Civil Procedure I
Final Exam Michael H. Hoffheimer
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
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
Lawson determined that
Pendleton is a citizen of
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
At the same time that
You are the judge. Rule on the motions and explain.
3. Widgetco, a
Acme sued Widgetco for
breach of contract in federal court in
Assume that one
You are clerking for the
trial judge. She asks what law she
should apply. The
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
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
In 2004 Ma Varner leased a
safe deposit box at the bank’s branch in
In 2007 Ma died. Her daughter Chelsea is executrix of Ma’s 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
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
9. Cal Calson, citizen of
Calson commenced a personal
injury action in state court in
Consolidated Servocorp does
not operate restaurants in
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
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
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
12. Bill Penn,
a citizen of
Penn sues Scottish Aeroservices, Inc. in federal court
The physical evidence relating to the accident is
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
Paul bought the car from
Sellers Used Cars Corp. in
Sellers advertises in local
Before he bought the car, Paul told the salesman that
he planned to drive the car back to
Paul and Kali decided to
take Bub’s advice and drive through
Paul and Kali then drove
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
Paul and Kali commence a
civil action in the
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
You are the United States Magistrate Judge. Rule on the motions, consider all issues that have been raised, and explain.
I. SHORT ANSWERS
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.
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
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
8. Chancery court in
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
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.
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.