CIVIL PROCEDURE

THREE HOURS

Wednesday, May 12, 1993

Professor Oliphant 6:30 - 9:30 p.m.

1. For anonymity, use your assigned test number.

2. Put your test number on this page and on all bluebooks that you use.

3. If you do not know your test number, you may obtain it at the Communication Center or in the Records Office during the first 30 minutes of the exam period.

4. If you do not use your test number, you will be deemed to have waived your privilege of anonymous grading.

5. TURN IN YOUR BLUE BOOKS AND THIS EXAM AT THE END OF THE PERIOD.

6. Graduating Seniors: IF YOU ARE A GRADUATING SENIOR, NOTE THIS FACT ON ALL BLUE BOOKS AND THIS EXAM PAPER. DO SO CONSPICUOUSLY.

7. TYPING AREA. If you are going to type your examination, the typing area is located in the old Boardroom (first floor, room #107) . You must return the exam to this room at the conclusion of the exam period.

STUDENT CONDUCT CODE

IT IS A VIOLATION OF THE CODE:

1. To use any sources which are forbidden by the instructor to complete an exam.

2. To submit as one's own work the work of another.

3. To engage in any conduct which tends to give an unfair advantage to any student in any academic matter.

4. Knowledge of any violation should be promptly reported.

VIOLATIONS OF THE STUDENT CONDUCT CODE MAY RESULT IN EXPULSION OR SUSPENSION FROM THE COLLEGE OR DISMISSAL FROM THE CLASS.

Special writing instructions

1. Please write the examination using a pen, not a pencil.

2. Please write on every line, not every other line.

3. Please write on only one side of a page.

4. You may use your rules of procedure supplement, as long as it is not annotated. It may be indexed, tabbed, or you may have various sections underlined.

5. Suggested time for each question: One hour and thirty minutes. Don't spend so much time on one question that you don't do a good job on the other.

QUESTION 1

ONE HOUR AND THIRTY MINUTES

Assume P sued D and D2 for injuries arising out of an automobile accident in the state of Wisconsin. D2 impleaded D3. The action is initially filed in state district court in Minnesota.

P is a citizen of Minnesota; D is a citizen of Iowa who was driving a car in Wisconsin that allegedly struck the (P) plaintiff's car. (P CLAIMS D WAS NEGLIGENT IN THE OPERATION OF D'S CAR.) D2 is a small car dealer located in Hudson, Wisconsin. D2 sold the 1993 model car that P was driving at the time of the accident. P claims that D2 warranted that the car driven by P at the time of the accident was free of mechanical defects when it was sold and that that warranty was breached because the brakes didn't work properly at the time of the accident. D3 is the Fordson & Daughter (a/k/a Ford) motor company, which manufactured the car involved in the accident, which was driven by P. Ford motor company has its principle place of business in Detroit Michigan and manufactured this particular car at its large assembly plant in St. Paul, Minnesota.

P suffered serious injuries including first and second degree burns and was hospitalized for six months because of the accident. P's hospital and doctor bills exceed $150,000.

PLEASE DISCUSS THE FOLLOWING IN ORDER

1. All defendants have brought a consolidated motion to remove the matter to federal district court in Minnesota. What are (is) the issue(s) and how should the federal court decide the(m)? Discuss.

2. Assume that THE DISPUTE WAS REMOVED TO MINNESOTA FEDERAL DISTRICT COURT. Minnesota has a long-arm statute similar to the one found in Chapter 2 of your workbook. D and D2 have moved in Federal District Court to dismiss the complaint on the ground (a) the statute does not apply and (b), even if it does apply, the constitution bars actions against them. Discuss.

3. Assume that D3 was served with the third party summons and complaint by D2 20 days after P filed the summons and complaint in federal district court (after it was removed), but 10 days after the statute of limitations on products liability actions ran under Minnesota law. (Statute had not run when the action was filed.) The statute has not run in Iowa, Michigan and Wisconsin. D3 has moved to dismiss on the ground the statute of limitations bars the action. Discuss.

4. Assume that the action remained in Minnesota federal district court and that D3 has impleaded D4, a German company that manufactured a tiny computer chip used in the car. P alleges that the German company was negligent in the manufacturer of the chip and the chip's failure resulting in unusual brake locking and the brake locking caused this accident. The German company asserts that it sells the computer chip to another company located in Japan and that it has no control over the distribution of the chip once it is sold to the distributor. It has moved to dismiss the action claiming the court does not have personal jurisdiction over it. Discuss.

QUESTION 2

ONE HOUR AND THIRTY MINUTES

Assume this action is brought in Federal District Court in Minnesota.

Assume that truck driver P, a Citizen of Minnesota, is employed by D, a trucking company doing business in Minnesota but incorporated in Iowa. D has a haulage contract with D2 Railroad. D2 is incorporated in Missouri and does business in all states. Under the contract between D and D2, D transports sacks of cabbages, carrots and onions from D2's rail center to local grocery warehouses. P was driving a truck owned by D loaded with produce when it was struck in the rail yard by one of D2's locomotives. P was injured.

P sued D and D2 in federal district court claiming they were negligent and citing the Federal Employer's Liability Act. This Congressional statute covers legal actions involving interstate transporters of produce and allows an action to be brought in either state or federal court. P's complaint demanded a total of $45,000 in damages. D denied the claim and counterclaimed alleging that P (a) was drunk at the time of the accident and was totally responsible for it, and that (b) P waived any right to sue D when P accepted $25,000 payment in full settlement of any claim arising from this accident. D2 denied liability and asserted in a counterclaim that P was completely at fault and that P should recover nothing.

D sought and was allowed to implead D2 via Rule 14. D claimed in the impleader that D2 was completely at fault for the accident. D2 counterclaimed against D alleging that D was completely responsible for the accident. D2 then sough to implead its insurance company D3, claiming that as its insurer, it is required under its insurance policy to indemnify D2 for all losses arising out of the accident. D3 is incorporated in Minnesota and does business throughout the midwest.

D3 counterclaimed against D2, alleging the following: (a) D3's insurance contract with D2 covered spoilage of garden produce in transit but coverage did not extend to personal injuries suffered while the produce was being transported by a third party for D2. (b) The insurance contract between D2 and D3 was obtained fraudulently by D2 because D2 failed to disclose it contracted haulage of produce from its rail yard to grocery warehouses with independent trucking companies. (c) D2 owes D3 $500 in back premiums on its insurance policy with D3.

DISCUSS.