Before the exam starts, you may read the instructions. DO NOT TURN THIS INSTRUCTIONS PAGE OR READ ANY OTHER PART OF THE EXAM BEFORE THE EXAM STARTS. YOU WILL START WHEN THE INSTRUCTOR TELLS YOU TO DO SO. YOU MAY COUNT FROM THE BOTTOM OF THE PAGES TO MAKE SURE THAT YOU HAVE ALL 19 PAGES.
This exam is open RULES, you may consult only your Supplement, West's Federal Rules of Civil Procedure, Educational Edition (1995-96). Your supplement may be annotated, but shall not have any attachments other than tabs to mark the location of specific material. You may not give or receive any other kind of aid. Your completing this examination and turning it in constitutes a certification that you have neither received nor given any aid beyond the allowed use of limited written materials.
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 to the essay questions before you start to write, do not include scratch paper or any additional material with your completed exam. In answering the essay questions, please strive for succinctness. I have given you more than enough room to answer the question comfortably, there is no need to fill up every line in every page. Please strive for succinctness, precision, specificity, and thoughtful analysis in all points you do address. Remember the nature of our course.
The exam must be written in permanent ink in a dark color. You may not use pencils, erasable ink, or felt-tip markers. You must write legibly. If I am unable to read your answer, it is as if you had written nothing. If you type, you must stay within the margins and write only one line of text per line of space given to you.
The exam consists of 9 multiple-choice questions and 2 essay questions. The multiple choice questions will account for 45% of your grade, equally divided among each of them.
I will occasionally drop by the examination rooms to check on you progress, answer questions and accept completed exams. Otherwise, I will be available in my office, Room 337, to assist with any procedural problems and to accept finished exams.
Completed examinations must be turned in to ME PERSONALLY. Students will tear off and receive the attached receipt. You must sign a list to indicate that you turned in your exam.
PLEASE READ THE ENTIRE EXAM BEFORE YOU BEGIN TO ANSWER ANY QUESTIONS. Note the weight assigned to each question when deciding how much time to allocate to answering it.
You must stop work four (4) hours after MY SIGNAL TO START.
The law school does not allow me to post grades when I turn them in, so you will have to wait until the Registrar posts them.
I will be available to discuss examination results after the third week of the Fall 1996 semester. I will not discuss examination results during the Summer recess.
1. Jerry Seinfeld has sued Cosmo Cramer for the tort of assault and battery with weird hair. He claims over $50,000.00 in damages exclusive of costs and interest. He has filed the action in the U.S. 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 Texas, 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 Texas, because he fears that New York might seek over $2,000,000.00 in back taxes from him, 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 to compel the joinder of his hair dresser, one George "Scissors" Costanza, a citizen of New York. The court has found that Mr. Costanza must be joined to the action because in his absence complete relief cannot be accorded among those already parties, and that he must be regarded as indispensable to this action, therefore, the court must:
2. Detective Andrew Sipowicz and his wife Sylvia, have filed a suit against Dr. John D. Livingston, because he negligently allowed Mrs. Sipowicz to bleed too much after delivery of her first baby, which created the need for a hysterectomy, that left her unable to bear more children. The Sipowiczs are citizens of New York, and Dr. Livingston is a citizen of Connecticut. The case was filed in the Northern District of New York. The plaintiffs and the doctor are the only parties to the case, so since the claim exceeds $50,000.00, only diversity jurisdiction is claimed, because this is a malpractice tort suit. Dr. Livingston is not a government employee. Plaintiffs want to establish that the doctor had been working for 72 hrs., with only 4 hours of sleep. They want access to the records of the hospital where the delivery took place. What is the simplest way to compel the hospital to produce the records under the Federal Rules of Civil Procedure?
3. Mr. & Mrs. Sipowicz have made claims against Dr. Livingston for punitive damages. The court has already ruled that New York law applies to this case. New York law does not allow recovery of punitive damages, only compensatory damages. The plaintiffs bear the burden of proving all damages at trial. Dr. Livingston moves for summary judgment dismissing the punitive damages claims. His motion includes no affidavits, it is just entitled "Motion for Summary Judgment" and makes reference to the complaint and to New York law, and requests dismissal. The motion was timely filed. Six months after it was filed, the Sipowiczs have not filed a reply to the motion. What should the court do?
