Civil Procedure I
Final Exam Michael H. Hoffheimer
(Model answers at end)
This is a closed book exam. Do not consult any materials in any form or communicate with any person while taking the exam other than the faculty member who is administering the 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.
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 one hour 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. On April 1, 2009, Dale, a lifelong resident of
After many unsuccessful attempts to
communicate with Dale by telephone and email, on December 8, 2009, Pam
commenced a civil action against Dale in Circuit Court in
On December 14, 2009, Dale comes to you for legal advice and asks whether she must litigate this dispute in the court where she has been sued. Please advise.
Jack Hartbrecher, a citizen of
Jill sued Jack in federal court. Her complaint stated two claims. The first was for breach of contract of marriage, for which she demanded $80,000. The second was for a court order requiring the return of the ring she gave Hartbrecher.
the completion of discovery, both parties moved for summary judgment. After viewing the videotaped depositions, the
trial judge granted the defendant’s motion for summary judgment on the breach
of contract of marriage claim. The judge
explained in her written opinion, “The plaintiff claims that she experienced
pain and suffering that could be valued at $80,000. While she undoubtedly suffered some
embarrassment, the defendant has paid her back for her trip to
In contrast, because there was conflicting evidence about whether the gift of the ring was conditional, the court denied the motions for summary judgment on the claim for return of the ring and has scheduled that claim for trial.
Jill’s lawyer has come to you for legal advice and wants to know if the court’s grant of summary judgment on damages was erroneous or appealable. Please explain.
3. A truck owned by Acme Trucking Co. and
driven by Tom Trucker collided with a car driven by Vick Vickers. The company is incorporated in
Vickers brings a diversity action in federal court joining both Acme Trucking Co. and Trucker as defendants. Trucker serves an answer. In addition he serves a cross claim on Acme Trucking Co. His cross claim alleges that Acme Trucking Company violated federal law by firing Trucker based on his race. He demands damages in the amount of $5000 and reinstatement in his old job.
Acme Trucking Co. comes to you for advice and asks whether there is any problem with the cross claim. Please explain.
Cattlemen’s Bank, Inc., is a
The bank manager calls you and wants to know whether the bank can resolve the dispute by means of an interpleader action in federal court. Please explain.
The New York Time Magazine is
published by the New York Time Magazine Corp., a
In June 2008 the New York Time
Magazine Corp. sued
Consequently, in July 2009, the magazine amended its complaint to add two new claims. The first new claim alleged additional acts of fraud and demanded total damages in the amount of $80,000. The second new claim alleged that the magazine took due care in investigating the 2008 story and requested a declaratory judgment to the effect that the article was protected speech under the First Amendment of the U.S. Constitution and that the newspaper is not liable for defamation.
Peters, a citizen of
Peters’s attorney, Charles (“Champ”) Champerty, filed a lawsuit in federal court, alleging diversity of citizenship jurisdiction. Rather than suing Dodge, he sued Dodge’s wealthy grandmother. Champerty did not research whether Dodge was an adult or was driving his grandmother’s car. If he had researched the facts, he would have learned that Dodge was twenty-two at the time of the accident and was driving his own car.
Soon after filing the complaint, Champerty was disbarred and imprisoned for unrelated misconduct. Peters secured the legal services of Edgar (“Eager”) Beaver to continue the lawsuit.
Grandmother Dodge moved to dismiss, and Beaver opposed the motion. At a hearing on the motion, Beaver could identify no facts or law that supported the complaint’s claim that defendant was liable. Consequently, the trial judge granted the motion to dismiss. As Beaver was preparing to leave the courtroom, the trial judge said, “Wait a minute, Counselor. Is there any reason I should not find you in violation of Rule 11 and impose sanctions on you, including the defendant’s attorney’s fees?”
What should Mr. Beaver say to the court?
II. Instructions. Consider the following problems carefully and write coherent, literate essays in your blue book that respond to them.
A. The Case of the Fishy Forum (suggested time 60 minutes)
Dolly, Molly and Holly Doodledorf are three sisters
who live in Smoky Hollow,
In the summer of 2006, Harry
Hartburne, a citizen of the recently created state of
In December 2008, Hartburne
commenced a civil action in
Hartburne’s lawyer sent a waiver of service request to the restaurant’s address. Dolly opened the mail and signed and returned the waiver.
