Examination in

FEDERAL JURISDICTION

PROFESSOR ERIC S. JANUS

FALL 1993

General Instructions:

This is a take home examination. Your answer must be returned to the Student Services Office at William Mitchell College of Law by the close of business on the last day of the Examination Period, and no later than 72 hours after you picked the exam up. It is your responsibility to see that the date and time when you turn the exam in are logged onto the exam.

This examination consists of 8 pages, numbered sequentially, counting this page. If you are missing any pages, contact the Student Services Office at once.

After you have opened the envelope containing the exam, you may not use or refer to any materials other than: the assigned casebook, class notes, class handouts, outlines and other materials which you have personally participated in preparing, and dictionaries (legal or English). After you have opened the examination envelope, you may not discuss this exam or any federal jurisdiction issues with anyone else.

Your examination answer must be typed. It must not exceed 12 pages of doubled spaced type with normal margins. Material in excess of stated page limits will not be considered in grading.

The examination has two parts. Each has equal weight in the grade. Part I requires you to write an essay which may be no longer than 6 pages. The essay will be evaluated on the following factors: organization and clarity, depth of understanding exhibited, incisiveness and originality of thought and analysis.

Part II of the exam consists of a single factual situation. You are to write an essay not longer than 6 pages discussing the issues of federal court jurisdiction and power which arise out of or concern these facts. This answer will be evaluated on its completeness, organization, analytical clarity, and depth. Further instructions about this part of the exam are stated below.

Part I.

Much of the law governing the jurisdiction of federal courts is concerned with the proper allocation of power between federal courts and other sovereign governments. Write an essay of no more than six double-spaced typed pages about this jurisprudence of power allocation. Your essay should focus on the question of whether the policies and principles underlying the allocation of power are consistent throughout the various areas of federal court jurisprudence. Base your analysis on concrete discussions of at least three areas of federal court jurisprudence, distributed as follows:

Group A (discuss at least two of the following areas): Arising under jurisdiction; diversity jurisdiction; Erie; Federal Common Law; Abstention; Sovereign Immunity; suits against government officials.

Group B (discuss at least one of the following areas): Domestic Relations exception; tribal courts; cross-jurisdictional preclusion.

Part II.

Instructions

In this part you are given one factual situation. Your answer, which may not exceed 6 double-spaced, typed pages, should identify the federal jurisdiction and power issues arising from or concerning this factual situation, and discuss and analyze those issues. Your answer should discuss not only those issues which were raised by the parties, but also those which could have been or could in the future be raised in the lawsuits described.

You may choose to structure your answer in one of two ways. Method 1: Identify all issues, and give approximately equal emphasis to discussion and analysis of each of the issues. Method 2: Identify all issues, but give disproportionate emphasis in your answer to one or more issues which you consider to be most difficult or interesting or complex. In either case, you "identify" an issue by naming the doctrine or area of law (e.g., "diversity jurisdiction"), pointing out which facts implicate that doctrine or area of law (e.g., plaintiff and defendant are both citizens of Minnesota), and briefly stating the legal problem or issue raised by the application of the doctrine or law to the facts (e.g., whether complete diversity is required by §1332). The object is to state the issue in a way which demonstrates to the reader that you have an understanding of the operation of the doctrine or area of law and its application to the facts.

The problem involves the hypothetical State of Mitchell and a hypothetical law of the State of Mitchell. No knowledge of or relationship to actual state law is assumed or intended. The relevant portions of this Mitchell State "law" are set out in full. In answering this question, you may wish to refer to the Federal Rules of Civil Procedure, in particular Rules 14 (Impleader) and 15 (Amendment). Rule 14 is set out in full in your textbook. The relevant portion of Rule 15 is set out below.

In the event you conclude that some portion of the facts is ambiguous, incomplete, or logically inconsistent, please follow this procedure: Note in your answer the ambiguity, incompleteness or inconsistency. Then, make an assumption or extension of the facts which will enable you to answer the question in a manner which meaningfully demonstrates your knowledge of the subject matter. State in your answer the assumption or extension you are making.

Facts:

The State of Mitchell, one of the United States, has the following statute:

Laws of the State of Mitchell

Section 100 Civil Rights for Victims of Violent Pornography

Subd. 1. Definitions. For purposes of this section, the following terms have the indicated meanings:

(a) "pornography" means the depiction of sexually explicit behavior with the intention of arousing sexual excitement.

(b) "violent pornography" means pornography which also depicts violence.

Subd. 2. Liability. Any person harmed, within the State of Mitchell, by violent pornography, is entitled to compensatory and punitive damages, injunctive relief, and reasonable attorneys fees, from any person responsible, in whole or in part, for the production, distribution, sale or publication of the violent pornography.

Subd. 3. Burden of Proof. In any action brought under subd. 2, upon proof by the plaintiff of injury with any proximate relationship to any violent pornography produced, distributed, sold or published by the defendant, the burden of persuasion and of production shall shift to the defendant to show by the preponderance of the evidence that the violent pornography did not cause the harm alleged by the plaintiff.

Subd. 4. Declaratory judgments prohibited. No court may issue a declaratory judgment regarding the construction or constitutionality of this section.

Subd. 5. Waiver of defenses. A defense to a complaint under this section is waived unless affirmatively set forth in the original answer to the complaint.

