Civil Procedure I                                                                                University of Mississippi

Summer 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.


            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 two hours 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.  Plaintiff sued Defendant in federal court based on diversity of citizenship.  The complaint alleged that Defendant hit Plaintiff and caused damages in the amount of $100,000.  The Defendant moved to dismiss arguing that the allegations were too vague to show that Plaintiff was entitled to relief.  Alternatively, Defendant moved for a more definite statement.  Rule on the motion and explain.


            2.  Bob Beier ordered a 16 ounce jar of mustard over the Internet from  The seller charged Beier’s credit card but did not send the mustard.  After repeated complaints, the seller sent Beier on 8 ounce jar of mustard.

            After reading about other similar complaints on the Internet,  Beier sued seller for breach of contract and fraud, seeking actual damages of $3.50 for the failure to deliver the 16 ounce size  that he ordered and also seeking $50,000 in punitive damages for fraud.  The seller’s answer acknowledged the truth of the allegations about breach of contract but denied all accusations about fraud.  The seller claims it was all an honest mistake.

            During discovery, Beier seeks the production of documents, including all correspondence and email communications that the seller received from other customers in which the customers complained about the merchandise they received.  The seller moves for a protective order, arguing that such documents are not proper discover or that, if they are, it will be too burdensome to produce them.  You are the trial judge.  Rule on the motion for a protective order and explain.


            3.  Able and Baker went for a ride on Able’s motorcycle.  While Able was driving, a large  truck operated by Charlie pulled out into the road in front of them, causing Able to lose control and collide with a brick wall.  Able sued Charlie in the local small claims court for damage to the motorcycle.  Charlie answered the lawsuit and contended that he was not legally responsible for the accident.  Charlie lost, and the court entered a judgment against Charlie in the amount of $750.

            The following week, Baker sued Charlie in a state court of general jurisdiction seeking to recover $40,000 damages for personal injuries.  Charlie moved to dismiss the lawsuit on the ground of res judicata, arguing that Baker’s claim merged with Able’s.  Rule on the motion and explain.


            4.  One evening, Harry Plaintiff was walking home along the side of I-55 in Jackson, Mississippi.  He was injured by an object protruding six feet off the side of a trailer hauled by Tad Driver.  Plaintiff sued Driver in Mississippi Circuit Court for actual and punitive damages.  The trial judge allowed the claim for actual damages to go to the jury, and Plaintiff recovered a judgment in the amount of $47,000.  But the judge concluded that under Mississippi tort law, the facts proven at trial did not support a claim for punitive damages and did not instruct the jury on that issue as requested by the plaintiff.

            The plaintiff appealed the failure to instruct on punitive damages to the Mississippi Supreme Court.  The Mississippi Supreme Court assigned the case the Mississippi Court of Appeals.  After briefing and oral argument, the Mississippi Court of Appeals affirmed the judgment of the trial court.

            Plaintiff comes to you for advice and wants to know whether she can appeal the decision to the United States Supreme Court.  Please advise.


            5.  Barry and Cherry Pandowdie are citizens of New Zealand.  They were married and lived in New Zealand where they had two children, Luna and Stella.  In 2005 the marriage deteriorated.  The parents accused each other of substance abuse and of mistreating the children.  In 2007 Cherry sued Barry for divorce in New Zealand.  Rather than respond to the divorce action in New Zealand, Barry took Luna and Stella and moved to Mississippi.  He refuses to return the children to New Zealand.

            Cherry has come to you for legal advice.  She wants to know what courts in Mississippi will have jurisdiction to give her custody of Luna and Stella and to order Barry to return the children to New Zealand.  Please advise.


            6.  John Smith is a wealthy citizen of England who was admitted to permanent residence in the United States in 2005.  He owns a ranch in California, but in 2006 he began to spend most of his time in New York, where he rents an apartment.

            In 2007 Smith proposed marriage to Betsy Fickle.  Fickle agreed to get married, and Smith gave her as an engagement present the world-famous Heart Diamond.  The diamond is conservatively valued at more than two million dollars.

            Fickle was born and raised in New Jersey, where she had a condominium and full-time job.  But after the engagement, she moved her clothes, toothbrush and other personal property into Smith’s apartment.  In the year 2007, she spent over 200 nights at Smith’s apartment, and fewer than 100 nights at her condominium.  In late 2007, she put her condominium on the market, but it has not sold, and she continues to spend time there.

            In the early summer 2008, Fickle told Smith that she changed her mind and would not marry him.  He requested that she return the diamond and leave the apartment, but she has refused to do either.

            In late July 2008 Smith brought a civil action against Fickle in federal district court in New York.  He served her with process and immediately sought a temporary restraining order from the court ordering her to return the diamond and leave the apartment.  Smith’s motion contains an affidavit that sets forth details of the engagement and claims that Smith is entitled to the ring and that Fickle is trespassing at his apartment.  He certified that Fickle was served with a copy of the motion for a temporary restraining order.  He filed a bond with the court in the amount of three million dollars to cover damages to Fickle in case the temporary restraining order is ultimately found to be erroneous.

