ALL RIGHTS RESERVED. PROFESSOR WM SLOMANSON
................FINAL EXAMS: 1997--2012... Last rev: 02/05/13

Civil Procedure I: (1) Examination, (2) Prof's Issue Outline, and
......................... ...(3) sample student answer.

Fall 2003

.Fall 2004

Fall 2006 .

Fall 2007 

.Fall 2008: Q+IssOut_StudAns

.Fall 2009:
Q+IssOut+StudAns

Fall 2010:
Q+IssOut+StudAns

Fall 2011 Q/I.O./Ans

Fall 2012 Fall 2013


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CIVIL PROCEDURE ONE.....................................................................................PROF. SLOMANSON
FINAL EXAMINATION FALL 2002.....................................................................EXAM # _______

Instructions: This is a two-page, closed-book examination. You have three hours to complete it. There are no multiple choice questions. The examination consists of narrative facts, litigation documents, and related materials in the attached File and Library. I recommend that you use a series of mini-IRACs, as you would with a traditional essay examination.

Facts: Al and Anna are law students. They write a steamy novel entitled Thomas Jefferson's Other Law School. Their classmate Bob later writes a substantially similar book entitled TJSOL. It becomes a best seller after being published in New York. Bob assigns his interest in his book to Cindy.

Al and Anna are upset about Bob's apparent infringement of their copyrighted book. They demand a meeting with Bob at a New York City restaurant (located about half-way between their respective out-of-state domiciles). Bob decides to invite Cindy, since she now owns the copyright to Bob's book. On the way to that meeting, and just outside the nightclub, Cindy's car rear-ends Bob's car, thus pushing Bob's car into Al's car. Al and his wife Anna are both injured in this accident. They file a lawsuit against Bob. Bob sues Cindy. She seeks to intervene into the original action. (See File.)

Questions:
1. Could Al and Anna have properly joined Bob and Cindy in the copyright infringement portion of their
...Complaint? (Do not discuss jurisdiction or venue.)
2. Must Al and Anna join Cindy in their copyright infringement claim?
3. Does the court have subject matter jurisdiction over Al and Anna's negligence claim against Bob?
4. Does the court have subject matter jurisdiction over Al and Anna's copyright claim against Bob?
5. Have Al and Anna failed to state a negligence claim against Bob?
6. Does the court have personal jurisdiction over Bob for Al and Anna's negligence claim?
7. Is the venue for the copyright claim proper?
8. Can Bob have this case transferred to Delaware?
9. Should Cindy's motion be granted?
10. Assume that New York state law does not permit Third-Party Complaints. The rationale is to prevent the .....unnecessary expansion of a lawsuit before the original plaintiff obtains a judgment. Would the federal judge .....in this case apply the state impleader prohibition? (Do not discuss jurisdiction.)

........................................................................Page 1 of 2


................................................................File

AL PLAINT and
ANNA PLAINT
..........v.
BOB DEFTMAN

  UNITED STATES DISTRICT COURT
Southern District of New York
Civil Action: File Number 654321WRS
COMPLAINT FOR MONEY DAMAGES

.....1. This is a case arising under Federal Question and Diversity Jurisdiction. 28 USC §§1332 and 1338. Al and Anna Plaint are domiciled in Pennsylvania. Bob Deftman is domiciled in Delaware.
.....2. Bob intentionally infringed the plaintiffs' intellectual property rights, in an amount to be determined at trial.
.....3. Bob negligently injured each plaintiff, when he hit them. Plaintiffs thus seek $50,000.00 each for a total of $100,000.00.

 

BOB DEFTMAN
..........v.
CINDY BOOKER

  UNITED STATES DISTRICT COURT
Southern District of New York
Civil Action: File Number 654321WRS
THIRD PARTY COMPLAINT

.....1. Bob Deftman hereby impleads Cindy Booker, who is domiciled in Pennsylvania.
.....2. Ms. Booker caused a three-car accident Cindy's automobile propelled Bob's automobile into another automobile occupied by Al and Anna Plaint–the original plaintiffs in this action.
.....3. Bob seeks indemnity from Cindy for all damages claimed by the plaintiffs in this action.

 

AL PLAINT and
ANNA PLAINT
..........v.
BOB DEFTMAN

  UNITED STATES DISTRICT COURT
Southern District of New York
Civil Action: File Number 654321WRS
MOTION

.....1. Cindy Booker, a citizen of Pennsylvania, hereby requests the court to permit her to participate in the Al and Anna Plaint copyright case against Bob Deftman.
.....2. Ms. Booker desires to become a party to the referenced suit, because of her interest in the underlying litigation arising under the copyright laws of the United States.


.............................................................Library
28 USC §1338. Patents, plant variety protection, copyrights, mask works, and trademarks
(a) The district courts shall have original jurisdiction of any civil action ... relating to patents, plant variety protection, copyrights and trademarks. ***

F.R.C.P. 24 Intervention
(a) Intervention as of Right.*** anyone shall be permitted to intervene *** when the applicant claims an interest *** [and] is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest *** .

.............................................................................Page 2 of 2

--------------------------------------------------------------------------------------------------------------------
..........................................................Prof's Issue Outline (Fall 2002)

1. Could Al and Anna properly join Bob and Cindy in the copyright infringement portion of the Complaint?
....(Do not discuss jurisdiction or venue.)
* same xaction/occur and common question [20a]
* jt, sev, alternative liab
* Bob's assignment to Cindy = different xaction? (She's probably not nec aware of the Ps' claim)
* Cindy does own current ©
* common Q? (infringement liab TJSOL)
* resolve all © issues in same suit
2. Must Al and Anna join Cindy in their copyright infringement claim?
* absentee nec complete adjudication entire controversy
* Shape w/o Cindy?
* not infeasible to join (incomplete div irrelevant for FQ claim)
* © claim v. Bob, but he assigned Cindy © in offending book
* damages only / impact jmt for Ps
3. Does the court have subject matter jurisdiction over Al and Anna's negligence claim against Bob?
* amt = 75k / "legal certainty" test (Mas/St.Paul)
* each claim must satisfy min amt contro
* Ps aggregating b/c "each" = only 50k
* no special damages indicated in the respective 50k totals
* supplemental SMJ?
* common nucleus?
4. Does the court have subject matter jurisdiction over Al and Anna's copyright claim against Bob?
* FQ = case arising under fed law (statute)
* no min required so "TBA trial" damages ok
* 1338 = "original jurisdiction any civil action relating to copyrights"
* charging allegations do not use term "copyright" / "intellectual property rights"
* not transfer/assignment (TB Harms)
5. Have Al and Anna failed to state a negligence claim against Bob?
* 8(a)2 short & plain statement
* conclusion: "negligently injured" each plaintiff
* "notice" pldg standard satisfied?
* sufficient info to determine basis for Al/Anna suit "when he hit them"?
6. Does the court have personal jurisdiction over Bob for Al and Anna's negligence claim?
* Essential Q = D's ties to forum
* MC / PA / RA
* Ps "demanded mtg in forum" = unilateral draw Bob to NY forum?
* Bob torts on Ps in forum
* D Bob chose enter & drive to forum mtg (and doing business)
7. Is the venue for the copyright claim proper?
* gen fed venue stat: resides or substantial portion arose [disregard third venue alternative & spec © venue]
* Bob's res not NY
* coa location not given–maybe substantial portion arose NY, b/c "published in NY"
* maybe arose out-of-state, b/c Bob may infringed home DE/CA where presumably written
8. Can Bob have this case transferred to Delaware?
* 1404(a) xfer "where might brought" & convenience
* "might": Delaware b/c Bob dom in Delaware
* "might": Delaware if that's where he wrote TJSOL ("substantial portion")
* may be NY if coa arose where allegedly infringing book TJSOL published
* "convenience": Delaware may inconv Ps/wits accid & NY = "half-way between respective domiciles"
* presumption favors P's choice
9. Should Cindy's motion be granted?
* intervention when "applicant claims interest [and] is so situated that dispo practical impair ability protect" (R 24)
* Cindy's interest direct & immediate?
* Cindy's already in suit -> = Bob's TPD, but not on © claim
* damages/not injunctive v. C/impact on C's rights
* adequate representation?
* Bob as interested as Cindy? (no longer holds ©)
10. Assume that New York state law does not permit Third-Party Complaints. The rationale is to prevent the unnecessary expansion of a lawsuit before the original plaintiff obtains a judgment. Would the federal judge in this case apply the state impleader prohibition? (Do not discuss jurisdiction.)
* not changing substantive liability / just advancing time for presentation of Bob's potential claim v. Cindy
* FRCP 14 "on point" b/c allows TP practice (Hanna, Owen Equipment, class discussions)
* "balancing" alternative (state proc bans) not applicable (Jeub class discussion/Hanna update)


................................................Student Answer (Fall 2002)

Could Al and Anna have properly joined Bob and Cindy in the copyright infringement portion of their complaint?
Plaintiffs may join claims and defendants if 1) the claim arises out of the same transaction or occurrence, or the same transactions or occurrences, 2) there is common question of law or fact to the claims or parties, 3) the defendants may be joined if the plaintiffs assert a right to relief jointly, severally or in the alternative.

The claim arises out of the occurrence where Bob allegedly infringed the plaintiff's copyrights by writing a book that is substantially the same as the plaintiff's. Bob then assigns the interests of the book to Cindy. It is arguable that his assigning the interests of the book will be considered the same occurrence or transaction, since Cindy, as far as the facts state, has not participated in the writing of the book and thus Cindy will argue that she had nothing to do with the initial copyright infringement. However, since it is her interest that will be in question in court, there is a possibility that the infringement and the assignment of title will be viewed as one and the same transaction. This issue is debatable. As to whether there is a common question o flaw or fact, Cindy did not participate (apparently) in the writing of the book and her possession of interest in the book involves a different question of law in case it were questioned in court. Since Cindy did not participate in the writing of the book, did not aid Bob, it is doubtful that she is either jointly, severally or liable in the alternative for any damages the plaintiffs will obtain. It is doubtful that Bob and Cindy may have been joined in the copyright infringement suit brought by Al and Anna.

Must Al and Anna join Cindy in their copyright infringement claim?
It is well possible that Bob may file, in his answer, a motion for failure to join a party for complete adjudication of the subject matter. FRCP 19a states that a party shall be joined if 1) complete adjudication of the matter can not be obtained in the party's absence, and 2) the party's interest in the subject matter (or property) may be adversely prejudiced. Anna is in possession of the interest in the book Bob wrote. However, it is Bob that wrote the book and committed the copyright infringement and not Cindy, therefore it is well possible that the court is able to completely adjudicate the matter in Cindy's absence. However, since Cindy is the primary stakeholder in the book, a judgement for the plaintiffs will severely affect her interest in the book and she would be prejudiced by such a judgement. It is very likely that she must be joined in the negligence suit if feasible.

Assuming it would not be feasible to join Cindy in the suit, would Cindy be a necessary party of an indispensable party? The court will look at four elements to determine this:

1. Will a judgment in absence of the party prejudice the absentee or the parties at suit? A ruling in Cindy's absence will prejudice her interest in the property, and might affect the other parties at suit as well.

2. Can the court, through provisions in the judgement lessen the prejudice? The court can lessen the prejudice by rendering a judgment just against Bob and not Cindy, just requiring Bob to pay money damages, but it is unlikely that the court will do that.

3. With these provisions, can adequate relief by granted in the parties absence? The court will make a judgment which will impact Cindy's rights in the book, and is unlikely to do that if Cindy is not present at the suit and is not able to defend herself. The court just grant relief against Bob, but it is doubtful that the relief will be adequate.

4. If the suit is dismissed for non-joinder, does the plaintiff have other measures of relief? The plaintiff would not be able to sue in state court since federal courts have exclusive jurisdiction over copyright suits.

In the end, a court will most likely determine that Cindy is an indispensable party to the suit and require her to be joined.

Does the court have SMJ over the negligence suit?
SMJ is the power of the court to hear the claim. SMJ can be established in two ways. Either Federal question SMJ or Diversity SMJ. For federal questions SMJ, the claim has to arise under the constitution, a treaty or a statute. The negligence claim involves a state law, and thus is not a federal questions.

For diversity SMJ, 1) no p and no d may be domiciled in the same state (domicile equals presence in the state and intent to remain there, and is established at the time the suit is filed), and 2) the amount in controversy must exceed $75,000.

Al and Anna are domiciled in Pennsylvania at the time the suit if filed and Bob is domiciled in Delaware. The first element is met.

Al and Anna allege that plaintiff negligently hit them and seek damages in the amount of $50,000 for each p in the total of $100,000. First of all, the complain does not state what kind of damages the plaintiffs allege. If there are special damages (which I assume there are since it was a car accident) they must be specifically plead. Also, it must appear to a legal certainty that the amount in controversy can not be met before the court dismisses the case. Plaintiffs can not aggregate their claims against the defendant in order to meet the required amount, and since each p only alleges $50,000 against Bob, the requisite amount has not been met.

Diversity is not established.

If the court does not have independent Diversity SMJ over the negligence claim, does the court have supplemental SMJ over the claim?

A court can exercise supplemental SMJ over claim which does have jurisdiction by piggybacking it onto a claim over which it does have SMJ. There are two elements:

1. There is a common nucleus of operative fact, and

2. The claims would be expected to be tried together, since they involve essentially the same evidence.

Hence, the issue is whether the negligence claim can be backed onto the copyright claim? Two essentially different questions are alleged in the respective claims. One involves a negligence car accident suit and the other is a federal copyright suit. They do not involve the same set of facts and thus do not have a common nucleus of operative fact, and there is no evidence common to the claims and thus you would not expect them to be tried together. The court does not have supplemental SMJ over the negligence claim.

Does the court have SMJ over the copyright claim against Bob?
A federal court can have SMJ over a claim if 1) it arises under a federal question, or 2) if the court has Diversity jurisdiction.

The copyright claim brought by Al and Anna arises under USC 28 1338 which states: A district court shall have original jurisdiction of any civil action ... relating to patents, plant variety protection, copyrights, and trademarks.

Al and Anna allege that Bob infringed their intellectual property rights when he copied (I am assuming that is what he did) their book and wrote his own and then profited from it. There is no minimal amount for a federal question claim. Hence, their claim arises under USC 28 1388, and thus federal court does have SMJ over the claim.

