Select the best answer to the question presented. In
this section, Do not look for "perfect" 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 either be 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, "missing
facts" suggest three possibilities: (1) you need to read
the question again, i.e., "it's in there somewhere,"
(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.
Long-arm statutes. In answering these questions, 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.
Residence. Unless otherwise indicated, assume that residence
and citizenship are treated equally.
1. Jeffrey Jones has sued Robert Smith in the U.S. District Court for the Northern District of Florida. The complaint was filed on March 22, 2000, and Mr. Smith was served on March 23, 2000. On April 3, 2000, defendant Smith appeared in the case for the first time by filing his Answer to the complaint. He did not raise any Rule 12(b) defenses in the answer. On April 11, 2000, without seeking permission from the court or the consent of Mr. Jones, Mr. Smith filed an Amended Answer, raising, for the first time, the defense of lack of personal jurisdiction; this defense was available when the answer was filed. The matter has not been placed on the trial calendar. Should the Court consider the personal jurisdiction defense?
a. No, because the amendment was untimely.
b. Yes, because the amendment was timely and the defense has not been waived.
c. Yes, and the court should dismiss because the defendant lacks minimum contacts with the forum state.
d. No, because that defense has been waived.
2. Ms. Buffy Summers has filed a federal suit against Mr. Angel Angelus in the United States District Court for the Central District of California, Western Division. The basis of subject-matter jurisdiction is diversity. The complaint includes the following allegations: (1) That Mr. Angelus has wrongly kept a "friendship ring" worth $125,000.00 that rightly belongs to Ms. Summers; she gave him the ring for safekeeping on November 1, 1998; (2) that Mr. Angelus has failed to repay a $250,000.00 loan made to him by Ms. Summers on April 14, 1999; (3) that Mr. Angelus, negligently destroyed her home, valued at $195,000.00 on August 6, 1999. Mr. Angelus moves to dismiss the suit, alleging only that the three claims are improperly joined under the Federal Rules of Civil Procedure. How should the court rule?
a. The court should grant a severance.
b. The court dismiss the case.
c. The court should deny the motion.
d. The court should grant a severance and then order a joinder.
3. A tornado destroyed the mobile home owned by George Martinez, a resident of Cedar Key, Florida. Lloyds of Cleveland Insurance Company provides Martinez's mobile home-owner's policy. Because of the tornado, the mobile home landed on top of the house owned by one G.W. Bush, causing property damage in excess of $150.000.00. The day after the tornado, as everyone was assessing the damages, Harry Smith, an agent for Lloyds took a statement from Mr. Bush, who said he was going to sue Mr. Martinez to recover his damages. Mr. Smith wrote down what Mr. Bush said and Mr. Bush, after reading it, signed the document. After that, Mr. Smith, in reasonable anticipation of Mr. Bush's suit, also took similar statements from two neighbors, Albert Martin, and June Jones. Both Mr. Martin and Ms. Jones signed Mr. Smith's transcription of what they said. Mr. Bush files a suit in Federal Court against Mr. Martínez and Lloyd's of Cleveland. During discovery, Ms. Jones sends a letter to counsel for the insurance company asking for a copy of the statement that she signed for Mr. Smith. Should the insurance company refuse to give her a copy of the statement?
a. No, because it is part of it's "work-product."
b. Yes, because Ms. Jones is not a party.
c. No, because Ms. Jones is entitled to a copy of her statement upon request.
d. Yes, because she has not filed a request for production of documents.
