Civil Procedure

Professor Perritt

Spring, 2004

Model Answer

Question I.

A. Smurke should file a motion to dismiss for insufficiency of process, improper service of process, improper venue, lack of personal jurisdiction, and lack of subject matter jurisdiction.  All of these defenses, except subject matter jurisdiction, must be raised in a pre answer motion or in the answer or they are waived.  Moreover, they must all be asserted in the same motion under Rule 12(g). 

Smurke should also file a motion to dismiss for failure to state a claim under Rule 12 (b)(6) unless fraudulent misrepresentation is pleaded with particularity in accordance with Fed. R. Civ. P. 9.

The insufficient process and improper service of process defenses overlap.  While Fed. R. Civ. P. 4(k) allows process in a federal civil action to be served according to the rules of the state in which the federal court sits, and Alabama Rule 4.1 allows service of initial process by email, it is not clear that the Alabama rule was complied with.  The question makes no mention that the clerk included a subject line as required by the rule.  Such a defect would render the process and method of service invalid under the Alabama rule.  If the prescribed subject line was included, Smurke should still have challenges to personal jurisdiction as set forth below.

Smurke’s challenge to venue argues that venue in the Northern District of Alabama is not proper under 28 U.S.C. § 1391.  Smurke, the only defendant, is not a resident of the Northern District and, as she argues below, personal jurisdiction over her is not proper in that district.

Farmer will, of course, argue that venue is proper because a significant part of the acts and omissions giving rise to his claim did occur in the Northern District, thereby satisfying the requirements of § 1391(a) for diversity jurisdiction and of § 1391(b) for federal question jurisdiction.  The Northern District of Alabama is where he accepted the offer communicated through Smurke’s Cheap Go Web site, it is where he submitted payment, and where he suffered injury from the breach of contract and fraudulent misrepresentation. 

Smurke will counter that everything relating to the Cheap Go Web site occurred on the Web site server, which is located, not in Alabama, but in Nassau, thereby defeating this basis for venue.  But not all of the actions in controversy must occur within the judicial district for venue is sought—only a substantial portion, and Farmer certainly has the better side of this argument.

Smurke’s strongest personal jurisdiction argument is that Farmer has not pleaded it, and thus has not satisfied his obligation under Rule 8 to plead facts establishing jurisdiction.  Of course, he can fix this by amending his pleading, which he surely would be given leave to do under Rule 15 so this argument, while strong, would only delay, not eliminate, Smurke’s eventual need to defend on the merits.

Smurke will also argue that the District Court lacks personal jurisdiction over her because she was not validly served with process, as argued above, and because even if the requirements of Alabama Rule 4.1 with respect to service of process was satisfied, that rule exceeds the scope of personal jurisdiction permitted by the due process clause of the United States Constitution.

This is going to be a hard argument for Smurke to win.  First, Alabama Rule 4.1, assuming all of its requirements were satisfied, makes email service on a person found within the state when the email was delivered equivalent to in-hand service on a person found within the state.  If email service under Rule 4.1 is equivalent to in-hand service then the Supreme Court’s plurality decision in Burnham v. Superior Court makes further constitutional inquiry unnecessary.  But Smurke has two arguments in response.  First, she can argue that an email message is “delivered” when it reaches the email box of the addressee, which is located on a server.  In her case, the server is located in Nassau, not in Alabama.  Therefore delivery occurred, not in Alabama while she was there, but in Nassau, thereby either vitiating good service under Alabama Rule 4.1 or breaking the link between email service under the Alabama rule and Burnham.

Her stronger, and more sophisticated, argument is that the rationale of the plurality opinion in Burnham depends upon personal service occurring in a manner similar to the conduct involved in serving a writ of capias ad respondendum, putting an agent of the state in a position physically to take the defendant into custody.  Whatever the Alabama rule may say about email service being “equivalent” to in-hand service, having someone open an email message from anywhere in a state surely does not put that person in a position to be taken into custody.

Accordingly, constitutional analysis is necessary to see if the affirmative assertion by the State of Alabama of personal jurisdiction falls within the limits set by the due process clause of the constitution to prevent sovereign states from overreaching their legitimate power. 

Under International Shoe and its progeny, Smurke will argue that she does not have minimum contacts with Alabama and, even if she did, that the assertion of personal jurisdiction in this case would offend notions of fair play and substantial justice. 

