Civil Procedure I 2

Fall 2001 - Final Exam and answers

University of MississippiLaw School

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 total=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. Pam commenced a civil action against Dan in the United States District Court for the Northern District of Mississippi alleging breach of contract of marriage and demanding $10,000 actual damages and $200,000 punitive damages. Pam was born and lived her entire life in Batesville, Mississippi. Dan is a truck driver who was born in Memphis. At the time the complaint was filed, Dan had an apartment in Memphis on which he owed three months back rent. He also stayed regularly at a trailer park outside Batesville and sometimes stayed with Pam. Pam served process by publication. When Dan did not realize he had been sued, she cut out a copy of the published notice and handed it to him, saying, "See you in court."

Dan files a motion to dismiss for lack of subject matter jurisdiction and lack of personal jurisdiction. You are clerking for Judge Mills. He asks whether he can dismiss for lack of personal jurisdiction or whether he must determine whether the court has subject matter jurisdiction as a prerequisite to ruling on any other matter. Please advise.

2. Same facts. But assume that Judge Mills denied both motions. On appeal the defendant raised on appeal only the lack of personal jurisdiction. May the Fifth Circuit consider the issue of subject matter jurisdiction or has it been waived?

3. Same facts. But instead of appealing on the issue of personal jurisdiction, the defendant raised on appeal only the lack of subject matter jurisdiction. May the Fifth Circuit consider the issue of personal jurisdiction or has it been waived?

4. In International Shoe Co. v. Washington, 326 U.S. 310 (1945), the court explained that the state statute being challenged authorized distraint under certain circumstances. What is distraint?

5. What is the fiduciary shield doctrine?

6. Did Justice Brennan maintain that "Tradition is not relevant to the question whether the rule of transient jurisdiction is consistent with due process" in Burnham v. Superior Court, 495 U.S. 604 (1990)(Brennan, J., concurring)? Explain.

7. Don, citizen of Mississippi, collided with a car owned by Pat, citizen of Tennessee, at a grocery store parking lot in Oxford, Mississippi. The collision caused property damage in the amount of $300.00.

Pat politely asked Don to pay the amount of the damages. Don said, "So sue me." Explain to Pat what courts in Mississippi have subject matter jurisdiction.

8. This question takes place in Mississippi. Peter sold David a used bicycle. David paid with a bad check. When Peter learned that the check bounced for insufficient funds, he sought a writ of replevin from the local chancellor to recover the bicycle.

Peter wrote his application in the form of a letter:

Dear Chancellor Alderson,

I sold my red bike to David. He paid me with a check that bounced. Now I want the bike back but he won't give it to me. He keeps it in his garage at 912 Rowanberry Lane. If I try to get it he will lock the garage or set his dogs on me. Please send the law to get it back for me.

Thank you very much.


P.S. You can count on my vote.

You are clerking for the chancellor who asks whether this application is sufficient and whether he should issue a writ of replevin. Please advise.

9. Prunella, a citizen of Canada, attended the University of Arkansas on a student visa. She was subsequently admitted to permanent residency in the United States but retains her Canadian citizenship. In January 2000 she married Louie Lafeet, a citizen of Louisiana, and moved into Lafeet's home in New Orleans, Louisiana.

In February 2000 Prunella was struck and injured by a horse drawn carriage in the French Quarter in New Orleans. She commenced a civil action for damages in Louisiana state court. Louisiana has a direct action statute that permits victims of torts to sue the insurer of the tortfeasor directly, and Prunella's action names as the only defendant Big Insurance Corp., the insurance company that issued a liability policy to Sunset Tours, the owners of the carriage business operating the horse drawn carriage that injured her.

Big Insurance Corp. is incorporated under the laws of the state of Delaware and has its principal place of business in Hartford, Connecticut.

The horse drawn carriage was pulled by a horse named Dobbin and driven by Denise Driver, a citizen of Louisiana. Driver was employed to drive the carriage by Sunset Tours, which owned and operated the carriage she drove along with three others. Sunset Tours was not incorporated but was a partnership owned by Driver, Pierre LaFrance, a citizen of France, and Jules Misspy, citizen of Mississippi.

Five days after being served with process in the action, defendant Big Insurance Corp. filed an application for removal. After it was removed, the plaintiff filed a motion for remand. Rule on the motion and explain.

10. Per Gynt was a citizen of Norway, admitted to permanent residency, who resided in Mississippi and was domiciled in Tennessee on January 8, 2000. On that date he took a trip to Little Rock, Arkansas where he collided with a horse trailer, causing serious injury to Dobbin, a winning race horse. As a result of the injury, Dobbin could never race again.

