Villanova University School of Law

Final Examination in Civil Procedure

Prof. Perritt - Spring, 1992

Instructions

This examination consists of 6 pages. Please check to make certain you have the complete examination.

Write your examination number on your bluebook(s) and on each page of this examination. Do not use your name.

Read these instructions carefully and read each question carefully. Think each problem through before you write and treat every appropriate issue in each question. Be direct and concise.

Weight will be given according to the time allocation indicated for each question or subquestion. Allocate your time accordingly.

If you lack information needed to answer a question, make a reasonable assumption, state your assumption and give a brief justification.

In multipart questions, read all the subquestions before beginning to answer the first subquestion. If, for example, subsection "C" asks for something, do not anticipate question "C" in your answer to question "A." If the facts change for different subquestions, be sure to deal with the appropriate versions of the facts in answering a particular subquestion.

Answers will be graded upon the reasons given and logical analysis as well as the conclusions drawn. If more than one reason is pertinent to an answer, state every reason.

The Federal Rules of Civil Procedure are applicable to proceedings in federal court unless a different rule or rules are mentioned in the question. General principles of civil procedure are applicable to proceedings in state court unless a different rule or rules are mentioned in the question or was dealt with explicitly in the course.

When you have finished the examination place it inside your bluebook(s) and deposit them in the appropriate box in the examination room.

Materials which may be taken into the examination room

Any materials including any outlines whether commercially prepared or not

Good luck. Have a nice summer.

Examination In Civil Procedure

Spring, 1992

Professor Perritt

I.

Bernadette Thompson is a member of ElderHomes in Arkansas. Five years ago, she paid the $75,000 membership fee and entered into a contract with ElderHomes that provided for her to receive tenancy in a one bedroom apartment for the rest of her life (a "life tenancy") in exchange for the membership fee. The contract also had the following provisions, however:

"1. All privileges of membership shall end if the member violates ElderHomes rules.

2". Tenancies are subject to assessments and fines for common expenses and rule violations.

"3. No pets of any kind, ever."

"4. The powers of the Association are delegated to the resident manager.

"5. If the resident manager believes that any member has violated a rule, the manager shall notify the member and determine whether the rule was actually violated. If such a determination is made by the manager, the manager has the authority to determine whether a fine shall be imposed, and whether any membership benefits, including tenancy in ElderHomes housing shall be terminated."

"6. Any fines imposed shall be a lien on the interest of the member.

On November 15, 1991, a friend of Ms. Thompson stayed overnight while driving from Chicago to Dallas, Texas on a vacation. The friend had with her a Boston Terrier, a small dog, which she brought inside Ms. Thompson's apartment during her stay there.

Unfortunately a neighbor saw the dog in the apartment and reported it to the resident manager. The resident manger, who has never liked Ms. Thompson, called Ms. Thompson on the telephone and said, "You better call a moving van and be out of there by tomorrow afternoon. I thought you would have better sense then to keep a dog in the apartment."

Assume that the ElderHomes arrangement is covered by Arkansas's Condominium Property Statute, which among other things, authorizes condominium associations and their managers to impose fines and assessments for violation of condominium rules, makes any such fines or assessments liens on the property interest belonging to a condominium owner or "tenants" like Ms. Thompson and, in the event a unit is sold or subleased, satisfies the lien out of the proceeds of the sale or sublease before any proceeds are available to the seller or sublessor.

A. (15 minutes) Is there sufficient state action to entitle Ms. Thompson to procedural due process before she can be evicted from her apartment?

B. (20 minutes) Suppose for the purposes of this and subsequent subquestions only and not for purposes of subquestion A, the statute provides that the sheriff is to evict anyone failing to satisfy an order to vacate or for failure to pay fines and assessments. Suppose further the sheriff does evict Ms. Thompson and that this constitutes state action. What procedural due process arguments should Ms. Thompson make with respect to the adequacy of notice and the identity of the decisionmaker? Assess the probability of success on the arguments.

C. (40 minutes) For purposes of this and subsequent subquestions only and not for purposes of subquestion B, assume that Ms. Thompson received a written "citation" which read in its entirety, "You are cited for having a pet in violation of ElderHomes Rule 3. You may show cause why you should not be penalized by appearing at 10:00 a.m. on December 15 in the ElderHomes office."

What specific procedural steps and devices is Ms. Thompson entitled to, as a matter of Constitutional procedural due process? In formulating arguments from her perspective, be sure to justify each procedure you claim according to its purpose and impact. Be sure to consider all major procedural devices, using the Federal Civil Procedural System as a reference point, if you wish.

