exam spring 95

William Mitchell College of Law

Examination in Civil Procedure

Prof. Eric S. Janus

Spring 1995

Instructions.

This exam consists of 12 pages, including this. Check now to see that you have all 12 pages. If you do not, immediately notify Student Services.

Exam numbers: Write your exam number on this and the subsequent pages now.

Time allowed: 3 1/2 hours.

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 ten short answer questions. These questions must be answered in the spaces provided in this examination.

Part II consists of one essay questions. Answer this question in your blue book.

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 1/2 hours. Point allocations, and suggested time allocations, are as follows:

Read instructions, look over test, plan time: 1/2 hour.

Part I -- Short Answer questions.

Each of ten questions: 3.3 points 6 minutes

Total for short answers: 33 points 1 hour.

Part II -- Essay question

Recommend time: 2 hours.

Points: 67.

Part I of the exam begins on the next page.

Part I. Short Answer Questions.

This Part consists of ten short answer questions.

Allocated time for Part I: one 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 uses either the correct or incorrect legal standard. In the space provided for your answer to each of these questions: (1) state whether the legal standard used is correct or incorrect; and (2) explain in one or two sentences why the judge's legal standard is correct or incorrect. If a rule, statute or Supreme Court case supports your answer, cite it. Note: Answer the questions in the space provided on your examination. Do not answer these questions in your blue book.

Example:

Question 0. In A's suit against B in federal district court, the judge denies A's motion to amend the final pretrial order, on the grounds that such an order is "final" and cannot be amended.

The judge's legal standard was correct / incorrect. (Circle one).
Explanation: Under Rule 16(e), a final pretrial order can be amended in order to "prevent manifest injustice." ________________________________________________ ________________________________________________________________________

1. After all of the evidence has been presented in the trial of P against D, D moves for a judgment as a matter of law. The judge grants the motion on the grounds that the "great weight of the evidence" favors D.

The judge's legal standard was correct / incorrect. (Circle one).
Explanation: ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

2. In A's suit against B, B joins C as a third party defendant, alleging that C's negligence caused A's injury. The court allows the joinder on the grounds that B's claim against C "arises from the same occurrence or transaction" as A's claim against B.

3. On appeal from a decision granting summary judgment, the appellate judges affirm, ruling that the trial court's determination of the law was correct, and that its determination that there was no genuine issue of material fact was not clearly erroneous.

The appellate judges' legal standard was correct / incorrect. (Circle one).
Explanation: ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

4. Z brings an action against Q, seeking an injunction prohibiting Q from discharging hazardous wastes into a lake. Q moves to have the case tried to a jury. The judge grants the motion on the ground that there is a dispute as to exactly how large Q's discharge is, and that this is a question of fact.

5. E sues F. After F serves and files her Answer, and after extensive discovery, E moves to dismiss his own complaint without prejudice. F objects, pointing out that she has expended extensive sums for attorneys fees, and that E simply is "court shopping." The court grants the motion to dismiss, ruling that the grounds cited by F are not sufficient to defeat the motion.

6. Six months after judgment for R in her suit against S, S moves for an order vacating the judgment and for a new trial. He bases the motion on some newly discovered evidence. He accompanies the Motion with papers demonstrating that he could not have found the evidence earlier, and that the presentation of the evidence would probably have changed the outcome of the trial. The judge denies the motion on the grounds that S failed to show any fraud or other misconduct on the part of R.

7. In P's suit against D, P has asserted two claims against D. Claim 1: that D negligently collided with P's automobile, damaging the vehicle and injuring P. Claim 2: that D defaulted on a vacation loan, presently due and payable to P. On D's motion, the court dismisses P's suit without prejudice, on the grounds that P has improperly joined together in one suit claims that are totally unrelated to each other.

8. L desires to sue M for damages arising out of an auto accident that occurred in Nebraska. L is a resident of Kansas, M is a resident of Illinois. L commences the suit in state district court in Kansas. L causes M to be personally served with the summons and complaint at M's home in Illinois. M moves to dismiss on the grounds that the Kansas court lacks personal jurisdiction. The court denies the motion on the ground that M was personally served in her home state.

9. J and L sue M and N in federal court in Minnesota. The suit is for breach of contract. J and M each claim to have lost $100,000 due to M and N's breach. J is a citizen of Minnesota. L is a citizen of Nebraska. M is a citizen of Maryland. N is a citizen of Nebraska. M and N move to dismiss on the ground that the court lacks subject matter jurisdiction. The court denies the motion, ruling that the amount in controversy exceeds $50,000 (exclusive of costs) and that "minimum diversity" is present on both sides of the case.

10. On appeal from the trial court's denial of R's motion for a preliminary injunction, the U.S. Circuit Court of Appeals dismisses the appeal on the grounds that there has been no "final decision" in the case.

Part II. Essay Question.

Allocated time for Part II: two hours. Part II consists of one essay question, worth 67 points.

Instructions: Read the following factual scenario. Then write an essay identifying and discussing all of the civil procedure issues in the scenario. Do not discuss issues covered during the first semester (pleading and discovery). Include in your discussion not only those issues raised or ruled on, but also those that could have been raised or ruled on. Use your discussion to demonstrate that you understand the proper application of the rules and principles of civil procedure to the facts given.

