Civil Procedure I 2 University of Mississippi

Fall 2003 Law School

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 one hour 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. Your client Barb Buyer, a Mississippi citizen, bought a CD player at Big Mart, a large retail store with extensive business in all states. The CD player cost $50.00. Buyer took the CD player home, plugged it in, and turned it on. The CD player made a sharp popping noise and produced a prodigious quantity of dense black smoke. Buyer turned off the CD player and unplugged it. When Buyer tried to return the CD player to Big Mart, the Big Mart manager told her she would have to contact the manufacturer.

The CD player was manufactured by Hei-wire Industries, a Taiwanese corporation with its principal place of business and all its manufacturing facilities in Taiwan. Attached to the CD player at the time of the sale was a small booklet. Inside on page 38 was the statement:

All litigation concerning this CD player must occur, if at all, in state or federal court in Alaska.

Buyer asks you whether this means she can sue Hei-wire only in Alaska. Please advise.





2. Same facts. What courts in Mississippi would have subject matter jurisdiction over a lawsuit by Buyer against Big Mart for the purchase price of the CD player?





3. In 2001, Phyllis, a citizen of Mississippi, was injured in a car accident when Doug, a citizen of Tennessee, lost control of his car and veered across the center lane. The accident occurred in Mississippi. In 2002 Phyllis commenced a civil action against Doug in Mississippi Circuit Court.

Doug removed the action to federal court. Doug believed that Phyllis and her medical experts were exaggerating her injuries. Accordingly, Doug sought to obtain a court order pursuant to Federal Rule of Civil Procedure 35 ordering the plaintiff to submit to a physical examination by a physician of the defendant's choosing. The federal rule provides:

When the mental or physical condition. . .of a party. . .is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner. . .

Fed. R. Civ. P. 35(a).

The plaintiff argued that the court should not issue such an order. Mississippi rules that were in force at that time did not permit a party to force an adverse party to submit to a medical examination. Moreover, the Mississippi Supreme Court had held that in the absence of such a rule, state courts were precluded from ordering such examinations under any circumstances. Swan v. I.P. Inc., 613 So. 2d 846 (Miss. 1993).

The plaintiff argued that her right to be free from a court-ordered medical examination was substantive as a matter of state law. She pointed out that Mississippi has adopted a rule comparable to the federal rule but the state rule was prospective in its application like substantive rights created by legislation. (Mississippi Rule of Civil Procedure 35 became effective on January 16, 2003.)

Both plaintiff and defendant agree that the availability of the medical examination may affect the outcome of this and other cases.

Explain how the court should rule on the defendant's motion for an order.





4. Same facts. After the completion of discovery, the case went to trial. In Mississippi state courts the trial judge reads jury instructions to the jury before the closing arguments of counsel. Miss. R. Civ. P. 51(d). The applicable federal rule provides, however, that "[t]he court, at its election, may instruct the jury before or after argument, or both." Fed. R. Civ. P. 51.

The trial judge has informed the parties that the judge plans to give all jury instructions after the parties have completed their closing arguments. The plaintiff objects to this procedure and wants the court to instruct the jury before closing arguments.

You are representing the plaintiff. She asks you whether she can appeal the decision to the Fifth Circuit, and, if so, whether she would win. Please advise.





5. One week after Pete and Dawn moved from Alabama to Mississippi, Pete filed for a divorce in Justice Court. Dawn moved to dismiss asserting that the Justice Court lacked subject matter jurisdiction and that Pete had not satisfied the Mississippi statutory requirement for divorce actions that one of the parties have resided in the state for six months prior to the commencement of the action. Miss. Code Ann. 93-5-5(a).

The Justice Court judge denied Dawn's motion to dismiss and entered a decree of divorce in favor of Pete. Dawn appealed to the Mississippi Supreme Court, which affirmed the divorce.

Dawn has filed a petition for a writ of certiorari to the Supreme Court of the United States. You are clerking for Justice Stevens who, learning you studied law in Mississippi, asks what the Court should do. Please advise.





