Jan-- Civil Procedure -- Spring 1989 -- Section III

Instructions for this exam:

Permitted materials:

You may have with you for this exam only the following materials:

-- Your Civil Procedure Casebook by Landers, Martin and Yeazell.

-- Your green Federal Rules of Civil Procedure Supplement.

-- Civil Procedure in a Nutshell.

-- Any problems or other materials handed out in class.

-- Any notes or outlines you personally prepared.

You are allowed 3 hours and 10 minutes to complete the test. Of that time, I have allocated 10 minutes to read these instructions, and 3 hours for reading and answering the test questions.

The test consists of 9 main questions. The main questions are identified by Roman Numerals (I-IX). Each main question has a separate set of facts. Some of the main questions have sub-questions (these are identified by letters: e.g., II-a). Altogether, there are 15 questions to answer.

Some questions are long and complicated. Some are short. The allocated points for each question are shown in the footnotes. Suggested times are also included.

You must carefully label your answer to each question or sub-question, using the numbers and letters given for the questions.

Please try to answer each question in a contiguous section of the blue book. If it is necessary to write part of an answer in a section of a blue book which is not contiguous with the rest of the answer to that question, please indicate clearly that there are two separated parts to your answer.

Question I:

State M has the following laws:

Railroad Injury Act

Section 1. If a person is injured by a train while the person is walking parallel to the train tracks, the railroad is liable for the injury if the injury resulted from the railroad's gross negligence.

Section 2. If a person is injured by a train while the person is walking along a path which crosses the train tracks, the railroad is liable for the injury if the injury resulted from the railroad's negligence.

Section 3. In any action under sections 1 or 2, the burden of production is initially on the plaintiff as to all matters.

Section 4. In any situation in which the injury resulted in the death of the plaintiff, upon proof that the injury occurred in the vicinity of a path crossing the tracks, there shall be a presumption that the plaintiff was injured while walking along that path, and the burden of production on that issue shall transfer to the railroad.

P sues R Railroad for injuries resulting in P's death. The suit is brought under both Section 1 and Section 2 of the Railroad Injuries Act. The suit is brought in federal court. The evidence presented is as follows:

W testifies that she found P's dead body 10 feet south of the track in a rural area. In that area, the track runs east-west. 75 feet west of where the body was found, a path crossed the tracks. The path led north to P's house, which was 1/2 mile from the tracks, on the side opposite from where P was found. A small country store was located near the tracks about 1/2 mile further east along from where P was found. W drew a diagram for the court, which is reproduced below.

[diagram]

E, the engineer on the only train that passed the location of the accident on the day in question, said the train was traveling east, and that she did not see or notice P at all. She testified that the train carried a car which had a mail hook hanging from its south side.

Dr. D testified that P had a bruise on his head, and that the bruise could have been caused by a hook hanging from a train car. D said that the bruise caused P's death.

After this testimony, both sides move for a directed verdict.

Question I-a⁽¹⁾

You are the judge's law clerk. Explain and analyze for the judge what issues she must resolve in order to rule on these two motions. To the extent you can, tell the judge how you would rule on each issue, and explain why.

Suppose the judge denies the motions for directed verdict in the case described above. During the trial, the following events occur:

a. During her closing argument to the jury, the lawyer for the railroad referred to the plaintiff as a 'vagabond"' The plaintiff's lawyer objected, and the judge told the jury "you are to ignore the characterization 'vagabond.'"

b. The judge instructed the jury on the substantive law of negligence, and that the burden of persuasion was on the plaintiff.

Question I-b⁽²⁾

Since this is a federal court, on what should the court base its instructions to the jury about the law of negligence: the state law or federal common law? What case supports your answer?

c. After that, the jury retired and deliberated. During the jury's deliberation, one of the juror's sent a note to the judge, through the bailiff, which said, "Juror Jones doodles and reads his magazines while we are deliberating. He has said that he has his mind made up and will not listen to our arguments. He says that, as far as he is concerned, the railroad is never wrong. Anyone who goes near the railroad tracks must be negligent."

d. The jury returns a verdict for the railroad.

Within the time prescribed by the rules, the plaintiff makes Motions for Judgment Notwithstanding the Verdict (JNOV) and for a New Trial. The Court grants the JNOV motion, and grants the New Trial Motion conditionally.

If the defendant thinks that there were some errors in the trial process, what can it do now to assert those errors? What rule authorizes this action?

