General instructions:

You will be writing answers in your blue book and in this test booklet. Therefore, please write your test ID number in the space provided on each page of this test. Please do this now.

Permitted materials:

Your civil procedure text and supplement/rule book.

Notes you personally have participated in preparing.

Class handouts and materials.

This examination consists of one continuous factual situation with a number of questions interspersed throughout. Each question should be answered using the facts already given in the factual situation. In other words, in answering any question you should consider all facts previously given; there is no need to refer to facts which follow that question.

This Exam consists of two types of questions: Essay and Short Answer.

Essay questions: There are three essay questions. They are to be answered in your blue books. Make sure to label your answer to each question with the question number. Try to answer each question on contiguous pages. If you must add something to an answer at a non-contiguous place in the blue book, note that fact clearly with your answer. Write legibly. If your writing is hard to read, I request that you double space and write on only one side of the page. Thank you.

Short Answer: There are three sets of short answer questions. Follow the instructions given with each set of short answer questions. Answer these questions on this exam paper in the spaces provided.

Time for exam; Distribution of Points

This is a three hour exam.

There are a total of 100 points.

The points, and recommended allocations of time, are as follows:

Time to read instructions: 0 points; 10 mins.

Part 1 3 short answer questions15 points; 25 mins.

Part 2essay question12 points; 20 mins.

Part 34 short answer questions20 points; 35 mins.

Part 4essay question26 points; 45 mins.

Part 53 short answer questions 9 points; 15 mins.

Part 6essay question18 points; 30 mins.

Total Essay: 56 points

Total Short Answer:44 points

Total time: 180 minutes.

The Fact Situation Begins Here

P, Q, R and S each owns a separate hot dog stand in Chicago.

Hot Dog World, Inc. (HDW) owns a chain of hot dog stands in Chicago. It operates these stands using the trade name Fluky's. Fluky's, however, is merely a division of HDW.

An agent for HDW approached P, Q, R and S separately during the period July - November 1988 and offered to buy his/her stand. In each of the conversations, the HDW agent said that Fluky's was planning to open a super hot dog stand in the neighborhood of the stand to be purchased. P, Q, R and S feel that these statements are coercive, in that they seem intended to scare them into selling to HDW.

P, Q, R and S all approach lawyer L and tell her their stories. They all feel that Fluky's is trying to monopolize the hot dog stand market. They would like to put a stop to Fluky's behavior, which they consider to be coercive. They each also want to obtain damages for injury to their businesses. In addition, P has a tort claim against HDW, arising from a collision between P's truck and an HDW truck.

P, Q, R and S decide to sue Fluky's to try to obtain an injunction against Fluky's coercive monopolization behavior. The lawyer L contemplates joining P, Q, R and S together as plaintiffs in one, single lawsuit against Fluky's. P wishes to join her tort claim against Fluky's in the same lawsuit. The lawyer will bring the lawsuit in a court which has rules which are identical to the Federal Rules of Civil Procedure.

Part 1. Short Answer Questions (15 points; 25 minutes )

Instructions for Part 1 short answer questions.

This part of the exam consists of a set of short legal arguments about this case. Each legal argument consists of two parts: legal reasoning and conclusion. You are to mark each legal argument either valid or invalid according to the following definitions:

Mark the argument Valid if:

the legal reasoning accurately states and applies the applicable law

and

the legal reasoning supports the conclusion.

Mark the argument Invalid if:

the legal reasoning does not accurately state or apply the applicable law

the legal reasoning does not support the conclusion.

For each legal argument which is invalid, you must state in one or two sentences the reason for its invalidity.

Example:

Explanation: The legal argument is invalid because the legal reasoning misstates the rule. Note that it would also be invalid if the legal reasoning did not support the conclusion.

Now, use these definitions and this example in analyzing legal arguments a, b, and c which follow. Use the space provided on this test to write your answers to these short answer questions.

Continuation of fact situation

L commences the lawsuit by filing and serving the summons and complaint. The summons and complaint are filed on April 10, 1990. They are served on the defendant on May 1, 1990. L names P, Q, R, and S as plaintiffs and Fluky's as the sole defendant. The complaint contains claims based on the alleged monopolization.

HDW's lawyer, M, calls L and indicates an interest in mediating the dispute. He indicates that he would prefer not to answer the complaint during the mediation, and L agrees that M need not serve the answer while mediation is proceeding. The parties mediate for about two months. Then, M and his client fail to appear at a scheduled mediation session. L immediately applies to the court for a default judgment. The judgment is granted.

Part 2. Essay Question (12 points; 20 minutes)

M wants to get the judgment vacated. Briefly state the arguments M should make and the rules he will rely on in moving to vacate the judgment. Write the answer to this question in your blue book.

