You may review this detailed feedback memorandum if you have any questions about the examination.Additionally, examinations will be available for pickup and review by individual students starting on September 15. My secretary, Ms. Betty Donaldson, will have the exams. You may pick up your exam from her by showing her your student ID and exam number. You may make and keep a copy of the exam, but you must return the original exam to Ms. Donaldson within 48 hours after picking it up.
However, I will not be available to discuss the memo or the examination in any way until I return to Gainesville after my one-year visit to Seattle University. See you in the Fall of 2005.
Before the exam starts, you may read the instructions, and count to make sure that you have all thirty-seven (37) pages, and you should write your exam number on every page. Otherwise, do not go beyond page (the end of the instructions) or read any other part of the exam before you are instructed to start.
Exam Number. It is very important that you place your exam number on every page. This will help to prevent the accidental loss or misplacement of any part of the test after it is turned in.
Honor Code, Open Rules. ÒOpen-RulesÓ means that the only information you may have with you or otherwise use during the examination is your required Federal Rules of Civil Procedure supplement. You may use your own supplement only; no substitutions will be allowed. Your supplement may be annotated with handwritten notes, but shall not have any attachments other than tabs to mark the location of specific material (the tabs may have on them numbers and the short titles of the referenced material and nothing more). Only handwriting may cover the blank spaces and the original printing on the supplement. The use of stick-on labels or paper, white-out or any other method to eliminate any of the original printing is prohibited. Other than the addition of handwritten notes and tabs, the supplement shall be in its original condition, no material may be added nor may any material be removed in any way. Reference to any other information, in any format, in any way, during the examination is prohibited. Violations of the Honor Code or of the exam rules should be reported to me before or during the examination. Violation of these rules shall result in a failing grade and in my referring the matter to the Honor Committee.
Read the Entire Exam. PLEASE READ THE ENTIRE EXAM BEFORE YOU BEGIN TO ANSWER ANY QUESTIONS. The exam consists of six (6) multiple-choice questions, seven (7) multi-part short-answer questions, and one (1) essay question. The multiple choice questions will account for twelve (12%) of your exam grade, equally divided among each of them, the short answer questions will account for a total of thirty-six percent (36%) of the exam grade, and the essay will account for fifty-two percent (52%) of your exam grade. Please take these weights into account when you design your answer schedule.
Limited Space. You must answer the questions in the space provided therefor in the exam itself. Do not use bluebooks. While I encourage you to outline the answers before you start to write, do not include scratch paper or any additional material with your completed exam. In answering the short-answer questions and the essay question, please be succinct. You might want to draft the short answer on your scrap paper, before writing it in the answer space. Definitely outline your essay answer before you start to write. I have given you enough room to answer the question comfortably, there is no need to fill up every line in every page. Please strive for precision, specificity, and thoughtful analysis in all points you do address.
Scratch Paper. You may have with you and use blank paper in which to outline your answers.
Cross-outs. If you need to cross-out any part of your answer in the essay, simply cross-over it and I will ignore it. If you run out of space because of material that you crossed out, you may use the back of the page to make up for the lost space. If you change your answer in the short answer or multiple-choice sections, make sure that you reasonably identify which answer you wish me to grade.
Write Legibly. If I am unable to read your answer, it is as if you had written nothing. The exam must be written in permanent, dark-color ink. You may not use pencils, erasable ink, or felt-tip markers.
Do Not Unstaple Pages. You must return the entire examination in the form in which it was given to you. Unless you are typing your answer, do not take the exam apart. If you do, you MUST RE-STAPLE IT.
Typing. If you are typing your answer, first, let me thank you; second, you must stay within the margins and write only one line of text per line of space given to you.
Laptop Use. Laptop use for the exam will only be allowed with the use of software that blocks access to any information accessible on or through the computer other than the exam itself and your answer to it. Network access may be used only to save, submit or print the examination answer.
Proctoring. I will not be able to proctor the examination because I will be attending a professional conference on the date of your exam. Any questions should be directed to the Student Affairs staff. If something important should come up, they will be able to contact me via cell phone.
Emergency Accommodation. I encourage you to bring emergency matters such as illness to the attention of the office of student affairs, so that they may evaluate the situation and take appropriate remedial action.
You must stop work four (4) hours after the SIGNAL TO START. Completed examinations must be turned in to The office of student Affairs staffers.
Part I: Multiple Choice Questions (12%)
Instructions
Select the best answer to the question presented. In this section, do not look for ÒperfectÓ answers, just the most correct one among those alternatives available to you, in light of the question presented. No explanations are required or allowed. Your answer will be either correct or incorrect, there will be no partial credit for incorrect answers. Circle the letter of your response.
Do not assume any facts not given to you. While you are expected to draw reasonable conclusions based on the facts given, you should not assume facts. In this section of the exam, Òmissing factsÓ suggest three possibilities: (1) you need to read the question again, i.e., ÒitÕs in there somewhere,Ó (2) the fact is not necessary to the resolution of the question, or (3) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question).
Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked, with the best possible response among the alternatives given.
Applicable Rules. Assume that the applicable rules of procedure are the Federal Rules of Civil Procedure. This applies to the entire exam, of course.
Long-arm statutes. You should assume that the applicable long-arm statutes have extended personal jurisdiction to the maximum extent allowed by the Due Process Clause of the Fourteenth Amendment.
1. Dr. Frazier Crane, is a citizen of Washington state. His car was hit by a car negligently driven by Daphnee Crane, a citizen of the United Kingdom, who is a permanent resident alien in the United States. She resides in Seattle, Washington. Frazier did not suffer any physical damages, but he lost his BMW, valued at $45,000.00 at the time of its loss, and his Ming vase, valued at $35,000.00 at the time it was destroyed. Frazier only has state-law claims against Daphne. ÀMay Frazier sue Daphnee in the United States District Court for the Western District of Washington, at Seattle?
a. No, because you cannot sue aliens in U.S. courts.
b. No, because there is no subject-matter jurisdiction over this action.
c. Yes, because there is subject-matter jurisdiction, personal jurisdiction and venue over this case in the Western District of Washington.
d. Yes, because you can sue aliens in any district.