Factual Scenario:

Peters, Rogers, Nielson and Anz are owners of property along the shoreline of Round Lake in the western part of the State of Mitchell. Williams County, in which Round Lake and the lake shore property are located, has passed an Ordinance (a form of statute) prohibiting the use of pesticides and herbicides within the lake. Rogers and Peters are members of a "property rights" group. This is a group that believes that the government is infringing excessively on the private use of property, and that any government regulation that diminishes the value of private property represents a "taking" of property.

Rogers brings suit against Williams County in Federal District Court, seeking damages under §1983, on the grounds that the Ordinance diminished the value of her property, and thus represents a "taking" of her property without just compensation, in violation of the due process clause of the U.S. Constitution. Rogers seeks damages in the amount of $25,000, which she alleges to be the amount by which the value of her property was diminished by this "taking." After a bench trial, the court makes the following "findings of fact" (among others): 1. Rogers has customarily used a herbicide to kill the seaweed growing in the lake abutting her property. 2. The new Ordinance prohibits the use of this is herbicide. 3. The resultant growth of seaweed near her property will diminish the resale value of her property. 4. This diminution of value does not constitute a "taking" because it is undertaken for a proper governmental purpose. The court grants judgment for the County. Rogers appeals. The Court of Appeals affirms, holding that these "findings" are not "clearly erroneous."

Rogers now brings suit in State District Court against Williams County. This suit alleges that the Ordinance violates state law. Rogers seeks an injunction against its enforcement. On the County's motion, the court dismisses the suit on the basis of claim preclusion.

Nielson, another owner of lake shore property, sues Rogers in state court for damages allegedly caused by Rogers' use of herbicides in the lake. Nielson asks the court to "preclude Rogers from contesting the fact that she (Rogers) has customarily used herbicides in the lake." The court grants this request.

Peters brings suit against Williams County in Federal District Court. His Complaint contains a §1983 claim that is identical to claim Rogers asserted in her federal court suit against the County. Peters, however, seeks $55,000 in damages, which he claims is the diminution of his property's value. He also seeks an injunction barring the county from enforcing the Ordinance. The County serves an Interrogatory on Peters asking Peters to list all documentary evidence he has reflecting the diminution of value of his property. Peters does not respond.

The County moves for summary judgment. Its Motion gives two grounds: First, the County's Motion directs the Court's attention to the fact that Peters failed to identify any documentary proof of diminution of value. Second, the County argues that Peters is precluded by the Court's determination in the federal case of Rogers v. County of Williams (discussed above), that any diminution in value caused by the Ordinance is not a "taking." Peters responds by pointing out to the court that he has retained Febes, a real estate appraiser, to evaluate the property and give evidence about diminution in value. However, he does not produce an affidavit or other sworn testimony from Febes. The Court denies the motion for summary judgment.

Anz is also an owner of property on Round Lake. Anz is a supporter of the Ordinance. She petitions the court in Peters' suit to allow her to intervene on the side of Williams County to defend the Ordinance. The court denies the petition.

On April 1, the County makes a written offer to settle Peters' claim pursuant to Rule 68 for $20,000. Prior to April 1, Peters has incurred costs of $120 and attorneys fees of $15,000. The County had incurred costs of $50 and attorneys fees of $18,000. Peters does not respond to the offer.

The case is called for trial. During voir dire, Peters' lawyer asks each of the panel members what his or her age is. She uses all three of her peremptory challenges against panel members who are in the age range 45-55. The County's lawyer objects, claiming that Peters' lawyer has used "age discrimination" in exercising her challenges. The judge asks Peters' lawyer to explain why she struck those particular panel members. The lawyer says, "In my experience, people in that age range tend to have politically liberal views, and thus would be less favorable to my client." The judge upholds the objection, reinstates the challenged panel members, and orders Peters' lawyer to re-exercise her peremptory challenges.

After a trial by jury, the jury returns a verdict in favor of Peters in the amount of $2,000. Peters moves for a new trial, supporting the motion with an affidavit from Davidson, one of the jurors. Davidson's Affidavit states that Michaelman, one of the other jurors, "seemed closed minded, and refused to seriously consider the evidence most favorable to Peters." The judge denies the motion on the grounds that this affidavit does not provide sufficient grounds for a new trial.

Peters moves for attorneys fees and costs. The County moves for attorneys fees and costs. Peters' post-April 1 attorneys fees and costs are $25,000 and $200, respectively. The County's are $30,000 and $300.

Peters appeals the denial of his motion for new trial. The Court of Appeals affirms, on the grounds that the denial was not an abuse of discretion.

James Paper Company is incorporated and has its only place of business, a paper mill, in the State of Hamland, just to the west of the State of Mitchell. Red Creek runs past James' paper mill in Jamestown, Hamland. James dumps its dirty "wash water" into Red Creek. Red Creek runs into Round Lake (which is in the State of Mitchell), where the wash water has diminished the fish population. Two years ago, the State of Mitchell granted James Paper Company a five-year permit to dump this wash water into Round Lake, via Red Creek. Anz brings suit against the State of Mitchell in Federal Court in Mitchell, alleging that its grant of a permit to James violates the Federal Pollution Control Act. Anz seeks an injunction requiring the State of Mitchell to revoke its permit to James. The State of Mitchell moves to dismiss for failure to join James Paper Company.

End of Exam.

Have a great summer!