Examination
Civil Procedure
Professor Eric S. Janus
Spring 1993

Length of Exam: 3 Hours.

Permitted materials:

Your casebook, Yeazell, Landers and .Martin

Your Rules Supplement.

Class handouts.

Notes and outlines which you have participated in preparing.

Dictionaries (legal or other).

General Instructions

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 four Parts: Parts I, II, III, IV. Each of these parts is a separate factual or policy scenario. Each Part has separate instructions which are set forth at the beginning of the Part.

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. Total time for the Exam is three hours. Budget your time carefully.

Part/Question	Points	Time in minutes (3 hours total)
Part I
Question 1	33 1/3	60
Part II
Question 2	16 2/3	30
Part III
Question 3	8 1/3	15
Question 4	8 1/3	15
Question 5	16 2/3	30
Part IV
Question 6	16 2/3	30
Total	100	180

part I

Instructions for Part I: This Part of the exam consists of a factual scenario followed by a single essay question. Suggested time: 1 hour.

P, a citizen of the State of Minnesota, buys and sells lots of rental real estate. She deals with real estate brokers frequently. In a recent deal P sold an apartment building. As part of the deal, $10,000 of the purchase price was paid by the buyer, B, into an "escrow" fund. The fund is being held by Allied Trust, Inc. (ATI). ATI is a Delaware corporation with its principal place of business in Wisconsin. Under the terms of the escrow agreement, ATI is to release the money to P as soon as P has furnished satisfactory assurances that certain required repair work on the building has been completed and fully paid for. P is claiming that the work is finished and paid for. She says the escrowed money should now be paid to her. B, the buyer, who is a citizen of Wisconsin, disagrees, and says the escrowed money should be paid to him. There are two contractors doing repair work on the building, C and D, both of whom are citizens of Minnesota. P claims that she has fully paid C and D, but C claims that she has not been fully paid by P, and is thus entitled to part of the escrowed funds. P also claims that C damaged the antique wood floors in the apartment building in the course of doing the repair work. The amount of the damage was $15,000. C denies that it was her firm that caused this damages, and says that it was D's firm that is responsible.

P is also concerned about a certain clause that some real estate brokers have recently begun inserting into their standard form retainer contracts. In these contracts, the customer must agree to arbitration of all disputes between the customer and the real estate agent. Because all of the big real estate firms have begun to use the same clause in their contracts, P thinks that the use of the clause may violate the Federal Anti-trust laws.

E Realty and F Realty are the two biggest real estate firms in the local area. P has used both firms in the past, and expects to use both again in the future. P used the services of E Realty in connection with the sale of the building to B. Both E and F have adopted the arbitration clause.

G is a small real estate firm, which has not adopted the clause. G commenced a lawsuit against E and F claiming that their use of the arbitration clause violated Federal Anti-trust laws. In its suit, G alleged that it was representing the "class of all firms and persons who are adversely affected by the arbitration clause." The court certified the case as a class action. During discovery, the court dismissed the case "for failure of G to cooperate with discovery" and granted judgment to E and F dismissing G's claims.

H sued E Realty in small claims court claiming that E had overcharged him by $1000. E raised the arbitration clause as a defense to H's claim. The conciliation court judge granted judgment for E in the amount of $1000. The judge did not set out the basis for her ruling. E did not appeal.

P's lawyer is contemplating bringing lawsuits against ATI for the escrowed funds, against C for the damage to the antique wood floors, and against E, and F to seek an injunction to prohibit them from using the arbitration clause in the future.

Question 1

Write a memo to P's lawyer advising her about all joinder, preclusion and subject matter jurisdiction issues she may face in connection with these lawsuits. Also, discuss all joinder, preclusion and subject matter jurisdiction issues which may arise if any of the other parties take litigation actions to protect their rights and interests. Identify any personal jurisdiction issues which are relevant to issues of preclusion or joinder, but do not discuss those issues in detail. Assume that all courts involved in any litigation have rules of civil procedure which are identical with the Federal Rules of Civil Procedure. Organize your answer carefully.