6. Dr. Jon Kildeer, citizen of Mississippi, is a highly respected brain surgeon who practiced medicine and performed surgery at the University of Memphis General Hospital in Tennessee. Through a computer error, the Tennessee State Licensing Bureaucracy merged Kildeer's medical licensing records with the criminal records of John Kiljoy, a wanted drug smuggler and convicted murderer.

Dr. Kildeer brought this error to the attention of relevant state authorities on three occasions, but the error was not corrected. One morning when Dr. Kildeer arrived at the hospital, state employees arrested him in view of several clients and vocally accused him of murder and drug smuggling.

Dr. Kildeer was eventually released and has sued the state of Tennessee on various tort theories in federal court in Memphis, seeking $50,000 actual damages and $50,000 punitive damages.

The state has moved to dismiss for lack of subject matter jurisdiction. Rule on the motion and explain.

II. Long Answers



Instructions. Consider the following problems carefully and write coherent, literate essays in your blue book that respond to each.



A. The Case of the Nullified Nuptials (suggested time 60 minutes)



Pam North was a citizen of Canada. In the mid 1990s she attended the University of Memphis and decided she wanted to live in the United States. In 1998 North became an alien admitted to permanent residence in the United States, and she bought a condominium in Memphis.

In 1999 North started a business in Memphis called Wedding Planners. This business specialized in providing services in helping planning, arranging, and executing all details of large, complex weddings. North quickly earned an excellent reputation for reliably organizing weddings. Handling no more than four weddings per year, she earned over $200,000 per year for the years 1999, 2000, and 2002.

In 2001 Don Dawson, a Marketing Major at the University of Mississippi, fell in love with Beth Turner, a woman who sat next to him in Marketing 101 class. Dawson was born and raised in Oxford, Mississippi. He lived in the basement apartment of his parent's house in Oxford.

Beth was born and raised in Memphis, Tennessee. When she met Don she was a first-year student at the University of Mississippi. She was attending and paying tuition as a non-resident and was living in a dorm on campus. Every weekend Beth returned to her family's home in Memphis to do laundry and to spend time with her pet dog Fifi.

After her first year in college, in the summer of 2002, Beth got a job as a manager at Big Mart in Memphis. Don and Beth did not want to spend the summer apart, but Beth did not want to live with Don unless they were going to get married. So Don and Beth agreed to get married, but they decided to postpone their wedding until the spring of 2003, so they could have a big, formal wedding.

During the summer of 2002 Don and Beth rented an apartment together in downtown Memphis. Beth's pet dog Fifi lived with them.

During that summer Don and Beth began planning their big wedding. On July 15, 2002 they met with Pam North and entered into a written agreement. Under the terms of the agreement, Pam North agreed to arrange all details of their wedding except for photographs and videorecording. The agreement specified her obligations in great detail. It also specified that the wedding would take place in Memphis on June 1, 2003.

Pam North's compensation was fixed at either fifteen per cent of all the costs she incurred in behalf of Don and Beth or at $50,000, whichever was greater. In signing the agreement, Don gave his Mississippi apartment as his place of residence.

On July 15, Don and Beth also entered into a written agreement with Ted South for photography and videorecording services at their wedding. The total amount they agreed to pay South was $5,000.

On July 16, Don and Beth each submitted written applications to the University of Memphis to be admitted as transfer students. On their applications they identified themselves as Tennessee residents. In early August the University of Tennessee admitted both of them as transfer students and recognized them as in-state residents for tuition purposes. (They never attended.)

On August 11, 2002 Beth told Don she was not sure she wanted to get married after all. Don immediately called Pam North to notify her, but North told him it was too late and that their agreement could not be cancelled. Don replied, "So sue me."

On August 12, 2002, Pam North and Ted South commenced a civil action against Don and Beth in Mississippi Chancery Court. The complaint stated a claim by Pam for breach of contract against both Don and Beth and demanded damages in the amount of $100,000. It also stated a claim by Ted for breach of contract against Don and Beth for breach of contract and demanded damages in the amount of $5,000.

