller.  This is not stream of commerce because the product was brought to the state by the buyer-driver.  It is very similar to World Wide VW, which made clear that foreseeability of the mobile product being taken to a state is not enough.


6)  There are probably no minimum contacts over the Chinese corporation.  Although iut has various activities in the state, the lawsuit does not arise from them.  Accordingly, there would have to be far more substantial and ongoing contacts to establish “significant and continuous” corporate activity.  These would have to be greater even than the contacts in Helicopteros Nacionales.  They do not seem to exist here.


7) Venue is proper since a substantial part of the acts or omissions giving rise to the claim occurred in the federal district.


8) Subject matter jurisdiction over the impleader claim is proper if and only if the federal court has original jurisdiction over Paul’s claim.  The impeader claim arises from the same constitutional case, involves a common nucleus of operative facts, and is thus within supplemental jurisdiction.


9)  Personal jurisdiction over the impleaded party is establihed by personal service of process within 100 miles of the federal court.  Venue is satisfied because a substantial part of the acts or omissions giving rise to the claim occurred in the district.