Answer: B. The last sentence of 1332(a) covers a special case of permanent residents, and that provision would make Daphne a citizen of Washington state, which destroys diversity. This is precisely what this language was intended to prevent. A is wrong, 1332(a)(2) allows suits against citizens or subjects of a foreign state, i.e., Òaliens.Ó C is wrong because of the express language of 1332(a). D is wrong, because while venue in suits against aliens under 28 USC ¤ 1391(d) is appropriate in any district, you still must have a basis of subject matter jurisdiction, which is absent.
2. Emeril Lagasse has filed a federal suit against Wolfgang Puck in the U.S. District Court for the Central District of California, Western Division. The complaint was filed on March 22, 2000, and Mr. Puck was served on March 23, 2000. On April 3, 2000, defendant Puck appeared in the case for the first time by filing his Answer to the complaint. The only Rule 12(b) defense raised in the answer was lack of venue. On March 15, 2001, after the pleadings were closed and discovery had been completed in the case, Mr. Puck filed a motion to dismiss for lack of personal jurisdiction. Mr. Puck presents no matters outside the pleadings in his motion. May the Court consider this motion?
a. No, because the time to raise this defense has expired.
b. Yes, because the court must treat it as a Rule 56 motion for summary judgment.
c. Yes, but only if defendant Puck includes it in an amended answer.
d. No, because no matters outside the pleadings are raised, the motion is untimely.
Answer: A. Lack of personal jurisdiction is one of the least favored defenses under 12(h)(1), and it had to be raised in the answer. As we discussed in class, any argument that the defense was not then available is silly, and in any case A is the superior choice among those given. B: was incorrect for two reasons. First, the disfavored defense had been waived. Second, the decisive word in the answer that made it wrong was ÒmustÓ; because no matters outside the pleadings were raised, the court was not required to treat this as a summary judgment motion and was thus free to treat it as a motion for judgment on the pleadings. C: Was incorrect because while the defense might have been raised in an answer amended as a matter of course, the time for that was, at most, 20 days after filing. D was a red herring, using the language applicable to motions for judgment on the pleadings.
3. Ally McBeal, a citizen of Massachusetts, kicks Oren Koolie, a citizen of New York, when he is visiting her law office in Boston. She mistook him for ÒMr. Huggy,Ó an imaginary dancing baby. Unfortunately, Mr. Koolie is a very real, small person, who happens to be a lawyer. Naturally, Mr. Koolie sues Ms. McBeal in the U.S. District Court for the District of Massachusetts. Ms. McBeal is the only named defendant in the suit. In addition to Ms. McBeal and Mr. Koolie, there were two eyewitnesses to this incident, John Cage, a partner in the law offices Koolie was visiting, and Elaine Vassal, a secretary at that same firm. Lloyds of Cleveland Insurance Company provides insurance coverage to Ms. McBeal. Ms. McBeal called the company on the date of the occurrence and asked it to start preparing her defense to the reasonably anticipated litigation. Harry Smith, an agent for Lloyds, took statements from Mr. Cage and from Ms. Vassal. Mr. Smith wrote down what Ms. Vassal and Mr. Cage said and each of them, after reading their respective statement, signed the document. While Mr. Smith was taking down the statements, Mr. Koolie could be heard outside the door to the office that Smith was using screaming ÒI am going to sue you for every penny youÕve got, McBeal.Ó Mr. Koolie requests copies of the statements given by Vassal and Cage. Because Vassal and Cage are available for depositions, Koolie is unable to show substantial need and undue hardship as required by the pertinent rule. Is Mr. Koolie entitled to obtain copies of the statements taken by Mr. Smith under the Federal Rules of Civil Procedure?
a. Yes, because this material is relevant or likely to lead to the discovery of relevant evidence.
b. No, because the statements were collected in anticipation of litigation and are protected Òwork-product.Ó
c. No, because Vassal and Cage are not parties to the case and therefore Mr. Koolie is not entitled to discovery as to them.
d. Yes, because the statements were not collected in anticipation of litigation and are not protected Òwork-product.Ó
Answer: B: is correct because the work-product protection in Rule 26(b)(3) applies since the statements were taken in reasonable anticipation of litigation, and Koolie is unable to make the substantial need and undue hardship showing required by the rule to overcome the protection. A, is incorrect because work-product protection trumps the discovery standard that this alternative was intended to suggest. C is a silly statement. Parties may obtain discovery related to non-parties, and this information is in the hands of a party's insurer. D is an incorrect characterization of the facts, which really point to anticipation of litigation and work-product protection.
4. Mrs. Mary Kedra has filed a suit against Dr. Martin Blaine and his employer DoctorsÕ Hospital, Inc., because he left a set of surgical scissors inside Mrs. KedraÕs thoracic cavity during an appendix operation. Mrs. Kedra is a citizen of Pennsylvania, Dr. Blaine is a citizen of Connecticut, and the Hospital corporation is incorporated in Delaware and has its Principal Place of Business in West Palm Beach, Florida. These are all the parties to this suit. The case was filed in the Eastern District of Pennsylvania because the relevant facts occurred at DoctorsÕ Hospital in Philadelphia, which is owned and operated by DoctorsÕ Hospital, Inc. The court has jurisdiction over the subject-matter of this complaint. The plaintiff wants a certification indicating that Dr. Blaine is not authorized to practice medicine in Pennsylvania (or alternately that he is so authorized). This information is only available from the Pennsylvania State Board of Physicians, an independent private association. What is the correct way to compel the Board to provide her with access to these records under the Federal Rules of Civil Procedure?
a. To send a request for production of documents to DoctorsÕ Hospital, Inc.
b. To send an interrogatory to DoctorsÕ Hospital, Inc.
c. To take the deposition of the custodian of records of the Board of Physicians, with the appropriate subpoena requesting that she bring with her the documents.
d. To send a request for production of documents to Doctor Blaine.