On August 13, 2002, Don and Beth were visiting Don's family in Oxford. While Don was in the basement apartment listening to CDs, a process server knocked on the front door. Beth answered the door, and the process server handed her a summons and copy of a complaint. The process was addressed to Don but Beth agreed to accept it. She took the papers downstairs and gave them to Don. The next day, August 14, 2002, process was made by certified mail on Beth in Memphis.

On August 15 Beth and Don returned to Oxford where they got married in a small private ceremony. They bought a house in Oxford, Mississippi in the fall of 2002, and they both attended the University of Mississippi as in-state residents in 2002-2003.

After timely removing the case to the United States District Court for the Northern District of Mississippi, the defendants filed a motion to dismiss for lack of subject matter jurisdiction, arguing that Chancery court originally lacked jurisdiction. The defendants also moved to dismiss for lack of personal jurisdiction, improper venue, and inadequate service of process. The plaintiffs filed a motion to remand to state court.

You are clerking for Judge Mills. Please write a memorandum that fully discusses all the issues that have been raised by the parties and that recommends how he should rule on the motions.





B. The Case of the Dour Defendant (suggested time 60 minutes)





The law firm of Ernest, Serious, and Strickner is a partnership made up of three partners, Fred Ernest, Barry Serious, and Bea Strickner. All three work at the firm's only office in downtown Memphis, Tennessee. Ernest resides in Memphis and is a citizen of Tennessee; Serious resides in West Memphis, Arkansas and is a citizen of Arkansas; Strickner resides in Southaven, Mississippi and is a citizen of Mississippi.

Most of the firm's legal work is in Memphis, but one of the firm's clients is Mississippi Mud Pie, Corporation. This corporation has its office in Southaven, Mississippi, and all three partners regularly visit the corporation's offices as part of the firm's legal representation of this client. The firm derives income of over $4,000 per year for legal services it provides Mississippi Mud Pie, Corporation.

In April 2003, the law firm's employee Bud Driver, a citizen of Mississippi, was delivering legal papers for the firm when he negligently injured Patty Pedestrian, a citizen of Mississippi. The accident occurred in downtown Memphis, Tennessee.

Pedestrian commenced a civil action in United States District Court for the Northern District of Mississippi. Her complaint names the partnership of Ernest, Serious, and Strickner as the defendant and demands $100,000 damages. Her lawyer arranged for service of process by serving Bea Strickner personally with a summons and copy of the complaint on the sidewalk outside her home in Mississippi. Both Strickner's home and the office of Mississippi Mud Pie, Corporation are located in counties in the Northern District of Mississippi.

The law firm answered the complaint, denying liability, and raising defenses of lack of subject matter jurisdiction, lack of personal jurisdiction, inadequate service of process and improper venue. The law firm also impleaded Driver as a third party defendant on the theory that he is or may be liable for some or all of any damages the firm may incur.

The law firm has moved to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, inadequate service of process and improper venue. Driver has moved to dismiss the claim against him due to lack of subject matter jurisdiction.

Rule on all motions and explain fully.

Civil Procedure I 2 University of Mississippi

Fall 2003 Law School

Final Exam Michael H. Hoffheimer

Model Answers



Short



1. Forum selection clauses are valid only if they are reasonable. The clause here is different from that enforced in Carnival Cruise Lines because the only apparent reason for selecting the forum here is to inconvenience plaintiffs without providing any greater convenience for defendant.



2. Justice Court has jurisdiction over claims up to $2500 and County courts (where they exist) have concurrent jurisdiction with Justice Court.



3. A rule adopted pursuant to the Rules Enabling Act, like Federal Rule of Civil Procedure 35, will be applied if it covers the situation and if it is valid. Rule 35 definitely covers, and it is valid because discovery rules regulate how issues are presented to the court. (This is the applicable text for procedural validity of a federal rule-enabling-act rule under Hanna.)



