The University of Florida College of Law

CIVIL PROCEDURE

SPRING 1996

Professor Pedro A. Malavet

Final Examination Feedback memorandum

Procedure for Examination Review. I will discuss exams individually with students, by appointment, beginning with the 3rd week of the Fall Semester. You must review your exam and the feedback memorandum before scheduling an appointment with me. If you wish to review your exam, please come by my office to pick it up. You may make a copy of it and return the original to me. I will not be available to discuss the examination during the Summer term.

Review Policy. I believe in examination review. It is a good way to learn from your mistakes, and from your successes. I encourage you to review this memo and your exam. I will be happy to sit down and discuss substantive matters with each student. I will first tell each of you what you did right. I will also gladly suggest ways to improve your exam-taking abilities and to point out why an essay was not the best and how it could be improved. However, I do not wish to sound harsh, but I do want to make one thing perfectly clear: barring mathematical errors, your grade is not going to be changed. Grading is a time-consuming and difficult process. The only fair way to do it is to grade in the context of the class. I look for a fair overall grade distribution and follow the rank of each student within the class in awarding the final grade. I will not rehash every computation with individual students.

General Comments. The responses to the multiple-choice questions produced a normal average. This part of the exam did not require any adjustment. Many students got perfect scores, only one exam had just three correct responses. The essays proved to be the most difficult part of the examination, as I expected. The first essay was the most difficult of the two, which is the reason I encouraged you to read the entire exam before starting your answer. I adjusted the raw score of the two essays to reflect their degree of difficulty. I was very happy to note that most people wrote two-to-three pages for each essay answer. That is, in my book, a "short" essay answer. Penmanship was also good, and I thank you for it.

Below, I reproduce the instructions and questions in their entirety, and have inserted the answers.

 

Part I: Multiple Choice Questions (45% of your score)

 

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:

Answer: B. Once the court has found that the party is necessary, as it has here under Rule 19(a)(1), and found that the party is indispensable, under Rule 19(b), the only choices left to it are to order joinder if feasible, or to order dismissal. Joinder is not possible here, because that would destroy diversity because both Mr. Seinfeld and Mr. Costanza are citizens of New York. No supplemental jurisdiction is available as to plaintiff's claim. Thus, A is incorrect, while the preference is to use discretion to avoid dismissal, as noted in Provident Tradesmen and note 9 at page 242, the court had found that impossible to do when it decided that the party was indispensable, i.e., discretion is used in making the "indispensability" decision. C and D are incorrect because Mr. Cramer is moving for compulsory joinder under Rule 19 and not for impleader under Rule 14. Cramer is trying to get Jerry's case dismissed for failure to join a non-diverse party. Mr. Cramer may choose to file a Rule 19 motion first, even if impleader were possible (recall Janney v. Sheppard at page 228 of the casebook). Moreover, you do not know from the facts what the law of New York is regarding contribution, so you cannot establish if Rule 14 impleader is available to Mr. Cramer. Therefore, the only clear choice available to the court, under the facts given to you, is B, to dismiss. All three elements are met, (1) the party is necessary under 19(a)(1); (2) the joinder is not feasible because it would deprive the court of jurisdiction over the subject matter; and (3) the party is indispensable.

Even if impleader had been available, the answer should still be "b". It is just like Janney v. Sheppard, at page 228 of the casebook, the defendant moved for dismissal for failure to join a compulsory party, even though a Rule 14 impleader was available to it. The court discussed how the fact that defendant had Rule 14(a) impleader available to it, did not change the Rule 19 analysis. The argument that supplemental jurisdiction might make joinder feasible, as to plaintiff, is rejected in Janney at page 238, footnote 15. As noted in note 7 at page 242, some courts have used the availability of supplemental jurisdiction over impleader claims by defendants, in making determinations as to indispensability, i.e., they consider it a factor in deciding if there is prejudice under 19(b). However, once the court makes the finding that the party is both necessary and indispensable, there is no longer room for discretion. Therefore, the only clear choice available to the court, under the facts given to you, is "B", to dismiss. All three elements are met, (1) The party is necessary under 19(a)(1); (2) the joinder is not feasible because it would deprive the court of jurisdiction over the subject matter; and (3) the party is indispensable.

