Villanova University School of Law

Final Examination in Civil Procedure

Section B Spring 1996

Instructions

  1. This examination consists of 9 pages. Please check to make certain you have the complete examination.
  2. Write your examination number on your bluebook(s) and on each page of this examination. Do not use your name.
  3. 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.
  4. Weight will be given according to the time allocation indicated for each question. Allocate your time accordingly.
  5. If you lack information needed to answer a question, make a reasonable assumption, state your assumption and give a brief justification.
  6. In multipart questions, read all the subsections before beginning to answer the first subsection. If, for example, subsection "C" asks for something, do not anticipate question "C" in your answer to question "A."
  7. 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.
  8. The Federal Rules of Civil Procedure are applicable unless a different rule or rules is/are mentioned in the question.
  9. While you have been permitted to bring materials into the examination room, answering the questions appropriately will put time pressure on you. You should not do extensive research during the examination.
  10. You may decide, in answering one or more questions, that a complete answer would require legal research. If this is so, you should identify the specific issue that you would research. If you have a mastery of the basic concepts, you will be able to frame research issues very narrowly and precisely.
  11. It also may be that more factual information is required to answer a question. If this is the case, you should say what factual information is required and why you need it. A mastery of the underlying concepts will permit you to frame any factual inquiries very narrowly and link them precisely to the legal issue involved.
  12. Organization and clarity are very important. A shorter answer that is well organized and evidences a clear understanding of basic concepts and their interrelationships is better than a long answer with disconnected fragments of information.
  13. You must write legibly. Illegible answers will not receive credit. Do not write outside the margins of your bluebook pages.
  14. When you have finished the examination place it inside your bluebook(s) and envelope 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.



 
 

I. (one hour)

Ambrose Grey, Ph.D. has a new theory of human behavior. He has been called by the plaintiff as an expert witness in a personal injury case pending in the United States District Court for the Middle District of Florida. Dr. Grey’s testimony would support an inference that the physician defendant subconciously sought to injure the plaintiff, and thus admitting his testimony as evidence would be likely to convince the jury that the defendant physician is liable to the plaintiff.

The jurisdiction of the court is based on diversity of citizenship, under 28 U.S.C. § 1332. Under Florida law, Dr. Ambrose’s testimony would be excluded based on Florida’s rule of evidence excluding expert testimony unless it is based on generally accepted scientific theories. Under federal law, however, Dr. Ambrose’s testimony would be admissible. The Supreme Court of the United States, in Daubert v. Merrill Dow Pharmaceuticals, Inc., held that the Federal Rules of Evidence do not require expert testimony to be based on generally accepted scientific theories. Should Dr. Ambrose’s testimony be admitted? Review the common law, statutory, and constitutional arguments likely to be made by the opposing parties and support your reasonable conclusion as to the most appropriate ruling by the court.

II. (one-and-one-half hours)

Television programming increasingly is available not only through traditional broadcasting and cable systems, but also through direct broadcast satellites ("DBS"). Under this technology, a satellite in earth orbit is used to broadcast programming to particular geographic areas. Each satellite has a well known "footprint," defining the geographic area in which its signals will be received.

BroadSat is an Arkansas corporation, with its principal place of business in Little Rock, Arkansas. It owns DBS satellites, including BroadSat Satellite #1, and arranges with originators of programming to carry their programming on particular channels handled by its satellites. It makes available the necessary equipment (such as small-diameter satellite "disk" antennas and descramblers) so that subscribers to its services can receive the programs carried on its channels.

The footprint of BroadSat Corp.’s Satellite #1 encompasses portions of the states of Oklahoma, Arkansas, Kansas, and Missouri. Obviously the footprint does not cut off at the state lines but is a kind of circle with the best reception in the center of the area, in northwestern Arkansas, southwestern Missouri, northeastern Oklahoma, and southeastern Kansas. Reception diminishes to very poor quality the further one gets away from the center of the footprint.

