Examination in Civil Procedure

Fall 1992

Professor Eric S. Janus

Instructions

You have two and one-half hours to complete this examination.

You will be graded on the accuracy and completeness of your analysis, the organization of your answers, and the succinctness of your answers. Inclusion of irrelevant material will detract from your grade. Poor organization will detract from your grade.

Permitted materials:

Your casebook, Landers, Martin and Yaezell.

Your Rules Supplement.

Class handouts.

Notes and outlines which you have participated in preparing.

Dictionaries (legal or other).

The examination consists of 5 pages, consecutively numbered. Check to make sure that you have all pages now. If you do not, immediately notify Student Services of the problem.

Write clearly. Write on only one side of each blue book page. If your writing is of poor legibility, please write only on every other line.

The exam consists of one continuous factual scenario in which are interspersed 5 numbered questions. You are required to answer only four questions. You must answer the questions as follows:

Question 1 -- Required

Question 2 -- Required

Question 3 -- Required

Question 4))
)) -- Choose one. Answer either question 4 or question 5.
Question 5))

Mark the answer to each question with its number. Please answer each question in a contiguous portion of the bluebook. If it is necessary for you to add something to your answer in a non-contiguous portion of the bluebook, note that fact conspicuously at the point of insertion.

Recommended Time Allocation and Point Allocation:

Each question is worth 25 points. There are a total of 100 points on the exam.

It is strongly recommended that you budget your time carefully. Suggested allocation:

Read through the instructions and the entire exam: 15 minutes.

Question 1: 30 minutes.

Question 2: 30 minutes.

Question 3: 30 minutes.

Question 4 or question 5: 30 minutes.

Extra time: 15 minutes.

The facts and questions begin on the next page.facts

Z is a health statistician, working for the State of M's Department of Health. Z was working on a project involving studying the health effects of high voltage power lines. Z was getting close to publishing a study concluding that there is a connection between high voltage power lines and certain forms of cancer. On December 15, 1991, three days before Z was scheduled to announce her results publicly, Z was fired by C, the Commissioner of Health.

Z requests L, an attorney, to represent her in bringing suit to remedy her firing. L tells Z that she was fired because she was about to publicly announce that she had found a scientific connection between high voltage power and cancer. Z says that this is a very sensitive political topic. L does some legal research, and reaches the conclusion that Z's firing could be a violation of §1983, the civil rights law. L's legal theory is that the action of firing Z was state action, and that it violated Z's rights to free speech under the First Amendment to the United States Constitution. L's research shows that there is a claim under §1983 if Z was fired because of the content of her speech. L's research shows that the statute of limitations for claims under §1983 is one year.

Question 1. L approaches you, his law clerk, and asks for advice on preparing to draft the complaint and drafting the complaint. Based on your knowledge of civil procedure law and rules, write a concise memo responding to L's request.

On December 1, 1992, L files a Summons and Complaint in this matter in the Federal District Court. The Complaint names Z as plaintiff and "The State of M" as defendant. The Complaint sets out a claim for damages under §1983. The Summons and Complaint are served on C, the Commissioner of Health, on December 20, 1992. On January 2, 1993 the defendant, State of M, serves a Motion to Dismiss for improper service of process. On February 2, 1993, the judge denies the motion. On February 8, the State of M serves an Answer on L. The Answer admits certain allegations and denies others. On February 12, 1993, the State of M serves an Amended Answer on L. In the Amended Answer, the following defenses are added:

9. The defendant acted in good faith.

10. The lawsuit is improperly venued.

Question 2. Identify and discuss any civil procedure issues concerning the State of M's Amended Answer.

The case is set for trial on December 1, 1993. The case enters the discovery phase. Plaintiff serves interrogatories on defendant. One of the interrogatories states as follows:

Interrogatory 22. State the names of all employees of the M Department of Health who have been discharged from their employment during the period December 15, 1989 through the date of these Interrogatories (March 1, 1993). For each person identified, state the reasons he or she was discharged.

The defendant's lawyer feels that this question goes beyond the scope of discovery because it asks about employees other than the plaintiff. Also, the information about other employees is classified as "confidential" under the Department of Health's personnel policies.Question 3. Discuss the discovery procedures and issues involved in the dispute between the plaintiff and the defendant over Interrogatory 22.

Discovery is completed on October 1, 1993. On October 15, 1993, the State of M notifies L that, under the doctrine of "sovereign immunity", the State cannot be sued in federal court. L then makes a motion to amend the Complaint to substitute C, the Commissioner of Health, as a defendant, instead of the State of M.

Note: Answer either Question 4 or Question 5. You need not answer both.

Question 4. Is the claim against C timely? Should the amendment be allowed?

The judge allows the amendment. On November 1, 1993, the defendant, C, makes a written offer to allow entry of judgment in the amount of $100,000, as an "all inclusive" offer. L does not respond to the offer.

On December 1, 1993, the case goes to trial. The jury returns a verdict for plaintiff in the amount of $70,000. The plaintiff and the defendant submit the following list of costs and fees each incurred:

Dates	Item	Incurred by Plaintiff	Incurred by Defendant
Prior to November 1, 1993	Filing fees	$60
	Deposition transcripts	$500	$600
	Attorneys fees	$10,000	$7,000
After November 1, up to December 1, 1993	Deposition transcripts	$1000	$1200
	Attorneys fees	$10,000	$12,000
After December 1, 1993	Clerk's fees	$25
	Attorneys fees	$5,000	$6,000.

Note: Answer either Question 4 or Question 5. You need not answer both.

Question 5. Both parties ask the judge for an award of all of the money each is entitled to. How much should the judge award to the plaintiff? To the defendant? Explain.

End of Exam.