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?

Answer: C. The Hospital is not a party, therefore, you had to look for discovery devices available against non-parties. A request for production compels a party to produce documents under its control. You could argue that Dr. Livingston has control over the hospital records, but that is not getting them from the hospital anyway, and not compelling them to produce, just having the doctor prevail upon them. The argument also makes this complicated, not simple. 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). B and D are discovery devices not available against non-parties.

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?

Clarification as to questions 2 and 3, as the work "claims" indicates, the plaintiffs had claims other than punitive damages.

Answer: C. The Sipowiczs cannot recover punitive damages as a matter of law on their tort allegations. The party has made an appropriate motion, and they have failed to answer, entry of summary judgment is the only appropriate alternative. B is incorrect, as was clearly decided in Celotex, page 412. A is a truism, but does not apply to the facts of the question. D is not what the party moved for, or is entitled to in response to its Summary Judgment Motion.

Clarification as to questions 2 and 3, as the word "claims" indicates, the plaintiffs had claims other than punitive damages.

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?

Answer: C. A is wrong, 1332(a)(2) allows suits against citizens or subjects of a foreign state. The last sentence of 1332(a) covers a special case of permanent residents. B is incorrect, the federal courts would have subject-matter jurisdiction over the case -there is diversity and jurisdictional amount, given the damages of $80,000.00-, but personal jurisdiction and venue are separate matters. Since Daphnee is not a permanent resident alien, there would be venue under 1391(d). A general statement that an individual would be subject to personal jurisdiction in any district is simply wrong. D is wrong, because the case does not raise any federal question, and because the venue and personal jurisdiction of the court are not established. C is correct because there is alienage diversity jurisdiction under 1332(a)(2), there would be venue under 28 USC § 1391(d) in any district. Personal jurisdiction was the tough one here, and that is why this was correct instead of "b". Personal jurisdiction could be obtained because she was present in Seattle and could be served personally there, at least. I decided to indicate that the accident occurred there, to make personal jurisdiction even clearer under Hess v. Pawlowski.

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?

Answer: D. The documents are discoverable and not protected by work-product because they were not prepared in anticipation of litigation. C is attractive because even if the privilege (I told you in class that I did not care if you called "privilege" or "doctrine" so long as you knew how it was applied) applied, the statement is not protected by express application of FRCP 26(b)(3) paragraph 2. B is incorrect because Rule 26(b)(3) expressly applies to persons other than lawyers, including insurers. C is incorrect because the work was not prepared in anticipation of litigation. A is just an incorrect legal statement.

This was a Rule 26 question. Some students thought it might be 28 USC § 1332(c)(1) question. If it had been, the answer would have been "D" anyway, however, the question was about rule 26, going to 1332 is looking for an issue that is not there. Moreover, 1332(c)(1)'s "direct action" exception does not apply here, because "direct action" means an action by a tort victim against the insured's insurance company, instead of against the tortfeasor. Here it is the insured who is suing.

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?

Answer: B. A sounds good, but it is wrong for two reasons, it is lack of subject-matter jurisdiction that can be raised at any time, and personal jurisdiction is a disfavored defense that is waived if not raised, FRCP 12(h)(1). B is correct by application of Rule 12(g). C is an incorrect legal statement. D might look good if you just read rule 12(d), but remember that this rule applies only if the defense has been properly preserved, which this one was not. Therefore, B, as the only alternative that recognized the failure to preserve the defense by not raising it in the first motion, was correct.

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?

