The University of Florida College of Law
CIVIL PROCEDURE · SPRING 1997
Professor Pedro a. Malavet
Final Examination
INSTRUCTIONS
Before the exam starts, you may read the instructions and YOU MAY COUNT -FROM THE BOTTOM- TO MAKE SURE THAT YOU HAVE ALL 10 PAGES. OTHERWISE, DO NOT TURN THIS INSTRUCTIONS PAGE OR READ ANY OTHER PART OF THE EXAM BEFORE YOU ARE INSTRUCTED TO START.
Honor Code, Open Rules. This exam is open RULES, you may consult only your Supplement, West's Federal Rules of Civil Procedure, Educational Edition (1996-97). 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.
Read the Entire Exam. PLEASE READ THE ENTIRE EXAM BEFORE YOU BEGIN TO ANSWER ANY QUESTIONS. The exam consists of 10 multiple-choice questions and 2 short essay questions. The multiple choice questions will account for 50% of your exam grade, equally divided among each of them. Essay 1 and 2 will account for 30% and 20% of your exam grade, respectively. 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 essay questions, please be succinct. 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.
Write Legibly. If I am unable to read your answer, it is as if you had written nothing. The exam must written in permanent, dark-color ink. You may not use pencils, erasable ink, or felt-tip markers.
Do Not Unstaple Pages. Unless you are typing your answer, do not take the exam apart.
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.
Proctoring. 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, answer questions 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, and indicate your e-mail account, to show you complied with the mandatory sign-up requirement. The list is pre-printed in alphabetical order. The exams should be placed randomly in a box, to ensure grading anonymity.
You must stop work four (4) hours after MY SIGNAL TO START.
Grades and Review. 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 1997 semester. I will not discuss examination results during the Summer recess.
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. 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. 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 alternative response.
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. Assume that residence and citizenship are treated equally.
1. Ronald McGoo was illegally arrested by four Philadelphia Police officers; he was released four hours later, upset, but not having suffered any serious physical injury. The actions of these officers can be argued to have violated Mr. McGoo'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 the city of Philadelphia. All the officers involved live in Philadelphia, Montgomery and Lancaster counties in Pennsylvania, and are citizens of Pennsylvania. Mr. McGoo, files suit in U.S. District court for the Eastern District of Pennsylvania, he claims federal-question jurisdiction. The defendants have timely moved for dismissal for lack of subject-matter jurisdiction, personal jurisdiction and venue. How should the court rule?
a. The court should grant a dismissal, for failure to allege and meet the jurisdictional amount.
b. The court should deny the dismissal, because this district court has personal jurisdiction over the defendants, and original jurisdiction and venue over this case.
c. The court should grant a dismissal, because he suffered no damages.
d. None of the above.
2. Walter Caffey has filed a diversity suit against Central Perk, Inc., in the U.S. District Court for the Southern District of New York. All relevant acts occurred within this district. He claims, exclusive of costs and interest, more than $75,000.00 in damages. Central Perk, Inc. filed an answer 10 days after they were served with process. Paragraph number 1 in the complaint, reads as follows: "This court has jurisdiction over this case pursuant to 28 USC § 1332, because, at all times pertinent hereto, Plaintiff was a citizen of New York, and defendant Central Perk, Inc., was a citizen of Connecticut, where it is incorporated, and of New Jersey, where its principal place of business is located." The response to this allegation in the answer was: "Paragraph 1 of the complaint is a legal conclusion requiring no response from this party." Two years after the suit was filed, and after three orders threatening the imposition of severe sanctions, Central Perk produced it's certificate of incorporation, which disclosed, for the first time, that it was incorporated in New York. The applicable statute of limitations has expired. Central Perk has just moved for dismissal for lack of subject-matter jurisdiction. What should the Court do with this motion?
a. The court should deny this motion, as a sanction for discovery misconduct.
b. The court should refuse to entertain this motion, because it is untimely.
c. The court should grant this motion.
d. The court should deny this motion, because the answer to this allegation was improper, and the allegation should be deemed admitted.
3. Pieter Franks, a citizen of Holland, who lives in Amsterdam, was visiting Disney World in Orlando, Florida, in the Spring of 1996. He was driving a van rented from RENT-O-RAMA, a corporation incorporated in the State of Florida, with its principal place of business in Orlando, Florida. During the third day of his visit, the van, broke down while he was driving from his hotel to the park. Mr. Franks called RENT-O-RAMA for emergency service, and was promptly picked up by another van driven by an employee of RENT-O-RAMA. The driver negligently got into accident; luckily, no-one was injured, but Mr. Franks' video camera, valued at the time at $20,000.00, was destroyed. Upon his return to Holland, Mr. Franks discovered that on the day he had arrived in Orlando the clerk at the RENT-O-RAMA airport counter had stolen his VISA credit card and used it to charge $19,575.72 worth of gasoline used by RENT-O-RAMA. Five months before the trip to Florida, Mr. Franks had been contracted by RENT-O-RAMA to produce a video commercial. The company had agreed to pay him a fee of $35,000.00 and to reimburse him for expenses incurred in the production. However they have reneged on this contract and refused to pay. Mr. Franks spent $12,575.00 in relation to the commercial production. Applicable law makes RENT-O-RAMA liable for the damages caused by their employees. Franks files a diversity suit in the U.S. District Court for the Middle District of Florida, against RENT-O-RAMA, claiming as follows: (1) Count I: Negligent Destruction of the camera, at its value at the time it was destroyed; (2) Count II: Misappropriation of Funds for the credit charges, which, under Dutch law, he was forced to pay in full; (3) Count III: Breach of Contract, with damages for lack of payment of the fee and accumulated expenses. RENT-O-RAMA has filed a timely motion to dismiss the case for lack of subject-matter jurisdiction. How should the court rule?
