The University of Florida
Fredric G. Levin College of Law
Civil Procedure
Spring 2007
Professor Pedro A. Malavet
Final Examination
INSTRUCTIONS
Before the exam starts, you may read the instructions, AND COUNT TO MAKE SURE THAT YOU HAVE ALL FOURTEEN (14) PAGES, AND YOU SHOULD WRITE YOUR EXAM NUMBER ON EVERY PAGE. OTHERWISE, DO NOT GO BEYOND PAGE THREE (THE END OF THE INSTRUCTIONS) OR READ ANY OTHER PART OF THE EXAM BEFORE YOU ARE INSTRUCTED TO START.
Open Rules. "Open-Rules" means that you may have with you during the examination your required 2006 Federal Rules of Civil Procedure supplement edited by Stephen Yeazell. No substitutions will be allowed. Your supplements may be annotated with handwritten notes, but shall not have any attachments other than tabs to mark the location of specific material (the tabs may have on them numbers and the short titles of the referenced material and nothing more). Only handwriting may cover the blank spaces and the original printing on the supplements. The use of stick-on labels or paper, white-out or any other method to eliminate any of the original printing is prohibited. Other than the addition of handwritten notes and tabs, the supplements shall be in their original condition, no material may be added nor may any material be removed in any way. The supplements must be in their original bound form at the start of the examination. You may, however, tear them up during the examination if you find that makes them easier to use.
Honor/Conduct Code. Violations of the Student Conduct Code, the College of Law Honor Code or of the exam rules that I have set forth, should be reported to me or to pertinent authorities preferably before or during the examination. Serious violations of these rules shall result in a failing grade and in my referring the matter to the Honor Committee or to pertinent college or university conduct authorities. Less serious violations may result in a reduction in your final grade.
Leaving the Exam Room. You may leave the examination room at your discretion and without asking for permission to leave.
You may not use electronic devices. You may use a laptop computer to answer the essay examination with the Examsoft system. If you must be "on call" during the examination for family or emergency reasons, you may leave your cellphone or pager on "vibrate only" mode and answer calls outside the examination room. Otherwise, use of electronic devices of any kind is prohibited, this includes, but is not limited to, iPods or similar sound-producing devices and headsets, earphones or headphones of any kind.
Be considerate to your classmates. You must be reasonably quiet during the examination, especially when leaving or returning to the examination room.
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 (Part I), for forty percent (40%) of the exam grade; and one (1) essay question (Part II), for sixty percent (60%) of the exam grade. Please take these weights into account when you design your answer schedule.
Do Not Un-staple Pages. You MAY NOT TAKE THE EXAM APART FOR ANY REASON. The answer packet for the essay may be unstapled only if you are using a typewriter; you must re-staple all pages.
Limited Space. You must answer the multiple-choice questions on the exam itself. You may not use pencils, erasable ink, or felt-tip markers. The essay may be answered in handwriting or by typing using the answer packet that I will provide. The essay portion may also be answered using the electronic template described below.
Scratch Paper. You may use blank scratch paper to outline your answers and take notes during the examination.
Handwriting. I will provide you an answer packet. Put your exam number on each page of the answer packet, even those that you do not use. You may only write on one side of the page (the one with lines for handwriting). 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. If you wish me to ignore any part of your answer, simply cross it out and I will ignore it. If you should run out of space because of cross-outs, you may use an equivalent amount of space on the back of the page.
Write Legibly. If I am unable to read your answer, it is as if you had written nothing. The exam must be written in permanent, dark-color ink. You may not use pencils, erasable ink, or felt-tip markers.
Typing. If you using a typewriter, you must use the answer packet for handwriting or typewriting. You must stay within the given margins and you may only write one line per line of space given to you.
Electronic Exam Taking. Only the essay section may be answered electronically. For the other sections, you must note your answer on the exam itself. You may take the examination electronically, using specialized software that ensures that you can only use your laptop to write your essay answer. Answer space shall be limited to 1800 characters for each blank page in the examination. That is enough for 24 lines of double-spaced text in courier type, size 11 for each page. Since I provide 12 blank pages in the answer packet, the character limit is: 1800 x 12 = 21,600 characters.
Uploading Answers. Make sure that you upload your answer as instructed by the software. You should receive a confirmation that your answer was properly uploaded (submitted). In the past, this has taken up to twelve hours after the examination because of heavy traffic on the system. If you do not receive a confirmation by the morning after the exam, please check with the office of student services. At worst, an upload failure means that you have to bring in your laptop so that the technicians can extract the copy of the exam that is automatically backed up on your computer; this copy is encrypted, but we have the means to extract it when needed.