Have Al and Anna failed to state a negligence claim against Bob?
In a complaint a plaintiff must 1) establish jurisdiction, 2) state why they are entitled to relief, and 3) make a prayer for judgment.

Al and Anna have established jurisdiction, by stating domicile and diversity. However, Al and Anna have only stated that Bob negligently injured each plaintiff when he hit them.

It is very likely that Bob will make a 12b motion for failure to state a claim or motion for a more definite statement.

The federal courts require that the p make a short and plain statement in order to put the defendant on notice as to why he is being sued (federal notice pleading). Al and Anna do not state how they were injured, where they were injured and when. They make a conclusion by stating that Bob was negligent, but go in no further detail. However, federal courts are quite relaxed, since all the court requires is notice pleading. It is very unlikely that Bob remembers that the was involved in the accident with Al and Anna and can probably imagine as to why they are suing him for negligence.

In conclusion, Al and anna did not fail to state a claim because Bob will know why he is being sued and will have adequate opportunity to prepare his defense.

Does the court have personal jurisdiction over Bob for Al's and Anna's negligence claim?
For a federal court to have IPJ over a person, two elements must be met. 1) there must be a LAS covering the alleged conduct of d, and 2) federal due process may not be violated. Nothing is mentioned about a LAS in the facts, and since Bob is domiciled in Delaware and is being sued in a NY federal court, I will assume that either 1) there is a LAS that applies if NY follows the 2-step LAS, or 2) if NY has a one-step LAS, that hailing him into NY would not be unconstitutional (Fed Due Process Check, discussed below).

Again, assuming the procedural due process has been satisfied (service and opportunity), the next step is the federal due process check. Six words: minimum contacts, purposeful availment, and reasonable anticipation.

According to Shoe and its progeny, the defendant must have minimum contacts with the forum state. Bob is domiciled in Delaware. At the time of the accident, Bob was on his way to NY to meet the plaintiffs in a restaurant. The facts do not state whether the accident occurred in NY or out of state.

If the accident occurred in NY, the court will have specific jurisdiction over the d and the requirements for due process are not very stringent. If the accident occurred outside of NY, it is possible that the court may have general jurisdiction.

The book that Bob wrote is most probably being sold all over the states, and is a NY bestseller. Bob will argue that he does not have the interest in the book anymore and thus he can not reasonably anticipate being hailed into the forum state, since he is not benefitting from the laws. However, the fact that he wrote the book and it has his name on the title may be enough. Even though he may not profit financially from the book now, he may become a popular author all over the states, including NY, and thus profits from the sales in NY. Since his name is so widespread in NY, he has purposefully availed himself to the forum state and its laws.

The fact that Bob was on his way into the forum state at the time of the accident (again, it is unclear whether the accident happened in the forum state or not) and the fact that he wrote a book which is being sold in the forum state, was published in the forum state and is a NY bestseller will be enough to satisfy due process and will not violate notions of fair play. Hence, the court does have IPJ over Bob.

Is the venue for the copyright claim proper?
Venue is proper if the suit is brought either 1) where the defendant resides, or 2) where a substantial portion of the claim arose.

According to the facts, Bob is domiciled in Delaware and the forum state is NY. It is not clear where the claim arose. There are two possibilities: 1) it arose when Bob wrote the book (yet, it is unclear where he wrote it), or 2) the claim arose when the book was published in NY. In the second scenario, venue would be proper, since the suit is brought in NY (where a substantial portion of the claim arose).

In the first scenario, if Bob wrote the book in some other state than NY, venue would be improper, and Bob could file a 12b motion and have the case dismissed for lack of venue. (If he does not file the affirmative defense in the answer, he has waived his right to do so.) I am assuming for the purpose of this argument that the court arose when the book was published in NY and thus venue is proper.

Can Bob have his case transferred to Delaware?
The federal venue statute states that a party to the suit may transfer the case to "where it might have been brought in the first place." This means that the case (as long as SMJ and IPJ are satisfied) could be transferred to a state where a substantial portion of the claim arose or where the defendant resides.

Bob is domiciled in Delaware, and in most cases domicile equals reside. Assuming that Bob does reside in Delaware, the case could be transferred to a Delaware federal court. In the unlikely circumstance that he does not reside where he is domiciled (then again, why would he want to transfer the case to Delaware if he did not reside there?), the case could not be transferred to Delaware, since it is very improbable that a substantial portion of the claim arose there.

It is likely that the plaintiff may object to the request to transfer. P's choice of forum bears great weight. In such a situation, the court will apply the doctrine of forum non-conveniens. Accordingly, the court will evaluate such factors (according to Gulf Oil) as: burden of obtaining evidence, burden on the witnesses, where an efficient and speedy trial is most likely, etc. In conclusion, the case may be transferred to Delaware.

Should Cindy's motion be granted?
According the USC 24 (intervention), anyone shall be permitted to intervene if he claims an interest and is so situated that the disposition of the action may as a practical impair or impede the application's ability to protect that interest.

Al and Anna brought a suite against Bob for copyright infringement of a book. It is the same book over which Cindy has interest. Three factors are used to determine whether the request of intervention should be granted. 1) timely request to intervene; 2) the interest in the matter must be direct and immediate; and 3) the requesting party's interest are not adequately represented by the parties already at suit.

Cindy's interest is direct and immediate, since her ownership and interest in the book will be affected by a judgement in favor of the plaintiff (and maybe even in favor of the defendant). Al and Anna definitely do not represent Cindy's interest in the book, since they are attempting to terminate that interest. Bob most probably is not representing Cindy's interest either, since he will want to save his own skin and will care little about who has interest in the book (especially since he does not have it).

Assuming that the request to intervene has been timely made, the request should be granted.

Would the federal judge in this case apply the state impleader prohibition?
This is a choice of law question. Is there an FRCP on point? I am assuming for the purpose of the argument, that the rule of civil procedure regarding impleader is a capital FRCP. Hence, if it is on point, and since procedural law is at issue, the FRCP will be used by the federal judge and he will not apply the state impleader prohibition.

What if the FRCP is not on point? If the FRCP is not on point, but some other rule of civil procedure applies, the next question will be whether applying one or the other will be outcome-determinative? If state law applies, the third-party complaint can not go forward. If federal law applies, the third-party complaint can go forward. Hence, it is outcome determinative. Next, balance the state and fed interest in applying their respective laws. NY does not have substantial interest, since they want to prevent the unnecessary expansion of lawsuits. Their main-interest in judicial economy and speedy trials. However, Federal courts are very liberal in granting motions for third-party complaints (as well as other motions). If the judge would apply state law and not grant the motion it would contradict what federal courts stand for and possibly affect the other 90 district courts.

Conclusively, in the event that the FRCP is not on point, since the state interest is very specific and immediate, the judge will most probably apply the state impleader prohibition.



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Civil Procedure I: (1) Examination, (2) Prof's Issue Outline, and
......................... ...(3) sample student answer................Fall 2001

CIVIL PROCEDURE ONE ...........................................................................PROFESSOR SLOMANSON
FINAL EXAMINATION
..............................................................................FALL 2001 EXAM # _____

Instructions: This is a two-page closed book examination. There are no multiple choice questions. It consists of the
following evolving scenario, consisting of narrative facts and documents. You should identify all reasonable arguments
to resolve the issues presented. I recommend that you use a series of mini-IRACs, as you would with a traditional
essay examination. You have three hours to complete this examination.

............................................................................Facts & Documents:
There is a highway collision between a Greyhound bus and a truck in San Francisco, CA. Paul is a bus passenger
who is injured in this accident. He files the following complaint:

Paul Passenger
..........v.
Greyhound Bus Company
Dan Stanton

UNITED STATES DISTRICT COURT
Northern District of California (San Francisco)
Civil Action: File Number 654321- WMF
COMPLAINT FOR MONEY DAMAGES

.....1. Jurisdiction is founded on diversity of citizenship and amount. Plaintiff is a citizen of the State of California. Defendant Greyhound is incorporated under the laws of the State of Arizona. Its principle place of business is in Arizona. Defendant Dan is a citizen of the State of Arizona. Plaintiff's damages are in excess of $75,000.00.
.....2. On November 22, 2001, plaintiff was a passenger on a bus owned by Greyhound Bus Co. He entered the bus in Arizona, after it had been repaired at a bus repair facility owned by defendant Dan in Arizona. That bus was in an accident with a truck in San Francisco displaying California license plate number TT45789, whose owner-driver fled the scene of the accident.
.....3. Whereupon plaintiff prays for money damages of $100,000.00 from each defendant for a total of $200,000.00 in punitive and compensatory damages. [Here, Paul properly pleads his special damages.]

The defense attorney files an Answer on behalf of both Greyhound and Dan, containing various affirmative defenses.
The defendants timely move to dismiss Paul's Complaint for failure to state a claim and for failure to join a party. How
should the court rule on the defendants' motion?

The court denies the above motion. The defense lawyer timely files the following pleading:

Paul Passenger Dan Stanton (TP Plaintiff)
v. v.
Greyhound Axle Foley (TP Defendant)
Dan Stanton

UNITED STATES DISTRICT COURT
Northern District of California (San Francisco)
Civil Action: File Number 654321- WMF
THIRD PARTY (TP) COMPLAINT

.....Defendant Stanton herein sues Axle Foley, who was working in Arizona and living in California. Defendant Foley was a repairman who was temporarily employed by defendant Dan Stanton. Foley did not adhere to proper maintenance procedures when he repaired the Greyhound bus involved in the collision which is the subject of this case. He was immediately fired.
.....Defendant Stanton thus needs to join Foley for a complete resolution of all issues.

Foley is now employed in California. He retains a lawyer who timely attacks the Stanton claim
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
on the bases that the court lacks both subject matter and in personam jurisdiction. How should the court rule on
Foley's motion?

Assume that the court denies Foley's dismissal motion. Foley's lawyer then files an Answer to the above Stanton
third-party complaint. A week later, Foley's lawyer timely files the following document in this suit:

Dan Stanton (TP P) Axle Foley
v. v.
Axle Foley (TP D) Dan Stanton

UNITED STATES DISTRICT COURT
Northern District of California (San Francisco)
Civil Action: File Number 654321- WMF
DEFENDANT AXLE FOLEY's
COUNTERCLAIM for MONEY DAMAGES
AGAINST DEFENDANT DAN STANTON


.............................................................Motion to Amend Pleadings
.....Axle Foley previously filed an Answer to the third-party complaint filed against him by the defendant Dan Stanton. At the time Foley answered, he did not realize that he had a claim for wrongful termination against his former employer Dan Stanton.
.....Axle Foley thus respectfully requests that this court allow him to amend his pleadings to allege the claim which appears immediately below. If the court does not permit this amendment, defendant Foley will be severely prejudiced for various reasons including Foley's inability to file an Interpleader action against defendants Stanton and Greyhound. [Foley is uninsured. Do not compare Rule and Statutory interpleader.]

.....................................................New Claim: Axle Foley v. Dan Stanton
.....Axle Foley is domiciled in California. Dan Stanton is domiciled in Arizona. Foley admits that he repaired the bus involved in the collision which is the subject matter of the original complaint. Foley, however, was an inexperienced repairman who was briefly employed by defendant Stanton. Even assuming that Foley did not adhere to sound maintenance procedures, Stanton should not have terminated Foley until Foley had the opportunity to learn the requisite skills for this job. Foley was thus wrongfully terminated.
.....Plaintiff mitigated his damages by seeking new employment. He thus acquired another job within several months of his wrongful termination by Stanton.
.....Axle Foley thus seeks damages of $10,000.00 and any additional damages proven at trial.

Dan Stanton's lawyer files the following response to Foley's counterclaim:

Dan Stanton (TP P) Axle Foley
v. v.
Axle Foley (TP D) Dan Stanton

UNITED STATES DISTRICT COURT
Northern District of California (San Francisco)
Civil Action: File Number 654321- WMF
OPPOSITION TO AMENDMENT and
MOTION TO DISMISS FOLEY CLAIM

.....Dan Stanton will be prejudiced by the expansion of this suit. The court should not allow this former disgruntled employee to amend his pleadings to include this counterclaim.
.....Furthermore, this court does not have subject matter jurisdiction over Axle Foley's claim.

How should the court rule on Stanton's motion?

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FINAL EXAMINATION
PROF's ISSUE OUTLINE ................................................................................FALL 2001

Defendants' Motion to Dismiss for Failure to State a Claim

• short & plain statement showing pleader entitled to relief
• federal "notice pleading" standard (Dioguardi/Conley)
• no charging allegations (prima facie connection b/t D bus operation, D repair, and accident)
• date/place/accident/location appears enough identify basis for claim
• no facts to indicate basis for punitive damages allegation
Defendants' Motion to Dismiss for Failure to Join a Party
joinder of absentee necessary for complete adjudication
• SHAPE test/factors
• truck driver necessary for "complete" adjudication of all issues
• infeasible to join for lack of IPJ (fled scene so no IPJ until/unless find: Bank of Cal)
• most likely a California defendant b/c license plate
• infeasible to join for lack of SMJ (not complete diversity b/t Paul & driver: Provident Tradesman)
• joint tortfeasors normally not indispensible
• half a loaf better than none
Third Party Defendant Foley's Subject Matter Jurisdiction Attack
• complete diversity requires that no D and no P be domiciled in the same state
• problem: Foley may be domiciled in CA (Paul's domicile)
• Foley was working in AZ but living in CA (time of repair)
• "now employed somewhere in California" (time of 3P@)
• Stanton's response: supplemental SMJ over TP claim if "common nucleus"
• Foley allegedly repaired the same bus later involved in the collision
Third Party Defendant Foley's In Personam Jurisdiction Attack
• facts silent regarding long-arm statute (assume it applies) (if Axle = AZ domicile time repair)
• MC/PA/RA
• Foley: no specific IPJ – repair done in AZ
• Stanton reply – counter re "effects" felt in forum (~ AZ tire repair hypo)
• Stanton: general IPJ–" lived" in CA before accident/firing & now "domiciled" in CA [alternative grounds]
Foley's Motion to Amend Pleadings
• leave to amend liberally granted (assuming timely)
• prejudicial to permit int'l tort in neg case?
• Stanton not prejudiced: "timely" filed "a week later" (after Answer)
• if compulsory counterlclaim should be filed in this suit
Foley's Alleged Inability to File Interpleader Against Defendants Stanton & Greyhound
Interpleader plaintiff must = innocent stakeholder
• Foley is not innocent = alleged tortfeasor
• No stake/rem in Foley's possession: "Foley is uninsured"
• Greyhound and Stanton rival claimants to identical "rem"
Stanton's Motion to Dismiss Foley's Claim
• $10,000.00 not independently satisfy min amt contro >75k
• Issue: "compulsory" counterclaim?
Foley 's claim arise out of subject matter opposing party Stanton's claim?
• FRCP: 13a = form of supplemental SMJ over such claims
Caselaw: termination counter@ "logically related" Stanton's 3P@?
• Stanton: wrongful termination counter (AZ) too remote fm collision TP@ (CA)
• Foley: cts liberal – "but for" accident, Foley would not have been terminated

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Student Answer Civ Pro I Final Exam ..............................................................................Fall 2001
??? is indicated where the original was unclear; these points are highlighted in the original;
formatting as per original -- F.Y.