One week later, Hartburne’s lawyer
arranged for personal delivery of a summons and copy of the complaint upon
Molly while she was physically present in
The three sisters hired a lawyer who removed the lawsuit to the United States District Court for the District of West Florida. After removing the action, the restaurant served an answer admitting that Hartburne dined in the restaurant but denying that he was served bad fish. The answer also raised the affirmative defense of laches, alleging that the plaintiff had unreasonably delayed litigating his claim and that the delay prejudiced the restaurant’s ability to defend itself by preventing it from preserving evidence.
After serving its answer, the defendant moved
to transfer the lawsuit pursuant to 28 U.S.C. section 1404(a) from the federal
district where it was pending to the federal district where the alleged tort
occurred and where the defendant does business.
The plaintiff opposed the motion, citing Porgy v. Bass, a 2009
decision of the West Florida Supreme Court.
In that case the West Florida court refused to recognize the doctrine of
forum non conveniens, and it opined that any lawsuit properly filed in
Upon completion of discovery, the
defendant moved to dismiss due to the defense of laches. The defendant acknowledged that the
At trial, an issue arose concerning
whether the judge or jury should decide the amount of damages for pain and
suffering. Although the Seventh Amendment
preserves the right in federal court to jury decisionmaking on facts, including
the amount of damages,
The case is now on appeal to the federal Circuit Court. The plaintiff raises as error the submission to the jury of the amount of damages for pain and suffering in violation of the state statute.
The restaurant cross appeals on
several grounds. First, the restaurant
asserts that waiver of service was not proper because
Second, the restaurant asserts that
the court lacked personal jurisdiction over the restaurant. It argues that the restaurant does not engage
in any business in West Florida and that the lawsuit does not arise out of any
contacts by the restaurant with
Third, the defendant asserts that the court lacks subject matter jurisdiction because the jury’s verdict shows conclusively that the amount in controversy was less than the amount required by statute.
Finally, the restaurant maintains that even if the federal court had jurisdiction, its refusal to transfer and its refusal to apply the defense of laches were erroneous.
You are clerking for the Circuit Court. Please write a memorandum proposing the correct disposition and fully addressing issues: 1) the submission of the question of damages for pain and suffering to the jury; 2) the adequacy of service of process on the defendant; 3) the court’s personal jurisdiction on the defendant; 4) the court’s subject matter jurisdiction; 5) the denial of the motion to transfer; and 6) the court’s failure to dismiss on grounds of laches.
B. The Case of the Faux News Blues (suggested time 60 minutes)
The Tennessee Tattler is a weekly newspaper
that focuses on dramatic and scandalous events featuring people in
Tattler publishes 100,000 copies weekly.
Over 90 percent are sold at news stands and in convenience stores. The rest are mailed to subscribers. Over 98 per cent of all sales and over 98
percent of all subscribers live in the state of
In July 2009, Ed Torr, the newsroom
editor, received a tip that Penny Vickers, the mayor of
Porter informed Torr that he lived
Torr gave Porter faulty directions
to North Haven, and Porter arrived just as Mayor Vickers was leaving the
The next week’s edition of the Tennessee Tattler published the photograph of the mayor and lawyer on the front page with the caption “North Haven Mayor tanked, tagged and serving time—six months for second DUI.”
The caption was false. The mayor’s son, not Mayor Vickers, had been convicted of DUI. The mayor abstains from drinking alcohol and speaks publicly on the risks of alcohol abuse. The false story enraged her and hurt her reputation.
When the newspaper refused to print a suitable apology, Vickers commenced a civil action in federal district court for the Northern District of Mississippi. Her complaint alleges diversity jurisdiction, names Porter and Tentatco as defendants, states a claim for libel, and demands actual damages for injury to reputation and embarrassment in the amount of $50,000 and punitive damages in the amount of $100,000.
Vickers’s lawyer mailed Tentatco a
request for waiver of service at its office in
You are the newspaper’s lawyer. Please identify and evaluate possible defenses to the action in federal court—specifically 1) personal jurisdiction over each defendant, 2) subject matter jurisdiction, and 3) venue. Also explain whether the court will have jurisdiction over a possible cross claim by the newspaper against the reporter for indemnification in the event the newspaper is liable.
