Examination in Civil Procedure

Fall 1993

Professor Eric S. Janus

Instructions

You have two 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 wholly irrelevant material will detract from your grade. Poor organization will detract from your grade.

Permitted materials: Only the following materials are permitted in the exam room:

Your casebook, Yeazell, Martin and Landers.

Your Rules Supplement.

Class handouts.

Notes and outlines which you have participated in preparing.

Dictionaries (legal or other).

The examination consists of 7 pages, consecutively numbered. Check to make sure that you have all pages now. If you do not, immediately notify your instructor or 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 1a -- ))

))) Choose ONE. Answer EITHER question 1a or question 1b

Question 1b -- ))

Question 2 -- Required

Question 3 -- Required

Question 4 -- Required

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:

Point distribution and recommended times for each question are shown in the table below.

Facts

Q is a citizen of the State of Mitchell. Phrenomatic, Inc., is a corporation which is a citizen of the State of Michigan. Phrenomatic, Inc. operates a factory which produces phrenolators (a computer component which detects faulty logic). The factory is in the State of Mitchell, one mile away from Q's home. Accumatic, Inc., is a corporation which is a citizen of the State of Wisconsin. Accumatic, Inc., is the former owner of the factory. Accumatic, Inc. sold the factory to Phrenomatic, Inc. in December 1992. Although the ownership of the factory changed, the employees and managers of the factory all remained. Also, the name on the sign in front of the factory remained the same: "Home of Accumatic Phrenolators -- No Logic Too Faulty".

On December 14, 1993, at 12 noon, P comes into the office of attorney N. P tells the following story:

On December 15, 1992, I smelled a very strange gaseous smell. It seemed to be coming from the direction of the phrenolator factory. A couple of days later, all of my house plants and pets died. My kids and I became ill for several weeks. A chemist friend of mine told me that the gas was phrenochloride, a toxic by-product of the manufacture of phrenolators. I want to sue. My damages exceed $50,000. I believe the plant is owned by Accumatic.

N does some legal research, and discovers the following statute of the State of Mitchell:

Section 100. The owner or operator of any factory or plant, located within the State of Mitchell, which discharges toxic wastes into the environment, shall be liable to any person harmed by the discharge. Provided, there shall be no liability if the owner of the factory or plant has obtained a proper permit from the Department of Natural Resources [DNR] for such discharge. All actions under this section shall be commenced within one year of the discharge of the toxic wastes.

N checks the "Toxic Chemicals in Manufacturing," a standard reference work, and finds that phrenochloride is a by-product of the manufacture of phrenolators, and that it is a toxic gas which can make humans ill and kill plants and domestic animals, if present in sufficient concentration.

N drafts the following Complaint:

UNITED STATES DISTRICT COURT

DISTRICT OF MITCHELL

P

vs COMPLAINT

Accumatic, Inc.

For her complaint against Accumatic, Inc., P states and alleges as follows:

1. [Proper allegations of jurisdiction.]

2. At all times relevant hereto, Accumatic, Inc. was the owner of a phrenolator factory located in the State of Mitchell.

3. The phrenolator factory owned by Accumatic, Inc. discharged phrenochloride on December 15, 1992.

4. The phrenochloride caused damage to P, her family and her property.

WHEREFORE, plaintiff demands judgment in excess of $50,000.

[P's signature]__ [N's signature]________________

[P's address and phone] [N's address and phone]

N files the Complaint in Federal District Court on December 14, 1993. On April 1, 1994, N has the Summons and Complaint served on GM, the general manager of the phrenolator factory. GM sends the Summons and Complaint to the President of Accumatic, Inc. GM sends a memo to the President of Phrenomatic, Inc., informing her of the lawsuit.

On April 10, 1994, Accumatic, Inc. makes the following motion:

Note: Answer either Question 1a or Question 1b. Do not answer both.

Question 1a. Write a concise essay advising the judge on how to rule on this motion. (20 points. 24 minutes.)

The Court denies the motion on April 30, 1994. On May 9, 1994, Accumatic, Inc.'s lawyers serve their client's Answer on P's lawyer. The Answer admits paragraph 1 of the Complaint, denies paragraphs 2 and 3, and states that the defendant is without sufficient information to admit or deny paragraph 4. The Answer alleges as an affirmative defense that Accumatic, Inc. had a permit to discharge phrenochloride. Three days later, Accumatic, Inc.'s lawyers serve an Amended Answer which is identical to the first Answer, with the following addition:

The court lacks personal jurisdiction over defendant Accumatic, Inc.

P's lawyer N wonders whether the amendment is allowed and whether the defense of lack of personal jurisdiction has been waived. She also wonders how she can get a prompt ruling on the defense.

Question 1b Write a concise memo to N answering her questions. (20 points, 24 minutes.)

Note: Answer either Question 1a or Question 1b. Do not answer both.

The parties proceed to discovery.

Question 2. For each discovery task listed below, state a discovery method which could most efficiently perform the task, and state the rule or rules which authorize the discovery method you have identified: Do not write an essay. (20 points. 24 minutes.)a. P wishes to find out whether the Department of Natural Resources has issued a permit to Accumatic, Inc., to determine what procedures the DNR follows in issuing such permits, and to get copies of the applications submitted to the DNR by Accumatic, Inc.

b. P wants to find out what records Accumatic, Inc. keeps of its emissions of toxic gas, and which employee(s) have custody of those records.

c. Accumatic, Inc. wants to inspect the plants which P claims were killed by the toxic gas.

d. P wants to take the deposition of the official or employee of Accumatic, Inc. who knows about the sale of the factory to Phrenomatic, Inc.

e. Accumatic, Inc. would like to protect its manufacturing technology from discovery by its competitors.

During discovery, on October 15, 1994, P finds out that Accumatic, Inc. claims that its sale of the factory to Phrenomatic, Inc. became effective on December 14, 1992. P's lawyer immediately serves a motion to amend P's Complaint. She serves both Accumatic, Inc. and Phrenomatic, Inc. The motion requests the Court's permission to change the defendant from Accumatic, Inc. to Phrenomatic, Inc. Phrenomatic, Inc. objects to the amendment on the grounds that the statute of limitations has passed on P's claim against it, and that thus the claim is untimely.

Question 3. The Judge wishes to know whether the claim against Phrenomatic, Inc., asserted in the amendment, would be timely. Write a concise memo advising the judge of your analysis of that question. (25 points. 30 minutes.)

The judge denies the motion to amend. P fires her lawyer N and hires the law firm of L & E to represent her. The case proceeds to trial. Lawyer L represents P at trial. Based on the evidence at the trial, the judge makes the following findings: that Accumatic, Inc. owned the factory on December 15, 1992; that the factory discharged phrenochloride on that date; but that there was no evidence that the discharge of phrenochloride harmed P's plants, pets or family; and that in any event Accumatic, Inc. had a valid permit from the DNR for the discharge of phrenochloride. The judge enters judgment for Accumatic, Inc.

Question 4. Accumatic, Inc.'s lawyer is contemplating bringing a motion for Rule 11 sanctions. He wonders what procedure he should follow, whether such a motion is likely to prevail, and if it prevails, what sanctions could be awarded and against whom. Write a memo advising the attorney about these issues. (35 points. 42 minutes.)

End of Exam. Have a Happy Holiday!