4. 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 "Mr. Huggy," 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. Mr. Koolie also makes claims against two bystanders, John Cage, a partner in the law offices he was visiting, and Elaine Vassal, a secretary at that same firm, alleging that they had a duty to come to his defense when he was being attacked, pursuant to the Massachusetts "Assistance to Tort Victims Act." He alleges that these two people were "standing nearby" during the assault, and failed to render assistance. Both Mr. Cage and Ms. Vassal are citizens of Massachusetts. On February 2, 1998, Ms. Elaine Vassall serves Mr. Koolie with a Motion for Sanctions, arguing that Mr. Koolie's claim against her is legally groundless and that he violated his duty to conduct a reasonable investigation prior to filing imposed by Rule 11. On February 17, 1998, Mr. Koolie files a stipulation of voluntary dismissal of his claim against Ms. Vassall, subscribed by him and by Ms. Vassall. (Assume that this is a proper voluntary dismissal.) The court issued an order to show cause why sanctions should not be imposed on Mr. Koolie because of this claim, on March 10, 1998. Could the judge order Mr. Koolie to pay a penalty into court as a Rule 11 sanction?
a. No, sanctions would have to be imposed on his counsel.
b. Yes, if Ms. Vassall files her motion before March 10, 1998.
c. Yes, based upon the order to show cause of March 10, 1998.
d. No.
5. Jerry Seinfeld has sued Cosmo Cramer for the tort of assault and battery with weird hair. He claims over $75,000.00 in damages exclusive of costs and interest. He has filed the action in the US District Court for the Southern District of New York, where all the relevant acts occurred. He claims diversity of citizenship because he is a citizen of New York, and Cosmo Cramer, for tax purposes, has chosen to retain his citizenship in Florida, where he lived before moving to New York, and where he still owns a home. Mr. Cramer has conceded that he is a citizen of Florida, therefore, he has sworn affidavits for use in this case, indicating that he is in New York only temporarily and lacks an intention to stay there. However, he has moved the court, pursuant to Rule 19, to compel the joinder of his hair dresser, one George "Scissors" Costanza, a citizen of New York. The court has ruled that Mr. Costanza is not a "necessary" party as defined in Rule 19(a), therefore, the court should:
a. Refuse to order the joinder of Mr. Costanza, and proceed with the case as filed.
b. Order the dismissal of the case pursuant to Rule 19(b), because the joinder is not feasible.
c. Allow Mr. Cramer to sue Mr. Costanza under Rule 14(a), for contribution only.
d. Allow Mr. Cramer to sue Mr. Costanza under Rule 14(a), but prevent Mr. Seinfeld from making any claims against Mr. Costanza, because, though allowed by Rule 14(a), to the extent that they arise out of the same transaction or occurrence, they are precluded by 28 USC § 1367(b).
6. John Smith, the owner of the Baseball Fantasy Bar and Grill on Peachtree Street in Atlanta, files a diversity suit in the U.S. District Court for the Northern District of Georgia, against Robert Joseph Jones. Mr. Smith is a citizen of Georgia, and Mr. Jones a citizen of Alabama. Mr. Smith alleges that while visiting the Baseball Fantasy Bar and Grill, Mr. Jones intentionally destroyed four team uniforms that had been autographed respectively by José Cruz, Juan Cepeda, Roberto Clemente and Iván Rodríguez. Mr. Jones visited the Bar and Grill on four different occasions, and surveillance video showed that he destroyed one uniform per visit. The complaint claims damages from Mr. Jones, exclusive of costs and interest, as follows: the uniform autographed by Mr. Cruz was worth $50,000.00, the one autographed by Mr. Cepeda, $37,500.00, the one autographed by Mr. Clemente $65,000.00 and the one autographed by Mr. Rodríguez $42,500.00. Mr. Jones files a motion to dismiss the complaint for lack of subject-matter jurisdiction. What should the court do?
a. The court should grant the dismissal of the complaint for improper joinder of claims.
b. The court should grant the motion to dismiss because it lacks venue.
c. The court should deny the dismissal of the complaint, because the claims add up to more than $75,000.00 and involve the same plaintiff and defendant.
d. The court should grant the dismissal of the complaint because of failure to meet the jurisdictional amount.