Answer: A. The court should not hear the case, it should grant dismissal for lack of personal jurisdiction, there are no minimum contacts and certainly no general jurisdiction over any of the defendants in Arizona. Additionally, the court should dismiss for lack of venue, or alternatively transfer the case to California, but it should not hear it. The acts occurred in Los Angeles, all the defendants are from Los Angeles, and none can be found in Arizona. See 28 USC § 1391(b). The proper place to file would be the U.S. District Court for the Central District of California, Western Division, at Los Angeles. 28 USC § 84(c)(2). Lack of personal jurisdiction and venue are reasons for the court not to hear the case, even if it has subject matter jurisdiction, which it would under federal question, thus B is incorrect. Even if the case could be brought under diversity, the red herring of C, the lack or personal jurisdiction and the venue defect would prevent the Arizona court from accepting the case, upon motion, and one has been made. Moreover, jurisdiction must be pleaded, and Mr. González only pleaded federal question. D is inapplicable, since A is the right answer.

Some students thought that venue was provided by 1391(e), based on the residency of the plaintiff. Even if it had applied, the correct answer was still A, the court should not hear the case because it lacked personal jurisdiction over the defendants. However, that provision applies to cases involving employees of the US government, not the state officers involved here. As to them, we still use 1391(b). Since the defendants cannot be found in Arizona, are not citizens of Arizona, and the acts did not occur in Arizona, the court lacks venue as well.

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?

Answer: B. A is incorrect because there is personal jurisdiction over the driver under Hess v. Pawlowski, and over Zodor because it is a citizen of Florida and is subject to general jurisdiction here. B is correct because there is subject-matter jurisdiction under diversity, if the damages exceed $50,000.00, there is personal jurisdiction as discussed above, and the facts occurred in Alachua county, see 1391(a)(2). C is wrong for failing to mention jurisdictional amount. D is also incorrect. The insurance company is indeed a citizen of Florida, but so what?, there is still complete diversity!

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?

Answer: D. A is incorrect. There is indeed federal question jurisdiction, a substantial claim arising under the constitution and laws of the United States. There would be venue in Arizona under 1391(e)(2), which does apply here because the defendants are federal officers, but the facts of the question would produce the same result under 1391(b) as well. Arizona is where substantial part of the acts from which the claim arose occurred. There is a possible personal jurisdiction problem in Arizona, which is normally solved by the rule that a single tortious act is enough to establish minimum contacts, and you were instructed to assume that states had extended long-arm statutes to their constitutionally allowable extreme. The problem is the word "only". B is incorrect. There is federal question jurisdiction, venue can easily be based on 1391(e)(1) since all defendants are from there, and perhaps on 1391(e)(2), since planning was also done in Dallas; there is also even stronger personal jurisdiction, since all the agents are Texans, but again, "only" makes it incorrect. C is just wrong, because, as I emphasized a lot, you need subject matter jurisdiction, personal jurisdiction and venue. D is correct, there is subject-matter jurisdiction, there is venue and there is personal jurisdiction in both.

 

Part II: Essay Questions

 

Essay No. 1 (25% of your score).

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:

  1. She thinks that there is a possible conflict between Rules 8(a)(2) and 9(g) of the Federal Rules of Civil Procedure and § 768.72. She does not think that there is any other possible conflict between § 768.72 and the Federal Rules, that would be pertinent to the resolution of this motion.
  2. She is well aware that most U.S. District Court judges in Florida have ruled that § 768.72 is "substantive" and that it must be applied by Federal Courts sitting in diversity. She is also aware that no Circuit Court decision binds her to that view. Therefore, she is prepared to rule as follows:
    1. § 768.72 is "substantive".
    2. § 768.72 does not conflict with Federal Rule 9(g), in spite of the interpretation of 9(g) to require that "claims for punitive damages be set forth in the party's complaint."
    3. § 768.72 conflicts with Federal Rule of Civil Procedure 8(a)(2), and thus must be displaced when pleading in the Federal Courts.

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.