Answer: C is correct because the board is not a party and the records are within its control, and the one discovery device available against non-parties in this situation is a deposition under Rule 30, and the subpoena duces tecum under Rule 45(a)(1)(C). A is incorrect because a request for production compels a party to produce documents under its control. B is incorrect because a request for production of documents is most correct procedural device in this case, even if courts are not always all that neat about the distinction in practice between Rule 34 and Rule 30 Interrogatories (see, e.g., Hickman v. Taylor, cb. p. 349, bottom). As to D, you could argue that Dr. Bombay has control over or can request these records, but that is certainly not the way to compel the Board to provide you with access under the rules. This is from an old exam, I just changed the names.
5. In the Jones v. Clinton case, the plaintiff wishes to confirm her allegations in paragraph 22: Ò22. There were distinguishing characteristics in ClintonÕs genital area that were obvious to Jones.Ó Jones has filed a motion asking the court to order that the pertinent discovery be obtained directly from defendant Clinton. If the presiding judge is willing to allow it, what Federal Rule of Civil Procedure would give plaintiff Jones the superior discovery device to reach the best evidence in support of her contention?
a. FRCP 45.
b. FRCP 26(b).
c. FRCP 34.
d. FRCP 35.
Answer: D. Rule 35 is the rule that should be used under these circumstances. It will produce the best evidence: what does Clinton look like. Sure, you could get evidence from other people with personal knowledge through depositions or, in the case of physicians, the examination of medical records, but Òthe best evidenceÓ in this case is produced by the examination, as we discussed extensively during the day that we dedicated to the Clinton complaint. The general allowance of discovery under Rule 26 does not establish the method to be used, hence B was not correct. Rule 45 and 34 do allow for inspection, but it would be inappropriate to use them for a medical examination.
6. In a federal civil action, Mr. John Smith, who is not an attorney, makes claims pursuant to the California ÒAssistance to Tort Victims Act.Ó The complaint was signed by SmithÕs attorney of record. Smith alleges that the three defendants were Òstanding nearbyÓ while he was mugged, and failed to render assistance. On February 3, 2003, defendant Cosmo Cramer serves Mr. Smith with a Motion for Sanctions, arguing that Mr. SmithÕs claims against him are legally groundless and violate the duties imposed by Rule 11. Because Mr. Smith had not responded, on March 3, 2003, defendant Cramer files his Rule 11 motion with the court. On May 2, 2003, Mr. Smith files a stipulation of voluntary dismissal of his claims against Mr. Cramer, subscribed by him and by Mr. Cramer and their respective counsel. (Assume that this is a proper voluntary dismissal and that there are no stipulations regarding sanctions or costs.) The court, which had not prescribed any period for the filing of the voluntary dismissal, then turns to the Rule 11 motion and finds that the allegation against Mr. Cramer were not warranted by existing law and that any argument to the contrary was frivolous. May the judge impose sanctions pursuant to Rule 11?
a. Yes, the court may impose sanctions upon Mr. Smith pursuant to Rule 11.
b. No, the court may not impose sanctions under Rule 11 because the complaint was voluntarily dismissed.
c. Yes, the court may impose sanctions upon Mr. SmithÕs attorney pursuant to Rule 11.
d. Yes, the court may impose sanctions upon Mr. Smith and his attorney pursuant to Rule 11.
ANSWER: D. The court has found that SmithÕs counsel violated the duties imposed by Rule 11(b)(2). Accordingly, the court may impose NONMONETARY sanctions pursuant to Rule 11 based on CramerÕs motion, on either Smith or Counsel, and monetary sanctions only upon counsel. The motion was served upon the party, and filed with the court only after the 21-day safe harbor period had elapsed, and the court had not prescribed a different period. A is incorrect because of 11(c)(2)(A). B is incorrect because not all dismissals trigger the safe harbor, only dismissals within the 21-day period earn the protection of 11(c)(1)(A). C is incorrect also because 11(c)(2)(A) precludes NONMONETARY sanctions upon Mr. Smith, but not other types of sanctions. Accordingly, D is the correct answer because the court may impose any Rule 11 sanction it deems appropriate upon counsel, and nonmonetary sanctions upon Smith. While MONETARY sanctions may only be imposed upon counsel, because the court found a violation of 11(b)(2) and 11(c)(2)(A) provides that sanctions may not be imposed upon a represented party such as Smith for violation of that provision, as just explained, nonmonetary sanctions may be imposed upon Smith. Since sanctions could also be imposed upon counsel, and in fact were most likely to be imposed upon counsel, D was a better answer A. I had intended C to be the correct answer, but simply forgot to add the word ÒmonetaryÓ before sanctions, thus failing to foreclose the possibility of nonmonetary sanctions being imposed on Smith.
General Instructions for parts ii and III
Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, Òmissing factsÓ suggest three possibilities: (1) you need to read the question again, i.e., ÒitÕs in there somewhere,Ó (2) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question), or (3) you need to indicate that you need to establish certain facts in order to provide a complete opinion. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.
Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked. Civil procedure is a broad and complex course, I have crafted the questions narrowly, do not waste your time covering issues that the question does not require you to resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the question.
Citations. Since this is an open-rule exam, citation must be made to the appropriate rule, especially the Federal Rules of Civil Procedure, section of title 28, Constitutional Provision, etc., with the level of specificity with which we discussed them in class (you must be very precise about identifying the specific portion(s) of rules or statutes that might apply). Case citations will be judged on a Òclose-enoughÓ basis, depending on the importance of the case, as discussed in class.
