Janus-- Civil Procedure -- Spring 1990 -- Sections 2 and 3

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 Federal Rules of Civil Procedure Supplement.

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

-- Any notes or outlines you personally participated in preparing.

You are allowed 4 hours to complete the test. Suggested allocation of time is discussed below.

The test consists of five parts, labelled Part I through Part V.

Both sections must answer parts I, II, and III.

Part IV is for section 2 only. Part V is for section 3 only. Both of these parts are clearly labelled.

Each part is a separate fact situation. Some parts have only one question. Some parts have multiple questions.

There are 16 questions to answer. Some of these questions are essay-type questions. Some are short answer questions.

Essay questions are worth 11 points each. Short answer questions are worth 3.3 points each. Everyone gets one point for taking the test. There are 100 total points.

Suggested time for questions, and their division in the exam:

Essay questions: 6

Recommended time for each essay question: 25 minutes

Total time allocated to essays: 150 minutes

Short answer questions 10

Recommended time for each short-answer

question 9 minutes

Total time allocated to short answers 90 minutes

Short answer questions must be answered on the exam itself, not in the blue book. Therefore, be sure to write your test number on each page of the exam.

Essay questions are to be answered in the blue books. You must carefully label your answer to each question or sub-question, using the numbers 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.

Please write clearly. If you handwriting is not clear, please write on every other line.

Part I -- (To be answered by all students)

Instructions: Section I consists of a factual situation with questions interspersed within the facts. Each question can be answered by referring to the facts which precede it.

Facts:

P, a resident of New York, bought a Honda Civic automobile from D Dealer in California. D had obtained the automobile from Honda Motors, Inc., a Japanese corporation. The catalytic converter in the car P bought was manufactured by TKD, Inc., a Korean Corporation. TKD had no employees in the United States, and had done no business with any U.S. firms or individuals. It sold the catalytic converters directly to Honda Motors. TKD sold Honda three types of converters: those meeting California standards, those meeting general U.S. standards, and those meeting Honda standards for the rest of the world. The production of catalytic converters is 15% of TKD's business.

While P was driving the Honda through Oklahoma on his way to his home in New York, he heard funny noises emanating from the catalytic converter. He brought the car into a Honda dealer in Norman, OK. While the mechanic, M, was working on the converter, it exploded, injuring her seriously. P took the next bus out of Norman, abandoning the car. Oklahoma has the following law:

Section 100. Long arm jurisdiction. The courts of this state may exercise personal jurisdiction in any manner consistent with the constitution of the United States.

Section 101. Service of process shall in all instances be made by personal service on the defendant, except in the case of non-resident individuals who own property within the state of Oklahoma, in which case the court may obtain jurisdiction through the attachment of property of the defendant within the State of Oklahoma and publication of a summons and complaint in a newspaper within the state of Oklahoma.

M commenced an action in state court in Oklahoma, naming as defendants P and TKD Corporation. TKD Corporation was properly served with the summons and complaint at its home office. M did not serve P with the summons and complaint, but rather filed papers in the court "attaching" the car, and published the summons and complaint in the Norman Herald.

The parties presented arguments to the judge on the issue of whether the court had personal jurisdiction over P. These arguments are summarized below. For each argument, determine whether it is a valid argument (states the law correctly and reaches a correct conclusion on applying the law to the facts given). Then, mentioning any relevant Supreme Court cases, and using only one or two sentences, indicate your reasons for thinking each argument is valid or invalid. Write your answers to questions through on this exam paper. ⁽¹⁾. Since P is not present in the state of Oklahoma at the time the lawsuit was commenced, the court cannot get personal jurisdiction over him.

____ Valid argument

____ Invalid argument

Brief reasons for your evaluation of validity

_______________________________________________________

_______________________________________________________ ⁽²⁾. Attachment of the car and publication of the notice is not sufficient to give the court personal jurisdiction over P because actual notice to the defendant is always constitutionally required when a lawsuit like this is commenced.

____ Valid argument

____ Invalid argument

Brief reasons for your evaluation of validity

_______________________________________________________

_______________________________________________________ ⁽³⁾. Since P had purposeful contacts with the state of Oklahoma, and the contacts were related to the claim against P, the court has personal jurisdiction over P, but only if plaintiff used her best efforts to provide notice to P of the lawsuit.

____ Valid argument

____ Invalid argument

Brief reasons for your evaluation of validity

_______________________________________________________

Continuation of Facts:

TKD made a pre-answer motion to dismiss based on lack of personal jurisdiction. The trial judge has denied the motion. TKD is permitted to take an interlocutory appeal of this issue. ⁽⁴⁾. At the oral argument on the appeal, one of the judges asks how the U.S. Supreme Court would rule on the question of personal jurisdiction over TKD. What should TDK's attorney tell the judge? In your answer, make sure to identify and discuss the Supreme Court case or cases which are most relevant to the judge's question. Write the answer to this essay question in your blue book.