1. The defendant may effect timely removal to federal court but only if the amount in controversy exceeds $75,000. If the complaint states a claim for specific performance of the contract, then the action may and should be transferred to Chancery Court if it remains in the state system.
2. The summary judgment was probably erroneous. The court used the wrong standard by evaluating the sufficiency of evidence instead of determining whether there was no genuine issue of material fact and the moving party was entitled to judgment as a matter of law. The judgment is not appealable because it is not final as it does not end all claims against all parties.
3. The cross claim is improper because it does not arise from the same transaction or occurrence as the plaintiff’s claim.
4. There is no interpleader under Rule 22 because the amount in controversy does not exceed $75000. The amount for statutory interpleader is met ($500 and up), and if the bank deposits the money with the court and there is minimal diversity, then the requirements for statutory interpleader are satisfied. But federal courts are split over whether an alien admitted to permanent residence will be deemed a citizen of the state in which he or she resides when treating the alien as a state citizen creates (rather than destroys) diversity.
5. The amended complaint is not removable based on diversity of citizenship because more than one year has passed since the action was commenced. The amended complaint is not removable based on federal question jurisdiction because it raises the federal issue in the form of an anticipated defense and thus does not satisfy the well pleaded complaint rule.
6. Even though the lawyer did not sign the complaint, advocating a claim in a pleading that was signed in violation of Rule 11 is also a Rule 11 violation. (Frivolously opposing the motion to dismiss might not be a violation, but frivolously advocating positions asserted in the complaint in opposing the motion could be.) The 21 day warning period is not required for a judge who initiates proceedings. But sanctions generally are limited to what is necessary to deter, and fees to the other side are not authorized when the court initiates proceedings.
A good answer would identify and analyze the following issues:
1. The court correct submitted pain and suffering damages to the jury because the 7th amendment trumps state law (substantive or procedural) under the Supremacy Clause.
2. Adequacy of service issues were waived when not raised in the answer or in a motion to dismiss and were cured in any event by subsequent proper service
3. Personal jurisdiction issues regarding the partnership were waived when not raised in an answer or motion to dismiss.
4. Subject matter jurisdiction issues can be raised as they are not waived.
Diversity was complete—partnership’s
jurisdiction is every state in which a partner is a citizen, and for natural
persons that means where they are domiciled.
All here were domiciled in
Amount in controversy can be met by adding together all types of damages
The amount is determined by the amount demanded in good faith unless the court can say that the amount is less as to a legal certainty
The jurisdictional amount is determined at commencement and is not affected by a lower recovery
5. The denial of the motion to transfer based on state law was erroneous. A federal statute (section 1404(a)) governs under the Supremacy Clause.
The failure to apply state law of laches in addition to the state
statute of limitation was erroneous.
A good answer would identify and analyze the following:
1. There is good personal jurisdiction over Porter. Personal delivery of process in state (tagging) is either always valid or usually is so when supported by minimum contacts. Here there are minimum contacts because the action arose out of or related to the defendant’s activity in the state.
2, There is valid personal jurisdiction over Tentaco:
General jurisdiction may be established by systematic and continuous business activity in the state including operating a warehouse, printing, owning property
Specific personal jurisdiction can be established because
Miss. Long arms authorizes (either tort was committed in part in state or defendant does any character of work or service in state)
The application of the long arm is constitution because there are minimum contacts
-intentional statement made in state causing injury in state
-authority of Jones v. Calder (holding persons in Florida subject to personal jurisdiction in California where paper was distributed in state, statements affected reputation of person in state, and defendants knew plaintiff was located in that state)
There is a problem with federal subject matter jurisdiction because
there may not be complete diversity. The
corporation is a citizen of both
The amount in controversy is met because the plaintiff can add compensatory and punitive damages, unless the court can say that the claim will not authorize punitive damages as a matter of legal certainty.
4. Venue is proper because significant acts or omissions giving rise to the claim occurred in the district. The libel was printed and distributed there and concerned the reputation of a person living there.
5. If the court has diversity jurisdiction over plaintiff’s claim, then there is supplemental jurisdiction over the cross claim because it arises from the same constitutional case as the claim in the complaint over which the court has original jurisdiction. It arises from a common nucleus of operative fact.