Personal Jurisdiction Assumptions. Individuals are subject to general personal jurisdiction in their state of residence. Corporations are subject to general personal jurisdiction in the state in which they have their principal place of business. Corporations are subject to personal jurisdiction in the states that incorporate them only as provided in the pertinent corporation law.
Residence. Unless otherwise expressly indicated, you may assume that individuals have a general intent to remain in their existing state of residence indefinitely.
Part II: Short-Answer questions (36%)
Rudolph Patterson is a citizen and resident of Illinois. Jonathan Doehr is a citizen and resident of Wisconsin; he lives in Madison, Wisconsin. Jonathan Doehr is covered by an insurance contract issued by the Illinois No-Fault Insurance Company, a Delaware corporation with its principal place of business in Chicago, Illinois. Teresa P. Dugan is a citizen and resident of Wisconsin; she lives in Milwaukee, Wisconsin. Dugan is employed by Midwest Parcel Service, a corporation under the laws of the state of Illinois, with its principal place of business in Milwaukee, Wisconsin. All the parties are U.S. citizens or U.S. corporations.
On June 12, 2003, the three individuals described above were driving separate vehicles on Interstate 94 traveling South from Milwaukee to Franklin, Wisconsin. While still within the Milwaukee city limits, all three vehicles were involved in a collision. All three drivers suffered serious damages, well in excess of $75,000.00 exclusive of costs and interests as a result of the accident. It can reasonably be argued that the proximate cause of the accident was the negligent conduct of any one of the drivers. Applicable Wisconsin law provides for joint and several liability for tortfearsors; joint tortfeasors have a right to claim contribution from each other but are not compulsory parties under Wisconsin law, it is, therefore, not necessary to join all parties in a single case related to the accident.
The accident is a single occurrence for all applicable purposes, and each party may pursue multiple claims arising out of the accident against each other party.
Rudolph Patterson and Jonathan Doehr had a pre-existing contractual relationship that was developed exclusively in Illinois. Either Patterson or Doehr may properly plead a breach of contract claim against the other. Other than the identity of the parties, the contract and accident claims are wholly unrelated.
The Wisconsin long-arm statute reads as follows:
56.2. Alternate method of service.
Every corporation, individual, personal representative, partnership or association that shall have the necessary minimum contact with the state of Wisconsin shall be subject to the jurisdiction of the courts of this state, and the courts of this state shall hold such corporation, individual, personal representative, partnership or association amenable to suit in Wisconsin in every case not contrary to the provisions of the Constitution of the United States.
***
Under Wisconsin decisions, and consistent with the Due Process Clause of the 14th Amendment to the U.S. Constitution, specific personal jurisdiction over any of the corporations or individuals mentioned in the facts could validly be based on the occurrence of the accident in Wisconsin. Wisconsin however does not have any contacts with the contractual relationship between Patterson and Doehr that would justify an exercise of specific personal jurisdiction.
Based on the facts described above, and taking into account any modifications made by the question, answer the following questions by writing your answer in the space provided. Note that the answer requires you either to choose among the given alternatives, or to supply an appropriate citation. Explanations are not allowed. Remember the specificity of citation rules!
I assigned two points to 14(a)[1], one to 14(a) and the other to the specific sentence reference, because it became clear that this was a common mistake, and I thus made the math generally easier for myself. In general, other insufficiently-correct citations would cost at least half the weight of the answer, though half deductions tended to be rare. I purposely chose not to be picky about the distinction between supplemental claims (1367(a)[1]) and supplemental parties (1367(a)[2]). I also chose not to be picky about referring both to 1367(a) enabling jurisdiction and 1367(b) not precluding it, preferring instead to award full points for references to 1367(a).
I was generally lenient with persons who ignored the admonition that explanations were not allowed. However, when the long explanations made it difficult to discern the answers, I deducted points globally. Additionally, an inappropriate explanation could turn a correct citation into an incorrect answer.
1. Patterson files a civil action solely based on diversity subject-matter jurisdiction in the United States District Court for the Eastern District of Wisconsin against Jonathan Doehr and Teresa P. Dugan to pursue claims arising out of the accident.
a. Considering only the propriety of joinder under the rules, what Federal Rule(s) of Civil Procedure would allow Patterson to join Doehr and Dugan in this complaint? _______________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________________
20(a)[2].
I was laid back about the [2]. I had intended the instructions also to suggest Rule 18(a) here when I indicated that you should assume that as to each party there were multiple claims arising out of the accident. Hence the Òto pursue claims arising out of the accidentÓ language in the introduction to the question. And the general references in class to joinder of both claims and parties. But, after grading a few exams, it was clear that students focused only on the joinder of the parties, so I decided to ignore 18(a) here.
b. What section(s) of title 28 could govern PattersonÕs choice of venue? ____________________________
_________________________________________________________________________________________________________________________________________
1391(a)(1), 1391(a)(2), 130(a).
Given the filing, both 1391(a)(1) and (2) would send you to the same district, Eastern District of Wisconsin, as that district is described in 130(a).
c. What section(s) of title 28 would govern PattersonÕs choice of venue if he had filed this action in the Western District of Wisconsin? ___________________________________________________
_________________________________________________________________________________________________________________________________________
1391(a)(1), 130(b) only.
2. Patterson files a civil action solely based on diversity subject-matter jurisdiction in the United States District Court for the Eastern District of Wisconsin against the Illinois No-Fault Insurance Company, as the sole defendant, pursuant to WisconsinÕs direct action statute. He is pursuing claims arising out of the accident.
a. Of what state(s) is Illinois No-Fault Insurance Company a citizen of? _____________________________
_________________________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________________
Wisconsin, Delaware, Illinois.