On March 1, 2000, Dobbin's owner Tennie Tennyson, citizen of Tennessee, commenced a civil action against Gynt in federal court in Arkansas, invoking its diversity jurisdiction, seeking damages in the amount of $150,000. Gynt answered the complaint denying liability and raising as affirmative defenses the federal court's lack of venue and subject matter jurisdiction. On July 4, 2000, Gynt became a United States citizen. On September 1, Gynt moved to dismiss for 1) improper venue and 2) lack of subject matter jurisdiction. Explain how the court should rule on each ground.

11. The constitution of the state of East Dakota preserves the right to jury trial in civil actions as it existed at common law. Under the rules of civil procedure in that state, the plaintiff does not need specially to request trial by jury, because unless the plaintiff explicitly waives the right to jury trial, all matters triable by jury will be so tried.

The Seventh Amendment provides: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. . ." U.S. Const. amend. VII. Under federal procedure, however, a right to jury trial must be explicitly demanded or it is waived. Fed. R. Civ. P. 38(d)("The failure of a party to serve and file a demand [for trial by jury] as required by this rule constitutes a waiver by the party of trial by jury.").

Peter Potts commenced a civil action against Don Dodds in federal court sitting in the state of East Dakota. The claim arises under state law, and federal court jurisdiction is based on diversity of citizenship. Potts did not file a jury demand. At the pretrial conference Dodds argues that Potts waived his right to trial by jury pursuant to the federal rule. But Potts argues that the federal rules cannot eliminate a state constitutional right to a jury trial on claims created by state law.

You are the judge. Explain whether Potts gets a jury trial.

12. One morning before class, Professor Hofdoodle, law professor at the preeminent law school in the state of Mississippi, was sitting in his office visiting various Internet sites related to ukeleles. One site was operated by Ukes R Us, Corp. ("Ukes R Us"), a Hawaii corporation with its principal place of business in Honolulu, Hawaii. This site described the history of the ukelele, provided information about the corporation, including a map of where its retail store was located in Honolulu. The Internet cite listed the store's current inventory of ukeleles. An image of each ukelele would appear by clicking its description. The site also provided an e-mail address and a long distance phone number through which purchasers could place orders.

Hofdoodle was thrilled to find that one of the instrument's listed was the world famous Blue Uke, a blue ukelele played by Elvis in the film "Blue Uke Hawaii." This instrument was long believed to have been destroyed during the final scene of the film when Elvis threw it into the ocean from the stern (rear) of a vessel. Hofdoodle immediately recognized the great value of the instrument.

Hofdoodle communicated with the seller by e-mail, asking how Ukes R Us knew that the instrument was really the famed Blue Uke. Slip Eel, a citizen of Hawaii, the sole owner of Ukes R Us and its sole employee, responded by e-mail. Eel represented that he bought the uke from the son of one of the actor in the film and that this man had provided an affidavit attesting to the source and authenticity of the instrument. Specifically Eel represented that the instrument was given by Elvis to the actor, that it had been continuously preserved in the actor's family since the 1950s, and that the actor's son had recently received it as a bequest in the actor's will.

Eel offered to sell it to Hofdoodle for $10000. Hofdoodle said he would consider. Then Hofdoodle called George Gruhn, an expert on collectible instruments located in Tennessee. Gruhn told Hofdoodle that the instrument would be worth at least $100,000 if it was authentic. But Gruhn emphasized the risk that the instrument was a fake.

The next day Slip Eel sent Hofdoodle two e-mails. The first offered to lower the price to $9000. The second urged him to purchase the instrument quickly because another customer was interested. That afternoon Eel called Hofdoodle from Hawaii. Eel explained that there was another customer in the store who offered $8500 for the Blue Uke. Eel gave Hofdoodle one last chance to purchase. Hofdoodle responded by phone saying, "Yes, I accept your offer." Hofdoodle requested and received confirming e-mails.

Hofdoodle mailed Eel a check in the amount of $9000. One week later the Blue Uke arrived in the mail. Hofdoodle shipped the instrument to Gruhn for evaluation. Gruhn immediately concluded that the Blue Uke was an inexpensive, imported instrument from the mid 1960s that had been recently spray painted blue. He told Hofdoodle that it could not possibly have been the world famous Blue Uke. The fact that the spray paint had not completely dried left no doubt the redoubtable professor had been the victim of a fraud.