Paul-Passenger (P) v. Greyhound Bus (GB) Co., Dan (D) Stanton
Motion to Dismiss for failure to state a claim upon which relief may be granted 12 (b)(6)

Should GB and D's Motion to Dismiss under Rule 12 (b)(6) be dismissed? Rule 12 (b)(6) requires pleadings to state a claim upon which relief can be granted. Although Federal pleadings do not possess the same requirements as state pleadings of stating a prima facie case, and in fact only require a "short and plain statement" under Dioguardi Federal pleadings require that a defendant know what the cause of action and issues in the situation are. P's charging allegation only states the he was a passenger on the bus, that he entered the bus in Arizona, and that it had been prepared at a bus facility owned by D. There is no mention as to the cause of the accident that P alleges, and D's or GB's putative role. P may answer by saying that it is clear that D's involvement is stated as providing the repair to the bus, and soon thereafter the bus was involved in a collision, making it apparent that the repair work quality was involved in the origin of the accident. From Dioguardi, it must be almost impossible to discern a cause of action from the pleadings for the court to allow a Rule 12 (b)(6) motion and dismiss the case. It is debatable whether P's pleading rises (or lowers) to this standard. It is probable that because of the courts's general reluctance to grant 12 (b)(6) motions, and, because it possible, albeit difficult, to determine the cause of action in the pleadings, the court will deny the motion to dismiss for failure to state a claim upon which relief may be granted.

P. v. GB, Co., D
Motion to Dismiss for Failure to Join a Necessary Party under Rule 19

Should the Court grant GB and D's Motion to Dismiss for Failure to Join Necessary Party under Rule 19 [12 (b)(6)]? P's pleadings state that the "bus was in an accident with a truck in San Francisco displaying California license plate number TT45789, when owner-driver fled the scene of the accident." P's pleadings thus name a party withing the charging allegation that is not named as a defendant in the suit. The Truck driver's (T)actions also support that he may be essential in determining who was the cause of the accident since the driver fled the scene of the accident. A necessary party is one that is necessary in the suit such that complete adjudication of the mater cannot be done without this party. Since the truck driver was involved in the accident, and since his action of fleeing the accident suggests that he may have in fact caused the accident, he most likely is a necessary party in the suit. However, a necessary party will be join if it is feasible to join he/she in the suit. It may not be feasible to join Truck driver in the suit because he cannot be joined (because he fled the scene) but also because joining him may destroy diversity. If the T was domiciled in California, the citizenship requirement for diversity will be joined since P and T are domiciled in California. Facts suggest that T may have been domiciled in California with license plates from California. If it is not feasible to join T as a defendant in the suit, is T not indispensable such that the suit can go forward in equity on good conscience without him? Courts can shape the relief that no due process concerns from T's absence occurs, or is minimized. The
shape doctrine states:

1.) Can the Court shape relief such that due process concerns to T is ???
2.) Will there be adequate relief to P if T is not joined;
3.) Will T be prejudiced if absent in the suit and
4.) Can the court go forward in equity or good conscience without joining T? P will probably have adequate relief if T is absent. Finding liability with GB or D will provide relief. P is also free to file suit against T once the suit is over (or concurrently). T will not be prejudiced if absent in the suit.

His position will not be compromised by judgements rendered in the suit, and he will not be found liable in absence. The court should be able to shape relief such that judgements are only found against GB and D, which are not binding on T, and therefore go forward in GB and D, which are not binding on T, and therefore go forward in equity or good conscience. Since T is not indispensable, the motion to dismiss for failure to join a party under Rule 19 should not be granted.

D v. Axle Foley CF
Motion to Dismiss for lack of SMJ (Rule 12 (B)(6)(1)

should F's motion to dismiss for lack of SMJ be granted by the courts? SMJ is the power of the court to hear the suit. The Federal court can only hear a suit if it is based on a Federal Question or Diversity Jurisdiction. There is no Federal Jurisdiction in this suit. Diversity Jurisdiction has both a citizenship requirement, whereby no plaintiff, no defendants may reside in the same state, and a matter in controversy minimum of > $75,000.

Stanton (D) is domiciled in Arizona. F is working in aa at the time of filing, but his residence was in California. Residence is not equated with domicile. Domicile requires an intent to remain in the state indefinitely as well as presence in the sate. Domicile is determined at the time of filing and is dispositive of the issue. The facts suggest that at the time of filing F had presence in California since he was employed in that state. If F's domicile is in California at the time of filing, then citizenship requirement is met since D is domiciled in Arizona, and F in California. However, if F's intent was to remain in Arizona then Diversity is destroyed because he had intent and presence to be domiciled in Arizona.

Diversity also requires a matter of ??? over $75,000. The matter of ??? is not mentioned in the pleadings. If the matter of ??? was stated as over $75,000, it is presumed in good faith that the plaintiff can meet that amount, unless F can show with legal certainty that it cannot e met. The damages here include property damage to the bus, as well as physical injuries to the passengers on the bus for whom they may be liable for. [sic]

If the diversity ??? is met between F and D, the Citizenship requirement may also not be met because Foley, who is from California, is from the same state as P, thus having a ??? and ??? from the same state, as suggested in Owen Equipment Co. However the court in Owen exercised supplemental jurisdiction to hear the case. For Supplemental Jurisdiction to be exercised, the original complaint and the third party complaint must have a: 1.) common nucleus of operative fact; and 2.) expect to be tried together because of a logical relationship (same facts, etc.).

Assuming that the original complaint by P alleges that the bus repair was negligently made, the original complaint and the third party complaint would be the same and would relate to the common question of who caused the accident. F could argue that the original complaint and third party complaint domiciled not have a common nucleus because the maintenance her performed on the bus was not related to the accident. It will be difficult for Foley to show such a lack of connection between the two complaints so that no common nucleus of operative fact can be shown. In the interest of judicial economy, one would expect to try both segments of the case together. Thus, because Supplemental Jurisdiction can be exercised here, the lack of SMJ and the motion to dismiss will not be granted.

D v. F
Should the court grant F's motion to dismiss for lack of IPJ?

In Personam Jurisdiction (IPJ) is the power of the court to hail the defendant in the forum based on the nature and quality of ties defendant has in the forum. The test for showing IPJ jurisdiction is found in International Shoe and its progeny ??? and revolves around the showing ??? of Minimum Contacts. Minimum contacts is established such that it does not offend traditional notions of fair play or substantial justice. F was working in Arizona at the time of the incident. The bus that he was working on originated in Arizona, however the forum state is California. Does F have minimum contacts with the forum state of California? Since F worked for a company that deals with Greyhound Buses, F should have anticipated that the buses that he works on would go to California. It is reasonable to assume that a reasonable would anticipate, that a bus that they would work on whose company specializes in long-distance treks, would wind up in another state. It is even more reasonable for a person to anticipate that the bus would travel to a neighboring state, such as California. Thus, it can be said that F may reasonable anticipate that his work would travel to a neighboring forum such as California, where the cause of action arose. Did F purposefully avail himself within the forum? F knowingly worked on buses that did travel long distances, so it is likely, again with the same arguments ???, that F also purposefully availed himself in the forum. F may argue that he did not have any contacts with the forum because he was only a repairman who worked on buses that came in. He was given a work order, and only did as his employer, D, instructed him to. However, the buses were probably spray-painted with the name "Greyhound" in very large letters on the side of the bus, and Greyhound is a well known household name in the U.S. it will probably be different for F to assert such a defense. Thus IPJ could probably be established on the basis of minimum contacts (special jurisdiction).
General Jurisdiction may also be found if, at the time of filing, Foley lived in the ??? [word obscured by check mark] state of California as discussed previously. If F lived in the forum state, General Jurisdiction could be asserted over him, and the motion to dismiss for lack of IPJ would be dismissed.

F. v. D answer to F's counterclaim
Should D's opposition to amendment ???, once the dismissal of F's counterclaim be granted? Amendments to pleadings be freely given by the Federal copurts iffiled in a timely manner. There is no indication that there was a delay in filing of their amendment to his counterclaim. However, F's counterclaim does expand the scope of the litigation and includes a claim that may not be related to the original clause. Depending upon the types of counterclaim, an independent basis for jurisdiction might be necessary for the court to hear it.

There are two types of counterclaims: 1) Compulsory counterclaim; and 2) Permissive Counterclaim. A compulsory counterclaim is one that arises out of the same subject matter. A compulsory counterclaim must be filed ??? the pending ??? of the suit, otherwise it will be lost as an action in the future. A compulsory counterclaim, if not a FQ or meets the requirements of a diversity case, can be heard by the Federal Court through exercise of supplemental jurisidiction. A permissive counterclaim is not related tot he original claim (in htis case, the third party claim.) It may be asserted if the defendant MAY BE liable, [sic] however, it requires an independent basis for jurisdiction in the federal court if it is to be heard by the court.

The original (3rd party) claim states that "F did not adhere to proper maintenance procedrues when he repaired the Greyhound bus." This is a negligence claim and is the basis for showing liability for the accident in question. F's amended claim states that he was wrongfully terminated. F would state he was wrongfully terminated because of the failure to adhere to proper procedure, and therefore the counter claim "Arises out" of the same subject matter as the original claim. D will however state that these are two different questions begging two different sets of facts, as well as different witnesses and bases of law. If a jury were to hear the two cases side by side, the issues would be so different as to possibly border on confusing. Therefore, F's counterclaim is probably not a compulsory counterclaim.

It may be a permissive counterclaim, because D may be liable for the wrongful termination, and F may file a suit at a later time if the courts domiciled not hear the case. As stated, the courts do not exercise supplemental jurisdiction to hear a permissive counterclaim, and a permissive counterclaim must have an independent basis for jurisdiction to be heard by the courts.
Does it prejudice F to not hear the case becasue he will be severely prejudiced for various reasons, including F's inability to file an Interpleader action against defendants Stanton and Greyhound? An interpleader action is a Quasi-In-Rem action that a ???holder, who has no wrongdoing or intent, deposits a Rem into court for rival claimants to vie for. F does not have clean hands and does have an intent in the disposition of the case. Moreover, the case can still be tried at a separate trial. He therefore will not be prejudiced if the motion to amend pleadings is ???.

http://www.tjsl.edu/slomansonb/Images/bluebar.jpg

Civil Procedure I Examination, Prof's Issue Outline, sample student answer--Fall 2000:

CIVIL PROCEDURE ONE ...........................................................................PROFESSOR SLOMANSON
FINAL EXAMINATION
..............................................................................FALL 2000 EXAM # _____
.........................................................................Instructions
This is a closed book examination. There are no multiple choice questions. It consists of the following narrative
facts and documents. You may rely on both the narrative and pleaded facts when formulating your analysis.
You should identify all reasonable arguments which either side might employ to resolve the issues presented.
I recommend that you use a series of mini-IRACs, as you would with a traditional essay examination. You
have three hours to complete this exam.

..............................................................Original Facts & Documents
Al is domiciled in Alabama. He drives his new car to Florida for a brief vacation. Al's car is demolished when
hit by Fred's rental car in Florida, where Fred is domiciled. Fred had a passenger in his car, named Fran, who
is also domiciled in Florida. Al returns to Alabama after being hospitalized in Florida for a day. He did not miss
any work days at his place of employment. Al's lawyer sues Fred and Fran in an Alabama federal court, as
follows:

Al D. Plaintiff ..................... )
......v. ..................................)
Fred and Fran De Fendants
.)

......UNITED STATES DISTRICT COURT
..............Central District of Alabama
.....Civil Action: File Number 654321-AMB
...COMPLAINT FOR MONEY DAMAGES

.....1. Plaintiff is domiciled in the State of Alabama. The defendants in this case, Fred and Fran, are domiciled in the State of Florida.
.....2. On November 1, 1999, defendants rented a car from Rentco, Inc. They were operating their rented motor vehicle on a public highway in the State of Florida.
.....3. Wherefore, plaintiff demands a money judgment against the defendants for special damages, as well as pain and suffering in the combined amount of $80,000.00.
..............................................................................................Signed: Jack McDonald State Bar # 61348
.........................................................................................................Attorney for Plaintiff

Fred and Fran's lawyer files an Answer to Al's Complaint. It denies their liability and contains affirmative defenses
–which are the bases for a subsequent Motion to Dismiss Al's Complaint:

Al D. Plaintiff ..................... )
......v. ..................................)
Fred and Fran De Fendants
.)

......UNITED STATES DISTRICT COURT
..............Central District of Alabama
.....Civil Action: File Number 654321-AMB
......MOTION TO DISMISS COMPLAINT

.....Defendants Fred and Fran hereby move the court to dismiss Al's Complaint on the following grounds: lack of subject matter and in personam jurisdiction, improper venue, failure to state a claim and failure to join a party.
............................................................................................................Signed: Jill Hill State Bar # 77755
.......................................................................................................................Attorney for Defendant

.....Question #1: How should the court rule on the Fred-Fran Motion to Dismiss?
.....Question #2: Did Fred and Fran waive their right to bring this motion?

.......................................................................Page 1 of 2
-------------------------------------------------------------------------------------------------------------------------------------

.............................New Facts (do not refer to these facts to analyze the prior motion)
Fred and Fran decide to sue Rentco in the same lawsuit which Al has filed against them. They allege that
Rentco failed to properly maintain the rental car's brakes–and that Rentco is, or may be, responsible for
the accident wherein their car collided with Al's car.