4. Dr. Frazier Crane, is a citizen of Washington state. He was hit by a car negligently driven by Daphnee, a citizen of the United Kingdom, who came to the US on a work-visa, to work as a health-care provider in Dr. Crane's home, in Seattle, where she still lives. The INS authorized her to continue to work for another employer after the unfortunate incident, under her original visa. 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. ¿Can Frazier sue Daphnee in the United States District Court for the Western District of Washington, at Seattle?
5. A tornado destroyed the home of John M. Lombardi. Nationwide Insurance Company, which had sold Mr. Lombardi's homeowner's policy, sent an agent to assess the damage. The agent prepared a written report of the damages and took a written statement from Mr. Lombardi, in order to evaluate the claim and pay him what was covered by the policy. Mr. Lombardi had never had any problem with Nationwide in the 20 years he had purchased policies from them. However, the company paid Mr. Lombardi, and he was not satisfied, so he sued for breach of contract. He sued in federal court, pursuant to diversity jurisdiction, since he is a citizen of Florida and Nationwide is a Delaware Corporation with its principal place of business in Pennsylvania. During discovery, Mr. Lombardi requested the production of copies of the insurance agent's report and his own statement. Can the insurance company raise the work-product privilege to refuse to produce the documents?
6. In a case before the U.S. District Court for the Northern District of Florida, the defense filed a timely motion to dismiss for lack of subject matter jurisdiction and venue. In its answer, the defense did no raise any additional 12(b) defenses. After the period for pleading and amendment had passed, but before the scheduled trial, the party filed a motion to dismiss for lack of personal jurisdiction. Is the motion timely?
7. Juan González was severely beaten by four Los Angeles Police officers in the course of an illegal arrest. The actions of the police can be argued to have violated Mr. González's rights under the Constitution of the United States. Such a claim would be both reasonable and substantial. The facts giving rise to this claim occurred in Los Angeles. All the officers involved live in Simi Valley, a suburb of Los Angeles, and are citizens of California. After this ugly incident, Mr. González, a lifetime angelino, moves to Arizona, and becomes a citizen of Arizona. He then sues the officers and the City of Los Angeles in U.S. District court for the District of Arizona, he claims federal-question jurisdiction. None of the defendants can be found in Arizona. The defendants have timely moved for dismissal, or any other appropriate relief, for all pertinent Rule 12(b) defenses. Should the court hear the case?
8. Thomas Tank is seriously injured in an automobile accident caused by the negligence of one M.R. Conductor. Mr. Tank is a citizen of Shining, Texas, and Mr. Conductor is a citizen of Station, Massachusetts. The accident occurred on Interstate 75, in Alachua County, Florida. Mr. Conductor is insured by the Zodor Insurance Company, a corporation incorporated in Delaware, with its principal place of business in Florida. Mr. Thomas sues Mr. Conductor and Zodor Insurance Company in the U.S. District Court for the Northern District of Florida. Can the court hear this case?
9. FBI agents conduct illegal wiretaps of members of Ayuda, a group that supports Salvadoran immigrants seeking political asylum in the United States. They also break into their offices in Yuma, Arizona and steal files and plant listening devices. The scheme is uncovered after CNN airs an investigative report in which these acts were disclosed. The illegal activities were carried out by a "special task-force" created in the FBI field office in Dallas, Texas. Ayuda is based in Yuma, their only offices are there and all members are Arizona citizens. All the agents involved are citizens of Texas. Members of Ayuda have a substantial claim against these agents for violation of their federal civil rights. Where can their complaint be filed?
Al Bundy ("Bundy"), a citizen of Illinois, has sued Bob's House of Shoes (Bob's) for the common law tort of "unfair competition". He alleges that Bob's is hurting his shoe business by having courteous sales persons who sell shoes by telephone order, to Chicago-area customers. Bob's is a Corporation, incorporated in the state of Delaware, with its principal place of business in Tampa, Florida. Orders are received in a phone bank in Florida and shipped from Florida. Bundy has sued in the United States District Court for the Middle District of Florida, at Tampa. He claims that jurisdiction over the case is based solely upon Diversity of Citizenship. Bundy claims compensatory and punitive damages against Bob's. Although competition is the subject of federal statutes, Mr. Bundy has not sued thereunder. Furthermore, his state-law claim is not preempted by federal law.
Bob's has made a timely motion to dismiss the punitive damages allegations of the complaint based upon Florida Statutes § 768.72, which reads, in pertinent part, as follows:
§ 768.72 Pleading in civil actions; claim for punitive damages.