Hofdoodle has learned that Slip Eel visits the casinos in Mississippi twice a year for fun. During such trips he regularly visits local music stores and buys used ukeleles taken them back to Hawaii. In addition Ukes R Us sends 45 catalogues to addresses in Mississippi. And it has sold and shipped twelve ukeleles over the past three years to persons in Mississippi who ordered them by e-mail or phone, either in response to catalogue ads or in response to the Internet site.

Hofdoodle, a citizen of Mississippi, has commenced a civil action in federal district court for the northern district of Mississippi against Ukes R Us Corp. and Slip Eel, alleging diversity of citizenship jurisdiction, and demanding damages for breach of contract and fraud in the amount of $192,000. The damages include $92,000 actual damages for the estimated value of the product as it was represented (minus the purchase price), plus $100,000 punitive damages for fraud. In the alternative Hofdoodle demands restitution of his purchase price. Ukes R Us is not qualified to do business in Mississippi, and Hofdoodle arranged for service of process by certified mail on the defendants under the Mississippi long-arm statute.

In their answers the defendants denied liability, counterclaimed for $20.00 which they allege Hofdoodle owed for shipping and handling, and raised as affirmative defenses lack of subject matter jurisdiction; lack of personal jurisdiction; and lack of venue

Hofdoodle questions the propriety of the counterclaim.

Please consider the following issues that have arisen for disposition prior to trial: 1) whether there is federal subject matter jurisdiction over Hofdoodle's claims; 2) whether there is federal jurisdiction over the counterclaim for $20.00; 3) whether the Mississippi long-arm statute applies; 4) whether application of the Mississippi long-arm statute violates due process; 5) whether there is venue; 6) whether (if the action is not otherwise dismissed) it should be transferred to the district of Hawaii under section 1404(a).

II. Long Answer (suggested time one hour)

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

The Case of the Airport Extender Contender

Ms. Preston, a citizen of Georgia, bought a house in Pleasantville, Alabama live in while she attended the University of Alabama at Pleasantville. The property was located near the Pleasantville airport, and during Ms. Preston's first year in the house, the airport underwent major construction that resulted in the extension of the runway to 100 feet away from Ms. Preston's bedroom window.

After several sleepless nights, Ms. Preston decided to do some research. She learned that the airport was built and operated jointly by the state of Alabama and the local county. She also learned that the recent extension violated an applicable federal statute and rule that provided: "Thou shalt not build any airport runway within 200 feet of a bedroom window." Sonic Antisoporific Airport Runway Extension Rules, 99 U.S.C. 99, Fed. Reg. 99,999 (1999).

Although the federal regulation did not expressly create a private cause of action in favor of adjacent property owners, Ms. Preston believes the clear intent of the regulation was to benefit such persons and to give them a right to enforce the regulation. Accordingly, she has commenced a civil action in federal court against both the state and the county.

Her complaint alleges federal question jurisdiction on the ground that the regulation creates an implied cause of action. She alleges that the regulation establishes a standard that authorizes federal courts to enjoin violations under special federal common law principles. Her complaint also adds separate claims arising under state nuisance law against both the state and the county. She argues that the federal standard is incorporated into state property laws and that the court should enjoin the operation of the runway as a nuisance under state law. Her complaint alleges jurisdiction over the state claims based either on diversity jurisdiction or supplemental jurisdiction.

Ms. Preston knows a realtor who is prepared to testify that the fair market value of her home before the extension was $150,000 while after the extension (if the runway is operated) its fair market value is $100,000. The airport is prepared to testify that it spent $1,000,000 for the extension and that, if enjoined from operating the runway extension, it will lose at least $500 per day.

The state and county each separately move to dismiss for lack of subject matter jurisdiction and for failure to state a claim on which relief can be based (arguing that the court should not find a federal special common law cause of action). Please rule on the motions and explain.


1. Judge Mills in his discretion may dismiss for the clear lack of personal jurisdiction without first deciding the issue of subject matter jurisdiction. [This question was not counted.]

2. The Fifth Circuit may (and must) dismiss for lack of subject matter jurisdiction whether or not it has been raised by the parties on appeal.

3. The Fifth Circuit may not reverse the trial court's decision on personal jurisdiction if it is not appealed. By failing to appeal on that issue, the defendant has waived it.

4. Distraint is the seizure of personal property to secure a debt or a remedy authorizing such seizure.

5. The fiduciary shield doctrine protects agents of a corporation from personal jurisdiction based on contacts in a forum that the agents made solely while acting for the corporation.