The appellate court upheld the trial court's decision on appeal. The case proceeded to discovery. TKD propounded the following interrogatory to M:

Identify all witnesses who have information tending to show that the explosion which injured M was caused by faulty design of the catalytic converter, rather than by faulty installation or faulty maintenance of the catalytic converter.

M's answer to this interrogatory is:

I do not have any such witnesses at this time. My attorney is consulting with two experts who have examined the automobile. They do not have opinions about the cause of the accident at this time. ⁽⁵⁾. TKD's lawyer wants to make a motion for summary judgment, claiming that M cannot win because there is no genuine issue of material fact on the issue of faulty design. There are two distinct methods of supporting a motion for summary judgment. Advise TKD's lawyer about what she must do to support a summary judgment motion under each method. In each case, how may M respond to defeat the motion? Write the answer to this essay question in your blue book.

Part II -- (To be answered by all students)

Instructions: This Part consists of a new factual situation. Read the facts, and then answer question .

Facts:

C bought a pair of pants in S Department Store, paying by check. He thought the pants were defective, so he stopped payment on the check. He then went into the store to return the pants. The store manager, upon seeing him, grabbed him, called him a thief, detained him, and called the police. The police arrested C. Based on the store manager's complaint, C was charged with passing a bad check. He was tried and found not guilty. In lawsuit I, C sued S for defamation, alleging that the manager knew that the statement "You're a thief," was false. C sought damages for injury to his reputation. C won a judgment for $5000. In lawsuit II, which was commenced after the judgment in lawsuit I, C sued S for malicious prosecution, alleging that the prosecution for passing a bad check was undertaken at S's insistence and despite S's manager's knowledge that C had legitimate reasons for stopping payment on the check. ⁽⁶⁾. Discuss whether lawsuit I will have a claim preclusive effect on lawsuit II. If it does, what effect will it have?

Part III -- (To be answered by all students)

Instructions: This Part consists of a new fact situation. It has questions through interspersed throughout the facts. Each question can be answered by referring to the facts in this part which precede it.

Facts:

L has lived all her life in Minnesota. T was born and raised in Maryland. When she was eighteen, she went to college in Madison, Wisconsin and lived there for four years. While there, she joined the Sparticist League, a left-wing group. She was sent to Minnesota by the league on temporary assignment. This temporary assignment was originally supposed to be one year, but has been extended twice, for one year each. On being sent to Minnesota, T leased a house in St. Paul, Minnesota, from L under a written lease for a one year renewable period. L and T renewed the lease twice. Now, in her third year of tenancy, T has given notice to L that she will not renew again because she "is moving back to her home state of Maryland." The written lease contained the following provision:

Dangerous purposes: The tenant covenants and agrees not to use the premises during the lease term for any dangerous purposes whatsoever. Any breach of this provision subjects the tenant to damages, injunctive relief, or termination of the lease, at the option of the landlord.

In year three of the T's tenancy, L brings a lawsuit in Federal District Court in Minnesota to seek an injunction to prohibit T from using the leased premises for "dangerous purposes," and to seek damages for T's alleged breach of the "dangerous purposes" provision of the lease. L's complaint alleges, among other things, that T has been using the house to conduct activities of a "revolutionary left-wing" group and that this violates the dangerous purposes provision of the lease. T's answer alleges, among other defenses, that her activities are protected by the First Amendment to the United State Constitution.

T claims she has a right to a jury trial under the Seventh Amendment. L asserts that the Seventh Amendment does not give T that right in this case.

The judge must now decide whether the seventh amendment gives T a right to a jury trial in this case. A number of arguments have been presented to the judge on this issue. These arguments are summarized below. For each argument, determine whether it is a valid argument (states the law correctly and reaches a correct conclusion on applying the law to the facts given). Then, mentioning any relevant cases, and using only one or two sentences, indicate your reasons for thinking each argument is valid or invalid. Write your answers to questions through on this exam in the space provided. ⁽⁷⁾. L's damage claim is clearly legal. L's injunction claim is clearly equitable. The court should conduct the trial in such a way as to insure that T gets a jury determination on factual issues involved in the damage claim.

____ Valid argument

____ Invalid argument

Brief reasons for your evaluation of validity

_______________________________________________________

_______________________________________________________ ⁽⁸⁾. The judge should determine which of the two claims -- the legal claim or the equitable claim -- represents the "essential character" of the lawsuit. The right to a jury follows that determination: if the equitable claim is the essential character, no jury; if the legal claim is the essential character, there is a right to a jury.

____ Valid argument

____ Invalid argument

Brief reasons for your evaluation of validity

_______________________________________________________

_______________________________________________________ ⁽⁹⁾. Since there will clearly be at least one contested factual issue, T is entitled to have a jury examine that issue. Legal questions, however, will be decided by the judge.

____ Valid argument

____ Invalid argument

Brief reasons for your evaluation of validity

_______________________________________________________

Continuation of Facts:

The judge ordered a trial by jury.