Review. I will be available to discuss examination results during the Fall semester, beginning after Thursday, September 13, 2007. I will not discuss examination results or any other grade-related matter before that date.
You must stop work four (4) hours after THE SIGNAL TO START. Completed examinations must be turned in to The office of student services.
General Instructions For Part I
Select the best answer to the question presented. In this section, do not look for "perfect" answers, just the most correct one among the alternatives available to you, in light of the question or statement 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 appropriate letter that you select as your response.
Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, "missing facts" suggest three possibilities: (1) you need to read the question again, i.e., "it's in there somewhere," (2) the fact is not necessary to the resolution of the question, or (3) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question).
Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked, with the best possible response among the alternatives given.
Applicable Rules. Assume that the applicable rules are the Federal Rules of Civil Procedure and pertinent constitutional and statutory provisions, taken together with all the accompanying doctrines and caselaw as we discussed them in class.
Part I: Multiple-Choice (40%)
1. Mr. Jamie Oliver suffers a severe attack of food-poisoning that he alleges was caused by the negligence of Federal Express, which mishandled a shipment raw oysters sent to this London home from Florida, U.S.A. Mr. Oliver is a citizen of the United Kingdom, who resides in London, U.K., and has never visited the United States. Federal Express is a Delaware corporation with its principal place of business in Nashville, Tennessee. Mr. Oliver files a federal suit against Fedex in the U.S. District Court for the Middle District of Tennessee, Nashville Division. He alleges damages caused by the illness, including medical costs, pain and suffering and loss of income because he was unable to perform in his weekly television program, "The Naked Chef." If proved, these are all legitimate claims under applicable law. The damages claimed exceed, exclusive of costs and interest, $1,000,000.00. May the federal court hear this action?
a. Yes, because Mr. Oliver raises a claim arising under the laws of the United States.
b. No, because aliens cannot be plaintiffs in U.S. courts.
c. Yes, because there is alienage jurisdiction under 28 U.S.C. ¤ 1332.
d. No, because Mr. Oliver is not a permanent resident alien.
2. Jerry Seinfeld has sued Cosmo Cramer for the tort of assault and battery with weird hair. He claims over $750,000.00 in damages exclusive of costs and interest. He has filed the action in the US District Court for the Southern District of New York, where all the relevant acts occurred. He claims diversity jurisdiction because he is a citizen of New York, and Cosmo Cramer is a citizen of Florida. Mr. Cramer has tendered to the court a Third Party Complaint impleading, for contribution only, his hair dresser, one George "Scissors" Costanza, a citizen of New York. The court rules that under applicable New York law, which provides for joint and several liability, Mr. Costanza might be adjudged to owe contribution to Mr. Cramer, to the full extent of any judgment against him in favor of Mr. Seinfeld. Accordingly, the Court may:
a. Grant leave to file the third-party complaint, and allow Mr. Cramer to sue Mr. Costanza for contribution only; subject-matter jurisdiction over this claim may properly be based on 28 U.S.C. ¤ 1367.
b. Order the dismissal of the case pursuant to Rule 19(b), because the joinder is not feasible.
c. Grant leave to file the third-party complaint, and allow Mr. Cramer to sue Mr. Costanza for contribution only; subject-matter jurisdiction over this claim may properly be based on 28 U.S.C. ¤ 1332.
d. Refuse to order the joinder of Mr. Costanza pursuant to Rule 19, and proceed with the case as filed.
3. Amy Smith, a citizen of Louisiana, files a federal suit alleging diversity jurisdiction against Jonathan Jones, a citizen of Florida, in the United States District Court for the Northern District of Florida. She claims that defendant Jones owes her $35,000.00, exclusive of costs and interest, on account an unpaid debt. She further claims that Jones owes her $10,000.00, exclusive of costs and interest, for unpaid rent. She finally claims that Defendant Jones owes her $31,000.00, exclusive of costs and interest, for damage cause to her car in an automobile accident. May these claims be pursued in a single federal case?
a. Yes.
b. No, because each claim fails to meet the jurisdictional amount.
c. Yes, because these claims may properly be joined under rule 20(a).
d. No, because these claims did not arise out of the same transaction or occurrence.