There obviously is not general jurisdiction in Alabama because neither Smurke’s personal activities there nor her business activities there rise to the level of systematic and general.  Her residence is elsewhere, there is no indication that she owns property in Alabama, and the principal place of business for her Cheap Go business enterprise is not in Alabama.

Smurke will also argue that her contacts are insufficient even to support specific jurisdiction.  First, her personal contacts in Mobile can be disregarded because they have nothing to do with the events giving rise to Farmer’s claims, which arise out of his interaction with the Cheap Go Web site. 

Smurke will argue that the mere fact that Farmer used the Web site in Alabama is insufficient to establish minimum contacts.  While she would concede that the Web site is interactive rather than merely passive under Zippo, she would claim that she did not target Alabama, necessary for specific jurisdiction under Millennium Enterprises.  She also may argue, if she has facts to support such an argument, that she has very little business activity in Alabama, maybe even that Farmer was her first Alabama customer.

Farmer will respond that the Cheap Go Web site was targeted at the United States of America, which includes Alabama, because of its special promotion for American customers.  He will also note that Smurke entered into a three year contract with him, making this case similar to Burger King.  Of course Smurke will argue, if she has facts to support her, that she did not know where Farmer was even though she contracted with him.  Nothing in the credit card transaction would identify his place of residence. 

Smurke will also argue that the fair play and substantial justice factors tilt in her favor, making personal jurisdiction unconstitutional, even if minimum contacts exist.  The first factor—the interest of the plaintiff in obtaining efficient and effective relief in the forum is satisfied.  Farmer lives in the Northern District and has selected it as his preferred forum.  Smurke has only a weak counterargument on this factor that it might be easier to execute a Nassau, Bahamas, judgment rather than an Alabama judgment against her in Nassau.  The second factor tilts slightly in Smurke’s favor, but at most balances out the first factor.  She will argue that is burdensome for her to travel the Northern District to litigate this case.  But she already has a lawyer there who may give her a break on his fee because he is a friend, and she vacations in Alabama, which shows that it is not all that difficult for her to come there.  The third factor also does not point very strongly away from Alabama.  While the server is in Nassau and some of the evidence may be located there, this is not a case where the availability of compulsory process over third party witnesses is likely to be at issue.  Any witnesses or other evidence are under Smurke’s control and, as a party to the lawsuit, she can be compelled to produce them wherever they are located.  Alabama has a strong interest in protecting its citizens from fraud and breach of contract, thus resolving the fourth factor in favor of personal jurisdiction.  The fourth, efficiency, factor similarly does not point away from Alabama because it would be at least as efficient to litigate the merits in the Northern District as to litigate them in Nassau, notwithstanding Smurke’s forum non conveniens arguments presented in Part (B).  Finally, the shared interest of the several states is indeterminate.  There is no reason to think that Nassau has materially different fraudulent misrepresentation and breach-of-contract substantive law than Alabama. 

An independent constitutional attack on personal jurisdiction would focus on the constitutional inadequacy of notice under Mullane v. Central Hanover Bank.  Mullane holds that only those forms of notice likely to lead to actual notice are constitutionally valid.  Smurke would argue that even when all of the requirements of Alabama Rule 4.1 are satisfied, a defendant may not receive actual notice of the lawsuit because, for example, someone else may be using the defendant’s email address.  But that argument is not likely to work because Smurke did receive actual notice, and because Alabama Rule 4.1’s requirement for a return receipt before service is good seems to eliminate most of the possibilities for email not resulting in actual notice.  The likelihood that a third party would be using an addressees mailbox is surely no greater than the likelihood that the third party would intercept a first class mail letter, and first class mail was the type of notice preferred in the Mullane case. 

On balance, Smurke has some interesting challenges to personal jurisdiction, but she is not likely to prevail on them. 

Smurke’s strongest subject matter jurisdiction argument is that Farmer has not pleaded facts establishing subject matter jurisdiction as required by Rule 8.  But as with the similar failure to plead personal jurisdiction, Farmer easily can fix this by amending his complaint. 