Some students made the mistake of identifying a city rather than the state. Those answers were incorrect.
b. Identify the section(s) of title 28 pertinent to your answer in part a of this question. __________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________________
Here I accepted 1332(c)(1)[i-1, i-2, i-3], or 1332(c)(1) line 4 to 12, or 1332(c)(1) from first comma to first semicolon.
c. May Patterson pursue this case as filed?
Select: Yes or No
No.
3. Patterson files a civil action solely based on diversity subject-matter jurisdiction in the United States District Court for the Eastern District of Wisconsin against Jonathan Doehr, Teresa B. Dugan and Midwest Parcel Service to pursue claims arising out of the accident. He alleges that Dugan was acting within the scope of her employment at the time of the accident.
a. Of what state(s) is Midwest Parcel Service a citizen of? __________________________________________________
_________________________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________________
Wisconsin and Illinois.
b. Identify the section(s) of title 28 pertinent to your answer in part a of this question. __________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________________
1332(c)(1)[a], 1332(c)(1)[b]
c. May Patterson pursue this case as filed? Select: Yes or No
NO.
4. Patterson files a civil action solely based on diversity subject-matter jurisdiction in the United States District Court for the Western District of Wisconsin against Jonathan Doehr to pursue claims arising out of the accident.
a. Considering only the propriety of joinder under the rules, may Patterson join a claim he has against Doehr for breach of contract to his accident claims in this same suit?
Select: Yes or No
YES.
b. What Federal Rule(s) of Civil Procedure would allow the joinder of these claims? ____________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________________
18(a).
c. Considering the defense of lack of subject-matter jurisdiction, if the amount in controversy in the contract claim is $50,000.00, may it still be pursued in the same diversity suit?
Select: Yes or No
YES.
d. What would be the reason to allow or disallow the scenario described in c, the aggregation rule or the supplemental jurisdiction statute? _____________________________________________
_________________________________________________________________________________________________________________________________________
Aggregation.
5. Patterson files a civil action solely based on diversity subject-matter jurisdiction in the United States District Court for the Eastern District of Wisconsin against Jonathan Doehr, to pursue claims arising out of the accident. Patterson has chosen not to pursue the contract claim in this case. This is the first and only civil action pursuing claims arising out of the accident, and the court has personal jurisdiction over the parties as to the claims arising out of the accident.
a. Considering only the propriety of joinder under the rules, must Doehr pursue against Patterson claims arising out of the accident in this federal case?
Select: Yes or No
YES.
b. What Federal Rule(s) of Civil Procedure would require him to pursue those claims? _____________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________________
13(a).
c. Considering only the propriety of joinder under the rules, may Doehr join the claim he has against Patterson for breach of contract to his accident claims in this same suit?
Select: Yes or No
YES.
d. What Federal Rule(s) of Civil Procedure would allow this joinder? _______________________________
_________________________________________________________________________________________________________________________________________
13(b) & 18(a).
e. Even if joinder is appropriate under the rules, does Patterson have certain 12(b) and 12(h)(1) defenses to the contract claim?
Select: Yes or No
YES.
f. Please identify the 12(b) and 12(h)(1) defenses available to Patterson. _____________________________
_________________________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________________
12(b)(2) (lack of Personal Jurisdiction) and 12(b)(3) (lack of Venue); NOT 12(b)(1), or (6) or (7).
PJ and Venue were available defenses justified by the facts. 12(b)(1) (lack of Subject Matter Jurisdiction) is not a 12(h)(1) defense, moreover, 12(b)(1) was not available under the facts because the parties are diverse and each party had accident claims exceeding the jurisdictional amount, so aggregation would have allowed the contract claim even if it did not exceed the jurisdictional amount. So I deducted for references to SMJ. However, references to 12(b)(4) (process) and (5) (service of process) defenses did not result in deductions, since they might have been available, if only speculatively, and they are 12(h)(1) defenses. Such references did not however garner extra points. References to 12(b)(1), 12(b)(6) and 12(b)(7), which are not 12(b) AND 12(h)(1) defenses, also resulted in deductions. I limited deductions to one point.
6. Patterson files a civil action against Jonathan Doehr and Teresa P. Dugan in the United States District Court for the Eastern District of Wisconsin to pursue claims arising out of the accident under the Federal Interstate Highway Accident Claims Act. Assume that the accident-related claims are well-pleaded substantial federal claims under the statute and that subject-matter jurisdiction is properly based on this Federal Question. The Act only allows individuals to sue other individuals, not corporations.
a. May Patterson join in his original complaint Midwest Parcel Service to pursue against it claims arising out of the accident?
Select: Yes or No
YES.
b. What would be source of subject-matter jurisdiction for the claims against Midwest? _________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________________
1367(a).
7. Patterson files a civil action against Doehr in the United States District Court for the Eastern District of Wisconsin, to pursue claims arising out of the accident. Subject-matter jurisdiction is solely based on diversity. Doehr wishes to pursue claims arising out of the accident against Midwest Parcel Service in the same federal action instituted by Patterson, but not as part of a counterclaim against Patterson.
a. What Federal Rule(s) of Civil Procedure would allow Doehr to initiate claims against Midwest Parcel Service in this case?___________________________________________________________________
_________________________________________________________________________________________________________________________________________
14(a)[1] (the [1] was important).
b. May Doehr pursue claims beyond the initial claim that brought Midwest into the case in the same case?
Select: Yes or No
YES.
c. What Federal Rule(s) of Civil Procedure would allow the joinder of those claims? _____________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________________
18(a).
d. What would be basis (or bases) of subject-matter jurisdiction for these claims? _____________
_________________________________________________________________________________________________________________________________________
1367(a).
I purposely chose not to be picky about supplemental claims (a)[1] and supplemental party (a)[2], nor did I look for 1367(b) to be used to construct the complete answer: 1367(a) allows it AND 1367(b) does not preclude it. I could have been that picky, but I chose not to.
