William Mitchell College of Law

Examination in Civil Procedure

Prof. Eric S. Janus

Spring 1994

Instructions.

This exam consists of 9 pages, including this. Check now to see that you have all 9 pages. If you do not, immediately notify Student Services.

Time allowed: Five hours. Exams must be returned to Student Services and be logged in within 5 hours of the time when the exam was picked up..

Materials Permitted: Case book. Rule book. Legal and/or English dictionaries. Class handouts. Outlines or other notes which the student personally participated in preparing.

The exam consists of two parts.

Part I consists of six short answer questions. These questions must be answered in the spaces provided in this examination.

Part II consists of four essay questions. Answer these questions in your blue book. Each of these questions shows a page limit. Each page in the limit is one side of a page with writing on all lines. If you double space, you may double the limits. The page limits for typing are the same: They refer to double spaced, normal-margined pages. If your handwriting is very large (fewer than 6 words per line, on the average), you may write me a note at the beginning of the blue book, and increase your page limits by one-third.

Any writing in excess of the stated page limits will be disregarded.

If any part of this exam appears to be incomplete, ambiguous or in error, follow this procedure: Describe the incompleteness, ambiguity or error. Make and state a reasonable assumption which provides the missing or correct information and which provides you with an opportunity to demonstrate your knowledge about the subject. Then, answer the question.

Point and time allocations.

There are 100 points total on this exam. Time allowed is 3 hours. Point allocations, and suggested time allocations, are as follows:

Part I -- Short Answer questions

Each of six questions: 2.7 points 5 minutes

Total for short answers: 16 points 30 minutes

Part II -- Essay questions

Question number points time

7 25 45 minutes

8 9 15 minutes

9 25 45 minutes

10 25 45 minutes

Part I. Short Answer Questions.

This Part consists of six short answer questions.

Allocated time for Part I: one-half hour. Each question in Part I is worth 3.3 points.

Instructions: Each of the following questions poses a scenario in which the judge's ruling is incorrect when considered in light of the facts given. In the space provided for your answer to each of these questions: (1) cite the case, statute and/or rule which most directly shows that the decision is incorrect and explain in one or two sentences why the judge's decision is in error. Note: Answer the questions in the space provided on your examination. Do not answer these questions in your blue book.

Example:

Question 0. A sues B and C in Federal Court on a state law claim for $100,000. A is a citizen of Minnesota. B is a citizen of Iowa. C is a citizen of Minnesota. B moves to dismiss for lack of subject matter jurisdiction. The judge denies the motion.

Question 1. . R sues S in federal court. R and S are citizens of Idaho. R's complaint claims that S defamed her, that the defamatory statements are not protected by the 1st Amendment, and that she was injured thereby. The court denies S's motion to dismiss for lack of subject matter jurisdiction.

Question 2. M sues N and O in federal court. The Complaint alleges that N violated M's civil rights in violation of §1983, and that O is liable to M under a state assault claim. M, N and O are all citizens of Minnesota. The civil rights claim and the assault claim arose out of the same incident. Upon O's motion, the judge dismisses the assault claim for lack of subject matter jurisdiction.

Question 3. R seeks to sue S in state district court in Indiana. S is a citizen of Kentucky. R is a citizen of Indiana. The claim is for personal injuries arising out of a swimming accident which took place at S's home in Kentucky. R commences the lawsuit by serving S personally at her home in Kentucky. S defaults and R obtains a default judgment. The court denies S's motion to vacate the judgment.

Question 4. T sues U in federal court, alleging that U's firing of T was based on sex and was therefore discriminatory. U's Answer alleges that T lacked the visual ability and psychological stability to do the job. On the strength of those allegation, U moves the court for an order directing T to undergo a visual and a psychological examination. The court grants the motion.

Question 5. V sues W in federal district court in Wyoming. The suit seeks specific performance of W's contract to perform in a rodeo produced by V. Wyoming common law permits suits for specific performance in personal service contracts. In ruling on W's motion to dismiss V's complaint, the court applies the "Restatement" rule which prohibits such suits.

Question 6. X is a citizen of Louisiana. Y is a citizen of Georgia. Z is a citizen of Alabama. X is in possession of stock certificates which both Y and Z claim. Y sues X in Alabama seeking return of the certificates. X moves to compel the joinder of Z. The judge denies the motion.

Part II. Essay questions.

Instructions. This part consists of one continuous fact scenario, with several questions interspersed. Answer each of the questions in your blue book.

Suggested time for this part: two hours.

