Examination in Civil Procedure

Spring 1992

Professor Eric S. Janus

Instructions

You have five hours to complete this examination. The examination questions are designed to be completed in three hours. Thus, you should have plenty of time to complete the exam in an organized and succinct manner.

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. Use the ample time provided to write careful, organized answers which are to the point.

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 8 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.

This exam consists of 6 questions. 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.

The Exam is divided into two main Parts: Part A and Part B.

Part A is one continuous factual scenario in which are interspersed 5 numbered questions. Each question in Part A can be answered without reference to the facts which follow it.

Part B is a separate factual scenario followed by a single question. The facts and question in Part B bear no relationship to the facts in Part A.

Recommended Time Allocation and Point Allocation:

The table below shows the points (total 100) allocated to each question, and the recommended times to be spent on each question. The first column of times is the recommended times to complete the exam in three hours. The second column of times is the recommended times to complete the exam in five hours.

Question	Points	Time in minutes (3 hours total)	Time in minutes (5 hours total)
1	6	10	16
2	13.5	25	41
3	13.5	25	41
4	25	45	74
5	17	30	49

6	25	45	74
Totals	100	180	300

Part A

An Ordinance of the City of Mitchell, which is in the State of Minnesota, states:

§100. Unlawful picketing. It shall be unlawful to picket in or near the vicinity of a private residence in such a manner as to unreasonably interfere with the peaceable enjoyment of the lawful occupants of that residence. Conduct violating this ordinance may be enjoined by a court of competent jurisdiction. Any person harmed by such conduct has an action in damages against the wrongdoer.

Another Mitchell city ordinance, states:

§200. Public nuisance. Any use of property which is unreasonably dangerous is a public nuisance and may be enjoined.

The RT Corporation owns and operates a "group home" for four people who are mentally retarded. The home is located in the City of Mitchell, State of Minnesota. Jens is mentally retarded and a resident of the group home. Some of the neighbors of the home have discovered that Jens was convicted of a sexual offense ten years ago. They object to Jens living in the group home. They complained about Jens's placement in the home to the County Social Services Department, but their complaints were rejected. So, three of the neighbors, Anita, Boris and Chinula began marching around near the house with signs which read "SAVE OUR CHILDREN! NO SEX OFFENDERS!!" and "STOP VIOLENCE AGAINST WOMEN AND CHILDREN!" Jens's lawyer writes a letter to Anita, Boris and Chinula, demanding that they cease picketing. She cites the city ordinance §100 . Anita, Boris and Chinula's lawyer responds: "My clients' activity does not violate §100. In addition, it is protected by the First Amendment to the United States Constitution." Jens and Anita were born and raised in Minnesota. Boris grew up in Arkansas. When he was 18, he left Arkansas to attend college in Atlanta. He is now a student in the super computer program at the University of Minnesota. He is unsure where he will settle after he graduates. Chinula is a citizen of the nation of Malawi.

Jens's lawyer is considering bringing an action against some or all of the picketing neighbors. Her draft complaint reads, in pertinent part:

COMPLAINT

1. [Jurisdictional allegations. To be filled in later, before filing.]

2. [Factual allegations describing the picketing of the defendant(s).]

3. The activity of the defendants violates §100.

4. Such activity is not protected by the First Amendment to the United States Constitution because it is not reasonable in time, place and manner.

5. Plaintiff has been injured by the picketing in an amount exceeding $50,000 and seeks damages therefor.

6. Plaintiff will continue to be irreparably injured by the picketing, and seeks a temporary and permanent injunction enjoining defendants from engaging in such picketing.

Question 1. Can the lawyer join all three picketing neighbors as defendants in one lawsuit?

Question 2. Would a federal district court have subject matter jurisdiction over the lawsuit which the lawyer is contemplating?

Question 3. Suppose Jens sues some but not all of the picketing neighbors in this lawsuit. If this lawsuit results in a judgment on the merits, what, if anything, will be the preclusive effect of that judgment in any subsequent suit Jens brings against the other picketing neighbors to enjoin their picketing? What will be the preclusive effect of a judgment in this lawsuit if some of the picketing neighbors who are defendants in this lawsuit subsequently decide to sue Jens under §200?

Jens and his lawyer decide not to file any lawsuit against the neighbors. However, the picketing neighbors, Anita, Boris and Chinula commence their own lawsuit, in Minnesota state district court, against RT Corporation. [Note: The remainder of the facts and questions of this Part of the exam relate to this state court lawsuit: Anita, Boris and Chinula vs. RT Corporation.] The Plaintiff neighbors are seeking an injunction prohibiting RT Corporation from operating the group with Jens as a resident. Their suit is brought pursuant to the city's public nuisance ordinance, §200. They allege that operating the home with Jens as a resident creates a public nuisance.