4. The Final Judgment Rule prevents an appeal from this decision at this time. When appealed after a final judgment, however, the decision will not be reversed because the grant of discretion to federal judge regarding the order of instructions appears to fully cover the situation and displace the mandatory state order. (Discretionary damages for frivolous appeals were held to displace a state's scheme of mandatory damages on losing appellants.) Such a rule is valid as a "procedural" rule because it regulates how issues are presented to courts (which is the applicable test under Hanna).



5. The Supreme Court must refuse to grant certiorari as it has not appellate subject matter jurisdiction over an erroneous interpretation of state law unless it is asserted that the state law conflicts with rights granted by federal law. [This question tested limits of supreme court subject matter jurisdiction, not limits on original jurisdiction in the federal district courts.]



6. The case must be dismissed under the Eleventh Amendment.



Long



A. Nullified Nuptials



A good answer would identify and authoritatively explain the legal resolution the following issues.



Diversity

Citizenship of parties for diversity is determined at time of commencement.

The plaintiff is a citizen of Tenn. because an alien admitted to permanent residency is a citizen of the place of domicile, and her domicile was Tenn.

Defendant Turner was a citizen of Tenn. at time of commencement as she had not changed her prior presumptive place of domicile.



Removal

A diversity case cannot be removed if any defendant is a citizen of the state where pending.

Here Dawson was either a citizen of Miss. and the case is not removable for that reason, or he was a citizen of Tenn. (in which case it is not removable because there was no original diversity jurisdiction)



Removal of Ted South claim

Under 1442(c), a "separate and independent claim" may also be removed but only if it part of the same "case." Two different contracts with different parties to be performed on the same date probably do not satisfy the Gibbs case definition of claims forming part of the same constitutional case, because they do not arise from a common nucleus of operative facts. (This could be argued either way for full credit.)



Personal jurisdiction

There is general jurisdiction over the defendants if they were domiciled in Mississippi (for which there may be some evidence). [This would, however, make the case nonremovable.]



Service

Residence service on Dawson was bad under Mississippi rules because it was not made on a family member and there was no follow-up mailing to the address. It was also invalid under Federal rules because it was not made on a person residing at the residence.

Certified mail was valid under Mississippi Rules on a Tennessee resident.



Venue

Venue would have been proper if there had been removal jurisdiction because the removal statue ( 1441(a)) specifically provides for removal to the district and division where the state action is pending.



B. Dour Defendant



Citizenship of partnership

The citizenship of because the diversity of a partnership is the citizenship of the states of all its members. (There is thus no complete diversity because one partner and the plaintiff are both from Mississippi.)



Personal jurisdiction

The Mississippi long-arm statute might apply to the partnership because it applies to a defendant who conducts any character of work or business in the state.

If the state applies this part of the long arm to unrelated activity that is the source of litigation, then the defendant must satisfy the standards for general personal jurisdiction. Because the partnership's activity in the state is not the subject of litigation, the exercise of personal jurisdiction must be supported by continuous and systematic business activity in the state. (It is unclear that it meets this higher standard.)



Venue

The general federal venue statute provides for venue in a district where a defendant resides (if they all reside in the same state). But the residence of this partnership is not necessarily where its partners are citizens. [It is the districts in which the partnership conducts business at a sufficient level to be considered a resident. . .] A second part of the venue statue also provides for venue in a district where a substantial part of the events or omissions giving rise to the claim occurred. But none of the events or omissions giving rise to the claim occurred in the district in Mississippi. [Note that the fall-back provision does not come into play because the federal district covering Memphis has venue both as the partnership's place of residence and as a district where a substantial part of the events or omissions giving rise to the claim occurred.]



Service on partner

Personal service on the partner is good service on the partnership. As one of the three active partners, she is one of an "officer, managing or general agent, or. . .agent authorized by appointment or by law to receive service of process. . ." Fed. R. Civ. P. 4.



Subject matter jurisdiction over third party complaint

There is supplemental jurisdiction over the impleaded third party because the claim for indemnification arises from the same constitutional case (stemming from a "common nucleus of operative facts") and is thus covered by section 1367 supplemental jurisdiction.