4. Ally McBeal, a citizen of Massachusetts, kicks Oren Koolie, a citizen of New York, when he is visiting her law office in Boston. She mistook him for "Mr. Huggy," an imaginary dancing baby. Unfortunately, Mr. Koolie is a very real, small person, who happens to be a lawyer. Naturally, Mr. Koolie sues Ms. McBeal in the U.S. District Court for the District of Massachusetts. Ms. McBeal is the only named defendant in the suit. In addition to Ms. McBeal and Mr. Koolie, there were two eyewitnesses to this incident, John Cage, a partner in the law offices Koolie was visiting, and Elaine Vassal, a secretary at that same firm. Lloyds of Cleveland Insurance Company provides insurance coverage to Ms. McBeal. Ms. McBeal called the company on the date of the occurrence and asked it to start preparing her defense to the reasonably anticipated litigation. Harry Smith, an agent for Lloyds, took statements from Mr. Cage and from Ms. Vassal. Mr. Smith wrote down what Ms. Vassal and Mr. Cage said and each of them, after reading their respective statement, signed the document. While Mr. Smith was taking down the statements, Mr. Koolie could be heard outside the door to the office that Smith was using screaming "I am going to sue you for every penny you've got, McBeal." Mr. Koolie's request for copies of the statements given by Vassal and Cage was denied by the trial court because Vassal and Cage are available for depositions, therefore, Koolie was unable to show "substantial need" and "undue hardship" as required by the pertinent rule. May Ms. Vassal request a copy of her statement to Smith?
a. No, because the statements were collected in anticipation of litigation and are protected "work-product."
b. Yes, because the pertinent rule allows such a request.
c. No, because Vassal is not a party to the case.
d. Yes, because the statements were not collected in anticipation of litigation and are not protected "work-product."
5. Juan Gonz?lez was severely beaten by four Los Angeles Police officers during the course of an illegal arrest. The actions of the police can be argued to have violated Mr. Gonz?lez'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. Gonz?lez, 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 Central District of California, Western Division, using 42 U.S.C. sec. 1983 to pursue claims arising out of the beating and the illegal arrest. May this matter be heard in a single federal case?
a. No, because each defendant must be sued in a separate action.
b. Yes, because there is diversity of citizenship among the parties and the joinder of claims and parties is consistent with the rules.
c. No, because diversity of citizenship was artificially manufactured.
d. Yes, because there is federal question jurisdiction and the joinder of claims and parties is consistent with the rules.
6. Robert Ludlum, a citizen of Virginia, is involved in a traffic accident with Tom Clancy, a citizen of Virginia. The accident occurred in Alexandria, Virginia —which is one of the cities in which court is held for the Eastern District of Virginia— when Mr. Clancy destroyed Mr. Ludlum's $1.4 million Ferrari by running over it with his M-4 Sherman tank a few seconds after Mr. Ludlum ran away from the car. Ludlum files suit using Virginia's direct action statute in the U.S. District Court for the Eastern District of Virginia, against CIA Insurance, Inc., a corporation under the laws of the state of Delaware with its principal place of business in New York City, New York. He pleads only diversity subject-matter jurisdiction and his claims for damages exceed $75,000.00 exclusive of costs and interest. May this case proceed as filed?
a. No, the case should be dismissed for lack of subject-matter jurisdiction.
b. Yes, there is diversity between plaintiff and defendant that the amount in controversy exceeds $75,000.00 exclusive of costs and interest.
c. No, the case should be dismissed for lack of venue.
d. Yes, there is supplemental jurisdiction over this case.
7. Jerry Seinfeld has sued Cosmo Cramer for the tort of assault and battery with weird hair. He claims over $750,000.00 in damages exclusive of costs and interest. He has filed the action in the US District Court for the Southern District of New York, where all the relevant acts occurred. He claims diversity of citizenship because he is a citizen of New York, and Cosmo Cramer is a citizen of Florida. Mr. Cramer has moved the court to dismiss the action for failure to join a party under Rule 19. He argues that his hair dresser, one George "Scissors" Costanza, a citizen of New York, was not made a defendant to the complaint in violation of Rule 19. The court rules that Mr. Costanza is not a "necessary" party as defined in Rule 19(a), therefore, the court should:
a. Grant leave to Mr. Cramer to sue Mr. Costanza under Rule 14(a), for contribution only.
b. Order the dismissal of the case pursuant to Rule 19(b), because the joinder is not feasible and the party is indispensable.
c. Grant leave to Mr. Cramer to sue Mr. Costanza under Rule 14(a), but prevent Mr. Seinfeld from making any claims against Mr. Costanza, because, though allowed by Rule 14(a), to the extent that they arise out of the same transaction or occurrence, they are precluded by 28 USC ¤ 1367(b).
d. Deny the motion to dismiss, refuse to order the joinder of Mr. Costanza, and proceed with the case as filed.
