pecpes85

Civil Procedure Professor Peter Erlinder Exam, Spring 1985

Questions 1-3 (30 minutes)

1. Able Corp., a Minnesota Corporation, with a sales office in Wisconsin and headquarters in Des Moines, Iowa, sued Mr. B. for breach of contract in Federal court in Minnesota. Mr. B was a resident of Iowa, who lived in Minnesota at the time of the breach. Able's complaint did not allege bad faith and under Minnesota law, punitive damages in contract claims may only arise from bad faith or fraud. The complaint, however, did request $5,000 in lost profits and $10,000 in punitive damages. Mr. B's 12(b)6 motion was denied, as was his motion for summary judgment. After a bench trial, judgment was rendered for Mr. B. Able wishes to avoid the effects of the judgment. Answer each question and explain.

(a) What procedural mechanism, if any, can Able file, and

(b) What arguments might Able make in support of its position?

2. John brought an action to quiet title in Gove state court. He scrupulously followed the state procedures and accomplished, service by publishing notifications in all the major newspapers in the state. Several years after default judgment had been granted to John, Bob, a Gove resident and the heir of a previous occupant of the property, brought suit alleging an interest in the land arising from an unrecorded land contract. John has consulted you to find out what he can do to put an end to this suit. Answer each question and explain.

(a) What procedural mechanism could you use?

(b) When would it be necessary to file it?

(d) What issue(s) would Bob raise in response?

(e) What is the likely outcome and why?

3. I Corp., a Delaware corporation, with its principal place of business in New York, brought a breach of contract action against J in state court in New York. J maintained an apartment in New York, a condominium in Florida, had voted in the most recent New York election, was employed by a Florida Real Estate firm and received his paychecks in New York. J's petition for removal to court was granted. The contract in question was entered into in Washington D.C. and all witnesses are in Florida. I Corp. wishes to contest the removal. J has moved for a change of venue. Answer each question and explain.

(a) What procedural mechanism will I Corp use to contest removal?

(b) In what court will it be filed?

(d) Where would venue be proper, assuming I. Corp. does not prevail?

Question 4 (45 minutes).

4. Your client, Peripheral Products, Inc., brought a treble damage action against Devious Corp., in the U.S. District Court for Nita under the Clayton Act for alleged antitrust violations. The defendant's answer included a defense based on the four-year statute of limitations provided by Congress for actions arising under the antitrust laws. After hearing on a motion for summary judgment based on that defense, the court entered this order: "It is ordered, adjudged and decreed that the defendant's motion for summary judgment be, and the same hereby is, granted with costs to be taxed." Peripheral has now brought another action in the Nita Superior Court, alleging virtually the same facts and claiming damages for unfair competition. The Ames statute of limitations allowing six years for such actions has not yet expired. Devious has pleaded res judicata. Prepare a memorandum on the problem.

Question 5 (45 minutes).

5. Midwest Airways, Inc. is a small airline flying regularly scheduled flights between points in Illinois, Wisconsin, and Minnesota. It is incorporated in Illinois and has its principal place of business there. Amos Stilton, a passenger on the ill-fated flight described below, is a citizen of Ames, a small midwestern state located between Indiana and Illinois.

In December 1984, Midwest conducted an advertising campaign in Ames and other midwestern states offering a special flying tour of Minnesota in the spring of 1985, featuring stopovers in Des Moines, IA., Rapid City, S.D., and Bismark, N.D. Stilton, attracted by the advertisement, bought a round-trip ticket from an independent travel agent in Ames and was put into a group of Ames travelers who were leaving on the tour from Ames City on April 1. (Transportation to Chicago, Ill., the starting point of the tour, was provided by another airline.)

Stilton and his fellow travelers arrived in Chicago on the appointed day and boarded a Midwest plane for Des Moines but the plane was forced to make an emergency landing in Gary, Ind., and although no passengers were killed, many (including Stilton) were seriously injured.

One of the passengers, Charlene Cheddar, brought a diversity action for $25,000 damages against Midwest in a Illinois federal court. The case went to trial and the jury found Midwest liable but awarded only $500 to Cheddar, apparently rejecting her claim of serious injury. No appeal was filed.

Stilton has now brought an action of his own against Midwest in an Ames federal court, seeking $100,000 damages. Service of process was made on Midwest by registered mail (without any acknowledgement-of-service form enclosed) at its home office in Illinois. Ames has a jurisdiction statute identical to Minnesota (attached). In addition, Stilton has sought to establish jurisdiction in the Ames federal court by attachment of an airplane owned by Midwest and currently under two-year lease to Gorgonzola Airways, a company doing business solely in Ames, at an annual rental of $4,500.

(a) What are the arguments for and against Midwest's motion to dismiss the action in its entirety for lack of jurisdiction? How should the motion be decided and why?

(b) Assume that all motions addressed to jurisdiction are denied and that Stilton, relying on the Illinois decision, moves for summary judgment on the issue of liability. If the issue is one of first impression, what decision should be made on the motion and why?

Question 6 (30 minutes).