Points, page limits, and recommended times are indicated with each question.

The fact scenario begins here:

Abdurahman is a Turkish corporation which manufactures commercial sewing machines. Shahin is a Syrian company that manufactures the bobbin assembly used in Abdurahman's sewing machines. Abdurahman sells sewing machines all over the world. It makes several models. Machines which are sold in cold weather locations are made to specifications which are different from machines which are sold in other, warmer climates. Among the different specifications is that the bobbins used in the cold climate machines are heavier, to accommodate larger thread sizes. Shahin provides bobbins to Abdurahman in two sizes, one of which is designed to accommodate the cold weather thread. Abdurahman has contracted with Seers, Inc., (hereinafter, "Seers") to distribute its sewing machines in the Upper Great Lakes Area (Minnesota, Wisconsin, North Dakota, South Dakota, Michigan). Pursuant to its contract with Abdurahman, Seers, maintains an "800" number for customers to call to get service on the sewing machines it sells. Seers's main distribution point and headquarters is in Michigan. Seers is a Michigan corporation. It advertises Abdurahman sewing machines throughout the region, including in Minnesota.

Taylor and O'Neill are partners in a small sewing business. Both are citizens of Minnesota. They buy an Abdurahman machine from the Seers store in Michigan. They bring it to their shop in Minnesota. The machine malfunctions, leading Taylor and O'Neill to lose a big contract for the tailoring of the uniforms for the William Mitchell marching band. (The profits from the contract were $55,000). Taylor and O'Neill desire to sue to recover the lost profits.

O'Neill also buys 25 Abdurahman sewing machines from Seers, Inc. These machines are for her own shop, which she owns separate from Taylor. These machines also malfunction, causing her damage in the amount of $1 million.

Taylor and O'Neill are considering bringing one or more suits against Abdurahman and/or Shahin in a federal or state court in Minnesota or Michigan.

Question 7. Discuss the joinder, jurisdiction and venue considerations which should enter into their lawyers' decisions about bringing the suit or suits. 45 minutes. Three (3) pages. 25 points.

Taylor and O'Neill sue Seers, Inc. and Abdurahman in federal court in Michigan. They assert only the claim which they both have for the $55,000 in damages due to the loss of the William Mitchell contract.

After a trial on the merits, the jury renders a verdict for Taylor and O'Neill. The verdict is in the amount of $5000.

Taylor and O'Neill move for a new trial. They assert two grounds: That the judge excluded evidence concerning the standards in the industry for sewing machines; and that the amount of the verdict is too low. The judge denies the motion. Taylor and O'Neill appeal.

Question 8. What standard of review should the court of appeals use in reviewing the judge's denial of the motion for a new trial? 15 minutes. One page. 9 points.

The court of appeals affirms the judgment.

O'Neill now commences suit against Abdurahman for damages arising from the malfunction of the 25 machines she bought for use in her own shop. The suit is commenced in May, 1994.

Question 9. Discuss the application of preclusion doctrines in this suit. 45 minutes. Three (3) pages. 25 points..

Assume the judge allows O'Neill's suit to continue without any preclusion. During discovery, Abdurahman propounds the following Interrogatory to O'Neill:

Describe all evidence you have which tends to show that the Abdurahman sewing machines O'Neill purchased were not manufactured according to commercially reasonable manufacturing standards.

O'Neill's Answer to the Interrogatory is as follows:

Our director of technology, Robert Gates, states that he overhead a discussion by Simone Garth to the effect that Songbird Sewing Machine Company was installing the phrenomatic technology in the sewing machines it manufactured within six months after the manufacture of the Abdurahman machines O'Neill purchased.

An article in "Sewing Today" magazine states that phrenomatic technology prevents overstrech errors.

Overstrech errors are evidenced by wrinkling of seams.

Ninety percent of the garments O'Neill manufactured using the Abdurahman machines evidenced wrinkling of seams.

After the close of discovery, Abdurahman makes a motion for summary judgment. In support of its motion, Abdurahman submits only the following statement: "O'Neill's response to discovery demonstrates that there is no genuine issue of material fact." O'Neill submits a memorandum arguing against summary judgment, but the memorandum is unaccompanied by any additional evidence such as affidavits. Both O'Neill and Abdurahman agree that O'Neill has the burden of proving that Abdurahman's failure to use commercially reasonable manufacturing standards caused the defects which O'Neill complains of.

Question 10. Advise the judge about how to analyze the pending motion for summary judgment. 45 minutes. Three (3) pages. 25 points.