But whatever Framer pleads, Smurke will argue that the facts do not establish subject matter jurisdiction.  She will challenge the existence of diversity jurisdiction under 28 U.S.C. § 1332.  First, she will argue (if the facts support this argument) that she became a domiciliary of Nassau, a district of the Bahamas, thereby giving up her citizenship in Nevada, but she has not given up her U.S. citizenship, because she has not become a subject or citizen of Nassau, Bahamas.  Accordingly, while she is not a citizen of the same state as Farmer, she is not a citizen of any other state, thereby negating jurisdiction under § 1332 (a).  And, because she is still a United States citizen, she is not an alien, thereby negating jurisdiction under § 1332(a)(2).  But the facts on her citizenship are murky, and Farmer surely will argue that she either still is a citizen of Nevada or an alien and that the initial requirement of Section 1332 that plaintiff and defendant have diverse citizenship is satisfied. 

But Smurke still can argue that the jurisdictional amount of $75,000 is not satisfied.  Farmer’s out of pocket loss is only slightly in excess of $1,000.  Even though he is permitted to aggregate the amounts he seeks to recover on his two different claims, and even though he can get punitive damages for the fraudulent misrepresentation, though not the breach of contract claim, it is pretty farfetched that a reasonable jury could award him more than $75,000, based on the facts.  Still, the test is not what he will actually recover but whether it is a “legal certainty” that he cannot recover $75,000 and, accordingly, the District Court is likely to find that diversity jurisdiction exists. 

Smurke will also argue that federal question jurisdiction under 28 U.S.C. § 1331 does not exist.  While it looks like the Federal Wire Fraud Statute covers the same kind of conduct pleaded by Farmer in his fraudulent misrepresentation claim, he did not plead it as a federal claim.  Moreover, case law is split on whether the Federal Wire Fraud statute creates a private right of action.  If some of these cases finding no private right of action are from the Northern District of Alabama or from the Eleventh Circuit, Smurke will prevail on this argument.  If case law from that district or that circuit find a private right of action this branch of her subject matter jurisdiction argument rests only on the fact that Farmer did not plead a federal cause of action.

But the notice pleading philosophy of the federal rules does not obligate a party to put the right legal label on his claims for relief.  The fact that Farmer has pleaded facts constituting a federal statutory tort may be not fatal to federal question jurisdiction just because he has not labeled that claim as such.  The question is what a well pleaded complaint would say, and a well pleaded one would identify the cause of action as federal as well as based on state common law.  The interesting question is whether Farmer could have filed in state court and kept the case from being removed by consciously not identifying federal law as the source of the right the he asserts.  It seems like he should be able to do that and that the same complaint language in federal court therefore should not be enough to establish federal question jurisdiction.  I would want to do some more research on cases involving a pleading which asserts facts sufficient to make out federal claim, which have not been labeled or linked to federal law. 

Of course if diversity jurisdiction is lacking but federal question jurisdiction exists with respect to the fraudulent misrepresentation claim that leaves the question whether supplemental jurisdiction under 28 U.S.C. § 1367 extends to the breach of contract claim, which is solely a creature of state common law.  While the same Web transactions gave rise to both claims Smurke will argue that the elements of breach of contract and of fraudulent misrepresentation are entirely distinct thereby negating the existence of the common nucleus of operative fact.  They are distinct, but the common nucleus of operative fact test is liberally construed to support supplemental jurisdiction over multiple claims that constitute a “convenient trial unit.”  Accordingly, if federal question jurisdiction exists over the fraudulent misrepresentation claim, supplemental jurisdiction is likely to extend to the breach of contract claim.

B. The doctrine of forum non conveniens allows a federal court to dismiss or transfer a case as to which statutory venue exists when another forum is more convenient, based on an assessment of several private interest and public interest factors.  Transfer is not an option here because the obvious alternative forum is in Nassau, which in the Bahamas, a different country.  So Smurke will argue that forum non conveniens necessitates dismissal. 

She will argue that the private interest factors tilt in her favor because it is more convenient for her to litigate in Nassau and more of the evidence is located there.  But as noted in the discussion in Part (A) of fair play and substantial justice, the evidence is under her control, and she can be compelled to bring it to the Northern District of Alabama. It is hard to see how any great inconvenience will be associated with her doing so.  The relative convenience to Farmer and Smurke of litigating in Nassau is the flip side of litigating in Alabama except that Smurke vacations in Alabama, which resolves this at least slightly in favor of keeping the case in Alabama.

The public interest factors likewise do not help Smurke.  There is no reason to suppose that court congestion is any greater in the Northern District of Alabama than Nassau.  Alabama has an interest in this case because of its interest in protecting its citizens from fraud and breach of contract and accordingly, empanelling an Alabama jury is not an illegitimate burden on the forum state.