In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. * * *
The section has been interpreted to require an evidentiary hearing in which the judge makes a finding that there is a reasonable basis for recovery of punitive damages, prior to the filing of such a claim. If it were applied to this case, that would mean that Bundy's punitive damages allegations would have to be dismissed, and he would have to seek leave to amend the complaint after an evidentiary hearing. The Florida Supreme Court has ruled that § 768.72 is "substantive" in deciding that the Florida state legislature had not encroached on the rule-making authority of the Florida courts in enacting this law. Smith v. Department of Insurance, 507 So.2d 1080, 1092 n. 10 (Fla. 1987). The District Court has already ruled that the substantive law of the state of Florida shall apply to this case based on the Erie Doctrine and Florida conflicts of laws rules, because the most substantial part of the facts giving rise to the claim occurred in Florida.
You are a law clerk for the U.S. District Judge in charge of this case. She has asked you to draft a memorandum suggesting how she should craft her opinion deciding Bob's Motion to Dismiss the punitive damages allegations. She has given you the following guidelines:
Prepare a memorandum identifying the applicable legal standards, tests, and factors, applying them to the facts of this case so as to reach the results the judge wants. The judge has instructed you to structure your memorandum to fit her conclusions, and not to repeat any analysis.
Louis Renaud, and his wife Marie, both citizens of the state of Wisconsin, in the United States of America, suffered severe injuries when the boat they were riding in blew up. The accident happened within the territorial waters of Jamaica, in a beach area in Negril. The Renauds were spending their Winter vacation at the Casablanca Estates, a tourist community. Casablanca Estates is not incorporated, it is operated directly by the owners, Richard and Ilsa Blaine. The Renauds had rented the boat from Casablanca and were riding in it by themselves. After a day of fun in the beach, they were about to dock when the boat blew up. Louis and Marie are very experienced in the handling of boats, they own one that they use to fish in lake Waekeegan in Wisconsin. When the ice in the lake is thick enough to drive a truck on to it, they go to Jamaica for fun in the sun. They said that the explosion must have been caused by an improper mixture of oil and gasoline in the boat's gas tank. The tank was filled by the Blaines themselves. Louis suffered third-degree burns over 90 percent of his body, lost sight in one eye, and has spent a total of 562 days in the hospital since the accident occurred. Marie suffered second and third-degree burns over 50% of her body. She has spend 222 days in the hospital since the accident. (Don't worry, they still managed to file their claim on time!)
Louis and Marie sue Richard and Ilsa in the United States District Court for the Southern District of Florida. They allege that there is diversity jurisdiction over the case. They make no federal claims. This case does not fall under admiralty jurisdiction.
Ilsa and Richard bought the Casablanca Estates ten years ago and have been operating it as a tourist villa ever since, for five months out of each year, from October to February. They have lived in the Miami area all their lives. They own a home there, their children go to school in Miami, they are both registered to vote in Florida, and have Florida driver's licenses. In a deposition, they testified that they intended to live in Miami permanently, that they just worked in Jamaica.
Ilsa and Richard have defended that the accident was caused by a faulty gasoline distribution valve, produced by Evinrude, a Corporation incorporated in Wisconsin, with its principal place of business in Miami, Florida. Evinrude produces the boats and sells or leases them. The Blaines had leased several boats from Evinrude, including the one involved in this case. The boat was worth $40,000.00 at the time of the accident.
The Blaines moved for dismissal of the Renauds' complaint for lack of subject-matter jurisdiction, personal jurisdiction and venue. The court denied this motion.
The Blaines then impleaded Evinrude. Louis and Marie then file a claim against Evinrude, alleging that their damages were caused by its negligence. Evinrude then files a claim against the Renauds for the destruction of the boat.
Evinrude has moved for dismissal of the Blaines' claim against it, as well as the Renauds' claim, as to both, for lack of subject matter jurisdiction, personal juris diction and venue. The Renauds have moved for dismissal of Envinrude's complaint against them for lack of subject-matter jurisdiction. All motions were filed on time.
Florida adheres to the concept of lex loci delicti, and interprets this to mean that the law of Jamaica applies to this case. Under applicable Jamaican law, Evinrude is not a necessary/indispensable party. Jamaica has joint-and-several tort liability.
Was the court's ruling on the Blaines' motion to dismiss correct? How should the court rule on the other motions to dismiss? When relevant, refer to title 28. As to each claim against and by Evinrude, identify the relevant Rule of Civil Procedure.