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


            7.  Westy, a lifelong resident of West Memphis, Arkansas, works for Lawnsogreen Inc., a commercial lawn service.  Lawnsogreen is incorporated in Delaware but all of its business is in Arkansas.  One morning while Westy was driving to a work site, he spied something glittering on the side of the road.  He stopped and discovered a diamond ring, which he recovered.

            Westy took the diamond ring to Fritz Lang Jewelers in Memphis, Tennessee.  The store is owned and operated by Fritz Lang, a citizen of Germany who is admitted to permanent residence, and whose permanent home in the United States is in West Memphis, Arkansas.  Lang cleans the ring and appraises its value at between two and three thousand dollars.

            Fritz has received three phone calls.  First, Westy has asked him to mail him the diamond ring.  Second, Westy’s employer Lawnsogreen has instructed Fritz not to return the ring because the employer claims that it owns the property because it was discovered while Westy was working for it.  Third, Thurston Peters, a citizen of Arkansas[1] who owns the land where the ring was found, has called and instructed Fritz to hold the ring for him, claiming he owns the ring because it was found on his land.

            Fritz has come to you for legal advice and asks whether federal interpleader is available, and, if so, where the action should be filed.  Please advise.


            8.   Cal, a citizen of California, contracted to purchase 1000 widgets from Acme Wholesale Supplies, Inc., a Delaware corporation with its principal place of business in Poughkeepsie, New York.  Acme Wholesale agreed in writing to deliver 1000 widgets at Cal’s business address in California on or before June 1, 2008 for a total purchase price of $1,000,000.

            Acme contracted to purchase 500 widgets from Suzuki Importers, Corp. a Delaware corporation with its principal place of business in Texas, for the amount of $400,000.  And Acme contracted to purchase 500 widgets from Thrifty Widget Services, a partnership owned by Dick and Tom Smithers for the amount of $400,000.

            Acme’s suppliers fail to deliver the widgets as agreed, causing Acme to breach its contract with Cal. This forced Cal to buy widgets from another source at an additional cost of $100,000.

            Cal brings a diversity action against Acme in federal court based on diversity jurisdiction seeking to recover $100,000 damages for its additional costs.  Acme has impleaded both Suzuki Importers and Thrifty Widget Services, claiming that if it is found liable to Cal, then each of the impleaded parties should be liable to Acme for exactly one-half of the total $100,000.  The third-party complaint alleges that the Smithers partners are citizens of California.

            The impleaded parties move to dismiss for lack of subject matter jurisdiction.  Rule on the motion and explain.


            9.  Same facts.  Assume the court (rightly or wrongly) denies the motion to dismiss.  Thrifty Widget Services comes to you for legal advice.  The action is pending in federal district court in California.  The Smithers partners insist they have never been to California or done any business there.  They ask whether the decision denying the motion to dismiss is appealable and whether the federal court in California has personal jurisdiction.  Please advise.


            10. The state of Illinois employed Sekurco to provide security at University of Illinois sporting events.  Paul, a citizen of Iowa traveled to Illinois to attend a game.  While leaving the stadium, Paul claims he was attacked for no reason by Doug Thugson.  Thugson is a citizen of Iowa employed by Sekurco.  Sekurko is a Delaware corporation with its principal place of business in New York City.  Sekurko engages in extensive private security business in all states except Alaska, Hawaii and Maryland.

            Paul suffered serious injuries.  He is considering bringing a civil action in federal court based on the theory that the attack violated federal civil rights laws.   What federal districts will have proper venue in an action against both Thugson and his employer Sekurco?


            11. A state statute in the state of X provides, “Exemplary or punitive damages may be awarded in all cases where the defendant’s wrongful conduct was malicious, willful or reckless.”  The state supreme court has interpreted the statute as not permitting punitive damages in claims for breach of contract.

            A diversity action is brought in federal court in state X alleging that the defendant willfully and maliciously breached the contract.  The complaint demands $100,000 compensatory damages and $50,000 punitive damages under the state X statute.  The defendant moves to dismiss the claim for punitive damages, citing the state supreme court decision.  The plaintiff argues that the federal courts are fully capable of properly construing the state statute and are not bound by the procedural decision of the state supreme court.  Rule on the motion and explain.


            12.  The Federal Rules of Evidence provide: “Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.”  Fed. R. Evid. 611(b).

            In contrast, the state rules of evidence in state X provide, “Cross examination shall not be limited to the subject matter of the direct examination and matters affecting the credibility of witnesses.”  The supreme court for the state of X has held that state X’s  constitution guarantees litigants a right to cross examine a witness on any subject, whether or not it was raised during direct examination.