Therefore, even though an alternative, effective forum no doubt exists in Nassau, Bahamas, a former part of the British Empire, Smurke will be unable to overcome the presumption in favor of the plaintiff’s selection of forum and her forum non conveniens argument will not prevail.

C. Farmer should seek post judgment discovery in the Northern District of Alabama under Rule 69.  (He does not know that Nevada is particularly interesting to him until he does discovery.)  Under Rule 69, he can do this under the federal rules or under state procedure.  He would probably send interrogatories to Smurke and possibly a request for production under Fed. R. Civ. P. 33 and 34. 

But he may have a hard time making discovery.  Smurke defaulted, and there is no reason to think that she will cooperate in discovery of her assets.  While the United Stated District Court for the Northern District of Alabama has the theoretical power under Rule 37 to impose sanctions on her for failure to make discovery it’s not clear that any of those sanctions would work.  She has already defaulted on the lawsuit, so striking pleadings or entering judgment against her either has no scope of operation or is redundant of what has already happened with the default judgment.  Farmer may seek contempt penalties against her under Rule 37 but if she stays out of the United States, a United States Marshal cannot get to her to incarcerate her or to attach her property to satisfy any contempt judgment. 

So Farmer’s discovery plan may have to be more resourceful.  He may, for example, seek discovery from the Internet Domain Name Registrar through a request for production under Rule 34(d) accompanied by a Rule 45 subpoena to see how Smurke paid for her domain name.  That might unearth a trail which would lead to the bank account in Nevada.  Likewise, he could seek discovery from any credit card issuers having relationships with Smurke.  He might have identified these credit card issuers if that is how she paid for the domain name.  He also might be able to find out about the bank account through third-party discovery from airlines or hotel chains with whom Cheap Go does business, assuming that Cheap Go has ever actually organized a trip. 

Assuming that Farmer finds out about the bank account, his course of action then is pretty clear.  He registers the judgment with the United States District Court for the District of Nevada, requests a writ of execution from that court and then a writ of garnishment, which is authorized by Nevada law as incorporated into Rule 69.  He will be entitled to those from the clerk as a matter of course. Full faith and credit is not at issue on these facts because we have federal courts at both ends of the execution, and § 1963 expressly obligates the Nevada District Court to enforce the judgment of the Alabama District Court.

Smurke, once she realizes that Farmer is closing in on her bank account, as she will know because she is entitled to notice of the filing of the judgment in Nevada, the issuance of the writ of execution, and the issuance of the writ of garnishment, will no doubt be stirred into action. 

At this point, she will resist execution on the grounds that the Alabama judgment is invalid because unsupported by personal or subject matter jurisdiction—the same argument she would have made under Part A if she had appeared in the Alabama litigation. 

Question II.

A. I would move to dismiss the complaint for failure to state a claim upon which relief could be granted under Rule 12 (b)(6) and, in the alternative, for a more definite statement under Rule 12 (e).  While notice pleading is allowed by Rule 8, and the complaint does not need to allege facts supporting each element of a claim, it does need to be specific enough to show that the pleader is entitled to relief and to give the hospital notice of the factual basis for the claim.  Unless the federal question allegation not set forth verbatim identifies the statute, the complaint is deficit because it does not give sufficient notice of the legal basis for the claim.  Moreover, Paragraph 3 is deficit because it does not allege time, place, or the nature or identity of decision makers. 

Finally, unless the complaint is signed—and the question does not say it was—it is deficient for that reason.

These are reasonably good arguments, but the most I could expect is that the judge would give leave to amend and the plaintiff would make it clear by citing the statute and by being more specific as to time and place and by signing the complaint that he is entitled to relief if he can prove his allegations. 


(1) On behalf of the hospital, I must disclose under Rule 26 (a)(1) the names of individuals I’m likely to call at trial, certainly Boxer, and probably Alfa, Bravo, and Charlie.  If Boxer is a strong witness, I may not want to call Alfa, Bravo, and Charlie because, although they can testify as to the physical abuse of Boxer by Pupwen, they also may testify about the conversation between Butzer and Pupwen which would hurt our case.  If I think I will not call them, I need not disclose them.  It makes no difference that I interviewed them.  I probably need not disclose Butzer, because I have not uncovered anything that he could say that is likely to help our case.  I surely must disclose the two August, 2003, memos to file because they are our best evidence that we have a reason other than whistleblowing for terminating Pupwen.  And, that reinforces the need to have Boxer on the list, because only Boxer can authenticate the memos.  I certainly would not disclose my memorandum to the administrator and to the chairman of the board of trustees, because it is work product and I surely will not want to use that at trial. I would have to disclose the names, addresses, and other contact information of these people, but I need not disclose the substance of what I would expect them to say.