6. Paul was injured while operating a drill press manufactured by Manco, a wholly-owned corporate subsidiary of Conco, a corporation. Three days before the statute of limitations ran, Paul filed suit in Federal Court against Conco. Service of process was made the same day on the named defendant. One week later, Paul moved to add Manco as a defendant and the motion was granted.

Prior to trial, Paul sought a discovery of a report that had been made to Manco by Brown, an investigator for Manco, who had inspected the machine and the circumstances of the accident immediately thereafter. The trial court ordered a copy of Brown's report delivered to Paul's attorney.

Both defendants moved for a new trial. The trial judge granted a new trial on the issue of damages alone. Both defendants appeal, asserting as error the trial court's action in--

(1) adding Manco as a party defendant,

(2) ordering discovery of Brown's report.

How should the appellate court decide each of the above asserted errors. Explain.

Question 7 (45 minutes).

Ten college students in State X filed a class action in federal court asking that certain state officials, named as defendants, be enjoined from enforcing the state's flag desecration statute which was alleged to be unconstitutional. The class was claimed to consist of all college students in the state.

The defendants filed three motions that--

(1) the complaint be dismissed on the grounds that the court lacked jurisdicton because the requisite jurisdictional amount was not present;

(2) the court deny certification of the claimed class;

(3) if the court retained jurisdiction and certified the class, plaintiffs be required to serve personal notice on individual members of the class.

The court reserved decision of the three motions.

Defendants then moved for summary judgment on the ground that they do not intend to enforce the flag desecration statute. In support of the motion, defendants filed affidavits denying any intent to prosecute plaintiffs for violation of the statute. Plaintiffs filed counter affidavits of former state employees who claimed to have had the defendants assert their extreme displeasure with certain acts of flag desecration on college campuses in the state.

(a) How should the court rule on each of the first three motions? Discuss.

(b) How should the court rule on the motion for summary judgment? Discuss.

Question 8 (45 minutes).

8. Paul sued Doe in Federal Court under diversity jurisdiction for personal injuries, including a broken leg, allegedly caused by Doe's negligent operation of a motor vehicle. Suit was filed on January 2, 1984; the injuries were alleged to have been and in fact were received on March 1, 1983. Damages in excess of $10,000.00 were claimed. Thereafter the following took place.

(1) On July 1, 1984, Paul filed a motion for leave to file an amended complaint setting forth that in June 1984, while taking exercises prescribed by his doctor to strengthen the leg that had been broken, he fell and suffered a fracture of the other leg, for which he claimed additional damages of $10,000. The court denied the motion on the sole ground that the claim was barred by the applicable one-year state statute of limitations.

(2) Doe filed an answer denying liability and alleging, as a further and separate defense, that on February 20, 1984, in consideration of the sum of $10,000 paid Paul by Doe, Paul had executed a release and satisfaction of all claims he had against Doe. Paul then asked for and was granted leave to file a second amended complaint adding a count for rescission of the release on grounds of fraud. Doe filed an appropriate answer to the second amended complaint, denying any fraud.

(3) Doe applied for an order requiring Paul to submit to a medical examination and to furnish copies of all medical and hospital reports concerning Paul since the date of the accident and for one year prior thereto. The court issued the order over Paul's objection that the matters were privileged.

(4) Paul, at the appropriate time, demanded a jury trial. Doe thereafter moved that all issues raised for the first time by the second amended complaint be tried first, by the court sitting without a jury. Doe's motion was granted.

Discuss the correctness of the court's ruling on each of the following:

(a) Paul's motion for leave to file his first amended complaint.

(b) Paul's motion for leave to file his second amended complaint.

(d) Doe's motion for a separate trial before the court without a jury of the issues first raised in the second amended complaint.

543.19 PERSONAL JURISDICTION OVER NON-RESIDENTS.

Subdivision 1. As to a cause of action arising from any acts enumerated in this subdivision, a court of this state with jurisdiction of the subject matter may exercise personal jurisdiction over any foreign corporation or any non-resident individual, or his personal representative, in the same manner as if it were a domestic corporation or he were a resident of this state. This section applies if, in person or through an agent, the foreign corporation or non-resident individual:

(a) Owns, uses, or possesses any real or personal property situated in this state, or

(b) Transacts any business within the state, or

(d) Commits any act outside Minnesota causing injury or property damage in Minnesota, subject to the following exceptions when no jurisdiction shall be found:

(1) Minnesota has no substantial interest in providing a forum: or

(2) The burden placed on the defendant by being brought under the state's jurisdiction would violate fairness and substantial justice; or

(3) The cause of action lies in defamation or privacy.

Subd. 2. The service of process on any person who is subject to the jurisdiction of the courts of this state, as provided in this section, may be made by personally serving the summons upon the defendant outside this state with the same effect as though the summons had been personally served within this state.

Subd.: 3 Only causes of action arising from acts enumerated in subdivision 1 may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.

Subd. 4. Nothing contained in this section shall limit or affect the right to serve any process in any other manner now or hereafter provided by law or the Minnesota Rules of Civil Procedure.

Subd. 5. Non-resident individual, as used in this section, means any individual, or his personal representative, who is not domiciled or residing in the state when suit is commenced.

History: 1967 c 427 s 1; 1978 c 780 s 2