William Mitchell College of Law
Civil Procedure -- Examination -- Spring 2000
Instructions
Time: Two hours.
Permitted materials: Your Rule Book with any annotations you have made on its pages. Paste-ins not permitted (tabs are ok).
This examination consists of 1 pages, numbered sequentially, counting this page. If you are missing any pages, contact the Student Services Office at once.
This test contains two Parts. Part I is a single scenario describing, in chronological order, the events concerning several lawsuits. Four questions are interspersed in the scenario. Answer each of the interspersed questions based on all of the facts that precede the question in that scenario.
Part II consists of three stand-alone, self-contained questions.
Point and time allocation: The examination is 100 points total. All questions are allocated equal points. The recommended time allocation is as follows.
Read directions and facts: 15 minutes.
Each question (1-7): 15 minutes.
Total time: 120 minutes.
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 that will enable you to answer the question in a manner that meaningfully demonstrates your knowledge of the subject matter. State in your answer the assumption or extension you are making.
Answer this exam in your blue books, not on this exam paper. Please write clearly. If your writing is unclear, please write on every other line and on one side of the page only.
Note: Some of the questions portray lawsuits that take place in state courts. Unless otherwise specified, assume that those state courts have rules of civil procedure that are identical to the Federal Rules of Civil Procedure.
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Part I
Instructions: This Part consists of one continuous factual scenario with four questions interspersed. Answer each question based on the facts preceding it.
"E-bid" is an internet "auction" website. Unlike other auction websites, E-bid requires that the item to be auctioned be physically deposited with its agent, E-escrow, Inc., prior to the bidding. E-bid and E-escrow have a contractual arrangement, that provides, in part, as follows:
E-escrow, Inc., is the agent of E-bid. E-escrow shall hold in secure storage any item deposited with it for auction on E-bid, and shall release said item only when properly instructed by E-bid. E-bid agrees to hold E-escrow, Inc., harmless for any liability incurred by E-escrow, Inc., in carrying out the valid instructions of E-bid, and will indemnify E-escrow for any such liability.
E-bid is incorporated in California and has its principal places of business in Florida. E-bid does no advertising "in" any state. All of E-bid's marketing is done on the internet. E-bid places ads on popular websites like "Yahoo". Millions of people in the United States view these ads, but the viewers must actively "click" onto the site in order to view the ads.
E-escrow, Inc., is incorporated in, and has its principal place of business in California.
Elian Gonzales is a six-year-old Cuban boy found floating off the coast of Florida on a raft. Cared for by his great uncle Lazaro and cousin Marisleysis in Miami for several months, Elian is now in the custody of his father Juan in Maryland. Juan is a citizen of Cuba residing temporarily in Maryland. Lazaro and Marisleysis are citizens of the United States who are domiciled in Florida. Jorge is an acquaintance of Lazaro and Marisleysis. Jorge is a citizen of the Untied States who was born and raised in Florida, where he resided until two years ago, when he was transferred by his employer from Florida to California, where he now resides. Jorge votes in California, owns a house in California, has a California drivers license, but vacillates between thinking that he will stay in California indefinitely, and thinking that he will return to Florida. For the past several months, he has been making intermittent visits to Lazaro in Miami.
On his last visit to Miami, Jorge took the raft that Elian was clinging to, and put it up for auction on E-bid. As required by E-bid rules, he deposited the raft with E-escrow, Inc.'s office in Miami, Florida. Jorge then returned to California, where he is presently located.
E-bid has received letters from lawyers for Lazaro and Marisleysis, each of whom claims ownership of the raft and demands its return from E-bid. In addition, Jorge claimed ownership of the raft when he deposited it with E-escrow.
Question 1. You are a law clerk for the attorney who represents E-bid. The attorney wants to know whether there is anything her client can do to resolve the conflicting claims of Lazaro, Marisleysis and Jorge to the raft. Write a memo to the lawyer advising her about what options are available. Your answer should discuss relevant issues of joinder and jurisdiction.