Boone County Broadcasting is an Arkansas corporation with its principal place of business in Harrison, Arkansas. Boone County Broadcasting develops televisions programming for northwest Arkansas. It seeks customers only in Arkansas, and does not solicit advertisers interested in any of the other states. It broadcasts only by DBS, and only through BroadSat Satellite #1. In other words, Boone County Broadcasting is exactly like a conventional television station, except that it broadcasts only by satellite rather than "over the air."

When it was shopping for DBS carriers, Boone County Broadcasting was informed about the details of BroadSat Corp.’s technology including the footprint of its Satellite #1. The Boone County broadcasting representative said repeatedly, "I don’t care where else my signal goes. I do not particularly want it to go anywhere but northwestern Arkansas. If you can assure me of coverage in northwestern Arkansas, that is all I want."

Suppose that betting on professional sports contests is legal in Arkansas, but illegal in Oklahoma and that Oklahoma law creates a private right of action for damages, for any relative of someone who has gambling losses, against the promoter of the gambling resulting in the loss. Boone County Broadcasting has organized a sports pool, which allows betting on professional sports contests. Braxton White was watching television in his Muskogee, Oklahoma home, when he saw advertisements for the professional sports betting on the Boone County Broadcasting channel transmitted through BroadSat Satellite #1, to which he subscribed. He placed a bet by calling the 800 number shown on the screen authorizing a charge to his credit card. He lost all the money he bet, and now his spouse wants to file a lawsuit against Boone County Broadcasting seeking damages under the Oklahoma statute.

(1) Can the spouse sue Boone County Broadcasting in state court in Oklahoma? Why or why not?

(2) How would she serve Boone County Broadcasting, assuming she has its address in Harrison, Arkansas (the county seat of Boone County). The appendix contains the relevant Oklahoma statute.

B. Suppose the spouse sues Boone County Broadcasting in the United States District Court for the Eastern District of Oklahoma and that the defendant concedes jurisdiction. What law should the court apply to decide the claim? Why?

C. Suppose Boone County Broadcasting has a colorable claim for contribution among joint tortfeasors against BroadSat, if it loses the lawsuit brought by the spouse. Can Boone County Broadcasting force BroadSat into the federal lawsuit brought by the spouse? How?

D. Suppose the district court decides that BroadSat is a proper party. Assuming that BroadSat does not want to be in the lawsuit and will resist vigorously any claims against it, can the spouse assert common law claims for intentional infliction of emotional distress and interference with family relations against BroadSat? Why or why not?

III. (one-half hour)

Suppose BroadSat is an Australian corporation (instead of an Arkansas corporation) with no assets in Oklahoma. Suppose BroadSat’s subscription agreement (the only way to receive signals from BroadSat broadcast is to subscribe and thereby obtain the mechanism to decode the broadcast signals) contains a provision providing for arbitration of all disputes arising under the agreement. Would the spouse be better off to resort to arbitration of their claim over BroadSat? Why or why not? What is necessary for her to obtain a legally binding arbitration award? Where could she enforce it assuming she gets an arbitration award in her favor?

Appendix

OKLAHOMA STATUTES ANNOTATED

TITLE 12. CIVIL PROCEDURE

CHAPTER 39. OKLAHOMA PLEADING CODE

§ 2004. Process

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C. BY WHOM SERVED: PERSON TO BE SERVED.

  1. SERVICE BY PERSONAL DELIVERY.
  2. a. At the election of the plaintiff, process, other than a subpoena, shall be served by a sheriff or deputy sheriff, a person licensed to make service of process in civil cases, or a person specially appointed for that purpose. The court shall freely make special appointments to serve all process, other than a subpoena, under this paragraph.
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c. Service shall be made as follows:

(1) Upon an individual other than an infant who is less than fifteen (15) years of age or an incompetent person, by delivering a copy of the summons and of the petition to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person then residing therein who is fifteen (15) years of age or older or by delivering a copy of the summons and of the petition to an agent authorized by appointment or by law to receive service of process;

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(3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the petition to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant;

