Practice Exam -- Sample Answers

Question 1:

I will first address the question whether Katz can get an immediate court order preventing Byrd from prepossessing the car.

An immediate order preventing Byrd from repossessing the car would be a preliminary injunction (PI) or a Temporary Restraining Order (TRO). I will discuss a PI first. The standards for issuance of a TRO are related. I will discuss them later.

There are two, alternate formulations of the elements required to obtain a PI. Some jurisdictions accept only the traditional test. In some, a PI will be granted if a party satisfies either the traditional or the alternate tests. It is not clear from the question which position this jurisdiction takes.

Thus, I will discuss both tests; the traditional test first, and then the alternate test.

Traditional Test -- Under the traditional test, Katz must satisfy four elements in order to obtain a PI:

1. He must demonstrate that he will suffer irreparable harm if the injunction does not issue. To determine whether there will be such harm, we must look to the facts. If there is no injunction, Byrd may be able to use self-help to repossess the car. This will be the case only if Katz is unable to store the car in a secure place. If Byrd can use self-help, then Katz may lose the use of the car if Byrd repossesses it. But Katz could immediately sue to get the car returned and to get damages for its loss of use. The damages would be adequate relief for the loss of use, unless Katz can show that he needs the car for some important purpose, and would be unable to get a replacement car if his were repossessed.

If, on the other hand, Byrd cannot use self-help (because Katz can keep the car in a secure place), then the answer depends on whether Katz can get a hearing prior to a court-ordered repossession. If he can get a hearing, then there is no need for a PI since Katz can adequately protect himself against repossession at the hearing. If Katz cannot get a hearing, then the analysis is the same as in the case in which Byrd can use self-help. So, the question of whether Katz can get a pre-repossession hearing is very important. I will discuss that question separately below.

2. He must show that he is likely to succeed on the merits. This analysis will turn on the terms to the contract and the nature of the problems being experienced by Katz and the underlying substantive law of contracts. There is not enough information provided to analyze this contracts question.

3. He must show that the balance of equities lies in his favor. From the facts, it does not appear that an injunction would be unduly harmful to Byrd, nor that Katz has acted in an unfair or inequitable manner toward Byrd. Thus, the balance of equities would seem to tip in favor of Katz if it is Byrd who has apparently breached the contract.

4. He must show that the public interest favors granting the injunction. Here, it is difficult to see that the public interest would be affected greatly by the granting or the refusal of the injunction. Again, this might turn on how the judge sees the merits of the case.

Thus, under the traditional test, it is not clear whether a PI would be granted. It would turn in part on the issue of a hearing, which I will discuss below.

Alternate Test Under the alternate test, Katz must satisfy two criteria:

1. Severe harm: See analysis above. This is unlikely, unless Katz can show an extremely important need for the car and the inability to replace his car if it is repossessed.

2. Fair chance of success on the merits. As above, this analysis will depend on the terms of the contract and the particulars of the facts, neither of which can be determined from the facts given.

Conclusion: It is uncertain whether Katz can obtain a PI. More information is needed about the likelihood of self-help, Katz's need for the car and ability to find alterate transportation, and the strength of Katz's claim. Whether he could get a TRO would depend on many of the same factors, although the showing of immediacy of harm would have to be stronger; he would have to show that harm would befall him unless he could get an immediate hearing. This might be possible if it were concluded that the repossession could take place without hearing, and if it were shown that he needed the car for some important purpose.

Hearing prior to repossession.

In order to answer the question about PI, we must determine whether Katz can get a hearing prior to a court-ordered repossession. If he can, then, as stated above, there is no basis for a PI. The answer will turn on a number of factors: I will focus only on whether the constitution would require such a hearing. Also relevant would be whether state law requires such a hearing (in cases in which the constititon would not). Since the facts do not indicate the nature of the state law, I will not address that issue.

In order to determine whether a hearing prior to repossession will be required, we must look to the Fuentes case. Fuentes required a hearing prior to repossession where the repossession was ordered by a court. The case suggested a number of possible exceptions to this rule, which I will discuss below. First, though, it would be necessary to determine whether Byrd will have to resort to a court in order to repossess the car. If Byrd can use self-help (i.e., if the car can be repossessed without breaching the peace and if state law allows this), then Fuentes does not require a hearing.

