Exam Number |
Before the exam starts, you may read the instructions and YOU MAY COUNT FROM THE BOTTOM TO MAKE SURE THAT YOU HAVE ALL 17 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 (1997-98). Your supplement may be annotated with handwritten notes, 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 ten (10) multiple-choice questions and one (1) essay question. The multiple choice questions will account for 50% of your exam grade, equally divided among each of them, and the essay for 50% 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 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 and to answer questions. Otherwise, I will be available in my office, Room 337, to assist with any procedural problems and to answer questions.
Completed examinations must be turned in to the office of student services.
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 1998 semester. I will not discuss examination results during the Summer recess.
Civil procedure |
Exam No.: |
Received: |
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. 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. Cosmo Kramer has filed a diversity suit against Seinfeld, Inc., in the U.S. District Court for the Southern District of New York for the tort of assault and battery with weird hair. All relevant acts occurred within this district and personal jurisdiction is not a problem. Kramer claims, exclusive of costs and interest, more than $75,000.00 in damages. Paragraph number 2 in the complaint, reads as follows: "This court has jurisdiction over this case because, at all times hereto pertinent, Plaintiff was a citizen of New York, and defendant Seinfeld, Inc., was a citizen of Connecticut, where it is incorporated, and of Pennsylvania, where its principal place of business is located." The response to this allegation in the answer was: "Paragraph 2 of the complaint is a legal conclusion requiring no response from this party." Three years after the suit was filed, and after repeated orders threatening the imposition of severe sanctions, Seinfeld produced it's certificate of incorporation, which disclosed, for the first time, that it was incorporated in Delaware. The applicable statute of limitations has expired. Seinfeld has just moved for dismissal for lack of subject-matter jurisdiction. What should the Court do?
a. The court should grant this motion.
b. The court should deny this motion, because the answer to this allegation was improper, and the allegation should be deemed admitted.
c. The court should not rule on this motion, because it is untimely.
d. The court should deny this motion.
2. In 1996, Mr. Benny Hill, a citizen of the United Kingdom, receives a long-term work visa and becomes a Professor of Roman History at George Washington University in Washington, D.C. He lives in Arlington, Virginia, with his wife, Betty Jones, a Citizen of the United States. In 1998, he files suit in the U.S. District Court for the Eastern District of Virginia against World Wide Movers, Inc., for negligently destroying his rare book collection, valued at $700,000.00 at the time of its loss, according to his complaint. WWM is a Delaware Corporation, with its principal place of business in Virginia. Mr. Hill, 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 World Wide's Alexandria, Virginia, warehouse. WWM has moved to dismiss the complaint for lack of subject-matter jurisdiction. Should the court dismiss the case?
a. Yes, because the corporation is a citizen of both Delaware and Virginia.
b. Yes, because Mrs. Jones is an American citizen.
c. No, because the corporation is a citizen of both Delaware and Virginia.
d. No, because there is alienage jurisdiction.
3. A tornado destroyed the home of John Jones, a resident of Knoxville, Tennessee. Aetna Insurance Company provides Mr. Jones' homeowner's policy. Steve Stevens, who was in the house at the time of the incident, suffered severe injuries and kept screaming that he was going to sue. Mr. Jones, disturbed by this, called an Aetna agent, informed him of Stevens' threats, and the agent prepared a written report of the damages and took written statements from Mr. Jones and from Mr. Stevens. Stevens, a citizen of Florida, has sued Aetna Insurance Company and Mr. Jones, claiming more than $75,000.00 in damages, exclusive of costs and interest, and diversity jurisdiction, in the U.S. District Court for the Eastern District of Tennessee. He claims that the house lacked a proper foundation and basement where they could have escaped this relatively-light tornado. Aetna is a Pennsylvania corporation, with its principal place of business in New York. During discovery, Mr. Stevens requested the production of a copy of the his statement taken by the insurance agent. Can the insurance company successfully refuse to produce the document by raising the work-product protection?
a. Yes, because it was prepared in anticipation of litigation.
b. No, because you cannot be sure that Stevens will sue.
c. No, because Stevens is entitled get a copy of his written statement.
d. Yes, because the statement was taken by an insurance adjuster.
4. Bob Jones, a college student, who is a citizen of Georgia, was stopped by the police at the corner NE 13th Street and University Avenue on a Friday night in the Spring of 1998. The officers noticed a ziplock bag with what they believed was cannabis (although it turned out that Bob was a cook and this was his "stash" of oregano). The two Gainesville Police officers who had stopped him, decided that Bob had been rude to them and proceeded to beat him into unconsciousness with their flashlights. They also placed him under arrest. The officers involved live, respectively, in Dade and DeSoto counties in Florida. Mr. Jones, files suit in U.S. District court for the Northern District of Florida against the police officers only. He alleges that the actions of these officers violated his rights under the Constitution of the United States. This claim is both reasonable and substantial. Respectively, what would be the proper basis for subject-matter jurisdiction, personal jurisdiction and venue in this case?
a. 28 USC § 1332(a)(1), residence of the defendants, 28 USC § 1391(a)(2).
b. 28 USC § 1331, residence of the defendants, 28 USC § 1391(b)(2).
c. 28 USC § 1331, residence of the defendants, 28 USC § 1391(b)(1).
d. 28 USC § 1331, residence of the defendants, and either 28 USC § 1391(b)(1) or (b)(2).
