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. Turn in this page and the questions with your anwers.
Do not communicate 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."
Please sign the following agreement:
nonresident student taking this exam for credit at both the
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. Paulette, a citizen of
case was tried to a jury, which returned a verdict for defendant. One year after final judgment was entered for
defendant, Delbert sues Pauline in federal court in
Paulette has received a waiver of service form with a copy of Delbert’s complaint. She has come to you for legal advice and asks if she should return the waiver of service form and whether she has any good defenses. Please advise.
Raj Patel, an African student at the
Big Food Corp. agreed to settle the case by paying Patel $100 and agreeing to post a written notice. The corporation agreed that the notice would contain a promise not to discriminate and a toll-free phone number where customers could direct complaints in the event of future violations.
The corporation paid the agreed sum to Patel, and it posted the sign. In exchange, Patel dismissed his lawsuit.
For two weeks Big Food Corp. displayed the sign. Then it took the sign down. When Patel complained, the corporation’s spokesperson just laughed.
Patel comes to you for legal advice, asking whether he can sue Big Food Corp. again in federal court to enforce the promise. Please explain.
Shay Philippe, a lifelong resident of
Philippe has no memory of the fall,
but she insists that there must have been some slippery object on the floor,
because she would not have fallen otherwise.
She contends that Masie’s was at fault in causing the fall. Consequently, she sues Confederated Storz,
which owns and operates Masie’s.
Confederated Storz is a corporation incorporated in
After discovery has been completed, Philippe has identified no evidence supporting her claim that Masie’s caused the fall. In contrast, Masie’s has taken the deposition of two eyewitnesses who state that they saw nothing wrong with the floor. Masie’s also has produced records of its maintenance operations at the store. These records indicate that the floor area where Philippe fell had been swept ten minutes before Philippe’s fall. In addition, Masie’s has produced a videotape of the event that does not show any object on the floor.
Confederated Storz moves for summary judgment. Philippe opposes the motion, arguing that Masie’s employees are biased and that the fact that they did not see something does not mean it was not there. She also argues that the videotape is too fuzzy and might not reveal slippery foreign objects on the floor.
You are the trial judge. Rule on the motion for summary judgment and explain.
4. Same facts. Assume that the motion for summary judgment was denied (rightly or wrongly), and the case goes to trial before a jury. The evidence at trial is exactly what was produced during discovery. After both sides have presented all their evidence, Confederated Storz moves for judgment as a matter of law. You are the trial judge. Rule on the motion and explain.
While driving her official state vehicle, Deputy Sheriff Loretta,
Merle and Earle bring a civil action against Loretta in federal court. Merle alleges that he owned the car and that Loretta destroyed his property in violation of the Due Process Clause. In addition he asserts state law tort claims for damage to the car and for personal injuries. He demands one thousand dollars damages.
Earle’s claims are based exclusively on state tort law. He demands damages for personal injuries in the amount of four hundred dollars.
Loretta moves to dismiss for lack of subject matter jurisdiction. The trial court denies the motion. Is the ruling erroneous or appealable?
On June 28, 2009, your client Hounddog Bus Lines, was served with a
summons and complaint in a civil action filed in Mississippi Chancery
Court. The lawsuit stems from an
accident in 2008 when a bus operated by your client got stuck in a bridge over
Your client is a corporation
incorporated under the law of
In house counsel for your client insists that you remove this action. What do you do and why?
II. LONG ANSWERS (suggested time 60 minutes each or two hours total)
Instructions. Consider the following problems carefully and write coherent, literate essays in your blue book that respond to them.
A. The Case of the Pill Pushing Panderer (suggested time 60 minutes)
Fred Peabody is a lifelong resident of
Fred worked at Fed Espresso, a
coffee business in downtown
Wilma was diagnosed with cancer. Rather
than tell her husband or seek professional medical help, she searched the
Internet at her workplace in
From a menu of ailments, Wilma selected “Cancer.” This led her to an on-line questionnaire. After completing the questions, the screen displayed an “individual health care plan for Wilma Suzuki.” This plan contained advice about diet. It also prescribed a daily dose of Xylophonous Oxide pills. The site explained that the pills were available exclusively from HealthWise, and the site provided a convenient shopping cart format for ordering the pills on-line. The individual health care plan stated that “positive anti-cancer results are guaranteed.” But it warned consumers that they must not seek inconsistent medical help from traditional sources, or the pills would not work.
Wilma order the pills over the
Internet from a desktop terminal at her workplace in
Five days later, the pills arrived
at Wilma’s workplace. She put the pills
in her handbag and transported them to her home in
Zeke Torr, a citizen of
Fred and Zeke commence a civil action in federal court for the Northern District of Mississippi, the district where Wilma worked, viewed the website and received the pills. They invoke the federal court’s diversity jurisdiction, naming Mexi-Health Corporation and Blood as defendants and asserting a variety of state law tort claims. Each plaintiff demands damages of more than one million dollars.
Defendants move to dismiss for lack
of personal jurisdiction and improper venue.
Discovery related to these issues reveals the following
information. Blood traveled through the
Based on this information, the trial court denies the motions to dismiss for lack of personal jurisdiction and improper venue. The case goes to trial and results in a judgment for the plaintiffs.
The defendants have threatened to appeal but have offered to settle by paying considerably less than the judgment. The plaintiffs are trying to decide what to do. The time for appeal has not expired, and the plaintiffs’ lawyer has contacted you for advice on whether the defendants have any meritorious grounds for appeal. Please advise.
B. The Eerie
You are interviewing for a clerkship
position with Judge Frederick McGavran who has just been appointed to the Sixth
Circuit. Judge McGavran informs you over
lunch that he has always been fascinated by the
Please respond by either agreeing or disagreeing with the judge’s statement. Support your answer with a consideration of the law before and after the decision and by a discussion of specific case holdings that support your conclusion. Consider also any contrary authority.