Rentco is a Georgia corporation. It rents cars in the tri-state area which includes Alabama, Georgia, and
Florida. Rentco's business has been equally divided among those three states for a number of years. In
1999, however, when the above-described accident occurred, forty percent of all Rentco's transactions
occurred in Alabama. The remaining sixty percent of its rentals were equally divided among its other two
states (Georgia and Florida).

Rentco responds with a motion to dismiss the Fred-Fran pleading. Rentco thus claims that the court has no
subject matter jurisdiction to hear Fred and Fran's claim against Rentco.
.....Question #3: How should the court rule on Rentco's motion attacking the Fred-Fran pleading? (Do not
discuss amount of damages.)
------------------------------------------------------------------------------------------------
On December 1, 2000, and long before trial, Al requests the judge's permission to amend Al's complaint to
add a claim against Frank. He is a Florida resident, who had no prior knowledge of this law suit. If the court
allows this amendment, Al will therein claim that Frank's car was the vehicle which, according to Fred and
Fran's depositions, swerved into their lane just before their car hit Al's car. The applicable one-year statute
of limitations has expired on all claims arising out of Al's complaint, which was filed on May 1, 2000.
.....Question #4: Should the judge grant Al's requested amendment?
------------------------------------------------------------------------------------------------
Assume that, for the purpose of the events which follow, the court did not grant any of the previous dismissal
motions. Fran was distracting Fred at the time of their car's collision with Al. Fred could have–but chose not
to–sue Fran in Al's lawsuit. Al obtains a judgment against Fred and Fran. Fred subsequently sues Fran in a
different (second) federal court action in Florida. Fred therein hopes to obtain a judgment which would require
Fran to pay the entire judgment obtained by Al against Fred and Fran. (Disregard any federal subject matter
jurisdiction limitations.)

A Florida state rule characterizes potential cross-claims as compulsory, when they arise out of the same
transaction or occurrence as set forth in the original complaint. If Florida law governed, Fred thus had to sue
Fran in Al's earlier action, rather than filing a new lawsuit against Fran. The Florida state rule is designed to
avoid multiple suits involving the same transaction or occurrence. The Federal Rules of Civil Procedure allow
cross-claims like Fred's. The federal cross-claim rule is silent regarding whether cross-claims are either
compulsory or permissive, thus minimizing the proliferation of issues.
.....Question #5: Is Fred barred from suing Fran in this second federal lawsuit?

.......................................................................Page 2 of 2
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............................. .........................Prof's Issue Outline
Note--Common misunderstanding: "I got all the issues...why didn't I get (more) credit?"
Response--The better paper incorporated more facts/subissues into the analysis.
Suggestion--Compare your answer with the sample student answer/prof's issue outline.
...................Otherwise, an office visit will waste y/our time and be less productive.
QUESTION #1: HOW SHOULD THE COURT RULE ON THE FRED-FRAN MOTION TO DISMISS?
Subject Matter Jurisdiction
• Diversity domicile requirement met (per Orig Facts & Complaint: Ala v. Fla)
• >75k minimum amount in controversy
• Legal certainty application
• Hospitalized "a" day
• Not miss work ("brief" vacation)
• New car demolished
• Aggregation of damage claims not permitted (P v. two Ds)
• "Combined amount of 80k" (several, not joint liability)

In Personam Jurisdiction
• Assuming applicable long-arm satisfied (nonresident Ds)
• MC, PA, RA
Accid = Fla & Forum = Ala (no specific IPJ)
• F & F no apparent ties with Ala forum (no general IPJ)
• Ds' only contact with Alabama = Fla accident w. Ala resident

Improper Venue
• Reside & arose statutory options
• Ds do not reside in Ala forum
• No portion of claim arose in Ala forum

Failure to State Claim
• Federal "notice pleading" standard (short & plain statement)
• ¶ 2 "operating motor vehicle" not actionable
• Are Ds sufficiently advised re WWWWH?
• Defendant Fran not even driving
• Special damages not pled with particularity (here or under SMJ discussion)

Failure to Join Party
• Equity & good conscience test (proceed w/o absentee)
• Who's needed for complete adjudication?
• Ds' rental company may be part overall liability controversy
• Joint tortfeasors normally not indispensable

QUESTION #2: DID FRED AND FRAN WAIVE THEIR RIGHT TO BRING THIS MOTION?
• Answer = general appearance / generally waives subsequent Rule 12 attack
• Certain grounds never waived (eg, SMJ)
• Federal pleader's option to answer with aff defenses (bases for later R12 motion)
• No waiver b/c aff def included in 1st appearance (pre-motion Answer)

QUESTION #3: HOW SHOULD THE COURT RULE ON RENTCO'S MOTION
ATTACKING THE FRED-FRAN PLEADING?
Orig Ds' TPC impleads TPD Rentco
• No complete diversity if Rentco PPB = Ala
• 40% Rentco bus in Ala (30-30 other states)
• Date of filing controls (1999)
• Supplemental Owen Equipment SMJ
• Common nucleus/expect try both same suit

QUESTION #4: SHOULD THE JUDGE GRANT AL'S REQUESTED AMENDMENT?
• Amendments freely granted as justice requires
• "long before trial" suggests delay not a factor
• Relation back doctrine
• Same auto accident = "swerve" basis for Frank's alleged liability for Al's damages
• "applicable SOL expired all claims"
• Frank no reason know he'd be a D: "no prior knowledge suit" / not case of "mistaken identify"
• Four-month period for adding Ds also expired (May 1st filing / Dec. 1st amendment)

QUESTION #5: IS FRED BARRED FROM SUING FRAN IN THIS SECOND FEDERAL LAWSUIT?
• "On point" &
• "OD/balancing" principles
• Procedural diff b/t state compulsory cross-claim & FRCP silence
"On point"?
• Federal rule–permits co-defendant to file cross-claim
.. –but does not address impact of Fred's not asserting cross-claim in 1s suit
"OD/balancing"
• OD? Yes, b/c Fred has waived cross-claim if state procedure governs
• Balance: respective systemic procedural difference
• State int arguably stronger b/c Fla = compulsory, while FRCP = silent
• Fed int (preserving option) avoids unnecessary proliferation
• Florida's int clear, while ged int speculative
------------------------------------------------------------------------------------------------------------------------------------

..........................................................Sample Student Answer: Fall 2000

Question 1: Motion to Dismiss.

12(b)1(1): Lack of Subject Matter Jurisdiction.

Should the court grant Fred and Fran's matter to dismiss for lack of subject matter jurisdiction? FRCP 8(a)
requires the plaintiff to provide a short and plain statement of the grounds upon which jurisdiction is based. In #1
of Al's complaint a short and plain statement indicates the domicile of the parties, but there is no allegation of
jurisdiction.

There are two ways to achieve federal subject matter jurisdiction: federal question (28 USC §1331 and diversity
jurisdiction (§1332). By mentioning the domicile of the parties, Al appears to be alleging diversity jurisdiction.
There is also no indication of a federal questions, so it will be assumed that Al bases his claim upon §1332: diversity jurisdiction.

There are two requirements to establish diversity jurisdiction: complete diversity and an amount in controversy that
exceeds $75,000. Complete diversity means that no plaintiff is domiciled in the same state as any defendant. Here,
Al is domiciled in Alabama and both Fred and Fran are domiciled in Florida. Therefore, the complete diversity
requirement has been met.

A court will not dismiss a diversity claim for failure to meet the minimum amount unless it can be shown to a legal
certainty that damages in excess of $75,000 cannot be reached. See AFA Tours, Inc. v. Whitchurch and St. Paul
Mercury
.
Al alleges damages of $80,000. Al alleges "special damages," but fails to plead these with specificity, as
required under FRCP 9(g). Al's apparent damages are the demolition of his new car, one day's worth of hospital
bills, and pain and suffering. Seeing as Al's car was new and that he had to be hospitalized for a day, it is very
unlikely the court will recognize a legal certainty that damages in excess of $75,000 could not be reached.

There are problems with Al's complaint (failing to allege jurisdiction and failing to specifically please special damages),
but these problems are in sufficient to warrant dismissal.

12(b)2(2): Lack of In Personam Jurisdiction

Should the court grant Fred and Fran's motion to dismiss for lack of in personam jurisdiction? Because Al is suing
Florida residents in an Alabama court, in personam jurisdiction is at question.

A federal court can achieve in personam jurisdiction over non-residents if: 1) a long arm statute applies, and 2) exercise
of jurisdiction would not violate due process. In this case, there is no long arm statute mentioned. Some states (such as California) have long arm statutes that reach to the extent of Constitutionality. For that purpose of argument (and since
no long arm statute is mentioned) it will be assumed that Alabama has a California-type long arm statute.

Would exercise of in personam jurisdiction over Fred and Fran violate due process? The federal courts have developed
three guideline tests to assess this issue: minimum contacts (see
International Shoe Co. v. Washington), purposeful
availment ("purposeful availment" asks whether the party has purposefully availed himself of the benefits offered by the
state) (see
Hanson v. Denkla), and reasonable anticipation ("reasonable anticipation" asks whether the party could
reasonably anticipate being hailed to court in that state) (see
World Wide Volkswagon v. Woodson). In this case, no
facts indicate Fred and Fran had any contacts with Alabama. There is also not any evidence of purposeful availment nor reasonable anticipation. Without more facts to satisfy these guidelines tests, it appears that Fred and Fran's due process
rights would be violated by an Alabama court's exercise of in personam jurisdiction.

Assuming that Fred and Fran did not waive their right to the 12(b)(2) motion, this motion should be granted.

12(b)(3): Improper Venue

Is the Central District of Alabama a proper venue for this action? §1391 permits venue where 1) any defendant
resides, if all defendants reside in the same state, or 2) where a substantial part of the claim arose. Both defendants
reside in Florida, so Al could have brought suit there. Neither of the defendants are domiciled in Alabama and it is
likely that neither resides there either. It is possible that Fred or Fran resides in Alabama while being domiciled in
Florida. Charging domicile requires a change of residence and intent to remain.
Mas v. Perry, so either defendant
could potentially be temporarily residing in Alabama. This is unlikely, though.

Did a substantial part of the claim arise in the central district of Alabama. It appears from the facts that the entire
claim arose in Florida (where the accident occurred). It is possible that Fred or Fran rented the car in Alabama, but
the court may not see this as a substantial part of the claim.

Assuming that Fred and Fran did not waive their right to bring this 12(b)(3) motion, the motion should be granted.

12(b)(6): Failure to State a Claim

Has Al failed to state a claim for which relief can be granted? FRCP 8(a) requires the plaintiff to provide a short
and plain statement of the claim that is being advanced. The purpose of this statement is to put the defendant on
notice as to why he or she is being sued see Garcia v. Hilton Hotels. All that Al has alleged is that Fred and Fran
rented a car and drove this car on a public highway in Florida. This behavior is completely legal. Al has not alleged
that an accident occurred or that Fred or Fran was somehow at fault. The pleading requirements are more relaxed in
federal court than in state courts, but it is doubtful that they are this relaxed in Garcia, the plaintiff (who survived a
12(b)(6) motion), failed to allege one element of the tort claimed. Here there are no elements of a tort or any other
claim. The one thing Al has going for him is that Fred and Fran will probably figure out why the are being sued because
they will remember leaving the accident. The trouble is they cannot tell from the complaint what the specific allegations
are. Therefore, they will have difficulty forming their defense.

Federal courts rarely grant a 12(b)(6) motion because the requirement is only a short and plain statements. Al's
statement is so lacking though, that the motion should be granted.

12(b)(7): Failure to Join a Party

Did Al fail to join a party that should be present for the full adjudication of this suit? FRCP 19 says that a party
should be joined if 1) the case cannot be fully tried without this party, or 2) that party has an interest in the case
that would be unfairly impacted if the party is not present. Fred and Fran have probably raised this motion because
Al mentions
Rentco, Inc. in the complaint. This suggests that Rentco belongs in the suit. Becasue Fred and Fran
were in a rental car at the time of the accident, Rentco may properly beong. Then again, if Al recovers damages
from Fred and Fran it is difficult to see how Rentco would be affected. The proper way for Rentco to come into
this suit might be
as a third-party defendant (especially if suing Rentco would destroy diversity).

Al should not have mentioned Rentco if they are not a necessary party. If Al alleges that Rentco was at fault
somehow, then the 12(b)(7) motion should be granted. If Al is only seeking recovery from Fred or Fran and makes
no allegations of wrong doing against Rentco, then the motion should be denied. If Rentco might be liable to Fred or
Fran for part of judgement Al obtains them, then Rentco does have an interest and maybe should be joined.

Question 2

Did Fred and Fran waive their rights to the above motions. By answering the complaint, Fred and Fran entered a
general appearance. The proper time to bring motions to dismiss is either at a pre-answer special appearance or
at the same time as the answer. Objections to subject matter jurisdiction, failure to state a claim, and failure to join
a party are never waived. On the other hand, Fred and Fran, by entering a general appearance first, waived their
right to complain about in personam jurisdiction and venue. If these objections were present in the answer as
affirmative defense they may still be [can't read - pen marked through.]

Question 3

Should the court grant Rentco's motion to dismiss Fred and Fran's claim for lack of subject matter jurisdiction?
Fred and Fran apparently intend to make Rentco a 3rd party defendant under FRCP 14. Rule 14 allows a
defendant to bring in another party if that other party is or may be liable to the defendant for some of the
defendant's liability to the original plaintiff. See
Jeub v. B/G Foods, Inc.. §1367(b), which has not been
consistently interpreted by the courts, suggests that supplemental jurisdiction should not exist when the presence
of a party joined by FRCP 14, 19, 20, or 24 would defeat the diversity of a §1332 claim. Either way, the central
issue is the causation of the accident. It would appear simplest to try these claims together.