ANSWER:

This was a very demanding question. It required you to discuss the proper standards with originality, given the constraints that I set up for you. I was really struck by the high number of persons who chose to ignore the instructions. This was a fairly fatal error. I evaluated the answers by seeing if you followed the instructions properly and forced yourself to argue the points from the judge's point of view. I then looked to see if the answer was properly structured and if the relevant tests and cases were discussed. Finally, I studied how the relevant facts and concepts were argued in support of the judge's conclusions. The answer should have been structured as follows.

(a) § 768.72 is "substantive".

Federal Courts sitting in diversity must follow state substantive law as established in Erie and its progeny. In this regard, the federal court is not bound by the Florida Supreme court classification of the statute. In determining if a statute is "substantive" we apply the Hanna twin-evils test: (1) forum-shopping and (2) unfairness. Byrd factors are still often used to support this analysis. The discussion might incorporate Davis v. Ross in identifying state interests.

(b) § 768.72 does not conflict with Federal Rule 9(g), in spite of the interpretation of 9(g) to require that "claims for punitive damages be set forth in the party's complaint."

The Federal Courts might allow a state substantive statute and an arguably-conflicting Federal Rule of Civil Procedure to co-exist by narrowly-interpreting the federal rule and superimposing the state law over it. Ragan, Armco. Arguably 9(g) requires specificity when the claim is made, and this is not inconsistent with the state law requiring an amended complaint.

(c) § 768.72 conflicts with Federal Rule of Civil Procedure 8(a)(2), and thus must be displaced when pleading in the Federal Courts.

The conflict with the federal rule cannot be avoided. Notice pleading, Conley v. Gibson, is incompatible with the hearing requirement. What happens when a conflict between a Federal Rule of Civil Procedure and a state substantive statute cannot be avoided? Burlington, Hanna. The state substantive rule is displaced by the federal rule if it is a valid exercise of Federal rule-making power.

Art. III and the Necessary and Proper Clause provide the rule-making authority. This authority was exercised by the Congress in the Rules Enabling Act. Is the specific rule consistent with the Act? This is a two-part analysis: (1) Is the exercise authorized by part (a) of the Act? (2) Is it precluded by part (b) of the Act because it infringes upon state authority? The answer to the last question is "no", if it can rationally be classified as procedure. This classification is up to the federal courts themselves.

Essay Question no. 2 (30 % of your score)

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.

ANSWER:

This was not a particularly hard question, given our review and class discussion, but it required you to address a lot of issues. Initially, it would have been useful to do a diagram of this case, just to keep things straight.

1. Renauds v. Blaines. Motion to Dismiss Denied Correctly. Subject-Matter Jurisdiction: The Renauds are citizens of Wisconsin. The Blaines of Florida, because there is physical presence and general intent to remain there. Temporary work in Jamaica does not create new citizenship. There is diversity jurisdiction under 1332(a)(1) and Strawbridge v. Curtiss complete diversity. Of course, the amount in controversy must exceed $50,000.00 exclusive of interest or cost (1332(a)), but that does not seem difficult given the severity of the damages. Personal Jurisdiction: Since the Blaines are citizens of Florida, as shown by their physical presence there and intent to remain, they are subject to general jurisdiction there and personal jurisdiction is not a problem. Venue: is proper in the Southern District of Florida, which includes Miami, because all the defendants can be found there. 28 USC §§ 89(c), 1391(a)(1). The Motion to dismiss should be denied on all counts. The effect of adding Evinrude will be discussed below.