8. Hercule Poirot, a citizen of Belgium, files suit in the United States District Court for the Middle District of Florida against Agatha Christie, a citizen of the United Kingdom. He pleads that the court has jurisdiction pursuant to 28 U.S.C. ¤ 1332. The complaint pleads an action in tort alleging that Ms. Christie attempted to kill Mr. Poirot with a candle holder, in the dining room of his rented bungalow on the grounds of the Grand Floridian Hotel at Disney World in Orlando. The damages claimed exceed $75,000.00 exclusive of costs and interest. Is there subject-matter jurisdiction over this action?
a. No, because foreign citizens may not sue in U.S. courts.
b. No, because the court lacks subject-matter jurisdiction.
c. Yes, because the suit involves citizens of different countries and it exceeds the jurisdictional amount.
d. Yes, if Poirot is admitted to the United States for permanent residence.
9. A traffic accident involving three vehicles occurs at the intersection of University Avenue and 34th Street in Gainesville, Florida. All three vehicles suffer severe damage and all three drivers suffer serious bodily injury as a result of the accident. The driver of one car, Michelle Jeffreys, of Gainesville, Florida, files suit in the United States District Court for the Northern District of Florida against the drivers of the two other vehicles, Jason Richards, a citizen of Georgia, and Juan Carlos Cruz, a citizen of Iowa. The complaint states that the jurisdiction of the court is based on diversity and claims against each of the defendants exceed $75,000.00, exclusive of costs and interest. Does the court have original jurisdiction over this action?
a. Yes, because there federal question subject-matter jurisdiction.
b. No, because not all defendants reside in the same state.
c. Yes, because there is diversity subject-matter jurisdiction.
d. No, because the court lacks personal jurisdiction over the defendants.
10. Using the same facts in question 9 above, consider what happens when the Plaintiff also includes in her complaint claims against the Universal Insurance Company, a corporation under the laws of the state of New York, with its principal place of business in Miami, Florida. Universal insures defendant Cruz, and Plaintiff's claims against Universal are in excess of $75,000.00 exclusive of costs and interest. Does the court have original jurisdiction over this action?
a. No, because the parties are not completely diverse.
b. Yes, because the insurance company would be deemed to be a citizen only of Iowa.
c. Yes, because the insurance company does not reside in the same district as the plaintiff.
d. No, because the rules of civil procedure preclude the joinder of these claims.
PART II: Essay (60%)
General Instructions for part II
Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, "missing facts" suggest three possibilities: (1) you need to read the question again, i.e., "it's in there somewhere," (2) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question), or (3) you need to indicate that you need to establish certain facts in order to provide a complete opinion. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.
Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked. Civil Procedure is a broad and complex course, I have crafted the questions narrowly, do not waste your time covering issues that the question does not require you to resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the question.
Applicable Rules. Assume that the applicable rules are the Federal Rules of Civil Procedure, and pertinent constitutional and statutory provisions, taken together with all the accompanying doctrines and caselaw as we discussed them in class.
Citations. Since this is an open-rule exam, citation should be made to the appropriate rule, especially the Federal Rules of Civil Procedure, statutory or Constitutional provision, etc. Case citations will be judged on a "close-enough" basis. Please keep in mind that my annotated versions of the rules are helpful shorthand references.
Limited Space. You must answer the essay question by hand or typewriter, using the answer packet that I shall provide or using the electronic template for this examination.
QUESTION
Gordon Grieves, a Georgia resident, sued Aero Toy Store, a Florida limited liability company, for fraud and breach of contract arising from Grieves's purchase of an automobile from Aero over the Internet. Claiming inadequate contacts with Georgia and relying on a clause in the purchase agreement selecting Florida as the forum for any litigation, Aero moved to dismiss for lack of personal jurisdiction and improper venue. The State Court of Cobb County denied Aero's motion. The Court of Appeals granted Aero's application for interlocutory appeal.