PART III: Essay Question (52%)
A jury in district court found that defendant Nycomed
[1]
had wrongfully terminated the employment of plaintiff Jeffrey R. Freund for making bona fide safety complaints, thereby committing the California state-law tort of wrongful termination in violation of public policy. The jury awarded compensatory damages of $1,130,000 and punitive damages of $1,150,000. The district court overturned the juryÕs award of punitive damages, granting Nycomed judgment as a matter of law on that issue.
Freund now appeals the order overturning the award of punitive damages.
Background
In 1992, Freund was hired by Nycomed as a pharmacist in NycomedÕs nuclear pharmacy in San Diego.
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Freund was hired by Mike Wakefield, who remained his supervisor for the entire term of his employment. Freund eventually was appointed a ÒRadiation Safety OfficerÓ with responsibility for safety compliance at the San Diego pharmacy. The San Diego pharmacy for which Freund worked was operated by Medi-Physics, Inc., which is a wholly-owned subsidiary of Nycomed.
After a few years, the relationship between Wakefield and Freund soured. After a series of incidents in which Wakefield disagreed with FreundÕs safety complaints, FreundÕs employment was terminated by Nycomed on the grounds of Òdisruptive behavior.Ó
Freund filed a one-count federal complaint. The basis of subject-matter jurisdiction was diversity (28 USC sec. 1332), because Freund is a citizen of California, and none of the Nycomed defendants is a citizen of California. The claims also exceeded $75,000.00 exclusive of interests and costs. Substantively, Freund alleges that he was wrongfully terminated in violation of public policy as expressed in California Labor Code sec. 6310, which prohibits an employer from terminating an employee for raising bona fide complaints relating to workplace health or safety. Freund sought both compensatory and punitive damages.
The text of sec. 6310, in pertinent part, states that
No person shall discharge or in any manner discriminate against any employee because the employee has . . . made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative.
Cal. Labor Code sec. 6310(a)(1).
The case proceeded to trial, and at the conclusion of the evidentiary phase, Nycomed moved for judgment as a matter of law, pursuant to Federal Rule of Civil Procedure 50(a), solely on the ground that FreundÕs complaints did not implicate any public policy that could give rise to a wrongful termination claim. The court denied the motion, and the jury returned a verdict in favor of Freund. The jury awarded Freund $20,000 in emotional distress damages, $1,130,000 in compensatory damages, and $ 1,150,000 in punitive damages.
Following the trial, Nycomed filed a motion for judgment as a matter of law, pursuant to Rule 50(b), in which it reiterated the argument from its earlier Rule 50(a) motion, and also raised a new argument that the punitive damages award should be overturned because Freund did not prove that NycomedÕs employees acted with malicious intent in terminating him. Nycomed also moved for a new trial pursuant to Federal Rule of Civil Procedure 59. The district court granted in part NycomedÕs motion for judgment as a matter of law, overturning the juryÕs award of punitive damages, but upholding the juryÕs verdict that Freund was wrongfully terminated in violation of public policy. The court denied NycomedÕs motion for a new trial. Both parties then appealed the courtÕs order overturning the punitive damages award.
Applicable Law
Unless the parties contract otherwise, employment relationships in California are ordinarily Òat will,Ó meaning that an employer can discharge an employee for any reason. See Cal. Labor Code sec. 2922. In Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 610 P.2d 1330, 164 Cal. Rptr. 839 (1980), the California Supreme Court carved out an exception to the at-will rule by recognizing a tort cause of action for wrongful terminations that violate public policy. See id. at 172, 610 P.2d at 1332-33.
California courts have long held that sec. 6310 meets the common law requirements for a wrongful termination in violation of public policy cause of action. In Hentzel v. Singer Co., 138 Cal. App. 3d 290, 188 Cal. Rptr. 159 (1982), the Court of Appeal held that sec. 6310 embodies a public policy against retaliatory firings, and that violation of sec. 6310 could serve as the basis for a claim of wrongful termination in violation of public policy. See id. at 298.
California courts also have cited Hentzel for the proposition that an employee fired for Òdisclosing other illegal, unethical, or unsafe practicesÓ can bring a wrongful termination claim. California courts have also ruled that Hentzel is an example of a wrongful termination in violation of public policy for Òreporting an alleged violation of a statute of public importance.Ó See also, Taylor v. Lockheed Martin Corp., 78 Cal. App. 4th 472, 485, 92 Cal. Rptr. 2d 873 (2000) (ÒA private cause of action for retaliatory discharge under Labor Code section 6310 is part of CaliforniaÕs statutory scheme for occupational safety.Ó); Cabesuela v. Browning-Ferris Indus., 68 Cal. App. 4th 101, 107-10, 80 Cal. Rptr. 2d 60 (1998); Barton v. New United Motor Mfg., Inc., 43 Cal. App. 4th 1200, 1205, 51 Cal. Rptr. 2d 328 (1996) (ÒAn employer who fires an employee in retaliation for protesting unsafe working conditions violates fundamental public policy . . . .Ó) (citations omitted).
This Circuit has also cited Hentzel with approval on several occasions. See, e.g., Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1093-94 (9th Cir. 1990); Paige v. Henry J. Kaiser Co., 826 F.2d 857, 863 (9th Cir. 1987).
In evaluating a claim of wrongful termination, it is sufficient that FreundÕs complaints fell within the ambit of sec. 6310. The public policy behind sec. 6310 is not merely to aid the reporting of actual safety violations; it is also to prevent retaliation against those who in good faith report working conditions they believe to be unsafe. See, e.g., Skillsky v. Lucky Stores, Inc., 893 F.2d at 1093 (ÒThe public policy at stake here also involves Ôprotecting the right of employees to voice their dissatisfaction with working conditions.Õ Ó (quoting Hentzel, 138 Cal. App. 3d at 296-98)); Foley, 47 Cal.3d at 670 (noting interest in protecting employees who disclose unsafe working conditions). As long as the employee makes the health or safety complaint in good faith, it does not matter for purposes of a wrongful termination action whether the complaint identifies an actual violation of other workplace safety statutes or regulations. See Cabesuela, 68 Cal. App. 4th at 109.