After the pleadings are closed and discovery is complete, RT Corporation makes a motion for summary judgment. It presents the following items in support of its motion:

an affidavit from Dr. Erika Williamson, an expert on sexual offenders. In pertinent part, her affidavit states: "I have examined Jens's social history, medical records, and criminal record. I believe that he poses only an ordinary risk of harm to the neighbors at this time. Although some persons with his history do commit subsequent sexual offenses, the risk of reoffending is reduced considerably with the provision of proper supervision, such as being provided for Jens by RT Corporation."

The following excerpts from Interrogatories served upon the plaintiff neighbors and their answers:

Interrogatory 34: Describe all documentary evidence you have which shows, or tends to show, that Jens has posed a danger to anyone at any time since his offense 10 years ago.

Answer 34: None.

Interrogatory 35: Identify all eyewitnesses to any dangerous behavior Jens has ever evidenced.

Answer 35: None.

Interrogatory 36: Identify all persons who have or may have any knowledge of Jens's alleged dangerousness.

Answer 36: Anita has heard that Jens was suspected of a sexual offense five years ago. Boris knows a person who observed Jens walking about the yard of the home unsupervised.

In response to the motion, the plaintiffs each submit an affidavit. Their three affidavits are substantially similar to each other. Each states that the affiant is concerned for her/his own safety and that of her/his family and children.

Question 4. How should the judge decide this motion for summary judgment ?

The judge denies the summary judgment motion.

At a pretrial conference one month before the trial is scheduled to begin, the judge issues a "final pretrial order." This order, among other things, lists the witnesses each side will be calling and the documents each side will be introducing. The Order says, "No other witnesses or documents will be admitted into evidence." During the trial, the plaintiffs' lawyer is cross-examining Dr. Williamson, RT Corporation' expert witness. During the cross-examination, Williamson makes reference to a "Summary of Incidents" which she describes as a document describing "disciplinary incidents" involving Jens at RT Corporation. The plaintiffs' lawyer asks to introduce the Summary of Incidents into evidence. RT Corporation objects, on the grounds that the document is not listed on the final pretrial order. The plaintiffs' lawyer then moves to "amend the final pretrial order to allow the introduction of this document" on the grounds that this document was not produced by RT Corporation during discovery. The judge says: "I'm sorry. You have had your chance to correct discovery errors. It is too late now. Final pre-trial orders are just that -- final. Motion denied."

At the end of the trial, the jury finds for RT Corporation. The plaintiffs move for a new trial, citing the judge's refusal to amend the pre-trial order to admit the Summary of Incidents into evidence as grounds for the new trial motion. The judge denies the motion. The plaintiffs appeal.

Question 5. How should the appellate court handle this appeal?

Part B

Hamburguesa, S.A., (HSA) is a Venezuelan food processing and packing company. It buys meat and other foodstuffs from slaughterhouses and markets in Venezuela. It processes them into hamburgers and hot-dogs, which it then freezes and packages for shipment to the United States. HSA deals with food wholesalers in the U.S. It ships about 500,000 individual food items per year to these wholesalers. The wholesalers, in turn, sell to jobbers, who in turn sell to independent (non-franchised) fast food restaurants, which, in turn, prepare the food and sell to consumers. HSA packs food in "variety packs." These are combinations of beef hamburgers, pork hot dogs, and all vegetarian "veggie burgers." The standard variety pack is 45% beef, 45% pork, and 10% vegetable. Certain jobbers, who sell to restaurants in New York, Michigan and California, request specialty packs. Compared to the standard variety packs, these specialty packs have substantially less pork products, or substantially more vegetarian products, because of the consumer demand in these areas of the country.

Geraldine bought a veggie burger from Argie's, a fast food restaurant in Michigan. She became ill, and wishes to sue HSA in a state court in Michigan. Geraldine's lawyer commences the lawsuit by sending a copy of the summons and complaint by registered mail to the headquarters of HSA in Venezuela . In addition, the lawyer serves the president of HSA personally as she is traveling in an airplane from Caracas to a conference in Winnipeg. The service took place while the plane was on the ground at the Detroit, Michigan airport being refueled and resupplied. Assume that all of these actions were consistent with and authorized by the law of the state of Michigan. HSA makes a motion to dismiss for lack of personal jurisdiction.

Question 6. Discuss whether the court should grant HSA's motion.

END OF EXAM. HAVE A GREAT SUMMER!