Civil Procedure Final

Question I

Albania is a sovereign state located in southern Europe, which has been subject to a breakdown in the rule of law.   Suppose that the southern half of Albania secedes from what is now Albania and sets up its own purported government, calling it “the Free State of New Albania” or “FSNA” for short.  The secessionists establish their own purported parliament, executive, and court system, each of which is completely separate and independent from the pre-existing institutions of the original Albania.

Your client (“the client”) had invested some years ago -- before the difficulties in Albania and well before thus secession of FSNA -- in a company operating sheep shearing sheds in southern Albania.  He tells you that he received notice by email that the employees of the sheep shearing shed had commenced a legal action in the new FSNA court of general jurisdiction seeking to extinguish his investment interest in the sheep shearing sheds, transferring the ownership of all of the assets in the sheds to the employees.  The legal action also seeks damages. The email message said that the cause of action is premised on a statute enacted by the FSNA parliament allowing the expropriation of any foreign investment that might diminish the economic position of FSNA citizens.  He tells you that because of the unrest in Albania generally and particularly in FSNA, he is reluctant to go there to defend the lawsuit.  You and he are completely unable after a series of phone calls to figure out how he might obtain counsel to be represented in the lawsuit.  Accordingly, he seeks your advice on what his risk is if he simply ignores the email message.  His investment in the sheep shearing sheds was made in his personal capacity, rather than through any corporate entity.  He tells you that he owns the house in Delaware County, Pennsylvania, 100% of the shares of a Delaware corporation, which she keeps locked up in a safe deposit box in a bank in Wilmington, Delaware, and has an account in First Union Bank in Rosemont, Pennsylvania.

(15 minutes) A.  Suppose the FSNA court enters a judgment against the client (a) declaring that his ownership interest in the sheep shearing shed assets are forfeit, (b) declaring that the ownership of those assets be transferred to the employees, and (c) granting a money judgment of $100,000 for the “deficiency” in the value of the assets.  Explain to your client what would be necessary to enforce this judgment against him. Consider all of the enforcement possibilities that the plaintiff’s/judgment creditors are likely to be interested in economically.

(40 minutes) B.  Explain all of the legal arguments your client might make to prevent the judgment being enforced.  Explain where those arguments would be presented, the legal basis for each argument, and evaluate the probability of success on each major argument.

(15 minutes) C.  What source of law, federal, international, foreign, or state would be applied to the various aspects of this case? Please give your reasons

Question II

Two law students have become involved in an unseemly quarrel over use of a study group outline for an open book examination in Sources of Law last semester.  One student, Wal Weiver, claims that the second student Deknar Wol, used a copy of her outline without permission, thereby misappropriating her trade secret in the outline.  The second student’s nickname is “Nek”.  Nek claims that he got a lower grade on the sources exam than he deserved because the outline was wrong in several significant respects and would like to assert a negligence claim again Wal, based on Wal’s special relationship with him in the context of a first semester study group.

(15 minutes) A.  Suppose Wal consults you and asks you if you can bring a lawsuit against Nek in federal court.  He tells you that, although Nek’s parents live in Radnor Pennsylvania, and Nek has accepted a job with his father’s law firm in Reading, Nek has moved to California for a 2 year “vacation” before starting work.  Wal does not want to wait until Nek gets back to file suit.  Can Wal successfully prosecute a lawsuit in federal court against Nek?  Why or why not?  In answering this question do not consider substantive trade secret or negligence tort issues; for purposes of your answer assume that Wal has a strong position on the merits of the trade secret claim and that there is no meritorious substantive defense or set off by virtue of Nek’s possible claim against Wal.  Assume that the only claims asserted are the trade secret claim, which is a common law claim in Pennsylvania and the negligent tort claim, which also is a common law claim.

(10 minutes) B.  What sources would you consult to evaluate the merits of the trade secret and negligent tort claims?  Why?

(40 minutes) C.  In evaluating Wal’s case and in discussing it with her, you realize she may have a strong claim for copyright infringement under the Federal Copyright Act, 17 U.S.C. § 101 et seq.  The elements of this claim would be that Wal wrote the outline, and that Nek copied it without permission.  Assume that your research under sub-question B has revealed that the elements of a trade secret claim are that Nek copied or used the outline without permission and that the outline conferred advantage on Wal because of its not generally being public information.

1.  Could the copyright claim be maintained in the same lawsuit as the trade secret claim?  Why or why not? 

2. Does the possibility of the copyright claim change your analysis on the possibility of litigating in federal court?  How? 

Do not unnecessarily repeat parts of your analysis to other parts of this question in answering this one.

(25 minutes) D.  Suppose Wal obtains a default judgment against Nek on the trade secret and copyright claim.  Six months later, Wal is sued with a summons and complaint from the Court of Common Pleas of Delaware County Pennsylvania asserting the negligence claim against her, in an action filed by Nek.  What is Wal’s best argument to defeat this new claim? She would very much prefer avoiding any aspects of the litigation process, especially including trial, if possible.  Evaluate her arguments fully.

(20 minutes) E.  Now put yourself in the position of representing Nek rather than Wal.  Could Nek sue all of the members of the study group in federal court?  Assume there is both subject matter and personal jurisdiction over all of the members of the study group in federal court.  Does the existence of the arguments you explored in your answer to subpart D affect Nek’s position vis a vis the other members of the study group?  Why or why not?