Does Rentco's presence in the suit defeat the diversity jurisdiction upon which the original claim is based? Rento is incorporated in Georgia, which poses no problem. On the other hand, Rentco does more business in Alabama than
in any other state. This probably indicates that Alabama is Rentco's principle place of business (arguably, it could
still be Georgia if that is Rentco's nerve center). Because Al is also domiciled in Alabama, there could be a problem.
In
Owen Equipment and Erection Co. v. Kroger the court dealt with a similar situation but did not see any problem
with diversity until the plaintiff amended his complaint to directly sue the non-diverse third party. This suggests that
there is no problem with subject matter jurisdiction so long as Al does not amend his complaint to directly sue Rentco.

Does supplemental jurisdiction cover Fred and Fran's complaint against Rentco? §1367 provides supplemental
jurisdiction over additional claims if 1) there is a common nuclear at operative fact (see
United Mine Workers v.
Gibbs
) such that 2) one would expect the claims to be tried together. Both claims revolve around the accident that
occurred, so one could expect these claims to be tried together. On the other hand, Al's claim alleges that Fred and
Fran were at fault in causing an accident and the claim against Rentco has to do with failure to properly maintain a
vehicle. Overall, it appears that the requirements for supplemental jurisdiction have been met.

Additionally, Fred and Fran's claim against Rentco may have an independent basis for jurisdiction. If Fred and Fran
were to use Rentco separately, jurisdiction could be based upon §1332. Fred and Fran are domiciled in Florida and
Rentco appears to be (see above) domiciled in Georgia and Alabama. The minimum amount element could be at
questions, though.

Because Fred and Fran are bringing Rentco into the case under FRCP 14 and Al is not directly suing Rentco,
subject matter jurisdiction is probably not a problem. Rentco's motion should be denied.

Question 4

Should Al be allowed to amend his complaint to sue Frank? Since the statute of limitations has already expired,
the only way Al could sue Fran is through relation back. FRCP 15(c) permits a plaintiff, through amendment, to
sue a previously unnamed party after the expiration of the statute of limitations if: 1) the claim arises out of the same
transaction or occurrence as the original claim, 2) the party is served within a 120 day period, provided by FRCP
4(m), after the complaint was filed, 3) the party knew about the claim so that they would not be prejudiced in trying
to prepare a defense, and 4) the party should have known that but for a mistake of identity they would have been
sued in the original complaint. Because the underlying issue is who was at fault for the accident, the first element is
satisfied. All of the other elements are at question, though.

Was Frank served within an appropriate time? Approximately 210 days passed from when the complaint was filed
to when Al requested to bring Frank in. Rule 4(m) requires that service be done within 120 days of filing unless
good cause can be shown. Seeing that Al got Frank's name from Fred and Fran's depositions, the reasonableness
of this delay would depend upon when these depositions took place. If Al did not learn about Frank until the end of November, then Al may have good cause for the delay. Otherwise, Al's action is not timely enough.

Did Frank know about the claim? The facts plainly state that Frank "had no prior knowledge of this lawsuit." On
the other hand, Al has requested the amendment "long before trial," so Frank may still have time to prepare an
adequate defense. This element has not been met.

Should Frank have known that, but for a mistake of identity, he would have been sued in the original claim. The
facts mention nothing about mistake of identity. In fact, Al only named two defendants – whose identities were
known – in the original complaint. Thus, this element has not been met either.

Because Frank did not know of the suit, there is no issue of mistaken identity, and the statute of limitations has
expired; the judge should not grant Al's requested amendment.

Question 5

Is Fred barred from suing Fran in a second federal law suit? The issue is whether state procedural law or federal
procedural law governs. If Florida procedural law governs, then Fred's suit is barred. If federal procedural law
governs, then Fred's suit is not barred.

Which procedural law (federal or Florida) governs this issue? The first step in such a question is to determine
whether a FRCP is "on point." If no FRCP is on point and the difference would be outcome determinative, then
the competing federal and state interests must be balanced (see
Byrd v. Blue Ridge Rural Electric Cooperative).
If an FRCP is "on point," then that rule governs.
Hanna v. Plumer. In this case there is no such FRCP because
there is only silence regarding whether cross-claims are compulsory or permissive.

Would the choice between federal procedural law and Florida procedural law be outcome determinative? If federal
law governs, the case cannot go forward. If Florida law governs, the case cannot go forward. Therefore, the
difference is outcome determinative.

Which procedural law is backed by the strongest interests? Generally this is determined by seeing which law
requires more of the party. Federal law is basically silent about cross-claims being either compulsory or permissive.
Florida law, on the other hand, makes it clear that cross-claims are compulsory when they arise out of the same
transaction or occurrence. The purpose of this rule is avoid multiple lawsuits involving the same transaction or
occurrence. There is no purpose mentioned for the federal law. Thus, it appears that the Florida interests are
stronger. Florida procedural law should govern, then, and Fred's claim should be barred.

There is one additional point worth mentioning, though. The original complaint was filed in Alabama, so would not
Alabama law be questioned rather than Florida law. If Alabama law did not make cross-claims compulsory, then
it hardly seems fair that Florida could call the cross-claim compulsory after the feet. If Alabama law also makes
cross-claims compulsory then there would be no difference.

Prof's Note: Please don't make the mistake of thinking that this was an "A" paper, merely because it
cites cases.

http://www.tjsl.edu/slomansonb/Images/bluebar.jpg
Civil Procedure I Examination, Prof's Issue Outline, sample student answer: Fall 1999

CIVIL PROCEDURE I............................................................................................PROFESSOR SLOMANSON
FINAL EXAMINATION
......................................................................................FALL 1999

Essay Question 1 of 2: Bill's mother dies. He thus flies from his domicile in San Diego, California to the funeral in Pittsburgh, Pennsylvania. He rents a car at the airport and has an automobile accident while driving to a relative's house in Pittsburgh. After the funeral, Bill returns to his desk job in San Diego.

Bill retains a Pittsburgh lawyer who sues Debbie, the Pittsburgh resident who was driving an unusual sports car at the time of the accident. Lawyer files Bill's suit in a Pennsylvania state court, based on Debbie's alleged negligence. In addition to property damages for the car in which he was driving, Bill's complaint seeks compensation for a temporary injury to his arm which bothered him only on the day of the accident.

Bill's complaint further alleges that Debbie was operating her vehicle in violation of the Federal Highway Safety Act (FHSA). That Act prohibits the operation of cars–designed exclusively for racing in competitive events–on any public highway in the United States. Debbie was driving a prohibited racing car to the airport, when she collided with Bill.

Debbie's lawyer answers the complaint and timely removes this case to the federal court in Pittsburgh.

Does the federal court have subject matter jurisdiction to hear this case?
-------------------------------------------------------------------------------------------------------------------
CIVIL PROCEDURE I
.......................................................................................PROFESSOR SLOMANSON
FINAL EXAMINATION
...................................................................................FALL 1999
ISSUE OUTLINE (Q1)

REMOVAL SMJ:
• P must have option to sue in fed (concurrent SMJ)
• limitation: resident cannot remove a Diversity case
• limit inapplicable when removing FQ case

DIVERSITY SMJ:
• domicile = CA "domicile" v. Pgh "resident"
• "residence" = domicile?
• "on way to airport" relevant?
amount = must be over 75k (statute)
• & legal certainty will not meet minimum amount (caselaw)
• car = rental (owner = real party in interest)
• arm = temporary
• bothered Bill "only on day of accident"
• returns to desk job

FED QUEST SMJ:
• case arising under fed "law"
• does D's conduct fit w/i statute alleged?
Bill-> • D driving "prohibited" race car, so Act apparently applicable
Deb->• no link b/t type of car & liability for this accident

SUPPLEMENTAL SMJ:
• Gibbs common nucleus operative fact/expect try both together
• same occurrence (accident) = basis for each segment of claim
Div claim not independently removable:
• amt contro appears < 75k &
resid D cannot remove Diversity case
• FHSA applies–FQ portion of case removable
• FQ = substantial? Does P's diversity claim predominate over FQ?
----------------------------------------------------------------------------------------------------------------------
.................................................................Sample Student Answer: Fall '99
I. SMJ
Subject matter jurisdiction is the power of the court to hear and determine a particular controversy. A court exercises SMJ when there is a Federal Question or Diversity between parties.

II. Federal Question
A court exercised Federal Question jurisdiction when the cause of action arises from a Federal Statute, Treatise, Constitution, or construction matter. Here, Bill alleges that Debbie operated her vehicle in violation of the Federal Highway Safety Act. The act prohibits the operation of cars designed exclusively for racing in competitive events. Because Debbie was driving a prohibited racing car when she collided with Bill, Debbie's actions appear to fall under the Federal Law.

III. Diversity
A court exercises Diversity jurisdiction when no plaintiff and defendant are domiciled in the same state and the amount in controversy exceeds $75K. Domicile is presence in a state and intent to remain.

Bill is domiciled in California. If residence is equal to domicile, then the domicile requirement is met.

The amount in controversy must exceed $75K. It must appear to a legal certainty that this amount will not be met to justify dismissal. Bill was hit by Debbie while he was in a rental car. Because the type of car is unknown it is hard to determine the value of damages to the car. However, Bill seeks compensation only for a temporary injury which only bothered him the day of the accident. Id doesn't appear the injuries sustained will come close to the jurisdictional minimum unless the car he was driving was very expensive.

IV. Removal
A defendant may remove a case from state to federal court as long as there is concurrent subject matter jurisdiction. The Federal courts have jurisdiction over the FHSA claim because it arises under a Federal Law–the Federal Highway Safety Act. State courts are presumed to have jurisdiction over matter within their state, therefore, concurrent jurisdiction exists.

A non-resident defendant may only be removed from state to Federal court if the case is not based on diversity. Because diversity SMJ is being alleged fro the new claim, and because a Federal Question has been alleged, the defendant can properly remove the Federal Question case from state to Federal Court.

However, the cause of action for negligence will not be removable because this cause of action would be based on diversity SMJ, unless the court can gain supplemental SMJ over the negligence claim.

V. Supplemental Jurisdiction
The power of the court to preside over matters for which it otherwise would not have SMJ. A court may exercise supplemental jurisdiction over claims when there is a common nucleus of operative fact. Suit for negligence based on the auto accident, a state claim, and Debbie's operation of her vehicle against the FHSA. Because both claims stem from the same accident, it would be judicially economic to try both claims together, as the same witnesses and testimony will be needed for both claims.

Therefore, although the court would not otherwise have SMJ over the state negligence claim, it can piggy back on the Federal Question.

Conclusion
The Federal court does have SMJ over both claims. It has original SMJ over the Federal Question claim and supplemental SMJ over the negligence (state) claim.
--------------------------------------------------------------------------------------------------------------------------

CIVIL PROCEDURE I.......................................................................................PROFESSOR SLOMANSON
FINAL EXAMINATION
.................................................................................FALL 1999

Essay Question 2 of 2: Pam and Donna are sisters who are domiciled in New York. Their aunt Audrey is also domiciled in New York. Audrey dies. Her will appoints Central Hanover Trust (CHT), a New York corporation, as the executor of Audrey's estate. Pam and Donna then decide to retire and move to Dade County, Florida. They keep in touch with CHT, who is paid for administering Audrey's estate.

Audrey's will provides CHT with the discretion to make an early distribution of money from the estate, to any beneficiary who can demonstrate financial hardship. A year after the sisters move to Florida, and long before the estate is finalized, Donna files a hardship claim. CHT thus makes an early distribution of money to which Donna would be entitled under the will. Pam sues CHT in the appropriate federal district in Florida, alleging that CHT failed to properly substantiate Donna's claimed hardship. CHT moves to dismiss this claim, on the basis that the court lacks personal jurisdiction over the defendant.

Assume that a Florida statute authorizes a plaintiff to sue in various places, including the county wherein the plaintiff resides. Pam's lawyer thus filed this suit in the federal district containing the county wherein Pam resides. CHT's lawyer timely attacks the complaint, on two additional grounds: Florida's statute may not be applied to this case, because a plaintiff may not lay venue in the federal district where the plaintiff resides (do not argue jurisdiction in this portion of the defendant's attack). CHT also contends that this case cannot proceed without Donna.

How should the court rule on the defendant's motions?
----------------------------------------------------------------------------------------------------------------------

CIVIL PROCEDURE I...........................................................................................PROFESSOR SLOMANSON
FINAL EXAMINATION
.......................................................................................FALL 1999
ISSUE OUTLINE (Q2)

PERSONAL JURISDICTION:
• M.C.P.A.R.A.
Plaintiff -> • CHT paid to administer estate, so deriving econ bene (P.A.)
• early distribution "long before the estate is finalized" = continuous ties
• sisters "keep in touch," so CHT dealing with Florida forum residents
Defendant -> • Pam's unilateral act of moving drew CHT of NY to Florida forum
• CHT could not anticipate suit (R.A.) just b/c distribution to FL resident
• CHT no physical presence/other given ties to FL forum/Distrib fm NY

VENUE/CHOICE OF LAW:
Blackltr • FRCP "on point" = automatic application of FRCP (Hanna)
• If not "on point" = O.D./Balancing (York/Byrd)
Conflict • state "P reside" venue alternative versus fed where "PJ over corp"
Analysis • fed venue statute not a "FRCP on point"
• fed deleted P alternative, so countervailing interest not applying FL's P altern
(Identical to Problem 3 Governing Law Hypo)
State "P resid"-> • one of "several venue alternatives"
• no real conflict if IPJ over D corp = where P resides or
State more specific

MUST DONNA BE A PARTY?:
Feasibility of joinder:
• if infeasible to join, factored approach per FRCP 19
• infeasibility: sister domiciled in same state would destroy diversity (Prov.Trade)
Shape relief factor:
• problem = $ already distributed to Donna
CHT->
• Donna needed for complete adjudication
• CHT should not have to pay twice/face new claim to $ already distributed
Pam->
• Donna not needed–CHT distributed $ which Donna "would be entitled under the will"
• Donna not bound by potential jmt aga CHT for its abuse of discretion under will
----------------------------------------------------------------------------------------------------------------------
..........................................................Sample Student Answer: Fall '99
CHTs First Motion 12b2–No IPJ

Substantive due process under the 5th and 14th Amendments must be analyzed under Shoe and its progeny. In determining if a non-resident may be amendable to suit in a distant forum you must look at two factors: 1) Is there an applicable long-arm that grants the state power to bring in a non-resident defendant, and 2) would it comport with constitutional notions of due process?