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, "missing facts" suggest three possibilities: (1) you need to read the question again, i.e., "it's in there somewhere," (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 should be made to the appropriate rule, especially the Federal Rules of Civil Procedure, section of title 28, Constitutional Provision, etc. Case citations will be judged on a "close-enough" basis.
Charles Boyer is a citizen of France, and James Hernández, a citizen of New York. Mr. Boyer lives in New York city, N.Y., on a Special Work Visa, thus, he is not a permanent resident alien. He directs the New York office of Agence France Presse. Mr. Hernández is an attorney who resides in New York City. Mr. Boyer is covered for liability arising from automobile accidents by the Aetna Insurance Company, a Delaware Corporation, with its principal place of business in Connecticut. Mr. Hernández is covered for liability arising from automobile accidents by the Prudential Insurance Company, a Delaware Corporation with its Principal Place of Business in New York City, New York. Mr. Hernández is the father of Mary Hernández, a minor child, who is a citizen of Connecticut, where she lives with her mother (the parents are divorced and have joint custody over the child, but she resides with her mother).
On April 19, 2000, Mr. Boyer and Mr. Hernández are involved in an automobile accident that results in serious bodily injury to both Mr. Boyer and Mr. Hernández. Mary Hernández was in the car with Mr. Hernández at the time of the accident. She also suffered serious injuries. The accident occurred in Newark, New Jersey.
You may assume that the corporations would be subject to personal jurisdiction in their state of incorporation and at their principal place of business.
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. In references to statutory provisions, you must identify the specific sub-section that applies. Since the only citations that are appropriate are to sections of Title 28, you do not need to write "28 USC," you can simply write, for example, "section 1332" or "§ 1332."
Questions one (1) to six (6), will each account for 3% of the exam grade. Questions seven (7) to nine (9) will each account for 6% of the exam grade.
1. Mr. Boyer, as the sole plaintiff, files a federal suit to pursue claims arising out of the accident, using section 1332 as the only basis of subject-matter jurisdiction. He names Mr. Hernández as the sole defendant. In which district(s) would venue be appropriate? Identify the district(s) and the pertinent section(s) of Title 28.
2. Mr. Hernández, as the sole plaintiff, files a federal suit to pursue claims arising out of the accident, using section 1332 as the only basis of subject-matter jurisdiction. He names Mr. Boyer as the sole defendant. In which district(s) would venue be appropriate? Identify the District(s) and the pertinent section(s) of Title 28. Explain your answer.
3. Mr. Boyer, as the sole plaintiff, files a federal suit to pursue claims arising out of the accident, using section 1332 as the only basis of subject-matter jurisdiction. He names Mr. Hernández and Prudential Insurance as defendants. In which district(s) would venue be appropriate? Identify the District(s) and the pertinent section(s) of Title 28. Explain your answer.
4. Mr. Hernández files a federal suit to pursue claims arising out of the accident, using section 1332 as the only basis of subject-matter jurisdiction. He names Aetna Insurance Company as the only defendant. In which district(s) would venue be appropriate? Identify the District(s) and the pertinent section(s) of Title 28.
5. Mr. Hernández files a federal suit to pursue claims arising out of the accident, using section 1332 as the only basis of subject-matter jurisdiction. Mr. Hernández is the only plaintiff, and Aetna Insurance Company is the sole defendant. Can there be subject-matter jurisdiction over the claim(s) in this situation? Of which state(s) are the parties considered citizens? As to each party, identify the state(s) and the pertinent section(s) of Title 28.
6. Mr. Boyer files a federal suit to pursue claims arising out of the accident, using section 1332 as the only basis of subject-matter jurisdiction. Mr. Boyer is the only plaintiff and Mr. Hernández is the sole defendant. Can there be subject-matter jurisdiction over the claim(s) in this situation? Of which state(s) are the parties considered citizens? As to each party, identify the state(s) and the pertinent section(s) of Title 28.