D. (20 minutes) Suppose Ms. Thompson sues ElderHomes in United States District Court for violating her civil rights by denying her procedural due process, under 42 U.S.C. § 1983, a federal statute. ElderHomes files a counterclaim for breach of contract under state law. The essence of this state law claim is that occupancy of the apartment after failure to comply with the rules and pay the fine constitutes breach of contract, and that the breach can be enjoined. The effect of the injunction would be to evict Ms. Thompson. Is ElderHomes entitled to litigate the counterclaim in conjunction with Ms. Thompson's 1983 action? Why or why not? If ElderHomes does not litigate the counterclaim now, is Ms. Thompson subject to this breach of contract claim later even if she wins her 1983 lawsuit? Why or why not?

E. (15 minutes) Suppose Ms Thompson wants to sue the Resident Manager as well as ElderHomes. Can do this in the same lawsuit? Why or why not?

F. (15 minutes) Arkansas is one of the few states with separate law and equity courts. A suit seeking specific performance of a contract in Arkansas would be brought in chancery court rather than in the law courts. Juries are not available in chancery. Suppose Ms. Thompson wants jury trial of the breach of contract claim, and ElderHomes takes the position that the Erie doctrine requires the federal court to apply state law, which does not include a jury trial for this kind of claim. From the perspective of the federal judge to whom the case is assigned, is Ms. Thompson entitled to a jury on the breach of contract claim? Why or why not?

II. (55 minutes)

Paul Bradley runs, as a sole proprietor, a resort hotel in Tucson Arizona, called Bradley Hotel. He advertises in all fifty states by buying advertisements in the Wall Street Journal, and by running ads on network television. Some of the Wall Street Journals containing his ads were distributed in Pennsylvania. Network television programs with his ads were seen in Pennsylvania. Bradley also seeks good relations with travel agents. On several occasions in the past, he has sent Cross pen sets as presents to personnel of the Tulip Travel Agency located in Norristown, Pennsylvania, the county seat of Montgomery County. Tulip Travel Agency regularly handles reservations and deposits for Bradley Hotel.

Susan Thomas heard about Bradley Hotel from a friend who stayed there. She made a reservation to spend a one week vacation at the hotel though the Tulip Travel Agency, and paid a $100 deposit. All of her contact was with the travel agency, which is a Pennsylvania corporation, completely independent of Bradley Hotel. When she arrived in Tucson ready to begin her vacation, Bradley Hotel had no record of her reservation and refused to accommodate her. As a result, she had to spend a week in the cut rate Nights Out Motel in a seedy section of town.

She files a complaint for breach of contract against Bradley Hotel in the Court of Common Pleas for Montgomery County, Pennsylvania, and serves Bradley Hotel by mailing a copy of the complaint and summons registered mail, return receipt requested. She gets the receipt back signed "Paul Bradley, under protest." You represent her and are worried that Bradley will not appear. Suppose she gets a default judgment. What can she do to collect on it? What objections can Bradley Hotel make to the means of collection you identified?

Pennsylvania Rule of Civil Procedure 404 authorizes service of process outside Pennsylvania by mail requiring a receipt signed by the defendant or his authorized agent. " Service is complete upon delivery of the mail."

Suppose the only pertinent Pennsylvania statutory provision reads as follows:

"42 Pa.C.S.A. § 5310. Short title of subchapter

"This subchapter shall be known and may be cited as the "Uniform Interstate and International Procedure Act."

"42 Pa.C.S.A. § 5322. Bases of personal jurisdiction over persons outside this Commonwealth

"(a) General rule. - A tribunal of this Commonwealth may exercise personal jurisdiction over a person . . . who acts directly or by an agent, as to a cause of action or other matter arising from such person:

"(1) transacting any business on this Commonwealth. Without excluding other acts which may constitute transacting business in this Commonwealth, any of the following shall constitute transacting business for the purpose of this paragraph:

"(i) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object.

"(ii) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts.

"(iii) The shipping of merchandise directly or indirectly into or through this Commonwealth.

"(iv) The engaging in any business or profession within this Commonwealth, whether or not such business requires license or approval by any government unit of this Commonwealth.

"(v) The ownership, use or possession of any real property situate within this Commonwealth.

"(2) Contracting to supply services or things in this Commonwealth.

"(3) Causing harm or tortious injury by an act or omission outside this Commonwealth.

"(4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth.

"(5) Having an interest in, using, or possessing real property in this Commonwealth.

"(9) Making application to any government unit for any certificate, license, permit, registration or similar instrument or authorization or exercising any such instrument or authorization.

"(10) Committing any violation within the jurisdiction of this Commonwealth of any statute, home rule charter, local ordinance or resolution, or rule or regulation promulgated thereunder by any government unit or of any order of court or other government unit.

[assume that subsection (b) has been repealed and is not reproduced for that reason]

"(c) Scope of jurisdiction.--When jurisdiction over a person is based solely upon this section, only a cause of action or other matter arising from acts enumerated in subsection (a), may be asserted against him.

"(d) Service outside this Commonwealth.--When the exercise of person jurisdiction is authorized by this section, service of process may be made outside this Commonwealth."