            A case in brought in federal court located in state X stemming from the alleged faulty construction of a commercial mall.  Witness Doe testified on direct examination for the plaintiff about the quality of the roofing materials.   On cross-examination, the defendant asks Doe to testify about the Plaintiff’s failing finances.  This matter was not raised on dir3ect examination and does not relate to the credibility of the witness.  Instead it relates to the defendant’s theory that the lawsuit was a desperate effort by the plaintiff to avoid bankruptcy. 

            The plaintiff’s lawyer objects on the ground that the cross-examination exceeds the scope of direct examination.  The defendant’s lawyer insists that the federal court is bound by the state rule on the scope of cross examination.

            Please rule on the objection 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 Bad Trip (suggested time 60 minutes)


Ann, Ben, Carlos and David were friends and fellow students at he University of Northern Mississippi.  Ann, Ben and David were citizens of Mississippi.  Carlos was an exchange student from Bolivia.  One Saturday night they decided to drive together to Memphis, Tennessee to hear some music.  Ann drove them in her car.

            After entering Tennessee, while stopped at a red light, the car was struck by a tour bus owned by Canada Tours, Inc., a Canadian corporation with its principal place of business in Toronto, Canada.  The bus was driven by Edward, a citizen of Canada.

            Ann, Ben, Carlos and David commence a civil action in federal court in the Northern District of Mississippi against Canada Tours and Edward.  The complaint alleges diversity jurisdiction.  In the complaint, Ann demands personal injury damages in the amount of $50,000 and property damages in the amount of $15,000 for damage to her car; Ben demands personal injury damages in the amount of $60,000; Carlos demands $40,000 damages for personal injury; and David demands $12,000 damages for personal injury.

            The plaintiffs’ lawyer mailed Canada Tours a request for waiver of service form, which Canada Tours signed and returned.  The plaintiffs’ lawyer arranged for service of process on Edward by hiring a nonparty over age eighteen who personally delivered a summons and copy of the complaint to Edward while he was present in Memphis, Tennessee on a tour.  (The place where process was served is less than 100 miles from the court in the Northern District of Mississippi.)

            Edward has never been to the state of Mississippi, but Canada Tours had engaged in some business in Mississippi.  From 2000 to 2008 the corporation sponsored 15 tours from Canada to New Orleans, Louisiana.  On each occasion, a corporation bus drove through Mississippi to and from New Orleans.  During some but not all of these tours, buses made stops at gas stations along the interstate in Mississippi, and passengers used restroom facilities and made purchases at retail stores at the gas stations.

            Canada Tours, Inc. and Edward move to dismiss on the following grounds: 1) lack of subject matter jurisdiction, 2) lack of personal jurisdiction, 3) insufficient service of process, and 4)  improper venue.  Please consider all issues raised in these motions.  Also consider whether any of the pleadings or motions in this lawsuit may violate Rule 11.


1.  The motion is denied.  Federal Rule 8 requires only a short and plain statement showing the plaintiff is entitled to relief.  A more definite statement is not required to answer this complaint, and the defendant can learn more about the alleged details and plaintiff’s legal theory during discovery.


2.  The motion is denied.  The information is discoverable because it is not privileged and is relevant because evidence of other frauds will refute the defendant’s contention that it committed an honest mistake.  It is also discoverable because it may lead to the discovery of relevant information, including possible witnesses.  The defendant has made no showing of undue burdens, but a court has discretion to split costs of discovery.


3.  Motion denied.  Merger is a form of claim preclusion.  It applies only when there is a valid final judgment deciding the same claim between the same parties.  Here the parties are different and the claim is different.


4.  There is no right of appeal (petition of certiorari) to the U.S. Supreme Court.  That Court lacks jurisdiction for two reasons.  First, the decision is not from the highest state court in which a decision could be had.  (A petition to the state supreme court is either still possible or was waived.)  Second, it is not a decision that questions the validity of a state statute as repugnant to the U.S. Constitution or federal laws or where any issue is raised under federal law.


5.  The Chancery Court has exclusive jurisdiction over divorce, alimony and minor’s matters.  The Chancery Court also has jurisdiction over equity (injunctive relief) but the County Court if there is one has concurrent equity jurisdiction up to $200,000.


6.  Motion for TRO without hearing is denied.  Nothing is alleged or tends to show that the plaintiff will suffer immediate and irreparable harm during the short period of time before a hearing on a preliminary injunction could occur.


7.  This one has two possible answers depending on whether you answered the question as written or based on the version we covered in class.  I was really not trying to be sneaky–the change was the result of a mistake.  (Kudos to those of you who read the facts carefully enough to find it!)

As written: there is no interpleader jurisdiction.  There is neither complete diversity nor an amount in controversy for Rule interpleader, and there is no diversity among two claimants as required for statutory interpleader.  (Those who concluded there was minimal diversity among two claimants also got credit. . .)