7. Mr. Hernández files a federal suit to pursue claims arising out of the accident, using section 1332 as the only basis of subject-matter jurisdiction. Mr. Hernández appears in his personal capacity and as the representative of his daughter Mary. Mr. Boyer and Aetna Insurance Company are the defendants. Can there be subject-matter jurisdiction over the claim(s) in this situation? Of which state(s) are the parties considered citizens? As to each party, identify the state(s) and the pertinent section(s) of Title 28.
8. Mr. Hernández and Prudential Insurance Company as plaintiffs file a federal suit to pursue claims arising out of the accident, using section 1332 as the only basis of subject-matter jurisdiction. Aetna Insurance Company is the only defendant. Can there be subject-matter jurisdiction over the claim(s) in this situation? Of which state(s) are the parties considered citizens? As to each party, identify the state(s) and the pertinent section(s) of Title 28.
9. Mr. Boyer, as the sole plaintiff, has filed a federal suit to pursue claims arising out of the accident, using section 1332 as the only basis of subject-matter jurisdiction. Mr. Hernández is the only defendant. Mr. Hernández then impleads Prudential Insurance Company. Can there be subject-matter jurisdiction over the third-party claim(s) in this situation? Of which state(s) are the parties in the third-party complaint considered citizens? Identify the state(s) and the pertinent section(s) of Title 28.
After law school graduation, you have been hired as a law clerk by the Honorable James H. Hancock, Senior United States District Judge, for the United States District Court in the Northern District of Alabama, Southern Division. The judge has given you the file in the case of Mary Jones v. Beer Across America. After reviewing the file, you determine that the pertinent facts and applicable law are as follows:
On June 8, 1999, plaintiff Mrs. Mary Jones, a resident of Shelby,
County, Alabama, initiated the present action by filing a complaint
in the United States District Court for the Northern District
of Alabama. The complaint asserts a claim under the Civil Damages
Act, section 6-5-70 of the Alabama Code, arising from the sale
of beer to plaintiff's son, fifteen-year-old Jimmy Jones, by the
defendant, via the defendant's internet web site: "www.beeramerica.com."
The Civil Damage Act provides for a civil action by the parent
or guardian of a minor against anyone who knowingly and illegally
sells or furnishes liquor to the minor. See Ala. Code § 6-5-70
(1993). The basis of subject matter jurisdiction for the complaint
is diversity of citizenship, given that plaintiff is a citizen
of Alabama and that the defendant is an Illinois corporation with
its principal place of business in Illinois. The claimed damages
exceed $75,000.00, exclusive of costs and interest. The defendant
corporation, Beer Across America, Inc., is engaged in the marketing
and sale of alcoholic beverages and other, complementary merchandise.
In early April of 1999, plaintiff's minor fifteen-year-old son,
Jimmy Jones, apparently was left home unsupervised (but with a
credit card issued in his name) while his parents vacationed.
Hours after his parents departed, Jimmy registered with defendant
through Beer Across America's Internet site on the World Wide
Web. Jimmy used his personal computer to log on to his home's
internet service provider, America Online, via modem, by dialing
a local telephone number. He accessed the www.beeramerica.com
website and therein registered as a "member" of their
beer club. Membership entitled Jimmy to "two six-packs of
microbrewed beer ... delivered fresh, right to the member's door"
every month. Each shipment cost $16.95, plus shipping,
handling and any applicable taxes. The membership could be cancelled
at any time without penalty.
Beer Across America indicated in the web page that it would only
ship to the following states: Alabama, Arizona, California, Colorado,
Florida, Illinois, Iowa, Indiana, Michigan, New Jersey, New York,
North Carolina, Ohio, Virginia, Wisconsin and the District of
Columbia. It further indicated that it only sold to persons who
were at least 21 years old. However, it conducted no check of
the information provided by Jimmy in the on-line registration
form, except to confirm authorization of payment on the credit
card. Beer Across America did not ask the shipping company to
establish the age of the recipient of the beer package.