6. No, this is obviously a misquote. Justice Brennan insisted that tradition is relevant to whether a method of establishing personal jurisdiction satisfies due process because tradition influences the reasonable expectations of parties. [He disagreed with Justice Scalia as to whether a traditional method automatically satisfied due process.]

7. Justice Court has jurisdiction over claims for $300, and County Court (if there is one for the county) has concurrent jurisdiction.

8. The letter is insufficient application for a writ of replevin: 1) it makes no claim the property is wrongly detained; 2) it contains no affidavit or sworn statement as to the facts; and 3) no bond is tendered.

9. Motion to remand is granted. The citizenship of the plaintiff alien admitted to permanent residence is her place of domicile (Louisiana). The citizenship of the defendant insurer in a direct action is the citizenship of the insurer (Delaware and Connecticut) plus the place of citizenship of the insured. The insured, being a partnership, is a citizen of each state and country where its partners are citizens (including Louisiana). Thus there is no original diversity of citizenship jurisdiction. Moreover, the case would not be removable even if there were diversity because the defendant would be deemed to be a citizen of the state in which the state action was pending.

10. The defendant was an alien when the action was commenced, and venue is proper in any district against an alien. But as an alien admitted to permanent residence he is deemed a citizen of the state of domicile (Tennessee) at the time the action is commenced. This is the same as the plaintiff's citizenship. Thus the action should be dismissed for lack of subject matter jurisdiction, though not for lack of venue.

11. The defendant does not get a jury trial. Federal Rule of Civil Procedure covers the issue and is a valid exercise of rulemaking under the Rules Enabling Act because it really regulates procedure.

12. 1) There is federal jurisdiction because there is complete diversity and the amount in controversy exceeds $75,000. 2) The compulsory counterclaim arises from a common nucleus of operative facts, is part of the same constitutional case, and is within the court's supplemental jurisdiction. 3) The state long arm applies because defendant made a contract with a Mississippi resident to be performed in part in the state, because a tort was committed in part in the state, and because the defendant carried on some business in the state. 4) The e-mails and phone calls establish minimum contacts. [See Bellino v. Simon!] 5) Venue is proper in the federal district because a substantial part of the events or omissions giving rise to the claim occurred there. 6) While the action "might have been brought" in Hawaii, a section 1404(a) transfer would not be serve the convenience of the party plaintiff and his witnesses, nor would it serve the interest of justice because it would dramatically increase plaintiff's litigation costs.

Long answer

A good answer would need to carefully address the following matters:

1. The problem of plaintiff's citizenship critically affects the analysis of two different issues. Plaintiff's citizenship is determined by her domicile. Her old domicile (Georgia) will remain despite her transient residence in Alabama. But if she changes her intent and decides to make Alabama her home for the indefinite future at the time she commences the action, then she is a citizen of Alabama.

2. If she is still a citizen of Georgia, the eleventh amendment bars claims against the state of Alabama.

3. There is federal question jurisdiction over the county even if the claim based on federal law is not meritorious, for it arises from the federal regulation or statute.

4. Diversity problems: There is no diversity jurisdiction over the claim against the state. (A state is not a citizen of a state.) There is diversity of citizenship between the plaintiff and defendant county only if plaintiff has not changed her domicile. The injunctive relief may not satisfy the amount in controversy requirement depending on how it is valued. If valued from the effect on plaintiff's property value alone, the amount in controversy is not met. On the other hand, if the value includes the costs of complying by the defendant, the amount in controversy is satisfied. (There is authority going both ways.)

5. Supplemental jurisdiction (only over the county) may be available for the state-law claims in the event there is no diversity jurisdiction. There is original (federal question) jurisdiction; the state claims arise from a common nucleus of operative facts and are thus part of the same constitutional case; and novel or complex issues of state law do not clearly predominate. However, even if there is supplemental jurisdiction, the federal court either must (Gibbs) or may ( 1367) dismiss the state claim after dismissing the federal question claims on the merits (as discussed below).

6. The federal question claim seeking to invoke a special federal common law right should be dismissed. Federal court will not create special common law in cases where the United States is not a party and its rights and liabilities are not affected. Miree v. DeKalb (Scalia, J.).

Accordingly, finding the plaintiff domiciled in Georgia, the court should dismiss claims against the state, exercise federal question jurisdiction over the federal question claim, dismiss that claim on the merits, and dismiss the remaining state-law claims against the county for lack of subject matter jurisdiction.