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  1. SERVICE BY MAIL.
a. At the election of the plaintiff, a summons and petition may be served by mail by the plaintiff's attorney, any person authorized to serve process pursuant to subparagraph a of paragraph 1 of this subsection, or by the court clerk upon a defendant of any class referred to in division (1), (3), or (5) of subparagraph c of paragraph 1 of this subsection. Service by mail shall be effective on the date of receipt or if refused, on the date of refusal of the summons and petition by the defendant.

b. Service by mail shall be accomplished by mailing a copy of the summons and petition by certified mail, return receipt requested and delivery restricted to the addressee. When there is more than one defendant, the summons and a copy of the petition or order shall be mailed in a separate envelope to each defendant. If the summons is to be served by mail by the court clerk, the court clerk shall enclose the summons and a copy of the petition or order of the court to be served in an envelope, prepared by the plaintiff, addressed to the defendant, or to the resident service agent if one has been appointed. The court clerk shall prepay the postage and mail the envelope to the defendant, or service agent, by certified mail, return receipt requested and delivery restricted to the addressee. Such return receipt shall be prepared by the plaintiff.

  1. SERVICE BY PUBLICATION.
a. Service of summons upon a named defendant may be made by publication when it is stated in the petition, verified by the plaintiff or his attorney, or in a separate affidavit by the plaintiff or his attorney filed with the court, that with due diligence service cannot be made upon the defendant by any other method.

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c. Service pursuant to this paragraph shall be made by publication of a notice, signed by the court clerk, one (1) day a week for three (3) consecutive weeks in a newspaper authorized by law to publish legal notices which is published in the county where the petition is filed. . . .

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e. Before entry of a default judgment or order against a party who has been served solely by publication under this paragraph, the court shall conduct an inquiry to determine whether the plaintiff, or someone acting in his behalf, made a distinct and meaningful search of all reasonably available sources to ascertain the whereabouts of any named parties who have been served solely by publication under this paragraph. Before entry of a default judgment or order against the unknown successors of a named defendant, a named decedent, or a dissolved partnership, corporation or association, the court shall conduct an inquiry to ascertain whether the requirements described in subparagraph b of this paragraph have been satisfied.

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h. Service outside of the state does not give the court in personam jurisdiction over a defendant who is not subject to the jurisdiction of the courts of this state or who has not, either in person or through an agent, submitted himself to the jurisdiction of the courts of this state.

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6. SERVICE BY OTHER METHODS. If service cannot be made by personal delivery or by mail, a defendant of any class referred to in division (1) or (3) of subparagraph c of paragraph 1 of this subsection may be served as provided by court order in any manner which is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard.

D. SUMMONS AND PETITION.

The summons and petition shall be served together. . . . .

E. SUMMONS: TERRITORIAL LIMITS OF EFFECTIVE SERVICE.

1. Service of the summons and petition may be made anywhere within this state in the manner provided by subsection C of this section.

2. When the exercise of jurisdiction is authorized by subsection F of this section, service of the summons and petition may be made outside this state:

a. by personal delivery in the manner prescribed for service within this state,

b. in the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction,

c. in the manner prescribed by paragraph 2 of subsection C of this section,

d. as directed by the foreign authority in response to a letter rogatory,

e. in the manner prescribed by paragraph 3 of subsection C of this section only when permitted by subparagraphs a and b of paragraph 3 of subsection C of this section, or

f. as directed by the court.

3. Proof of service outside this state may be made in the manner prescribed by subsection G of this section, the order pursuant to which the service is made, or the law of the place in which the service is made for proof of service in an action in any of its courts of general jurisdiction.

4. Service outside this state may be made by an individual permitted to make service of process under the law of this state or under the law of the place in which the service is made or who is designated to make service by a court of this state.

5. When subsection C of this section requires that in order to effect service one or more designated individuals be served, service outside this state under this section must be made upon the designated individual or individuals.

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F. ASSERTION OF JURISDICTION.

A court of this state may exercise jurisdiction on any basis consistent with the Constitution of this state and the Constitution of the United States.

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