When plaintiff, Mrs. Mary Jones, returned from her vacation, she
found two bottles of beer from the first shipment remaining in
the family's refrigerator. She also found ten empty beer bottles
in the garbage can. When confronted, Jimmy confessed that he had
ordered the beer and that he drank the ten bottles. Mrs. Jones
was not amused. She immediately tore up her son's credit card,
and called Beer Across America to cancel Jimmy's membership. The
company complied immediately.
After the filing of this suit, Beer Across America stopped selling
beer to Alabama residents. During the twelve months prior to June
of 1999, Beer Across America had sold almost 100,000 memberships
to Alabama residents, which accounted for approximately 5.2% of
their total sales during that period.
Beer Across America also now requires its shipper to establish,
by examining a government-issued picture identification card,
the age of all recipients of its beer-of-the-month packages. Unless
the person actually accepting the package is a resident of the
dwelling, and is over twenty-one years old, the shipper is not
allowed to make the delivery, according to its new contract with
BAA.
The judge has already determined that Alabama law applies to this
case, and he identifies and interprets the pertinent provisions
as follows.
The Alabama Civil Damages Act reads as follows:
Either parent of a minor, guardian, or a person standing in loco parentis to the minor having neither father nor mother, shall have a right of action against any person who unlawfully sells or furnishes spiritous liquors to such minor and may recover such damages as the jury may assess, provided the person selling or furnishing liquor to the minor had knowledge or was chargeable with notice or knowledge of such minority. Only one action may be commenced for each offense under this section. (Ala. Code. § 6-5-70 (1993)).
Under the applicable provisions of the U.C.C., the beer sale occurred in Alabama. The membership registration was electronically received in Illinois, where the computer that hosts the www.beeramerica.com web site is located, in Beer Across America's offices. The paperwork for the first beer shipment was then printed and forwarded to the warehouse, which is located on the same premises. The beer was then shipped from Illinois to plaintiff's son in Alabama and delivered to the Jones residence by a carrier chosen by the defendant. The sales invoice and the shipping documents correctly note that ownership of the goods passed to plaintiff's son upon delivery by the carrier, which is consistent with the applicable Alabama version of the U.C.C., providing that title passes at the time and place of delivery, when the contract requires the seller to make delivery at the destination. Under the Alabama U.C.C., "[a] 'sale' consists in the passing of title from the seller to the buyer for a price." Ala. Code § 7-2-106(1) (1997). The Illinois version of the U.C.C. is identical to Alabama's. Clearly, then, the sale was completed in Alabama. Additionally, the invoice included a charge for Alabama's 12% beer tax; Alabama law requires that beer tax be collected only on sales completed within Alabama. Ala. Code §§ 28-3-184(a), -190(a) (1998) (providing for excise taxes on beer sales).
The Alabama long-arm statute provides, in part, as follows:
A person has sufficient contacts with the state when that person ... [has] some minimum contact with this state and, under the circumstances, it is fair and reasonable to require the person to come to this state to defend an action ... so long as the prosecution of the action against a person in this state is not inconsistent with the constitution of this state or the Constitution of the United States.
Ala. R. Civ. P. 4.2(a)(2)(I). Alabama courts interpret this
language to extend the reach of it's long arm jurisdiction to
the full limits of due process.
In preparing the draft of the opinion to deny Beer Across America's
Motion to Dismiss for Lack of Personal Jurisdiction, Judge Hancock
has instructed you to address the following topics, in the order
in which they are listed: (1) Why does the court need to apply
the Alabama long-arm statute in this case?; (2) How should the
court interpret the Alabama long-arm statute?; (3) What are the
limitations on the exercise of personal jurisdiction in cases
like this one?; (4) Are there "minimum contacts" in
this case?; (5) Is the exercise of Personal Jurisdiction in this
case "reasonable"?; (6) Do the facts support the exercise
of "general" or "specific" personal jurisdiction?
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