Nothing under these facts suggests the existence of a long-arm. States generally need statutory authority to make non-resident defendants amenable to suit. Assuming that there is an applicable long arm: either a 2 step that is statutorily on point or a 1 arm that allows service out to due process limits, then the next issue is due process.

Since the 1945 Shoe decision, courts have required that minimum contacts between the non-resident defendant and forum state be present. A subsequent line of case has added additional elements courts will balance in determining whether bringing the non-resident defendant into the forum would conform with traditional notions of fair play and substantial justice.

The factors that courts look at are:

1. Minimum contacts (Shoe)
2. Purposeful availment (Denckla)
3. Reasonable anticipation (WWVW)

Under a minimum contacts analysis, courts examined the quantity and quality of contacts with the forum state and the connection of the contacts with the cause of action. Here, the facts don't allude to many minimum contacts. The corporation is incorporated in NY. Nothing about offices or branches in Florida. However, it is not a very far stretch to assume that many retired customers live in Florida. Moreover, the fact that Pam and Donna live in Florida and that the case of action is related to the Florida contact (distribution of money to Donna) makes a fairly strong case for at least some minimum contacts.

The courts will also examine whether CHT purposefully availed itself to the forum state's laws, services or other benefits. Not a lot of facts here, but again, it is no great stretch to assume that CHT benefits from the forum state's laws with respect to any customers in Florida (there are at least two). CHT will no doubt argue that the purposeful availment argument is weak in that Pam and Donna moved, on their own volition, to the forum state. Thus, hardly evidencing any purposeful availment on the part of the CHT. A court will have to balance both sides of the argument. However, assuming that CHT was more than just Donna and Pam as customers, a court will likely find that CHT had, at some level, purposefully availed itself to benefits of Florida.

A third factor courts examine is whether CHT could reasonably anticipate being hailed into the distant forum. Since Pam and Donna are customers, and have kept in touch with CHT while in Florida, CHT had at least some notice that Florida may be a forum state. Moreover, assuming existence of many retired customers in Florida, perhaps this argument becomes stronger.

Obviously CHT will argue strongly against the reasonable anticipation factor. The fact that Pam and Donna reside (not clear if they are) in Florida does not make CHT amenable to suit there! This argument carries even greater weight when one considers the fact that the original contact/executorship was executed in NY!

This issue of constitutional fairness and substantial justice is a close call. However, given a totality of the factor, a court would likely conclude that CHT is amenable to suit in Florida. That is, requiring CHT to defend in Florida wold not violate contemporary constitutional notions of due process, fair play and substantial justice under international Shoe and its progeny.

CHTs 12(b3) Motion

Under 28 USC Section 1391, a corporation may be amenable to suit in any venue where in personam jurisdiction is acquired. That is, venue is proper if IPJ can be established over the defendant corporation. (Different if an individual. Under Section 1391, a venue is proper where: 1) all defendants reside (not domicile), and 2) substantial part of cause of action arose.

If CHT lawyer is attacking on grounds that Pam's choice of venue under Florida statute is inconsistent with Federal Procedural Law, then this is an Erie doctrine choice of law issue.

Under Erie, Federal courts will apply the state's substantive law, that is, the forum state's sub-statute law will govern (actually state's conflict of law under Klaxxon).

In issues of procedural law, the first step is to see if there is a FRCP that is on point. That is, one that does not meet any extrapolation to fit circumstance (Hanna). Here, FRCP does not establish any venue requirements.

The next step is to determine if the choice of state/Federal procedural law would be outcome determinative (York). Here the choice is between Section 1391 and Florida statute. Section 1391 would allow venue with respect to a corporation (but not with an individual). Florida statute would also allow venue. Thus, there does not appear to be an outcome determinative type of difference. However, a court might conclude otherwise.

Assuming that the competing procedural laws are outcome determinative that the Federal court will balance the competing state and Federal interests with respect to the procedural laws (Byrd).

Under a Byrd balancing test, the Florida statute would be given some weight since Florida has at least some interest in how venue is applied within the state borders. However, it appears that since Congress has enacted a statute under title 28 of the code (Section 1391), the Federal interest is overwhelming and likely to crush any competing state interest.

While it is not clear whether the 12(b3) motion will succeed, since Section 1391 allows this venue with respect to a corporation (CHT is a NY corporation), it is apparent that if a choice of law problem is balanced by the court (via York, Byrd) the strong Federal interest in the applicable procedural law will prevail.

CHT's 12b7 Motion to Dismiss–Failure to Join Necessary Party

CHT's 12b7 motion will compel the court to examine whether Donna is a necessary party under FRCP 19(a). Under FRCP 19(a) a court will require Pam to join Donna if she is necessary for complete adjudication or if Donna's rights would be prejudiced in her absence.

Donna's presence is probably required to completely adjudicate the claim. She has evidence as to whether her case was actually one of hardship. Moreover, she probably has some interest as a beneficiary of the will, such that she should be present if feasible.

The next step is to determine if Donna's joinder is feasible. The first thing to look at is whether Donna's joinder would destroy diversity (this is a state claim, so I assume that Pam's case is predicated on Section 1332). If Pam is domiciled in Florida (must be if court has SMJ), diversity would be destroyed if Donna's domicile was NY (same as CHT). The facts suggest that Donna was domiciled in NY. That domicile controls unless Donna shows simultaneous presence and intent to move to another state.

Under the current facts, Donna was retired in Florida, thus implying that she was the simultaneous presence and intent to make Florida her domicile. Thus, Donna's joinder under FRCP 19(a) appears feasible. Since Donna's joinder is feasible, a court will not allow the case to go forward until/unless Pam amends her complaint (under FRCP 15) to include Donna.

If a court found that Donna's joinder was not feasible, then the next step would be to determine whether the case could go forward without her presence.

The courts apply the equity and good conscience test to determine if Pam's suit may proceed (in the face of a 12b7 attack) without Donna. Under FRCP 19(b), the court will examine whether:
1) Can relief be shaped so as to adjudicate the matter at least partially? Here, a court could probably determine CHT's liability for failing to properly substantiate Donna's claimed hardship without Donna's presence. The court could look at outside evidence and just adjudicate the matter on the evidence it has in its possession.
2) Will adjudication prejudice Donna? Under the current facts, a court could probably adjudicate the matter without impacting Donna's rights to the will, trust or other liability. The court could adjudicate the matter in such a way to allow Pam to litigate her case without Donna's presence.
3) Would Pam have adequate relief if Donna was deemed indispensable? Pam would likely have adequate relief otherwise, either through a state action or perhaps by suing Donna directly for (but note that none of these factors are , it is a balancing-"minimum contacts"-type of totality test).
4) Equity and Good Conscience: A court could in equity and good conscience allow the case to go forward without Donna, since she likely would not be prejudiced or severely impacted by the outcome. And relief can be shaped in her absence to adjudicate the matter, at least partially.

In conclusion, a court would likely rule that CHT's 12(b2) motion should be dismissed since minimum contacts under Shoe and its progeny may be established.

CHT's 12(b3) motion should be denied since under the Section 1391 general venue statute, the chosen venue is proper with respect to a corporate defendant (so long as IPJ is established).

CHT's 12(b7) motion to dismiss should be granted with leave to amend. That is, if Pam amends the complaint under FRCP (15a) to include Donna, then case may go forward.http://www.tjsl.edu/slomansonb/Images/MARBLEGN.GIF

CIVIL PROCEDURE I ............................................... PROFESSOR SLOMANSON
FINAL
EXAMINATION ............................................ FALL 1998
ESSAY QUESTION #1

Pat and Dan are students at a California law school. After graduation, they both take and pass the California Bar Examination. Dan returns to his home State of Texas, where he decides to become an investment counselor in Dallas. Pat remains in her home State of California. Years later, Pat calls Dan to let him know that she is coming to Texas to visit relatives. She goes to Dallas, meets Dan at his office, and learns about his work.

During dinner, Dan convinces Pat to invest in Deftco, a Texas corporation. Dan tells her that he can almost guarantee that Deftco stock was about to double in value, and that he had convinced some of their former classmates in California to purchase Deftco stock. After Pat returns home, she buys 50,000 shares of Deftco stock at $2.00 per share. The stock becomes worthless, but not before Dan sells all of his shares at a profit. Pat learns that Dan was Deftco's primary shareholder.

Pat files a diversity-based fraud suit against Dan in a California federal court. Dan timely attacks Pat's complaint for lack of personal jurisdiction, and an insufficient amount in controversy. His motion further asserts that this case should be tried in a Texas federal court. How should the court rule on Dan's motion?

PROF'S ISSUE OUTLINE
Personal Jurisdiction:
Minimum contacts, purposeful availment, reasonably anticipate
General or specific jurisdiction? (Sales pitch in TX/purchase in CA)
Pat: law school+license to practice+other shareholder purchases in CA = gen. IPJ
Pat: advice effect in CA, therefore claim arose in CA = specific IPJ
Dan: no general IPJ, b/c his ties with CA are too remote ("years later")
Dan: no specific IPJ, b/c P's unilateral contact

Subject Matter Jurisdiction:
Over 75k & legal certainty
Pat lost entire 100k investment when became worthless
Dan "almost" guarantee not create liability in risky venture

Transfer (venue):
D may transfer only to venue P could initially invoke
P can lay venue where D resides or substantial portion arose
Presumption favors P's choice in CA
D resides in Tx (Hoffman hurdle satisfied)
Where substantial portion arise?
Pat: convenience favors CA b/c other purchasing classmate witnesses in CA
Dan: TX preferable, b/c D, Deftco, any witnesses located TX

BEST STUDENT ANSWER
LACK OF PERSONAL JURISDICTION
In personam jurisdiction is the power of a court to enter a judgment personally binding on the defendant.

There are no facts about a long arm statutes, so jurisdiction must be analyzed to see if it doesn't violate doe process.

Because Dan is a non-resident defendant from Texas, he must have certain minimum contacts with the CA forum to be amendable to IPL in that forum.

The minimum contact test looks to purposeful availment of benefits and protection of CA forum by Dan.

Pat will argue that because Dan has gone to law School and had passed the Bar exam in CA, he had minimum contacts.

However, the cause of action occurred partly in Texas because that is where Dan convinced Pat to purchase DEFTCO stock. If that is the case that the claim is not related to the CA forum, the court would need general jurisdiction over him, requiring substantially more contacts with CA.

However, Pat will claim that the cause of action occurred in CA because that is where she purchased the shares, after she returned home.

Dan will claim he could not reasonably anticipate being holed in CA just because of the unilateral act of Pat coming to Texas and then return to CA. He never sought to serve the CA market.

Pat will claim that he did try to sell stocks in the "stream of commerce" in CA because he convinced other classmates in CA to purchase the stocks.

Dan will claim that he could not anticipate that would make him amenable to jurisdiction in CA because it was Pat who cam to Dallas, called him up, and learned about his work.

__________ Burger King arguments such that there could be a strong local interest in providing a forum for the plaintiff in CA and that recounting to traditional notions of fair play and substantial justice, he should litigate in CA.

Pat probably has a better argument, ____________ minimum contact should be established. The court should read the motion.

INSUFFICIENT AMOUNT OF CONTROVERSY
Subject matter jurisdiction is the power of a court to hear a particular controversy.

Because federal courts have limited jurisdiction, the party seeking its jurisdiction must prove jurisdiction through a federal question or diversity of citizenship.

Federal question jurisdiction results from a case arising under a federal statute. No amount in controversy is needed to FO. However, no FO is alleged.

Diversity of citizenship requires that no plaintiff or defendant be domiciled in same state and that there be a minimum amount of controversy exceeding $75,000.

The minimum amount must be made in good faith and it cannot be dismissed unless it appears to a legal certainty that it cannot be met.

Pat will claim that the difference between the price at which she bought the shares (5,000 x $2) ($100,000) and that at which she sold them at a profit before they became worthless should meet the legal certainty test because the price diminished so much that her loss could easily be $75,000.

Dan will claim that Pat sold at a profit before the shares became worthless, so she probably did not lose as much as $75,000 if she sold them in time.

Additionally, Pat will claim that he loss is really lower because the fraud was that Dan had almost guaranteed that they would double in value. So that, this would make a difference of $200,000 if when the shares became worthless. The fact that Pat sold at a profit would not make-up for a difference of $200,000 to a legal certainty. Fraud should be pleaded with particularity as well.

Dan will maintain that he did not guarantee but rather "almost" guaranteed they would double in value.

Regardless, Dan probably could not prove to a legal certainty that Pat could not recover $75,000.

MOTION TO TRANSFER
Motion to transfer must be in a judicial district where it might have been brought and for the convenience parties and witnesses.

Venue is proper in any district where any defendant resides, if all in some state, or where a substantial portion of the events or omission giving rise to cause of action occurred.

Dan resides in Texas as he works and lives there since he returned there often passing the Bar Exam. To venue would be proper in Texas.

Pat will claim that a substantial part of the events occurred in CA because that is where she bought the shares and probably sold them.

Dan will claim that a substantial part of the events occurred in Texas because that is where he convinced her to buy the stocks, and the stocks were of a Texas corporation.

The plaintiff's choice of venue is strongly favored by the court. To Dan must show good evidence not the trial would be more convenient in Texas.

Dan will claim that the evidences are in Texas because the corporation is there, his office there, maybe witnesses are there.

Pat will argue that she has witnesses in CA such as the former classmates who allegedly purchased the stock.

Because venue could be proper both in CA or in Texas, and that the plaintiff's choice of venue is favored, the court should probably deny the motion to transfer to Texas federal court.

-------------------------------

ESSAY QUESTION #2
Paul works for the Dade Hotel in Miami, Florida. He is a member of a single person's dating service. He occasionally shares information about the dating service with hotel guests. Paul does not get along with his boss, whose name is Bob. Bob never gets any dating information from Paul. Bob terminates Paul's employment, on the basis that Paul is supposedly running a prostitution service at the hotel.

Paul moves to San Diego, California, where he now lives and works. He hires a lawyer, who brings a law suit in Miami. The relevant portion of Paul's complaint is as follows:

[Lawyer's address, etc.]

UNITED STATES FEDERAL DISTRICT COURT
SOUTHERN DISTRICT (MIAMI, FLORIDA)

PAUL PLAINTIFF )
..............................)
.........................................................................................................Civ. No. 654321-JMK
.............................................................................................COMPLAINT for FRAUD and .........................................................................WRONGFUL TERMINATION
...............................)

v. DADE HOTEL ....)