2. Blaines v. Evinrude. Evinrude's Motion to dismiss denied. Subject-Matter Jurisdiction. Rule 14(a)[1] allows the Blaines to bring Evinrude in, limited to contribution. This would of course destroy complete diversity, Strawbridge v. Curtiss, since under 28 U.S.C. § 1332(c)(1) a corporation is a citizen of both its state of incorporation and the state in which its principal place of business is found. In this case, the corporation is a citizen of Wisconsin and Florida. We must therefore look for supplemental jurisdiction. 28 USC § 1367(a). If the Blaines' claim against Evinrude meets the Rule 14 test, it will also meet the 1367(a) same constitutional case requirement, therefore, even though there is no complete diversity, under supplemental jurisdiction codified in 28 USC § 1367(a), the claim should proceed. Since the claim against someone made a party under Rule 14 is not been made by plaintiff, the action is not prohibited by 1367(b). If the Blaines had other claims beyond contribution, like loss of profits for the lost use of the boat, they could bring it under FRCP 18(a). If such a claim arises out of the same transaction or occurrence, there would be supplemental jurisdiction under 1367(a) as well. Personal Jurisdiction. The corporation would be subject to general personal jurisdiction in its principal place of business. Venue: We did not discuss this in class, but dismissal for lack of venue, is not available to impleaded third-parties. Some students approached the answer this way, and received full credit. Nevertheless, the lack of venue can be considered by the court in exercising its discretion to preclude the Rule 14 impleader, so the analysis is still useful. The corporation has its principal place of business in Miami, Florida, which is in the Southern District, and pursuant to 1391(c) it is deemed to be a resident of that district for venue purposes, therefore, venue would be proper under 1391(a)(1). Students who followed the venue analysis also received full credit.

3. Renauds v. Evinrude. Evinrude's Motion to Dismiss Granted. There is a subject-matter jurisdiction defect here, as discussed above. But the claim fits under Rule 14(a)[7], this being the same "transaction or occurrence", and this would fit under supplemental jurisdiction codified in 1367(a), just like the prior claim. However, plaintiffs would not be allowed to make a state law claim against Evinrude, because of the language of 1367(b), which sought to codify the Supreme Court's holding in Owen Equipment v. Kroger. This language would preclude the claim, because there is a lack of subject-matter jurisdiction and supplemental jurisdiction. Personal Jurisdiction and Venue are not a problem as discussed in 2 above (a simple cross-reference was enough).

4. Evinrude v. Renauds. Renauds' Motion to Dismiss Denied. Here you could take two tacks to anchoring this claim to the Rules. First, you could call it a Rule 14(a)[6] claim by third-party defendant against the original plaintiff, or, second, a compulsory counter-claim under 13(a), as indicated in the last part of 14(a)[7]. The courts have not been very careful about this distinction, so I did not care which one you chose. However, technically speaking, what we have here is a 14(a)[7] claim by the original plaintiffs against the third-party defendant. Hence, because of its timing, Evinrude's claim against the Renaud's becomes a Rule 13(a) compulsory counterclaim, which is specifically allowed by the final part of 14(a)[7]. You might also wonder what effect the dismissal of the Renauds' complaint would have on a compulsory counter-claim. If Evinrude's claim against the plaintiffs, the Renauds, arises out of the same transaction or occurrence, to meet the Rule 14(a) or 13(a) test, it will also meet the 1367(a), same case or controversy under Article III, i.e., same constitutional case requirement. There is no diversity between the parties, as discussed above, so there is no independent subject-matter jurisdiction. However, both under Rule 13(a) and Rule 14(a)[6], the defendant is allowed to pursue the claim, now under supplemental jurisdiction codified in 28 USC § 1367(a) (before it was considered ancillary to the original claim; we discussed this in relation to note 3 at page 195 of the casebook). The same boat accident destroyed the boat and caused physical harm. Unlike the claims by the Blaines against Evinrude, this is not precluded by 1367(b), this is a claim by someone made a party under Rule 14 against plaintiff. You might attack as unfair the different results in 3 and 4, or you might point out that courts treat the involuntary defendant better than the plaintiff that chooses the forum. Note that the Renauds did not move to dismiss for lack of personal jurisdiction or venue. That would have been silly, since they picked the court and thereby submitted to personal jurisdiction and venue there.