Let us assume that Byrd cannot use self-help and must resort to court to get a repossession order. Fuentes generally requires a prior hearing. The case suggests that it might be possible for a contract to waive the right to a prior hearing. Such a waiver must be clear. In our case, the contract states that Byrd may reposses the car "immediately" upon non-payment. The contract in Fuentes contained a similar provision. In that case, the court held that the contract provision did not waive the constitutional right to a hearing. The court had two reasons for its holding. First, the provision was in fine print and not clearly agreed to by the consumer. Here, the provision looks to be more prominently printed in the contract. Thus, this reasoning of Fuentes might not apply here. Fuentes rejected the waiver argument because the contract did not clearly waive a hearing. Similarly, the contract in this case does not clearly waive the hearing. Thus, the possible exception to the hearing requirement for waiver would probably not apply here.

In conclusion, a hearing would probably be required prior to repossession, unless Byrd could resort to self-help repossession and thus avoid resort to the court for a repossession order.

Question 2.

The question asks me to discuss and evaluate what steps I might take to protect my client from the mistake in naming the defendant. The negative consequences will stem from the fact that the statute of limitations has now passed for commencing a claim against the correct defendant. I will examine two possible courses of action. First, I will look at amending the complaint to correct the mistake. Second, I will discuss whether there might be some steps I could take based on the improper use of a general denial.

Amendment. Since an answer has been served, I cannot make an amendment as of course, and must either get the other side's agreement or permission from the court. In applying to the court, Katz must meet the standard set out in rule 15(a) for amendment. Under this rule, amendment is to be liberally allowed, unless the party opposing the amemdment can show undue prejudice or delay or some improper purpose. Here, there is a substantial delay involved. Discovery is closed, trial is close. Byrd would try to show that her ability to defend her case would be harmed if the amendment is allowed. Her ability to show prejudice would be hampered by the fact that she hand notice of the mistake, and should have known early in the case that K might try to remedy the problem.

Will the claim against Byrd Used Cars, Inc. be timely? If the court allows the complaint, we must next ask whether the claim in the corrected complaint will be timely, desptie the fact that it was served after the running of the statute of limitations. The facts state that the statute of limitations on the Katz's claim against Byrd Used Cars, Inc. expired on July 1, 1990. Since the amended complaint, which asserts the claim against Byrd Used Cars, Inc. will not be made until December 1, 1991 (at the earliest), it is not timely unless it relates back to the date of filing of the original pleading, which is June 30. Relation back is governed by rule 15(c), so it is to that rule that I now turn. Since the amendment takes place after December 1, 1991, I will use the amended rule.

Since the amendment changes the party, or the naming of the party, against whom the claim is brought, we must look at 15(c)(3).

Under the this part of 15(c), we must do a four part analysis. All four parts must be satisfied in order for the amendment to relate back. I will go through each of the four parts:

1. The amendment must arise out of the same transaction or occurrence as did the original pleading. This requirement is clearly satisfied, since both relate to the same alleged breach of warranty.

2. The party to be brought in must have had notice of the lawsuit so as not to be prejudiced. Byrd had notice of the lawsuit on June 30. Since she is the owner of Byrd Used Cars, Inc., it is fair to say that the corporation had notice on the same date. There is nothing to suggest that the corporation was prejudiced by the date of notice.

3. The party to be brought in must have known that but for a mistake it was the intended defendant. Here, Ellen Byrd received notice naming her as the defendant, but she should have known that Byrd Used Cars, Inc. was the proper defendant because she was the owner of the company. The fact that her name was misspelled would not reasonably have misled her about the proper defendant.

4. The notice and knowledge in 2 and 3 must have taken place "within the period provided by rule 4(j) for service of the summons and complaint." 4(j) allows 120 days after filing for service. The notice and the knowledge clearly took place within the 120 of filing. Thus, the fourth element is satisfied.

Conclusion: Since the four elements appear satisfied, the amendment should relate back to June 30. This is before the statute of limitations, thus the claim appears to be timely.