1. Paul Plaintiff, hereinafter "P," is domiciled in California. P brings this diversity action, based on 28 U.S.C. § 1332, against the Defendant, Dade Hotel, a Florida hotel doing business only in the Southern District of Florida.

2. Bob fraudulently fired P without just cause. Bob, rather than using his own resources, continuously attempted to obtain dating service information from P. Bob was incapable of obtaining his own dates, and constantly in need of P's assistance in dealing with women. P will now proceed with this case on behalf of himself, and all others similarly situated, against the Dade Hotel.

3. Wherefore, P seeks general and special damages for himself in the amount of $78,000.00, and such further relief which P may prove at the time of trial.

Your client is the Dade Hotel. On what grounds could you reasonably attack Paul's complaint? (Mini-issue: Could you recover your defense costs and fees from Paul's lawyer?)

PROF'S ISSUE OUTLINE
On what ground(s) could you reasonably attack this complaint?
Motion to Dismiss for Failure to State a Claim
* no charging allegations re fraud/wrongful termination claims
* no allegation links Bob with the Dade Hotel
Motion for More Definite Statement
* fraud must be pled with particularity
* items of special damage must be pled
Motion to Dismiss for Failure to Join a Party Needed for a Complete Adjudication
* Bob = basis for apparent respondeat superior claim against named D (Hotel)
* Bob = necessary for complete adjudication all issues
Motion to Strike
* "Dealing with women" allegation irrelevant to claims
* must be certified to be a class action
* "others similarly situated" = class/other elements not ascertainable
Mini-issue: Costs/fees from Paul's lawyer?
* sanctions motion for frivolous complaint
* fails objective standard -> allegations sparse
* reasonable inquiry under circumstances unlikely

BEST STUDENT ANSWER
LACK OF SUBJECT MATTER JURISDICTION
Paul (P) has filed suit in the federal court an action based on diversity. Paul is with State of California and the Dade Hotel is a Florida business. But the second criteria of amount in controversy in excess of $75,000 may not have been met. True, the plaintiff is requesting judgment of $78,000 and the court will tend to be plaintiff friendly. But because plaintiff combined general and failed to plead special damages specifically the special damages may be voided, it is likely that inn Florida to plead the special damages specifically the amount which plaintiff is seeking may end up being less than $75,000. The burden will be on the defendant to show that the amount cannot be legally met and it is possible that defendant could meet this burden.

FAILURE TO STATE A CLAIM FOR WHICH RELIEF MAY BE GRANTED
The FRCP Rules state that the complaint must contain a Short and Plain statement of relief which is sought while it is a Short and Plain statement it is not stating facts but is simply stating legal conclusions that plaintiff was fraudulently fired without just cause. The complaint does not state any facts as to when, how the events occurred which lead to the discharge of plaintiff. This is clearly not enough to put defendant on notice as to why defendant is being sued.

FAILURE TO JOIN A PARTY NEED FOR ADJUDICATION
Plaintiff's complaint lists activities which Bob did and yet Bob is not named as a defendant which it is clear that Bob is a necessary and probably indispensable party who should be joined in order to have just adjudication of cause it is possible that Bob cannot be joined because presently he cannot be found because the court can't get IPJ over or possible Bob is now a CA resident and diversity would be destroyed. Bob, if that is the case the court may deem that Bob is necessary but not indispensible for just adjudication and allow the case to go forward without the joinder or Bob. [Respondent - superior issues which should be dealt with in employment law might allow for a better answer with this issues.

MOTION FOR A MORE DEFINITE STATEMENT [MODEF]
The Dade Hotel can definitely move that plaintiff be ordered to provide a more definite statement because this complaint is vague and ambiguous and does not allow for a reasonable opportunity to respond. The complaint as written does not allow defendant to frame a response because for defendant to admit or deny it the court grants the motion and orders plaintiff to produce a more definite statement and he does not comply within ten days or whatever time the court decides to allow. The complaint suit is dismissed.

MOTION TO STRIKE
Plaintiff complaint includes many issues which are irrelevant, redundant, defendant may ask the court to strike portions which refer to Bob's dating surrendering which do not have any relevance to the termination and regarding proceeding in case on behalf of self and others who are similarly situated.

FRAUD
Plaintiff has alleged wrongful termination and fraud but he has stated NO FACTS regarding how frauds occurred. When fraud is alleged it must be plead with particularity a plain and short statement will not suffice. Thus the pleading is improper with regard to the fraud.

SPECIAL DAMAGES
Plaintiff has included for special damages when special damages are requested. They must be pleaded specifically, plaintiff has not plead those same damages specifically and therefore the pleading is improper.

CLASS ACTION SUIT
It appears that plaintiff in his complaint is seeking to sue on behalf of himself and others similarly situated which would constitute a class action lawsuit. If this is the case, plaintiff would have to get certification for their class action suit plaintiff would have to show that plaintiffs where (1) too numerous to be joined, (2) that he was a commonality amongst the claims, (3) that plaintiff was typical of litigants and (4) that plaintiff would provide adequate representation for the class. Facts are insufficient to determine if these were met but it is unlikely that the first and third prerequisites would be met unless Dade Hotel has been discharging employees under circumstances similar to Paul's. Which is highly unlikely. On the basis of how this complaint was written by the attorney it is extremely unlikely that plaintiff and his attorney could provide adequate representation for a class.

ALTERNATIVE DEFENSES
Dade Hotel likely could raise some of affirmative defense that while the plaintiff was discharged. He had unclean hands based on his running a prostitution service out of the hotel. With more facts more affirmative defenses could be raised.

RULE 11
In order to recover defendant costs and fees from plaintiff's attorney a Rule 11 motion would have to be granted granting sanctions against plaintiff's attorney for bringing a frivolous lawsuit which purpose was to harass and which did not have basis and applicable law or even as an attempt to modify current law. The standard which will be used to determine if sanctions would be awarded against plaintiff's attorney is would the reasonable attorney in the forum have filed the claim.

I am not from Miami but don't think I would be going out on a limb if I conjectured that the reasonable attorney in Miami has as much skill or more than a IL at TJSL and the typical IL @ TJSL would not have filed such a complaint (I hope) this student would definitely not have filed the complaint. It is very likely that sanctions would be awarded against plaintiff's attorney.
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CIVIL PROCEDURE I ............................................................... PROFESSOR SLOMANSON
FINAL
EXAMINATION ............................................................. FALL 1997
ESSAY QUESTION #1 of 2

Instructions: This is a three-hour closed-book examination, consisting of two essays and thirty multistate questions--all given to you at the beginning of the examination. It is preferable to write single-spaced lines on one side of your bluebook paper. If you are typing, you may double-space your answer. Use a new bluebook for each of the two essays, but do not use a new bluebook just because you are starting a subpart within an essay question. Avoid any stray marks on your multistate scantron forms (and use a #2 pencil). Each essay question is worth approximately 20 points, while the multistate portion of this examination is approximately 30 points (70 total).

Facts: Pamela purchased a used car in San Diego. She told the car dealer, Donny, that she would be permanently moving to the east coast in a few months. He was hesitant, however, about this car's ability to make the trip. Donny had unsuccessfully tried to sell her a new car, which would have no problem making the cross-country trip. Pamela had almost completed this trip, when her car unexpectedly burst into flames in Maryland. It was parked at a gasoline station, while Pamela was inside paying for her gas. Pamela was not injured by the fire. She was distressed as a result of the fire, just a few yards away. Pamela then rode a bus to New Jersey, where she retained a lawyer. Her lawyer filed a money damages law suit in a New Jersey federal court against Donny, who is domiciled in California.

Assume that the applicable New Jersey statute of limitations (SOL) is one year from the date when the car burst into flames. Assume that in order to satisfy the New Jersey SOL, a plaintiff must both file and serve process on a defendant within one year from the date on which the claim arises. This complaint was filed exactly one year from the gas station incident. Donny was served six months later, after he had closed his dealership and moved to another city. FRCP 3 provides as follows: "A civil action is commenced by filing a complaint with the court." The parties are now engaged in a hotly contested debate about whether state or federal law governs the SOL issue.

Donny's lawyer files a timely motion, requesting dismissal on the following grounds:
(1) lack of subject matter jurisdiction;
(2) lack of personal jurisdiction;
(3) failure to diligently prosecute the case; and
(4) failure to comply with the statute of limitations.

Question: How should the court rule on Donny's motion?
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CIVIL PROCEDURE I PROFESSOR SLOMANSON
FINAL EXAMINATION
FALL 1997 ©
PROF's
ISSUE OUTLINE ESSAY QUESTION 1

SUBJECT MATTER JURISDICTION
Domicile issue:
(1) Diversity SMJ -> no P & D domiciled in same state
(2) domicile individual = presence & intent
(3) Pamela's domicile? ("perm move east coast")
(4) bus to NJ & hire lawyer NJ
Minimum amount issue:
(5) money damages must >$75,000.00 / legal certainty test (discussed in Mas v. Perry)
(6) D-> no physical injuries
(7) used car, probably won't make it to east coasr
(8) P -> "distressed by proximity to fire"

PERSONAL JURISDICTION
(9) Rule: min cont / purp avail / reasonably anticipate hail forum (WWVW)
(10) P -> mobile vehicle / D knew car would be driven to east coast
(11) coa arose MD (not NJ forum/P unilateral act)
(12) D no articulable connection with NJ forum

DILIGENT PROSECUTION
(13) Dil Pros § requires service within 120 days of filing, absent good cause for delay
(14) D -> service "six months later" not very diligent
(15) P -> good cause to extend time = dealership closed & moved to another city

STATUTE OF LIMITATIONS
(16) COL: FRCP "on point" (Hanna)?
(17) FRCP 3 not embrace issue (class hypo)
(18) O.D. / balancing (York/Byrd)
(19) "O.D."? state = no way / fed = maybe
(20) "balancing"? / state procedure more specific & no discernible fed interest

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SAMPLE STUDENT ANSWER (AMJUR)
CIVIL PROCEDURE I FALL '97
ESSAY Q #1

Is there a lack of subject matter jurisdiction (SMJ)?

SMJ is the power of the court to hear the particular controversy.

Two ways to get fed. SMJ:
1) Federal Question (FQ) arising out of the US Constitution or federal statute. No facts to suggest a federal question unless interstate commerce. Not likely.

2) Diversity of Citizenship at commerce of federal court can hear a non - FQ case if:
a. Diversity of citizenship among parties. No plaintiff and defendant domiciled in the same state and;
b. Minimum amount in controversy is over 75K.

Domicile is presence in the state at least once, and intent to stay indefinitely. Donny's domicile is CA (given). Pamela's domicile is unknown. She said she intends to "permanently move", thus intent is probably shown. However, we don't know if she was ever present in the new intended state. Maryland and New Jersey are on the "east coast", but she never said where she was moving. The fact that she took a bus to NJ before commencing (hired a lawyer) either to NJ or Maryland would work if she lives there now. Diversity is probably met unless she went back to CA before her intended state.
Amount in controversy is more difficult in this case. The judge will determine if there is a legal certainty that she cannot recover 75K. Here, the only damage the facts indicate is the loss of the car (and maybe the cost of the bus ride). Unless she also burned up other stuff (gas station) she probably can't reach 75k. The only other fact is that she was "distressed." She had better be pretty distressed to be able to prove massive damages (75K - value of car). If the judge finds that she can't, he/she will dismiss or remand to state.
Ruling for Donny (probably).

Is there lack of personal jurisdiction?

Personal jurisdiction is the substantive due process arm of territorial jurisdiction (ability of the court to render a judgment that complies with the U.S. Constitution.)
It is the court's ability to exercise authority over persons and things in the forum and bind them to judgment.
The test is minimum contacts with the forum. Here there doesn't appear to be much of any contact. The factors are character of contacts (non given); relationship to the cause of action (none); availment (this is the only one; he knew she was taking care across country to the "east coast", but it is unlikely that this vague itinerary would lead to his reasonable expectation of being hauled into court in NJ); Presence (here again, no presence given. There is also a fact gap as to whether NJ has a long arm statute. If not they may have to serve him in the forum. Regardless, he probably does not have minimum contacts.
Ruling for Donny.

Failure to diligently prosecute the case?

A plaintiff must serve the defendant within 120 days of the commencement of the action.
Here, Donny was served 180 days after commencement. However, Donny "closed his shop and moved to another city." Thus, it may well have been very difficult to find him. If plaintiffs diligently looked, and this was the soonest they could find him, it is probably okay.
Probably Ruling for Pamela.

Failure to comply with statute of limitations? Issue is choice of law. Here the federal judge sitting in diversity jurisdiction will have to choose between state and federal procedure.

First, the judge must decide if there is an FRCP on point. If so, FRCP must be used.
Here, the FRCP #3 is not very specific as to S.O.L. and does not exactly address S.O.L. and service. Therefore, the judge must go to step 2.
Second, is the choice of law outcome determinative? Clearly it is: If NJ law is used, the suit is out of court because Pamela did not serve and file "within 1 year from date claim arises," and she took 18 months. Thus the court must balance in step 3.
Third, the judge must balance the federal versus state interest in respective procedures. Factors are specificity and detail.
Here, the state law is more specific than FRCP - it says exactly how a lawsuit is to process (time-wise) it must be file and served within one year. There is probably a strong sta-interest in the S.O.L., therefore: ruling in favor of Donny.

The court should probably grant Donny's motion to dismiss the case.
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CIVIL PROCEDURE I .................................................................PROFESSOR SLOMANSON
FINAL EXAMINATION
.............................................................. FALL 1997
ESSAY QUESTION #2 of 2

Facts: Assume that the federal judge denies the entire defense motion presented in Question #1 of this examination. Donny's lawyer also made a motion, which timely attacked the complaint filed by Pamela's lawyer. The relevant portion of that complaint--which you will now analyze in Question #2--is set forth immediately below. (Do not refer to the facts of essay Question #1 to answer essay Question #2.)

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US DISTRICT COURT FOR THE
CENTRAL DISTRICT OF NEW JERSEY

1. This is a case arising under Diversity Jurisdiction, 28 U.S.C. §1332.

2. Pamela is domiciled in New Jersey. She herein charges defendant Donny
with actionable conduct, in that his negligence proximately caused Pamela's
losses. Defendant Donny took advantage of the plaintiff, Pamela, because he
believed that he could use his expertise to entice her into buying a more
expensive car.