(2) I do not think I can object to Question (a), because it simply asks whether memoranda or reports exist.  Even though my memorandum is almost certainly work product, as explained in the remainder of my answer to this sub question, I know of no basis for concealing its existence.

I would object to Question (b) and would instruct Boxer not to answer with respect to the contents of my memorandum.  I would not object, and would allow him to answer, with respect to the contents of his memoranda.  We would already have disclosed the existence of his memoranda and they help our case.  Moreover, they were probably not prepared in anticipation of litigation, and in any event do not seem to qualify as attorney client privilege or work product.

My memorandum, on the other hand, is classic work product.  It is outside the scope of discovery under 26 (b)(5).  I can simply wait for Pupwen’s attorney to file a motion to compel under Rule 37 and make my specific work product objections, expressly describing the nature to enable the judge and Pupwen’s attorney to determine if it is work product.  I may better off, however, moving for a protective order now under Rule 26(c). 

In theory, Pupwen could overcome my work product privilege by showing that he cannot reasonably obtain the information in some other way, and that hardship would result from nondisclosure, but I do not see how he can make that showing since the memorandum is simply my own assessment of the case, and is unlikely to be admissible or to lead to admissible evidence anyway.

(3) If I do not disclose the August, 2003 memoranda I surely will not be able to use them at trial, pursuant to Rule 37 (c).  The only possible way I might get them in is if I sought to introduce them only to impeach Pupwen’s testimony.  The problem with that strategy is that those memoranda are probably the best evidence of our affirmative defense that Pupwen was dismissed, not for whisteblowing, but for violent behavior in the workplace. We, of course, have the burden of proof on our affirmative defense.

The second problem we would have in getting the memoranda into evidence is that we (the hospital) did not plead our basis for dismissing Pupwen as an affirmative defense and, therefore, Pupwen surely would argue that we have waived it under Rule 8 (c), “any other matter constituting an avoidance or affirmative defense.”  If we have waived our affirmative defense, then the subject matter of the memoranda is irrelevant at trial and only could be used for impeachment if Pupwen testifies that he never engaged in workplace violence.

(4) I need not disclose the names or contact information for the police officers because I intend to keep them in reserve for impeachment, and both Rule 26 (a)(1), pertaining to initial disclosures, and Rule 26 (a)(3), pertaining to immediate pretrial disclosure, exempt impeachment evidence from disclosure. 

(5) I most certainly cannot appeal a Rule 37 order to disclose my memo to Boxer, because this is not a final decision, and thus is outside the jurisdiction of the Court of Appeals under 28 U.S.C. § 1291.  There is a slim possibility that I might be able to persuade the district judge to certify the matter for interlocutory appeal and then persuade the Court of Appeals to exercise its discretion to hear the interlocutory appeal of the order under § 1292 (b).  But I doubt I could get both levels of judiciary to exercise their discretion in favor of an appeal. 

Unless the district judge makes a finding of hardship an infeasibility of other means of obtaining the information, an order compelling me to disclose work product is a pretty obvious abuse of discretion, and therefore I might be able to get a writ of mandamus.

But the only sure ticket to appellate review is to refuse to comply with the order, induce the district judge to cite the hospital (or me) for contempt, and then appeal the contempt citation, which is appeallable. 

The district judge has broad discretion on what sanctions to impose for our failure to disclose.  Ironically, the one most defendants would least welcome may be the most attractive one here:  contempt.  Then we could appeal.  Otherwise, we have to choose between disclosing the work product which, depending on my candor and degree of optimism or pessimism when I wrote it, might seriously damage our case and in any event would waive the work product protection, or to risk the judge striking our affirmative defenses or entering default judgment against us.  Surely he would not be authorized to impose such stringent sanctions merely because I am trying to defend work product.  To do so would not be “just” under the heading to Rule 37 (b)(2).