a. the court should deny this motion, because the jurisdictional amount does not apply to suits by foreign citizens.
b. the court should grant this motion, because each count does not exceed the jurisdictional amount.
c. the court should grant this motion, because of improper joinder of claims, since they do not arise out of the same transaction or occurrence.
d. None of the above.
4. Rachel Mansfield has sued Joseph Big in the U.S. District Court for the Middle District of Florida. All relevant facts occurred within this district and the court has proper jurisdiction over the subject-matter of the complaint. Mr. Big has visited Florida only once in his lifetime, and he is domiciled in North Carolina. Ten days after being served, he filed a motion to dismiss for lack of venue. Five days later he filed an answer in which he raised no additional 12(b) defenses; he also chose not to make any counterclaims. Ninety-three (93) days after filing his answer, Mr. Big sought permission to file an amended answer in which he argued, among other things, that the court lacked personal jurisdiction over him. Ms. Mansfield did not file a reply to the answer. The court, in its very first order related to this case, gave leave to file the amended answer. Should it now consider the personal jurisdiction objection?
a. No, because that defense has been waived.
b. Yes, the court should dismiss because the defendant lacks minimum contacts with the forum state.
c. Yes, since the objection was raised in a properly-filed amended answer, it may be considered.
d. No, because the amendment was untimely.
5. Mr. Pierre Morè, a citizen of France, who is a Permanent Resident Alien in the United States, is an Associate Professor of Romance Languages at Emory University in Atlanta, Georgia, where he lives with his wife, Michelle Brown, an American Citizen, who has lived in the Atlanta area all her life. He has filed suit in the U.S. District Court for the Northern District of Georgia, Atlanta Division, against Georgia Wine Distribution, Inc., for negligently destroying his wine collection, valued at $200,000.00 at the time of its loss, according to his complaint. GWD is a South Carolina Corporation, with its principal place of business in Lawrenceville, Gwinnett County, Georgia. Mr. Morè, who is the only Plaintiff in this case, alleges that a substantial part of the events or omissions giving rise to the claim occurred at GWD's Lawrenceville warehouse. GWD has moved to dismiss the complaint for lack of subject-matter jurisdiction. Should the court dismiss the case?
a. Yes.
b. No, there is alienage jurisdiction and the claim is for more than $75,000.00.
c. No, because the corporation is a citizen of both Georgia and South Carolina.
d. None of the above.
6. Jerry Seinfeld 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 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, is a citizen of Texas. After initially filing motions contesting these, Mr. Cramer has now conceded that the courts in New York have personal jurisdiction over him and venue over the case. During the first day of trial, thirty-nine (39) months after the case was filed, and thirty-seven (37) months after he was served with process, Mr. Cramer makes a motion to dismiss for failure to join an indispensable Rule 19 party, his hair dresser, one George "Scissors" Costanza, a citizen of New York. Can the court consider this motion?
a. Yes, because joinder is not feasible.
b. Yes, because the motion is timely.
c. No, because the motion is not timely.
d. No, because the court would have supplemental jurisdiction.
7. A lightning strike burned down the home of John M. Lombardi, President of the University of Florida, and citizen of this state. Nationwide Insurance Company, which provides 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. Coach Steve Spurrier, who was in the house at the time of the incident, suffered severe burns as a result of the fire. Coach Spurrier is a citizen of Florida. He has sued Nationwide Insurance Company, claiming more than $75,000.00 in damages, exclusive of costs and interest, and diversity jurisdiction, in the U.S. District Court for the Northern District of Florida. He claims that the house lacked a proper a lighting protection system. Nationwide is a Pennsylvania corporation, with its principal place of business in New York. Spurrier did not join President Lombardi in his suit, but you may assume that applicable Florida law permits him to proceed in this fashion. Nationwide moves to dismiss, for lack of subject-matter jurisdiction. The court should:
a. Deny the dismissal, since there is diversity of citizenship, and the claim exceeds the jurisdictional amount.
b. Grant the dismissal for failure to join an indispensable party, President Lombardi.
c. Grant the Dismissal.
d. None of the above.