Was the judge correct to rule on both motions, or should she have ruled only on the JNOV, letting the new trial motion wait? What law or rule governs? What policy supports this rule?

The Judge explains her decision on the New Trial Motion as follows (her decision on the JNOV motion is not included here):

With respect to the Motion for a New Trial, the plaintiff alleges that the following matters support the new trial:

First, the defendant's lawyer referred to the plaintiff as a 'vagabond.' This went beyond the bounds of fair advocacy. However, the court gave a corrective instruction. I find that this error did not prejudice the plaintiff's right to a fair trial. Therefore, this error does not support a new trial.

Second, the plaintiff claims that the court erred in its instruction to the jury regarding the burden of persuasion. Though the matter is not free from doubt, I disagree with the plaintiffs. I find that the law supports my instruction. Therefore, this does not support a new trial.

Third, the plaintiff points to the note received from the jury reporting on juror Jones' statements. The court is very concerned about that conduct. It supports the motion for a new trial. Under Section 333 of the laws of state M, the court may consider the testimony or other statements of jurors as to improper conduct in the jury room. I, therefore, take this juror's statements into account. I find it to be improper, and base my order for a new trial in part on that conduct.

Fourth, the plaintiff points to the weight of the evidence in support of the motion for a new trial. The Court is persuaded that a finding of an absence of negligence is against the great weight of the evidence. This supports a motion for a new trial.

Therefore, a new trial is granted.

The defendant appeals.

Question I-c⁽³⁾

You are the clerk to one of the judges on the court of appeals. Give the judge your analysis of the new trial matter. Analyze each of the sub-issues which the district court judge decided. (Hint: Do not forget to discuss the choice-of-law issue regarding whether the judge should have used state law section 333.) In addition, for each issue, tell the appellate judge what the standard of review should be. Where possible, tell the judge how he or she should decide each issue.

Question II

VVV Company sells vacuum cleaners door to door. On every sale, the company use a standard form installment sales contract. In fine print, the contract says that the vacuum cleaners are sold "as is," with no warranty. Salespersons for VVV are instructed to use a standard sales pitch. The sales pitch extolls the virtues of the VVV vacuum cleaner, and promises "complete support" for the customer if anything goes wrong with the vacuum cleaner.

This problem involves three law suits. All the suits are brought in the state courts of state M.

In suit I, the state attorney general's office sued VVV under the state consumer protection Act, which prohibits "fraudulent and unconscionable sales techniques." The court made a number of findings of fact, among which are these two findings:

4. The "as is" provision of the standard form installment sales contract used by VVV is unconscionable.

5. The sales pitch used by VVV is materially false, misleading, and thus fraudulent if relied upon by a customer.

The Court's Conclusions of Law included:

3. The State's consumer protection Act prohibits unconscionable actions. VVV's actions are prohibited because they unconscionable.

4. The State's consumer protection Act prohibits fraudulent sales practices. VVV's actions are prohibited because they are fraudulent sales practices.

5. Therefore, an injunction against VVV's practices will be issued.

The court issues an injunction against VVV, prohibiting it from using its standard form contract, and prohibiting it from using fraudulent sales pitches.

In suit II, P and Q sue VVV. P and Q purchased vacuum cleaners from VVV in separate transactions. Both of their vacuum cleaners broke. VVV refused to repair both. They allege that they relied on the sales pitch they were given by VVV's salesperson. They also allege that the installment contract's "as is" provision is unconscionable. Both are suing VVV for damages.

Question II-a⁽⁴⁾

VVV prefers not to have P's and Q's claims joined together in the same lawsuit. Is it appropriate for P and Q to bring their claims together? Why?

Question II-b⁽⁵⁾

P and Q invoke the doctrine of issue preclusion. Discuss what effect suit I should have on suit II. What issues will be precluded? What issues will not be precluded? Why?

Question II-c⁽⁶⁾

Discuss what the lawyers should do to get the suit I injunction vacated or modified.

Question I⁽⁷⁾

E was employed by D. D fired E. In suit I, E, who is, Hispanic, sues D, alleging that the firing was discriminatory. The court enters judgment in favor of E, finding, in part, that D had "no legitimate business reason" to fire E.

After the judgment in suit I, E brings suit II, suing D for wrongful termination, claiming that the termination violated a provision of the employee handbook which states that D will not fire any employee without a "legitimate business reason."

Discuss the effects on suit II of the judgment and findings in suit I.