3. Based on the resulting harm at the Maryland gas station, Pamela is
entitled to general and special damages in an amount within the jurisdiction
of this court which will be proven at the time of trial.
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On what grounds could Donny's lawyer reasonably attack Pamela's complaint,
which is set forth immediately above?

Assume that the judge denies all of the grounds (which you have just made) in Donny's motion attacking the above-quoted complaint. Donny's lawyer thus answers the complaint and timely sues GasCo, a New Jersey corporation whose principle place of business is in California. Gasco owned the Maryland gas station franchise, where Pamela's car burst into flames (as described above in essay Question #1).

What procedure would Donny use to bring Gasco into this suit?
Would the court have subject matter jurisdiction to hear the case against Gasco?
Should Donny's lawyer be sanctioned for frivolously attempting to bring Gasco into Pamela's law suit?
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CIVIL PROCEDURE I PROFESSOR SLOMANSON
FINAL EXAMINATION
FALL 1997
PROF'S ISSUE OUTLINE ESSAY QUESTION 2

DONNY'S ATTACK ON PAMELA'S COMPLAINT
(1) SMJ -- Donny's domicile not pled
(2) -- no specific dollar amount stated ("amt w/i jurisd of ct")
(3) Items of special damage shall be specifically stated (FRCP 9g)
(4) IPJ --accident MD & Forum NJ
(5) Venue--diversity, so D not reside NJ & arose MD
(6) Transfer--coa MD/CA
(7) Failure to state claim--"neg = prox cause losses & D took advantage"
(8) More Def. Statement--link b/t "advantage" & "resulting harm"?
(9) Party needed for complete adjudication (gas station owner)
(10) Motion to Strike--did not buy new car/advantage allegations irrelevant

PROCEDURE FOR DONNY BRING GASCO INTO SUIT
(11) Third-party practice--D may implead a D not named by P
(12) Gasco owner is, or may be, liable for "gas station harm"

SUBJECT MATTER JURISDICTION IN CASE AGAINST GASCO
(13) "Complete" diversity normally required
(14) Problem -> Pamela(NJ) & Gasco(NJ) not complete both sides "v."
(15) Cure -> Supplemental SMJ/common nucleus
(16) Pamela not suing non-diverse 3PD Gasco

SANCTIONS FOR SUING GASCO?
(17) Rule 11 controls frivolous pleading
(18) Objective standard--would a reasonable lawyer file claim v. Gasco
(19) Substantively makes sense, per FRCP 14 third party practice/indemnity claim
(20) Jurisdictionally makes sense, per §1367 practice (Owen jurisd/pldg parts cse)
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CIVIL PROCEDURE I ___ SLOMANSON
SAMPLE STUDENT ___ ANSWER #2
FALL 1997

Dismiss

Lack of SMJ - Domicile, does not say where Donny is domiciled to support diversity. Amount in controversy does not say in prayer any amount, let alone 75K.

Lack of IPJ -

Venue/Improper - Complaint says substantial portion of events occurred (first sale of car in CA also) in Maryland and that is the only connection.

Rule - A case based solely on diversity can be laid in: district where substantive portion of events or transaction occurred or where a plaintiff resides if all in same state.

Here, the events ("harm") were in MD, and the transaction was in CA and Donny lives in CA. Therefore improper venue.

Dismiss for:
Failure to state a claim on which relief can be granted.

The complaint never says what he did, if anything. Using expertise to entice someone into buying a more expensive car is not wrong, that is what car salesmen do. Anyway, she did not buy a more expensive car, thus no COA.

No where does the complaint allege any connection between anything he did and her harm (which is itself unstated).

Judgment on the pleadings
Complaint has to plead special damages with specificity, it neither lists damages or their value. It does not even say what happened. It seems to skirt around alleging fraud as well - "take advantage," "superior expertise." This must also be plead with particular.

Dismiss for failure to join a necessary party.
Facts are unclear as to what, if any, relationship Gas Co. had to the COA. But if equity and good conscience requires joinder as an indispensable party, maybe. More facts necessary.

More definite statement
Plaintiff 2 must contain a short and plain statement of why relief should be granted. It must be sufficient to enable the plaintiff to know why he is being sued and form an answer.
Here the complaint does not allege what Donny did, what happened, what damages are alleged. Quite simply, a reasonable person reading this complaint would have no idea what it is about. There would be no way to formulate an adequate answer other than a general denial.

Motion to Strike Irrelevancies
Court can strike portions of the complaint that are irrelevant or scandalous.

Here, the complaint contains the following items that should be stricken:

1) Conclusion of law - "negligence"
2) Irrelevant and scandalous information.
The entire second sentence should be stricken because he didn't take advantage of her because she did not buy the expensive car. There is no way this can be relevant.

What procedure would Donny use to bring Gas Co. into suit.

His best procedure would be a third party complaint. That is where an existing defendant sues a third party, not already a party to the action - a.k.a. Impleader. Gas Co. would become a 3rd party defendant for indemnity and contribution.

Would court have SMJ to hear the case against Gas Co.? This is a diversity case and since Gas Co. is domiciled in both CA and NJ (corp domicile incorporation and principle place of business). Facts give NJ corp and CA princ. place. If impleaded only, court would retain SMJ because no need for independent SMJ

Would Donny's lawyer be sanctioned for frivolously attempting to bring Gas Co. into suit?
This would be determined by asking, would a reasonable lawyer have filed a pleading?
Factors would be: Is it supported by law? Is it (or will it be) supported by evidence? Is it justified under the circumstances? Good faith?

Not enough facts, but court will probably look for a relationship to the COA. (Did Gas Co. have any rational relationship to Pamela's damages?)
Sanctions can be initiated by separate motion from another party, or the court alone. If it is frivolous, he may have a 21-day safe harbor to withdraw pleading. Also, if he is sanctioned, his law partners may also be liable.

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CIVIL PROCEDURE I PROFESSOR SLOMANSON
............. FINAL EXAMINATION FALL 1996 (evening classes)

[Note: because of web publishing limitations, the graphics box containing the pleadings for this final are not included in this web version of the examination. The actual examination is on reserve in the TJSL Library.]
Instructions: this is a three-page, three-hour essay examination, based on an evolving set of facts. See italicized questions regarding the issues that you should analyze. It is preferable to write single-spaced lines on one side of your bluebook paper, unless you are typing double-spaced. Do not use a new bluebook for each part of this test.

Facts: Don lives in Delaware. He is an insatiable Internet user, who often "surfs the Net" (meaning one who reads the content of the Internet on one's computer). Don has never had enough money to travel outside of his home state. His Internet service provider is "DeWeb, Inc." DeWeb, a Delaware corporation with no offices outside of Delaware, is a company that provides access to the worldwide computer network. DeWeb does have accounts, however, with thousands of Internet users throughout the United States. Paul is a DeWeb customer. He lives in California. Paul is a new part-time writer. Because of his day job, Paul only occasionally uses the Internet. He is too busy writing his second novel to keep up with all of the information available through this popular method of electronic communication--whereby users may bring this global computer network into their homes and offices in virtually every city of the United States.

Some of Paul's friends in San Diego suggest that Paul take a look at Don's Internet "web page" (Don's personal site on the Internet, whereon Don posts information for other Internet users to read by typing in Don's web page address). Anyone who visits Don's web page can observe Don's attempts to become a famous writer--especially in Don's latest short story, which he has placed on his web page on the Internet. Paul thus learns that Don's short story is essentially a short version of Paul's first book (in bookstores but not on the Internet). Paul consults a lawyer who files a complaint against Don in the federal court in San Diego. (All references to parties include their lawyers' actions on their behalf.) Paul seeks damages for Don's infringement of Paul's copyrighted book, and for Don's state law tort of unfair competition with Paul's book--although Paul's first novel has not sold many copies.

Don hires a lawyer to defend him against Paul's lawsuit. Don files a motion attacking Paul's complaint on the following grounds: (a) amount in controversy; (b) personal jurisdiction; and (c) venue. Don alternatively requests a forum non conveniens dismissal, on the grounds that (d) this action should have been filed in Delaware. How should the court rule on Don's motions? (Do not discuss supplemental jurisdiction when resolving Don's motions.)

Assume that the trial judge denies all portions of Don's motions. Paul amends his complaint to add DeWeb (Don's Internet service provider) as a co-defendant in Paul's existing lawsuit against Don. DeWeb is served six months after Don is served, by posting a copy of the summons and complaint on the DeWeb web page (DeWeb's location and address on the Internet). DeWeb's web page is designed to solicit all Internet users to make comments about DeWeb's product line--which has been more successful in California than in any other state. Anyone with a computer may thus electronically visit DeWeb's Internet site, where DeWeb's hourly employees periodically post information and review reader comments. Defendant DeWeb timely attacks Paul's complaint on the following grounds: (a) a federal court cannot hear a case alleging the common law state tort of unfair competition; (b) there is no diversity jurisdiction (do not discuss amount in controversy); (c) because there is no general federal case law or federal statute prohibiting "unfair competition," a federal court cannot apply non-federal (state) law to a state claim for unfair competition in federal court; (d) Paul failed to timely serve DeWeb (do not discuss statute of limitations); and (e) DeWeb was denied proper notice of suit under the circumstances. Assume that the trial judge denies all portions of DeWeb's attack on Paul's amended complaint. Did the court properly rule on DeWeb's motion attacking Paul's complaint?

DeWeb then files an answer. It generally denies liability for DeWeb's role in the alleged infringement of Paul's book by Don's short story. After the running of the statute of limitations, DeWeb subsequently requests the court's permission to amend its answer. The relevant portion of the proposed amended answer appears immediately below. Paul responds to this pleading by arguing that the court should not grant DeWeb's requested amendment. [graphic]
How should the court rule on the above DeWeb request to amend its answer?

The court grants DeWeb's request to file the above amended answer. DeWeb then files a motion to dismiss Paul's lawsuit, because the case cannot proceed without DeftNet--the Canadian corporation that purchased DeWeb. The court denies DeWeb's motion to dismiss Paul's suit. Can the court properly proceed without DeftNet?

Assume that Paul properly amends his complaint to add DeftNet as a co-defendant. Paul timely files another complaint in this case. The relevant portion is as follows: [graphic]

Does the court have subject matter jurisdiction over the interpleader claim? Should the court certify the proposed class action? (Do not discuss type of class--i.e., b1, b2, b3).
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CIVIL PROCEDURE I ..............................................PROFESSOR SLOMANSON
FINAL EXAMINATION
...........................................ISSUE OUTLINE FALL 1996

How should the court rule on Don's motions?
(a) amount in controversy: DeWeb request to amend its answer
(1) Paul: copyright = FQ
(2) FQ = no minimum amount
(3) $75,000.00 / legal certainty test
(4) Don: not sold many copies/part-time
(5) which applies (FQ/Div) issue recognition only
(b) personal jurisdiction: Can court proceed without DeftNet?
(6) M/C test
(7) application = purp availment & forseeability (WWVW)
(8) Don: never been outside of Del, so how anticipate Cal?
(9) Don: Paul brought Don fm Del into Cal tortfeasor P's unilateral act brings D to forum SMJ over interpleader claim
(10) Paul: Net/Web in virtually every city = accessible in Cal forum
(11) Paul: Don's web page (infringing story) = insatiable user = WWVW forseeability
(c) venue Paul's class action certification request
(12) resides/substantial portion alternatives (1391 a/b)
(13) Don: arose in Del at DeWeb
(14) Paul: substantial portion Cal/SD friends saw short story
(d) action should have been filed in Delaware:
(15) dismissal remedy inappropriate in intra-US context (Piper class discussion)
-- if Zahn "o" (Patterson)
(16) "where might been brought" per transfer remedy (Hoffman) D's residence
(17) Don: Don, DeWeb, & web page in Del
(18) Don: D never suff $ leave Del
(19) Paul: presumption favors Paul
(20) Paul: evid & wit (Paul's friends) in SD
Did the court properly rule on DeWeb's motion attacking Paul's complaint?
(a) federal court cannot hear state law unfair competition:
(21) DeWeb: no original fed SMJ over state tort
(22) Paul: supplemental SMJ over tag along tort (linked with fed copyrt law)
(23) common nucleus & expect try st/fed same proceeding
(b) lack diversity jurisdiction:
(24) P "lives" in Cal (not synonymous with domicile)
(25) corp domicile = incorp + PPB
(26) DeWeb: Cal = most successful state Cal = PPB
(27) Paul: successfully db in Cal not = PPB / offices only Del
(c) federal court cannot apply state law in fed ct:
(28) unfair competition = substantive law problem
(29) div judge has apply state substantive law
(30) if supp SMJ, apply st subst law nonfed portion claim
(d) Paul failed to timely serve DeWeb:
(31) 120 from filing, absent good cause
(32) DeWeb served "6 months after Don served" (amended complaint)
(e) DeWeb denied proper notice:
(33) best notc practicable under circumstances
(34) corp srvc = officers, designated, or apparent authority (Rule 4 & Hellenic)
(35) srvc = by publication (unless court were to construe as substituted srvc)
(36) DeWeb: hourly employees not proper agents
b/c purpose employment = periodic post & review
(37) Paul: electronic world/ee's review reader comments on D's Web page
= very likely to result notc
(38) amendments liberally granted/no legal prej
(39) SOL cases judges partic concerned D lull P
(40) FRCP 8b D fairly meet P's allegations
(41) DeWeb: gen denial denies all possible liab
(42) Paul: D not fairly meet substance b/c unk sale
(43) signif impair absentee interest?
(44) feasible to join DN?
(45) no problem b/c diversity & IPJ
(46) should join DN b/c takeover DW/joint
(47) conflicting claims & potential multiple liab
(48) not "Rule 22" < $75,000
(49) staty amt o.k $600.00 (12 mo @ $50)
(50) no minimal diversity (as pled) both rivals=Del
(51) prerequisites (FRCP 23b & Adams case elements)
(52) brief elements analysis
(53) spec dams/amount not stated
(54) amt controversy DeftNet: < $75,000 per plaintiff
(55) Paul: possible supplemental SMJ

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