Suggested time: 1 Hour.

part II

Instructions for Part II: This Part consists of a new factual situation, followed by one multi-part question. Suggested time: 30 Minutes

Q, an artist, lives in Minnesota and makes cow mobiles (a type of sculpture, always in the shape of a cow or evocative of bovine culture, consisting of parts that move). In his garage workshop, he makes about 1500 cow mobiles per year. The cow mobiles are designed to be hung outside. He makes the mobiles out of a variety of materials, the particular choice for a given mobile being dependent on the climatic conditions of its intended final destination. Q sold a batch of 50 mobiles to Moving Outside Objects, Inc. (MOO, Inc.), a cow-theme store in Vermont. MOO, Inc. advertises its wares in "Yankee Peddler", a publication aimed at the New England States (Vermont, New Hampshire, Massachusetts, Maine). MOO, Inc. sold a mobile to R, a resident of Vermont. R moved to New Hampshire, taking the mobile. After R mounted the mobile at his new home in New Hampshire, it struck R's friend S, a citizen of New Hampshire, injuring her.

S sues Q and MOO for her personal injuries, which amount to more than $50,000.

Question 2

Using the facts above, state whether the court would have personal jurisdiction over the defendant in each of the following scenarios. Cite the Supreme Court case(s), if any, which is/are most relevant to determining whether personal jurisdiction exists. Do not cite cases which are not critical to deciding about jurisdiction under the scenario. Justify your conclusion about jurisdiction in a short paragraph.

a. S sues Q in Vermont state court. Q is personally served with the Summons and Complaint in Minnesota.

b. S sues MOO, Inc. in Federal Court in Minnesota. MOO, Inc.'s agent is served personally in Vermont.

c. S sues Q in New Hampshire. Q is served personally while vacationing in New Hampshire.

d. S sues Q in Minnesota state court. The lawsuit is commenced by the attachment of Q's garage and publication of a notice of the suit in the local newspaper.

Suggested time: 30 minutes.

part III

Instructions for Part III. This Part consists of a new factual scenario with three questions interspersed. Total suggested time: 1 hour.

The Fair Housing Act of the State of Mitchell (MFHA) prohibits discrimination in housing "based on a person's disability." Z attempted to rent an apartment from L, but L refused. Z sues L for damages under the MFHA. He brings the suit in Mitchell State Court, whose rules and laws of civil procedure are identical, for purposes of this problem, with the Federal Rules of Civil Procedure and applicable provisions of the Federal Judicial Code, Title 28 U.S.C. Z's complaint alleges that he is a "disabled person" under the MFHA, that L refused to rent him an apartment, and that L's refusal was "based on" Z's disability.

L makes a motion to the court for a mental and physical examination of Z "to determine the nature and extent of his disability." Z makes a motion to the court for a "psychiatric examination of L to determine whether L is biased against persons with disabilities." Neither party submits any factual information in support of the motion.

Question 3

How should the court rule on each motion?

Suggested time: 15 minutes.

Question 4

If the court grants Z's motion, can L get immediate appellate review of the order? If so, how? What standard should an appellate court use in ruling on the issue?

Suggested time: 15 minutes.

At trial, Z presents the following evidence:

H, a certified gambling addiction therapist, testifies that Z is afflicted with "severe, chronic gambling addiction."

Z testifies that he applied to L on April 20, 1992 to rent an apartment. At L's request, Z filled out a rental application form, including his address and phone number. At that time, Z was residing at Uptown Residence, a residential treatment facility for gambling addicts.

W, a staff person at Uptown Residence, testifies that she took a call from a person identifying herself as Z on April 21 at 1 p.m.. When W told L that Z lived at Uptown Residence, L asked what sort of facility it was. Z told L it was a gambling addiction treatment facility.

Z testifies that L called him at 1:15 p.m. on April 21 to say that the apartment was not available.

After Z rests, L testifies that she was unaware that Z was a gambling addict, and that she decided not to rent the apartment to him because there was "something about him" which she did not like.

L rests and then moves for judgment as a matter of law.

Question 5

Write a brief memo for the judge discussing how she should analyze the issues involved in ruling on this motion.

Suggested time: 30 minutes.

part IV

Instructions for Part IV: Read the text below and answer the single essay question which follows. Suggested time: 30 Minutes.

The law of civil procedure is an accommodation of many conflicting values. Some important conflicts are:

fairness versus efficiency

decision-making which is predictable and uniform versus decision-making based on highly individualized factors.

providing procedural rules which are politically neutral versus providing procedural rules which advance particular social values.

There are other pairs of conflicting values, as well.

Question 6

Choose one pair of conflicting values. The pair may be from the list above, but it need not. Write an essay which addresses that pair of conflicting values in two ways: (a) Describe at least two discrete, concrete examples of the conflict in civil procedure law. How does the law, as it currently exists, accommodate the conflict? (b) Evaluate the way in which the law accommodates the conflict according to your own sense of what is right. How well does the law, as it currently exists, accommodate the conflict?

Suggested time: 30 minutes.

end of exam!

have a great summer!