At trial, L, the plaintiff, presented the following evidence: A neighbor testified that he frequently sees six to eight long-haired "revolutionary" types going into the house at or about the same time, as if they were having a meeting in the house. A police officer testified that T has been arrested for trespassing at H Corporation during protests about military weapons production. L testified that she saw T and five others come out of the house with placards decrying U.S. involvement in El Salvador, get into two cars, and head off "towards downtown." A police officer testified that on the same day a demonstration was held in front of the federal courthouse about El Salvador, that the demonstration resulted in a scuffle, and that three persons were hurt.

After L rested, T made a motion for a directed verdict. ⁽¹⁰⁾. As the judge's law clerk, write a succinct memo to the judge specifying the matters which the judge must decide in order to rule on the motion for directed verdict, the standards or rules she should use in deciding the motion, and your reasoned suggestions for the proper outcome of the motion. Write the answer to this essay question in your blue book.

Continuation of Facts:

The judge denied the motion for a directed verdict. T then made a motion to dismiss for lack of subject matter jurisdiction.

The judge is now deciding whether to dismiss of lack of subject matter jurisdiction. A number of arguments have been presented to the judge on this issue. These arguments are summarized below. For each argument, determine whether it is a valid argument (states the law correctly and reaches a correct conclusion on applying the law to the facts given). Then, mentioning any relevant Supreme Court cases, and using only one or two sentences, indicate your reasons for thinking each argument is valid or invalid. Write your answers to questions through on this exam in the space provided. ⁽¹¹⁾. The case is essentially a state law claim, and federal courts never have jurisdiction over claims which are essentially state law claims.

____ Valid argument

____ Invalid argument

Brief reasons for your evaluation of validity

_______________________________________________________

_______________________________________________________ ⁽¹²⁾. Since the answer raises a defense under the U.S. Constitution, this is a case "arising under" federal law, thus giving the court subject matter jurisdiction.

____ Valid argument

____ Invalid argument

Brief reasons for your evaluation of validity

_______________________________________________________

_______________________________________________________ ⁽¹³⁾. Whether the court has diversity jurisdiction will depend on two things: whether the proper amount in controversy is pleaded, and whether, at any time since she moved to Minnesota, T had the intention to make Minnesota her home.

____ Valid argument

____ Invalid argument

Brief reasons for your evaluation of validity

_______________________________________________________

_______________________________________________________ ⁽¹⁴⁾. Federal question jurisdiction does not exist because the complaint does not plead a claim arising under federal law.

____ Valid argument

____ Invalid argument

Brief reasons for your evaluation of validity

_______________________________________________________

Continuation of Facts

The judge denied the motion to dismiss.

T presented her evidence. She presented a witness who testified about the evils of U.S. policy in Central America. L objected to this evidence, but the judge allowed the evidence to be presented to the jury.

During closing argument, L's lawyer referred to T as "this communist-sympathizer" and to the meetings in the house as "seditious activity." T objected to these statements, and the judge gave the jury a "cautionary" instruction that they should ignore the statements.

At the close of the evidence, the judge instructed the jury. The judge refused to give the following instruction, which T had timely requested:

"In determining whether T has breached the 'dangerous purposes' provision of the lease, you may not consider the content of any speech activity, unless that speech activity incited immediate violence."

The jury returned a verdict for the plaintiff, L. ⁽¹⁵⁾. T made a motion for a new trial. What grounds could T offer in support of the new trial motion? (Refer to facts.)

For each item you list, state

(i) the standard to be applied by the trial court in deciding whether or not to grant a new trial on that ground; and

(ii) the standard of review which an appellate court should apply in reviewing the trial court's determination on that ground.

Write the answer to this essay question in your blue book.

End of facts for Part III

Part IV

IMPORTANT -- This part is for section 2 only.

Part IV is for students registered in Section 2 only.

If you are registered in Section 3, do not answer part IV. Section 3 students must answer Part V.

If you are in section 3, go on now to part V, on page .

The State of Mitchell has the following law:

No credit card company may charge more than 18% annual interest to customers within the state of Mitchell. Any company which charges more than 18% annual interest shall be liable to each customer overcharged in the amount of $100 plus double the finance charge for any period in which the overcharge was in effect. Any person who has been harmed by a violation of this section may commence a class action on behalf of all others within the state of Mitchell who are similarly situated. No notice to absent class members shall be required in any such class action.

R brings suit against C Credit Card Company in Federal Court in Mitchell. Subject matter jurisdiction is based on diversity of citizenship. R commences the suit on behalf of herself and all other customers of C within the state of Mitchell who are similarly situated. R seeks damages under the Mitchell statute. R brings a motion to have the court certify the action as a class action. C argues that R must send individual notices to all 50,000 members of the class notifying them of the action. C argues she does not have to send the notices.

End of Exam for Section 2.