Question IV ⁽⁸⁾

This problem takes place in a state without a compulsory counterclaim rule. In suit I, A sues B for personal injuries allegedly arising from an accident in which both were involved. B alleges contributory negligence. The jury returns a general verdict for B. In suit II, B sues A for her personal injuries arising from the same accident. Discuss any preclusive effect the first suit will have on the second.

Question V⁽⁹⁾

Jake owns a television and stereo store in Madison, WI, called Jakes, Inc. (referred to below as "Jakes"). Jakes is a Wisconsin corporation. It's only activities consist of operating the Madison store. Jakes, Inc., has entered into a contract with Z Corp, which manufactures televisions and other electronic equipment. Under the contract, which is to be in effect for 10 years, Z agrees to sell televisions to Jakes, and to provide Jakes with "promotional materials" for use in local advertising. The Z Corp has no employees in Wisconsin. Jake travelled to California to negotiate the contract with Z. The contract was signed in California.

P purchased a Z Corp. television from Jakes. At the time of the purchase, P was a student at the University of Wisconsin at Madison. P was born and raised in California. She went to college in Wisconsin, but she was not sure where she was going to live when she graduated. upon graduation, P moved back to California, taking the television with her. After the move, the television caught fire one night, causing extensive property damage to P's possessions.

P now seeks your advice about bringing suit against Jakes and Z Corp. to recover for her loses. She says she is still not sure where she intends to settle, and has, in fact, made plans to move to Hawaii.

In preparation for advising P, write a memo to yourself analyzing the jurisdictional issues involved in bringing suit against these two defendants in state and federal courts, in Wisconsin and California. Your analysis should include reference to relevant Supreme Court cases

Question VI

M loaned N $100,000. The loan took place in Louisiana. N has failed to repay the loan. B owes N $50,000. M lives in Minnesota. N lives in Louisiana. B lives in Minnesota. In 1989, M commences suit against N in Federal Court in Minnesota by "attaching" B's debt to N, and by mailing notice of the commencement of the suit to N in Louisiana.

Question VI-a⁽¹⁰⁾

Discuss whether the court has personal jurisdiction over N. (Be sure to discuss whether notice was adequate, referring to the relevant Supreme Court case.)

M gets a default judgment against N. M takes the Minnesota judgment to Louisiana and brings a lawsuit against N based on the judgment.

Question VI-b⁽¹¹⁾

Discuss whether the Louisiana court should enforce the Minnesota judgment.

Question VII⁽¹²⁾

G and F are both citizens of Minnesota. G sues F in federal court in Minnesota, alleging that F, a newspaper publisher, defamed G. F serves and files an answer alleging that the alleged defamatory statements were protected by the First Amendment to the United States Constitution. Discuss briefly whether the federal court has jurisdiction.

Question VIII⁽¹³⁾

L brings suit in federal court in Minnesota against Q. Both are citizens of Minnesota. L's suit has two claims: In claim I, L alleges that Q fired her, and that the termination violates federal anti-discrimination law, Title VII. In claim II, L alleges that Q fired her and that the termination is actionable under a state law tort claim for "wrongful termination." Q counterclaims against L for "abuse of process," a state law claim. Discuss whether the court has subject matter jurisdiction of each of the claims.

Question IX

P sues L in Iowa federal court. P's suit alleges that the framulator, a component of the lawnmower manufactured by L, malfunctioned, causing P injury. F, the manufacturer of the framulator, is located in New Jersey. L wants the case moved to New Jersey. L makes a motion to transfer the case to federal court in New Jersey. The judge denies the motion, ruling that L is not entitled to a transfer because the federal court in New Jersey would not have personal jurisdiction over L, and because the balance of hardships and convenience tips in favor of the Iowa forum.

Question IX-a⁽¹⁴⁾

Discuss whether L can appeal the denial immediately.

Question IX-b⁽¹⁵⁾

Suppose L does appeal. Identify the issues the court of appeals will have to rule on, and the standard of review it should apply.

1. 13 points; 23 minutes.

2. 4 points; 7 minutes.

3. 17 points; 30 minutes

4. 5 points; 9 minutes.

5. 10 points; 19 minutes.

6. 3 points; 6 minutes.

7. 6 points; 11 minutes.

8. 4 points; 7 minutes.

9. 13 points; 23 minutes

10. 6 points; 11 minutes.

11. 4 points; 7 minutes.

12. 2 points; 4 minutes.

13. 4 points; 7 minutes.

14. 5 points; 9 minutes.

15. 4 points; 7 minutes.