5. Ms. Ellen Morgan has filed a suit against Dr. John D. Bombay and his employer Humana Hospital, Inc., because he left his Rolex watch inside Ms. Morgan's thoracic cavity during an appendix operation. Ms. Morgan is a citizen of California, Dr. Bombay is a citizen of Oregon and Humana is incorporated in Washington State and has its Principal Place of Business in West Palm Beach, Florida. The case was filed in the Eastern District of Washington because the relevant facts occurred at Doctor's Hospital in Walla Walla, which is owned and operated by Humana. The claim exceeds $75,000.00, exclusive of costs and interest, and only diversity jurisdiction is claimed over this malpractice tort suit. The plaintiff wants to establish that the doctor had been flown in from his home hospital in Oregon to cover for some striking interns and had been working for 72 hrs., with only 4 hours of sleep. She wants access to the records of the hospital where the operation took place. What is the simplest and most correct way to obtain access to these records under the Federal Rules of Civil Procedure?
a. To send a request for production of documents to Humana.
b. To send an interrogatory to Humana.
c. To take the deposition of the custodian of records of the hospital, with the appropriate subpoena requesting that he bring with him the documents.
d. To send a request for production of documents to Doctor Bombay.
6. Bing Crosby has sued Frank Sinatra in the U.S. District Court for the Northern District of California. Fourteen days after being served with process, Mr. Sinatra filed a motion to dismiss for insufficiency of process. The court denied this motion. Seven days after the notice of the court's order, Mr. Sinatra filed his answer. Fifteen days after filing the answer, Mr. Sinatra files an Amended answer, raising, for the first time, the defense of lack of personal jurisdiction, which was available when the motion mentioned above was filed. Should the Court consider the personal jurisdiction objection?
a. No, because the amendment was untimely.
b. Yes, and the court should dismiss if the defendant lacks minimum contacts with the forum state.
c. Yes, since Mr. Sinatra could amend his answer once as of right, it may be considered.
d. No, because that defense has been waived.
7. Jean Paul Belmondo, a citizen of France, who resides in the city of Nantes, in that country, was spending his vacation in Central Florida. He accidentally destroys a rare animation cell, valued at $1.2 Million, at a store at Disney World, an amusement park located completely within Orange County, Florida. Disney World Orlando, Inc., a Florida Corporation, with its Principal Place of Business in Orlando, files suit against Mr. Belmondo in the United States District Court for the Northern District of Florida. It claims jurisdiction based only on section 1332 of Title 28. Mr. Belmondo was personally served with process while he awaited to board his flight back to France. Assuming that personal jurisdiction can properly be based either on the commission of the tortious act in Florida or the personal service of process within the state, is this case properly filed in the United States District Court for the Northern District of Florida?
a. Yes, there is alienage jurisdiction and venue is proper in the Northern District.
b. No, there is alienage jurisdiction but venue is not proper in the Northern District.
c. No, venue is proper in the Northern District but U.S. citizens cannot sue foreigners in the Federal Courts.
d. Yes, based on violation of the federal laws for original jurisdiction and venue is proper in the Northern District.
8. Juan González, a citizen of Arizona, files suit in the U.S. District Court for the Central District of California against John Klesko, a citizen of California who resides in Simi Valley, a suburb of Los Angeles. He claims that jurisdiction over his claims is based exclusively on diversity. Count I of his complaint alleges that Mr. Klesko negligently caused a car accident that occurred in Los Angeles, which left Mr. González with severe permanent injuries. He claims damages in excess of $1 Million. In Count II of the complaint, Mr. González claims that he lent Mr. Klesko $15,000.00 dollars pursuant to a promissory note signed in Los Angeles; the money was delivered to Mr. Klesko in L.A. Mr. Klesko files a motion to dismiss Count II of the complaint. How should the court rule:
a. The court should grant the dismissal of Count II because this claim does not arise out of the same transaction or occurrence as the automobile accident claim.
b. The court should grant the dismissal of Count II, for failure to meet the jurisdictional amount.
c. The court should deny the motion to dismiss Count II, because joinder was proper, and it has subject-matter jurisdiction over that claim, personal jurisdiction over the defendant and venue is proper in this district.
d. The court should deny the motion to dismiss Count II.