Subd. 6. Administrative enforcement. The Mitchell Commissioner of Human Rights may, through investigative proceedings, determine whether any person is engaged in a pattern of producing, distributing, selling or publishing violent pornography which causes harm to others. Upon a determination in the affirmative, the Commissioner may commence an action in State District Court to enforce his or her determination by the assessment civil penalties and injunctive relief requiring the offending action to cease.

Federal Rules of Civil Procedure

Rule 15 Amended and Supplemental Pleadings

(a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. . . .

FA is the absentee owner of an "adult" book and video store in the City of Williams, State of Mitchell. P lives in the neighborhood of FA's store and has been injured by sexual violence. C is a clerk who works in FA's store. M produces sexually explicit videos which are sold in FA's store. FA is a citizen of the State of Nevada. M, P and C are citizens of the State of Mitchell.

[The following litigation events are listed in chronological order.]

Suit I. P brings suit under § 100 in Mitchell State District Court against FA, seeking more than $50,000 in damages and an injunction prohibiting FA from selling violent pornography at his store. Before answering, FA removes the case to Federal District Court. After removal, FA serves and files his Answer to the Complaint in a timely fashion. The Answer denies that the material sold in his store is "violent" and denies that the sale of anything in his store harmed P. Two days after serving and filing the Answer, FA's lawyer serves and files an Amended Answer, asserting the following two additional affirmative defenses:

P's claims are barred by the applicable statute of limitations and by the equitable doctrine of laches.

Section 100, as applied to defendant, violates the First and Fourteenth Amendments of the United States Constitution.

FA impleads M, alleging in the third-party complaint that M produced the videos which FA sold, and seeking contribution and indemnification from M for any damages recovered by P. P then asserts a claim, on the authority of Fed. R. Civ. Pro. Rule 14(a), against M seeking damages and injunctive relief under § 100. M moves to dismiss this claim on the grounds that the Court lacks subject matter jurisdiction over the claim. The Court dismisses the claim. M now asserts a claim, on the authority of Fed. R. Civ. Pro. Rule 14(a), against P seeking a declaratory judgment under § 1983 that § 100, as applied to M, violates the First and Fourteenth Amendments of the United States Constitution. P moves to dismiss M's declaratory judgment action and, in the alternative, moves that the Court abstain. The Court denies both motions. P moves to strike the affirmative defenses in FA's Amended Answer on the grounds that they are waived pursuant to subd. 5 of § 100. The Court denies the motion, citing Fed. R. Civ. Pro. 15(a).

Suit II. P files suit against C in Mitchell State District Court seeking damages under § 100. C Answers in a timely fashion, denying material portions of the Complaint and stating the following affirmative defenses:

Section 100, as applied to defendant, violates the First and Fourteenth Amendments of the United States Constitution.

Subdivision 3 of § 100 deprives defendant of the right to a fair opportunity to defend herself.

C then removes the case to federal court, citing 28 U.S.C. §§ 1441 and 1443. P moves to remand.

Suit III. P files suit in Mitchell State District Court against M seeking damages and injunctive relief pursuant to § 100. M answers, denying material aspects of the Complaint, but raising no affirmative defenses. M's Answer states that M "reserves" the defense that § 100 is unconstitutional.

While the above actions are pending, CHR, the Commissioner of Human Rights for the State of Mitchell, announces that she is undertaking an "administrative investigation" to determine whether FA's store violates § 100. FA is formally notified of the investigation, and invited to submit comments and evidence to the Commissioner for her to consider as part of her investigation.

Suit IV. FA and C, the clerk in FA's store, bring suit under § 1983, in Federal District Court, against CHR and against the Department of Human Rights for the State of Mitchell, alleging that § 100 violates their rights under the First and Fourteenth Amendments of the U.S. Constitution. The suit seeks the following relief:

An injunction prohibiting CHR and the Department from continuing their administrative investigation of FA's store.

An injunction prohibiting CHR and the Department from commencing enforcement proceedings in State Court.

Damages for injury to FA's business and reputation.

Relocation assistance, to help FA move his store to another location, in order to overcome the neighborhood hostility generated by the Commissioner's investigation.

FA and C move for a preliminary injunction prohibiting the defendants from commencing an enforcement suit. The Court grants the preliminary injunction.

Two weeks later, CHR announces the "findings" and "determination" in her administrative investigation. These are as follows:

1. FA's store sells "violent pornography" within the meaning of § 100.

2. The sale of this violent pornography has "harmed" others, within the meaning of § 100. In particular, the sale has harmed P.

3. Section 100 is not unconstitutional.

Suit V. CHR commences a suit against FA in Mitchell State District Court to enforce her findings.

In suit III, M seeks to amend his Answer to assert the unconstitutionality of § 100, but the court denies the motion on the grounds that the defense has been waived pursuant to subd. 5 of § 100. The court, after trial, finds that M violated § 100, and enters judgment for P. M appeals to the Mitchell Supreme Court, which upholds the judgment of the trial court. The Mitchell Supreme Court rejects M's argument of unconstitutionality on the grounds that the defense was waived as not timely asserted. M seeks review in the U.S. Supreme Court on the issue of the unconstitutionality of § 100.

In suit I, P seeks to have M's rule 14(a) declaratory judgment claim dismissed on the grounds that it is barred by the judgment in suit III. (P's argument is that M could have raised the defense of unconstitutionality in suit III, and that the defense is now barred by the judgment.)

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