As it was in class: there is no Rule interpleader (for the same reason), but there is statutory interpleader jurisdiction because the value of the property is for $500 or more, two claimants are diverse per section 1332, and the property (or bond for its value) can be deposited with the court.  Venue lies either in Missouri or Arkansas, where a claimant resides.


8.  Motion denied.  Impleader does not require either diversity or an amount in controversy.  It is authorized by supplemental.  The federal court has original jurisdiction over plaintiff’s claim against defendant (there is diversity and the amount in controversy is met).  The defendant’s impleader claims are part of the same constitutional case under Article III because they arise from a common nucleus of operative facts.  None of the grounds set forth in section 1367 for excluding supplemental jurisdiction apply.


9.  The final judgment is embedded in a valid act of Congress and it is binding on federal courts.  Accordingly, the motion to dismiss is not appealable because it is not a final judgment as it does not end all claims against all parties.  Personal jurisdiction sounds like a great defense, but it was waived because it was not joined to the motion to dismiss for lack of subject matter jurisdiction.


10.  Venue in the federal question case against both defendants lies in the federal judicial district (in Iowa?) where defendant Thugson resides because all defendants reside in the same state. This is because a corporation resides (for purposes of venue) where it is subject to personal jurisdiction, and the corporation is subject to personal jurisdiction where Thugson resides (unless he resides in Alaska, Hawaii or Maryland).  Venue also lies in the district in Illinois where the alleged assault took place because that is where a substantial part of the events or omissions giving rise to the claim occurred.


11.  Motion to dismiss granted.  Erie establishes that the state law as authoritatively construed by its courts is binding on federal courts where the law establishes a right or defense.  The federal courts lack constitutional authority to develop a different rule of decision.  The state law is substantive as it significantly affects the outcome of litigation, and disregarding it would dramatically affect forum shopping and lead to unequal application of law depending on parties’ citizenship.


12.  The source of the federal rule is a Federal Rule of Evidence, promulgated pursuant to the Rules Enabling Act.  The rule is valid because it is a rule of practice and procedure in that it regulates how issues are presented to and decided by courts.  The discretion is accords to federal judges appears to conflict with the per se scope of cross examination in state X court.  Accordingly, the federal court will follow the federal practice.


Long answer


Good answers will identify and discuss the relevant authority for the following:


1.  There is no subject matter jurisdiction

     No diversity or alienage jurisdiction because it is not an action between citizens of different states in which aliens are joined as additional parties, and aliens appear on both sides.


     No amount in controversy because parties cannot aggregate their separate claims, and no plaintiff individually states a claim for more than $75000.


2.  Personal jurisdiction

     Federal court’s personal jurisdiction is linked to the state’s.  (The 100 mile bulge does not apply.)

     There is no personal jurisdiction over Edward

          not served in the state

          not covered by any of the four of long-arms...

          does not have any minimum contact with state

     Federal court proably has no personal jurisdiction over Canada Tours (corp.)

     Long arm analysis needed.  The defendant appears to be doing some character of work or service in the state, though that is not the basis of the claim.

     If the long-arm applies, then there is a question of its constitutionality.  Due process requires minimum contacts.  Because the claims do not arise from the bus trips in the state, the corporation must be engaged in continuous and systematic business activity in the state to support general jurisdiction.  This is unclear, but it does have the extensive contacts or derive the sort of revenue from business in the state that L.L. Bean derived from California, and the court found L.L. Bean’s contacts to be a “close question.”  I think minimum contacts are not met but I’m not sure.

     Even if there are minimum contacts, the four reasonableness factors–the burden to the defendant, the plaintiff’s need for the forum to assure complete relief, the needs of the interestate and international system, and the shared interests of the different states may weigh against the constitutionality of exercising personal jurisdiction.


     3.  Service on Edward by personal delivery is a valid method Edward pursuant to Rule 4 (and pursuant to state law of the state where served and the state law of the place where the action is pending).  Service on the corporation was satisfied by the return of the waiver of service form.


     4.  Venue is proper because an alien may be sued in any district.


     5.  Rule 11 establishes that by signing and submitting a pleading or motion, an attorney represents that he or she has conducted an inquiry reasonable under the circumstances and that the claims, defenses or other contentions are either warranted by existing law or by the nonfrivolous argument for changing the law.

     The complaint violates this standard because a reasonable inquiry into the facts and law clearly demonstrates that the federal court lacks subject matter jurisdiction.

     The motion to dismiss for lack of venue violates the standard because a reasonable inquiry clearly establishes that venue is proper against aliens in the district.

     [Some of the other motions probably also violate the rule for the same reason.]


[1]     Should have been Missouri (as it was on the practice exam), and the student who answered this question assuming it was Missouri got full credit.