More recently, the California Supreme Court elaborated on its meaning of Òpublic policyÓ sufficient to support a wrongful termination claim. The public policy must be Ò(1) delineated in either constitutional or statutory provisions; (2) ÔpublicÕ in the sense that it Ôinures to the benefit of the publicÕ rather than serving merely the interests of the individual; (3) well established at the time of discharge; and (4) substantial and fundamental.Ó City of Moorpark v. Superior Court, 18 Cal. 4th 1143, 1159, 77 Cal. Rptr. 2d 445, 959 P.2d 752, 762 (1998) (internal quotation omitted).
The California Supreme Court has made it clear that damages for wrongful discharge in violation of public policy are not limited to those specified in the underlying statute that was violated. In Rojo v. Kliger, 52 Cal. 3d 65, 276 Cal. Rptr. 130, 801 P.2d 373 (1990), two employees brought an action for wrongful discharge, and an action under the Fair Employment and Housing Act (FEHA), for sexual harassment. The court held that the plaintiffsÕ tort remedies were not limited to the remedies provided under FEHA, even though FEHA was the statute used to establish the public policy basis for the wrongful termination claim. See 52 Cal. 3d at 80-81. The plaintiffs therefore could seek punitive damages on their tort theory, even though FEHA did not allow for a punitive damage recovery. See id. at 82.
Even closer to the point, in Hentzel the court held that wrongful termination actions under sec. 6310 are not limited to statutorily-identified remedies. See Hentzel, 138 Cal. App. 3d at 301-03 (holding that sec. 6310Õs remedies were not intended to be exclusive); see also Daly v. Exxon Corp., 55 Cal. App. 4th 39, 45, 63 Cal. Rptr. 2d 727 (1997) (ÒHad Exxon fired, discharged, or terminated Daly before the contract expired because she complained about unsafe working conditions, she could have sued for wrongful discharge in addition to statutory damages.Ó) (citations omitted).
However, in Moorpark the California Supreme Court stated that Òwhen the constitutional provision or statute articulating a public policy also includes certain substantive limitations in scope or remedy, these limitations also circumscribe the common law wrongful discharge cause of action. Stated another way, the common law cause of action cannot be broader than the constitutional provision or statute on which it depends . . . .Ó Moorpark, 18 Cal. 4th at 1159. One such limitation is that the Supreme Court has ruled that punitive damage awards in wrongful termination cases must be Òin appropriate amounts.Ó Trial judges are required to carefully review punitive damage awards in these cases. In order to ensure such review, the California high court has ruled that challenges to punitive damage awards cannot be waived. Adams v. Murakami, 54 Cal.3d 105, 115 n.5, 813 P.2d 1348, 1354 n.5, 284 Cal. Rptr. 318 (1991). CaliforniaÕs rule has its roots in the StateÕs public policy. In setting forth the non-waiver rule in Adams, the California Supreme Court stated that Òthe primary interest that must be protected is the public interest in punitive damage awards in appropriate amounts. We cannot allow the public interest to be thwarted by a defendantÕs oversight or trial tactics.Ó 54 Cal.3d at 115 n.5, 813 P.2d at 1354 (emphasis in original).
Federal Rule of Civil Procedure 50(a) permits a party to move for judgment as a matter of law after the opposing party has been fully heard and prior to the submission of the case to the jury. Fed. R. Civ. P. 50(a). If such a motion made at the close of all the evidence is denied, Rule 50(b) allows the moving party to ÒrenewÓ its motion within ten days after the courtÕs entry of final judgment in the case. Fed. R. Civ. P. 50(b). A party cannot raise arguments in its post-trial motion for judgment as a matter of law under Rule 50(b) that it did not raise in its pre-verdict Rule 50(a) motion. See Advisory Comm. Notes to the 1991 Amendments, Fed. R. Civ. P. 50 (ÒA post trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion.Ó); Murphy v. City of Long Beach, 914 F.2d 183, 186 (9th Cir. 1990) (Ò[Judgment notwithstanding the verdict] is improper if based upon grounds not alleged in a directed verdict [motion].Ó). The purpose of this rule is twofold. First it preserves the sufficiency of the evidence as a question of law, allowing the district court to review its initial denial of judgment as a matter of law instead of forcing it to Òengage in an impermissible reexamination of facts found by the jury.Ó Lifshitz v. Walter Drake & Sons, 806 F.2d 1426, 1428-29 (9th Cir. 1986). Second, it calls to the courtÕs and the partiesÕ attention any alleged deficiencies in the evidence at a time when the opposing party still has an opportunity to correct them. See id. at 1429.
The district courtÕs judgment as a matter of law arguably defeated both of these purposes. The judgment was granted on the ground that there had been insufficient evidence of malice on the part of NycomedÕs managing agents. That ruling necessarily redetermined a fact found by the jury. And because there had been no motion for judgment as a matter of law on that issue at the close of the evidence, Freund was deprived of the opportunity to introduce further evidence to remedy any deficiencies in its showing of malice. The judgment as a matter of law therefore deviated from the general federal practice under Rule 50.
The district court ruled that Nycomed had not raised insufficiency of evidence of malice in its Rule 50(a) motion at the close of the evidence, and that Rule 50 would normally preclude Nycomed from raising it after judgment. It noted, however, that under California law the reviewability of punitive damage awards is not waivable under Adams. Accordingly, the district judge applied CaliforniaÕs non-waiver rule in reversing the punitive damage award.
Appellate review of the district courtÕs grant of judgment as a matter of law under the same standard used by the district court to evaluate the original motion. See Air-Sea Forwarders v. Air Asia Co., Ltd., 880 F.2d 176, 181 (9th Cir. 1989).