Meanwhile, before E-bid has a chance to take any action on the memo, other events transpire, as follows:
"Auction-tech" is a software company incorporated in California with its principal place of business in California. Auction-tech makes the software that runs E-bid. In particular, this software is supposed to manage the bids from E-bid's customers, and insure that the merchandise that is for sale is sold to the highest bidder. Auction-tech does no advertising at all, and has no offices other than its California office.
While the raft is listed on E-bid, Pamela and Quinsy separately bid on it. Pamela is a citizen of and resides in California and Quinsy is a citizen of and resides in New Hampshire, and each has placed her/his bid from her/his home. Through a "bug" in the Auction-tech software the sale is awarded to Pamela, even though Quinsy had the highest bid. Using the software, E-bid automatically transmits an order to E-escrow, directing it to give the raft to Pamela upon payment of the winning bid ($100,000). Pamela pays the appropriate amount, and E-escrow is preparing to transfer the raft to her.
Quinsy consults his lawyer about suing Auction-tech for damages for the error that may potentially result in the raft being given to Pamela.
Question 2. Quinsy's lawyer would like to sue Auction-tech in a court in New Hampshire. As her law clerk, write her a memo discussing whether the federal court in New Hampshire would have personal jurisdiction in the suit.
Quinsy's lawyer changes her strategy, and instead brings suit against E-escrow in federal court in Florida. Quinsy claims that E-escrow should give him the raft, and he sues for delivery of the raft, or, in the alternative, for damages for mistaken non-delivery.
Question 3. E-escrow's lawyer wants E-bid and Pamela to be part of the lawsuit. Write the lawyer a memo discussing the questions of joinder and jurisdiction that are involved in making E-escrow and Pamela parties to the suit.
Meanwhile, Marisleysis sues E-bid in state court in Florida. She alleges that she is the owner of the raft; that E-bid was negligent in failing to ascertain the true owner of the raft; and that E-bid is therefore liable to her in damages. After a trial, the court held in favor of E-bid. The court made the following findings: 1. That E-bid was negligent in failing to ascertain the true owner. 2. That Marisleysis was not the owner of the raft. 3. That the true owner of the raft is Juan. 4. Therefore, there were no damages payable to Marisleysis.
Subsequently, Juan sues E-bid, claiming that he is the true owner of the raft, that E-bid is liable to him for negligence in failing to ascertain the true owner of the raft.
Question 4. Juan moves the court to employ issue preclusion to "import" findings from Marisleysis's suit. As the judge's law clerk, write a memo clarifying the issues involved in this request.
Part II - Short Answer Questions
Instructions: Each of the following questions is self-contained. Answer each in a succinct paragraph based on the facts given.
Question 5. Sullivan sues The New York Times in New York State District Court, alleging defamation. Sullivan is a citizen of Alabama. The New York Times is incorporated in Delaware and has its principal place of business in New York. The New York Times serves and files it Answer, alleging as an affirmative defense the First Amendment to the United States Constitution. The New York Times removes the case to federal district court. Sullivan moves to remand to state court on the grounds that the case was not removable. The federal judge denies the motion, stating the following reasons: "There is federal question jurisdiction because (1) there is an actual (not just an anticipated) federal question that must be decided in this case; and (2) the federal question is likely to predominate. (3) In any event, there is diversity jurisdiction." Write a succinct analysis of whether the judge's reasoning and order are correct, and why.
Question 6. Pamela's landscaping business did extensive work on Darlene's large garden. Darlene was dissatisfied with the work and did not pay. She also told some of her friends that the work was substandard, and the friends cancelled contracts with Pamela. In suit I, Pamela sued Darlene for "business defamation," alleging that Darlene's comments to her friends were actionable. Before answering, Darlene moved to dismiss for failure to state a claim. The court granted the motion. In suit II, Darlene sues Pamela for negligence, claiming that Pamela's work caused harm to her garden. Pamela counterclaims, asserting her contract claim to be paid for the work done for Darlene. Discuss the application of preclusion in suit II.
Question 7. A new website has been launched, called "civPro.com." This site purports to have "authoritative answers to all of your civil procedure questions." The website contains the following statement: "A judgment is binding only on those persons who were made parties to the litigation through personal, in-hand service of process." Comment on the accuracy of this statement.
End of Exam
Have a Terrific Summer