While conducting an Internet search of the eBay Motors auction website, Grieves identified a 2001 BMW car being offered for sale. The website contained a lengthy description of the BMW and its features. And it provided an "Ask seller a question" button that, when activated, identified Juan Almeida as the seller's agent. On or about April 13, 2004, Grieves began making e-mail inquiries to Almeida concerning the car. Almeida responded to Grieves with various e-mails. In one of them, Almeida informed Grieves that the car came with a four year/50,000 mile factory warranty that would expire in about ten months, thereby obviating the need for a 1,000 mile warranty offered by eBay.
Grieves asserts that, in reliance on Almeida's promises and representations, he calculated his winning bid and that, after Almeida faxed copies of the purchase agreement to him, he signed the agreement, faxed it back to Almeida, and mailed a check to Aero in payment of the $31,926 purchase price. Grieves later brought this suit against Aero for making numerous material misrepresentations concerning the car.
In support of its motion to dismiss, Aero tendered an affidavit of its automotive manager, George Barber, to show that it does not have any agents, representatives, officers, or employees in Georgia; that it is not licensed to do business in Georgia; that it does not own or rent property in Georgia; that it does not maintain an office in Georgia; and that it has no subsidiaries or business affiliates in Georgia. In his affidavit, Barber also showed that the first page of the two-page "purchase agreement/bill of sale" signed by Grieves contains an acknowledgment that he had read and understood the terms and conditions set forth on the reverse side (or second page) of the agreement; and that, in paragraph 12 on the reverse side of the agreement, the parties agreed that the agreement was made in Florida, that it would be governed by Florida law, and that any action or proceeding arising out of the transaction would be litigated only in a Florida court.
Grieves filed a response to Aero's motion to dismiss, asserting that he had not agreed to paragraph 12. To support this assertion, Grieves submitted various e-mails between himself and Almeida: (1) In the first, dated April 21, 2004, Grieves acknowledged receipt of the purchase agreement but noted that no printed information appeared on the back of it. (2) Almeida responded with an e-mail, dated April 23, in which he stated, "We will send you the printed information on the back of the buyers order although it really does not apply to you as this vehicle comes with factory warranty." (3) In an e-mail dated April 27, Grieves informed Almeida that he wanted to proceed with the purchase and that he would fax back "your revised bill of sale once received."
By affidavit, Grieves testified that the bill of sale faxed back to him contained only the front page of the document, which he signed on or about April 28. Almeida executed a counter-affidavit in which he testified that, as stated by him in his April 23 e-mail to Grieves, he did have faxed both the front and reverse sides of the bill of sale to Grieves before Grieves signed the bill of sale on April 28.
In response to Grieves's discovery requests, Aero maintained that, since its formation in 2002, through eBay or otherwise it had made only two Internet sales to persons in Georgia totaling $193,199, amounting to less than one-half of one percent of its gross revenues of $553,351,314 for the years 2002 through 2004. Grieves, however, presented the results of an Internet search showing that from November 2003 until February 2005 at least 11 individuals from Georgia had submitted the high bids on cars being offered by Aero on eBay. Aero asserts that, notwithstanding the submission of those eleven high bids, no more than two purchases were consummated.
In denying Aero's motion to dismiss, the state court found that Aero purposefully transacted business in Georgia when its agent conducted business negotiations with Grieves who lived in Georgia and when Aero delivered the vehicle to Grieves in Georgia, so as to have established sufficient minimum contacts with Georgia to authorize Georgia's exercise of personal jurisdiction over Aero under our Long Arm Statute. The state court resolved the factual conflict created by the opposing party's affidavits and supporting documentation in favor of Grieves so as to find, for purposes of the motion to dismiss, that he had not been provided with, nor agreed to, that part of the agreement containing the forum selection clause.
Aero challenges the state court's determination that it had established sufficient minimum contacts with this state under our Long Arm Statute, or, in the alternative, that the exercise of jurisdiction over it would violate the Constitution of the United States.
The Long-Arm Statute for Georgia is § 9-10-91, which reads as follows:
Grounds for exercise of personal jurisdiction over nonresident
A court of this state may exercise personal jurisdiction over any nonresident or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he:
(1) Transacts any business within this state;
(2) Commits a tortious act or omission within this state, except as to a cause of action for defamation of character arising from the act;
(3) Commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;
(4) Owns, uses, or possesses any real property situated within this state.
Instructions
The standard of review for the trial court's determination is de novo, therefore, the court of appeals may make its own findings of fact and conclusions of law. In explaining and supporting the court's conclusions, you shall display your command of the applicable constitutional provisions and caselaw as you learned them in your Spring 2007 civil procedure course.