9. 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. The case is set for trial on November 19th, 1998. Cage was served with process on June 2, 1997 and he filed his answer on June 17th, 1997. He filed no motions prior to his answer and did not raise any 12(b) defenses in his answer. On January 27, 1998, Mr. Cage files a motion titled "Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted." In an attached sworn statement, Cage declares that he was standing more than 52 feet away from the incident when it occurred. He argues in this motion that the highest court in Massachusetts has repeatedly ruled that persons standing more than 50 away from the site of an assault do not have a legal obligation to render assistance under the Assistance to Tort Victims Act. Mr. Koolie, in his reply to the Motion, admits that Mr. Cage was in fact 52 feet away from the scene of the assault. He also admits that the law of Massachusetts is as stated by Mr. Cage. However, he claims that the court should deny the motion because it is untimely. The court should:
a. Grant a dismissal of the claim against Cage, by treating his motion as a timely motion for judgment on the pleadings.
b. Grant a dismissal of the claim against Cage, by treating his motion as a timely motion for summary judgment.
c. Grant a dismissal of the claim against Cage, by granting the timely 12(b)(6) motion.
d. Deny the motion because it is untimely.
10. In the case described in question no. 9, 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. 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 because of this claim, on March 10, 1998. Can the court impose Rule 11 sanctions?
a. No, because of the voluntary dismissal of the claim on February 17, 1998.
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, sanctions would have to be imposed on his counsel.
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.
Hugo David and his wife Kristee (hereinafter referred to individually as "Hugo David" and "Kristee David," or collectively as "the Davids"), who lived in Green Bay, Wisconsin, were spending their honeymoon in Mackinac Island in Michigan. Apparently, they were enjoying the idyllic occasion and setting so much that they did not see the out of control horse drawn carriage that ran them down, killing Hugo and severely injuring Kristee. Mrs. David files suit against the owner and operator of the horse-drawn carriage, Carriage Tours, Inc. (hereinafter "Carriage" or "Carriage Tours"), a Corporation incorporated in Michigan, whose only operation is running the horse-drawn carriages on Mackinac Island, Michigan. The suit was filed in the United States District Court for the Western District of Michigan. Mrs. David appears on her own behalf and as the personal representative of the estate of the late Hugo David. Kristee David is a college professor in Green Bay, Wisconsin and Hugo David was a consultant with a national company and worked out of their Milwaukee, Wisconsin, and Grand Rapids, Michigan offices. Kristee David owns a home in DePere, Wisconsin, a suburb of Green Bay, where the couple lived. She still lives there. However, Hugo David also owned a home on lake Pewaukee, Wisconsin, a suburb of Milwaukee. Hugo David, while living, spent about half his time in the Milwaukee office and the other half in the Grand Rapids, Michigan, office. His checks were mailed to Wisconsin, his bank accounts were in Milwaukee and Green Bay and he was registered to vote in Wisconsin.
Carriage counterclaims against the Davids alleging, inter alia, that they jumped in front of the horses and the resulting accident caused damages to their carriage which required it to incur $35,000.00 in repair costs. Carriage Tours also impleads the owner of the horses that were pulling their carriage, arguing, inter alia, that the horses had not been properly fed and trained and this caused them to run out of the control of the driver. Carriage limits the impleader to the minimum claim(s) allowed by this procedural device. The horses were owned and leased out by the Big Horse Leasing Company (hereinafter "Big Horse"), a Delaware corporation with its principal place of business in Madison, Wisconsin. Big Horse has a large operation on Mackinac Island and leases all the carriage horses used in the island's tourism industry.
Big Horse wishes to make claims against the other parties because the two horses involved in the accident had to be put to sleep. The horses were valued at $200,000.00 each at the time of the accident. First, they file a claim against Carriage, alleging that its negligence caused the injuries to the horses that required that they be put to sleep. They then filed a claim against the Davids, alleging that their jumping in front of the horses caused the damages. The Davids respond by filing a claim against Big Horse, alleging that its negligence was the proximate cause of their damages.
Motions to Dismiss have been filed raising the following procedural defenses: (1) improper joinder of claims and parties, (2) lack of subject-matter jurisdiction, (3) lack of personal jurisdiction and (4) lack of venue. Draft a memo to the presiding judge in which you explain, as to each claim by each party, how she should rule on these motions. Organize your memorandum in the order in which the claims were filed. For the sake of simplicity, assume that there are no multiple claims by one party against another party.
Assume that Michigan law applies and that the state subscribes to joint and several tort liability and extends personal jurisdiction to the limits allowed by the Due Process Clause of the Fourteenth Amendment. Assume further that pursuing the merits of their own claims will not waive any party's procedural defenses. The timeliness of the filings is not an issue. When relevant, refer to title 28. As to each claim, identify the relevant Federal Rule of Civil Procedure.
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