These punitive damages, in NycomedÕs view, were correctly stricken by the district court on post-verdict motion because of lack of evidence of malice. Rule 50(b) of the Federal Rules of Civil Procedure generally requires that a motion for post-trial relief must state the same grounds for relief as the litigantÕs Fed. R. Civ. P. 50(a) directed verdict motion. But an unyielding application of that rule is not always necessary. For example, in Simmons v. City of Philadelphia, 947 F.2d 1042, 1085-1087 (3d Cir. 1991) (Becker, J.), the Circuit court, applying the Pennsylvania substantive rule preventing waiver of municipalitiesÕ sovereign immunity, allowed the municipality to raise sovereign immunity in a 50(b) motion notwithstanding the failure of municipality to raise immunity in its 50(a) motion. Nycomed urges us to adopt the third circuitÕs holding that the federal practice and state substantive rule may coexist. See also Walker v. Armco Steel, 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980).
Freund argues that the district court erred in granting NycomedÕs post-trial motion for judgment as a matter of law with regard to punitive damages because Nycomed failed to move for such relief at the close of the evidence, as required by federal practice. Freund argues that the California rule that collides with Federal Rule 50 in this case is not a substantive rule and should be disregarded in favor of the application of the federal rule. The no-waiver rule set forth by the California Supreme Court in Adams does not in itself create any substantive right. It does not add, subtract, or define any of the elements necessary to justify punitive damages; it merely establishes when and how those pre-existing substantive rules can be reviewed. Thus, in overriding the California no-waiver rule, Federal Rule 50 would not run afoul of the Rules Enabling Act, because its application Òaffects only the process of enforcing litigants' rights and not the rights themselves.Ó Burlington N. R. Co. v. Woods, 480 U.S. 1, 8, 94 L. Ed. 2d 1, 107 S. Ct. 967 (1987); see also Donovan v. Penn Shipping Co., 429 U.S. 648, 649-50, 51 L. Ed. 2d 112, 97 S. Ct. 835 (1977) (question whether acceptance of remittitur waives right to appeal is question of federal, not state law, involving Òthe proper role of the trial and appellate courts in the federal systemÓ); Neifeld v. Steinberg, 438 F.2d 423, 426 (3d Cir. 1971) (federal law determines whether assertion of counterclaim waives challenges to personal jurisdiction). Rule 50 accordingly governs, Freund argues.
You are a law clerk for the Honorable Judge Ronald M. Gould. Judge Gould has been selected to author the opinion for the Ninth Circuit. The judge instructs you to draft a detailed memorandum of law that explains why the district judgeÕs decision invalidating the punitive damage award should be affirmed. Judge Gould tells you that the court will find that the California non-waiver rule is substantive, and that it must be followed by federal courts in diversity cases. Federal waiver precepts under the literal terms of Rule 50 might appear to conflict with the California law preventing waiver of post-verdict judicial review of punitive damages, so the judge wants your memorandum to make clear that he is not invalidating Rule 50, nor is he invalidating the general waiver rule associated with Rule 50. But the substantive interests of California should be preferred, in order to show due deference to state law and avoid any possible conflict with the Rules Enabling Act.
(Obviously, this question comes from a 9th Circuit decision. Most of the text in the question is taken directly from the CircuitÕs decision, but I have modified it in certain areas to create a challenging question.)
The actual case is Freund v. Nycomed Amersham, 347 F.3d 752 (9th Cir. 2003).
A thoughtful student essay (memo) would articulate the basic Erie rule and describe its applicability here. Then you identify the possible conflicting rules, especially the federal rules. Then you move to an analysis of the possible conflict, which requires GasperiniÕs balancing approach to the determination of the substance/procedure classification and the conflict/coexistence determination. Finally, you can explain the significance of the result, by emphasizing that HannaÕs rationally classifiable as procedural, ergo procedural is not necessary here, but that the federal rule fully complies with section 2072, especially 2072(b). Then you explain that to displace the state rule would result in the violation of the Twin Aims of Erie, BAD forum shopping and UNFAIR lack of vertical uniformity in the application of the laws.
Introduction:
What is the Erie doctrine and why does it apply to this situation?
It was important that students show that they understood the distinction between the Erie decision and the Erie doctrine. The Erie decision eliminated the statutory/common law distinction regarding the meaning of the word ÒlawÓ in the RODA, the Erie doctrine (or Erie and its progeny) developed the distinction between substance and procedure.
Federal courts sitting in diversity are required to follow state law as the Òrules of decision.Ó Since the earliest days of the diversity jurisdiction statute and the Judiciary Act of 1789, the Rules of Decision Act, currently 28 USC sec. 1652, so requires.
In 1938, Erie R.R. v. Tomkins, overruled Swift v. Tyson, which had ruled that state ÒlawÓ as that term was used in the RODA did not include state judicial decisions. Therefore, after Erie, federal courts sitting in diversity were required to follow state statutory and common law, meaning both statutory provisions and decisions by the state courts regarding state law. This is especially important here, since the non-waiver rule in question was articulated by the California Supreme Court in Adams.
State Substance v. Federal Procedure. But, when Erie was decided the federal courts had just received a new system of federal procedure. For the first time, because of the Rules Enabling Act and the new Federal Rules of Civil Procedure, the federal courts had their own system of procedure (prior to that, the district courts followed the procedural rules of their forum state). The evolving application of what is now known as the Erie Doctrine, or Erie and its progeny, created the need to distinguish between substantive law and procedural law, a task that is not always simple. The first attempt to establish the distinction, Guarantee Trust v. York, and its outcome determination test, generated fears that federal uniformity in procedure would be destroyed by the interest in maintaining vertical uniformity in substantive rights between federal and state courts.
Balancing test. Therefore, starting with Byrd, over the years the Supreme Court of the United States has developed a balancing ap