8. John Jones, a citizen of Arizona, wishes to sue the California Grape Company ("CGC"), a California Corporation. CGC has its principal place of business in Fresno, California, where most of its facilities are located. Its only business location outside of Fresno is in Eureka California. Mr. Jones is a long-distance truck driver. He alleges that he was injured while loading a truckload of grapes at CGC's Eureka warehouse, when CGC employees negligently dropped a heavy wood box, used to store grapes, on his shoulder. He suffered serious injuries as a result of this accident. Mr. Jones wishes to file his suit in a United States District Court. He can properly claim only diversity jurisdiction in the Federal Courts. In what District or Districts would venue be appropriate in this case, under the facts supplied herein?
a. In the Northern and Eastern Districts of California.
b. In any District where CGC is subject to Personal Jurisdiction at the time the action is commenced.
c. In any District where CGC could be found.
d. In any District in California, where CGC could be found.
9. Paul Carter, a citizen of Ohio, was involved in an auto accident while driving from Ohio to Daytona Beach for Spring Break in 1996. The accident occurred on I-75, in Alachua county, Florida. Mr. Carter has sued the Driver of another vehicle involved in this accident, John Davis, a citizen of Alabama. His claim is founded solely on diversity, and exceeds $75,000.00, exclusive of costs and interest. The case was filed in the U.S. District court for the Northern District of Florida. This was a three-vehicle accident, and Mr. Davis impleads United Parcel Service, the corporation that owned and operated the third vehicle. UPS is a Delaware Corporation, with its Principal Place of Business in Nashville, Tennessee. This impleader is proper under applicable law. Can Mr. Carter make a claim in excess of $75,000.00, exclusive of costs and interest, against UPS in this case?
a. No, because there is no supplemental jurisdiction.
b. Yes, if the claim arises out of the transaction or occurrence that is the subject matter of Carter's claim against Davis.
c. Yes, but only if it is a compulsory counterclaim.
d. Yes, if there is supplemental jurisdiction.
10. Paolo Roberto Souza, a citizen of Brazil, who resides in the city of Curitiba in the state of Paraná, in that country, is injured in a fall at Disney World, an amusement park located completely within Orange County, Florida. He files suit against the operator of the park, Disney World Orlando, Inc., a Florida Corporation, with its Principal Place of Business in Orlando. He claims jurisdiction based only on section 1332 of Title 28. The suit is filed in the U.S. District Court for the Northern District of Florida. The claim is well in excess of $75,000.00, exclusive of costs and interest. Assuming the filing of a timely, proper motion, should this case proceed as filed?
a. Yes, on the basis of alienage jurisdiction.
b. Yes, on the basis of diversity jurisdiction.
c. No, because the court lacks subject-matter jurisdiction.
d. None of the above.
Do not assume any facts not given to you. 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, section of title 28, Constitutional Provision, etc. Case citations will be judged on a "close-enough" basis.
HDM Corporation ("HDM") is an Ohio company engaged in the business of designing and manufacturing specialty industrial equipment. In late 1994 and early 1995, over an approximate six month period, HDM designed and manufactured a "horizontal coating machine" for CTW Company ("CTW") for use in coating metal pipes with concrete. This is a major piece of machinery, costing $2,747,625.00. HDM was aware that the machine was destined for CTW's Palatka, Florida, facility, because CTW, a Florida Corporation, with its Principal Place of Business in Palatka, contacted them and asked them to design and construct this machine specifically for this plant. HDM sent its chief designer to Florida on two occasions to study the Palatka plant, these observations were considered when preparing the design. All design and construction took place at HDM's plant. HDM placed the machine on flatbed trucks at their plant and CTW shipped the machine to Palatka, Florida. HDM then sent its chief designer, two engineers and two other employees to Palatka to supervise the final installation of the machine.
Plaintiff Robert Jones, was employed by CTW in its Palatka plant. He allegedly sustained injuries when one module of the horizontal coating machine unexpectedly rolled over on his lower extremities, which required amputation of both limbs. He and his wife, Kate, brought an action in negligence and strict liability against HDM in U.S. District for the Middle District of Florida.
Jurisdiction is properly based on diversity, the claim exceeding $75,000.00, exclusive of costs and interest, and there being diversity between the Jones' who are citizens of Florida, and HDM, an Ohio corporation with its only place of business in Ohio.
HDM has moved to dismiss the complaint for lack of personal jurisdiction, contending that it lacked sufficient minimum contacts with the state of Florida to subject it to jurisdiction in this state. Affidavits and depositions submitted in support of the motion show that HDM is an Ohio corporation with its sole office and only place of business in HDM, Ohio. The company is not authorized to do business in Florida, does not solicit business in Florida and has no office or agent for service of process in this state. HDM also owns no real or personal property located in the State of Florida.
Florida Statute Section 48.193 provides, in relevant part:
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself and, if he is a natural person, his personal representative, to the jurisdiction of the courts of this state from any cause of action arising from the doing of any of the following acts: * * *
(b) Committing a tortious act within this state.
* * *
You are a law clerk for the District judge who presides over this case. She has instructed you to draft an opinion denying HDM's motion to dismiss for lack of personal jurisdiction. Draft this opinion.
Explain, in a short essay, why we distinguish "Procedure" from "Substance".