Continuation of fact situation

The judgment is vacated. M serves and files Fluky's answer. The answer denies material allegations of the complaint. Among other things, the answer claims that "Fluky's" is not the proper defendant, since it is only a division of Hot Dog World Inc. (HDW).

One month (30 days) after serving and filing the answer, M makes a motion to amend the answer. He moves to add the following defenses to his answer:

Defense 1. The complaint fails to state a claim upon which relief can be granted.

Defense 2. The claims are barred by the statute of limitations.

Defense 3. The court lacks personal jurisdiction over Fluky's.

L also makes a motion to amend the plaintiffs' complaint to substitute Hot Dog World, Inc. (HDW) as the defendant. L's motion to amend is made on December 15, 1990. The statute of limitations on the monopolization claims is two years, measured from the date of the allegedly coercive action.

Part 3. Short Answer Questions (20 points; 35 minutes)

The following short answer questions are to be answered in the same manner as you answered the short answer questions of part 1. That is, mark each legal argument either valid or invalid. For each legal argument which is invalid, state in one or two sentences the reason for its invalidity.

Use the instructions and definitions given above for part 1.

Continuation of fact situation

The court allows the amendments. The parties now begin discovery. HDW has two reports in its possession. One, the "Alcala Report," was prepared by economist Carlos Alcala in 1987. It analyzed the hot dog stand market in Chicago, and outlined a business strategy for HDW's acquisition of a number of stands, including, but not limited to, those of the plaintiffs. Among other information, the report contains information on the demographic mix which Fluky's considers to be most conducive to its marketing. The second, the "Green Report," was prepared by Earlene Green, an economist who is vice president for marketing at HDW. The Green Report was prepared in early 1990, after the commencement of the lawsuit, at the request of M, HDW's lawyer. It contains profit and loss data for HDW and for several of its competitors over the past three years, and uses that data to suggest approaches M can take in countering the plaintiffs' argument that HDW behavior was "coercive." Neither Alcala nor Green will testify at trial for HDW.

Part 4. Essay question. (26 points; 45 minutes)

Plaintiffs would like to get as much information as they can about these reports, their authors, and the information they contain about the economics of the hot dog market in Chicago. How should they go about it? What issues and obstacles will they face? How should those issues be analyzed. What is the likely outcome of plaintiffs' efforts to obtain the information? Write the answer to this question in your blue book.

Continuation of fact situation

HDW discovers that the plaintiffs have retained an economist who has prepared a chart showing the damages allegedly suffered by each of the plaintiffs. HDW requests production of the chart. The plaintiffs object to the request. The matter goes to court and, despite a finding by the court that plaintiffs' objection is not valid, plaintiffs continue to fail to provide the report to HDW. HDW has spent $5000 in attorneys fees attempting to get the report.

Part 5. Short Answer Questions. (9 points; 15 minutes)

The judge is now considering sanctions against plaintiffs. For each of the sanctions listed below, state in one or two sentences:

-- the policy which supports it

and

-- any additional facts which would be required to

justify the sanction.

Write your answers in the spaces provided on this test.

a. Order plaintiffs to pay HDW $5000.

______________________________________________________________

_______________________________________________________________

b. Order plaintiffs to pay HDW $1000.

______________________________________________________________

_______________________________________________________________

c. Order that plaintiffs cannot present evidence of damages unless they produce the report within 30 days.

_______________________________________________________________

______________________________________________________________

_______________________________________________________________

Continuation of fact situation

The judge orders sanction c. Within 30 days, plaintiffs provide the report to HDW. HDW now propounds the following interrogatory to plaintiffs:

Identify all persons who have direct knowledge of whether or not HDW intended to coerce plaintiffs into selling their hot dog stands to HDW.

Plaintiffs answer:

The only persons with direct knowledge of HDW's intention are the owners and managers of HDW.

HDW now moves for summary judgment. In support of its motion, it submits the affidavit of its president which states, on the subject of intention:

"Neither I, nor any other officer, manager or employee of HDW, ever had the intention to coerce Plaintiffs into selling their hot dog stands to us."

In addition to the affidavit, HDW's summary judgment supporting papers point out to the court that Plaintiffs did not identify any witnesses who would testify on the subject of HDW's intentions.

Part 6. Essay Question. (18 points; 30 minutes)

Advise Plaintiffs' lawyer L on whether (and why) she must submit anything in response to the summary judgment motion in order to defeat it, and if so, what she could submit to defeat the motion. Write the answer to this question in your blue book.

End of Exam.

Have a Nice Vacation!