Professor Henry H. Perritt, Jr.

Civil Procedure

Exam No. _____

Fall 2004

            Time: 1800-2100, 17 December

Chicago-Kent College of Law

Final Examination in civil procedure

Instructions

1.                  This examination consists of 8 pages, including an appendix with statutory text.  Please check to make certain you have the complete examination.

2.                  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.

3.                  Answers will be graded upon the reasons given as well as the conclusions drawn.  If more than one reason is pertinent to an answer, state every reason. Cite pertinent provisions of the Federal Rules of Civil Procedure and of title 28, United States Code, as appropriate.

4.                  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.  Credit will be weighted according to the time allocations shown.  Manage your time accordingly.

5.                  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.

6.                  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.

7.                  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.

8.                  Do not write outside the margins of your bluebook pages, but write clearly.  If it’s not legible, it will not get credit.

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

10.              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 material including any outlines whether commercially prepared or not, whether accessible by computer or not.  No communication by e-mail is permitted during the exam.

GOOD LUCK!


Civil Procedure

Fall, 2004

Final Examination

I.                     

David Lichtman owns a race horse that he keeps on the farm in Michigan where he has lived all his life.  Believing that the horse’s racing days are over, he places an advertisement in the Horsey Set magazine which says, “Thoroughbred, champion race horse for sale.”  The advertisement gives his email and postal address.  Kate Chappell, a lifetime resident of Illinois, buys the magazine in the Cincinnati, OH airport while she is changing planes, returning from a business trip to Nassau.  Leafing through the magazine on the airplane from Cincinnati to Chicago, she sees the ad.  She has always wanted to own a horse, and is particularly excited at the prospect of owning a champion race horse.  She vows to investigate the procedures for entering the horse in races at the Arlington Raceway, near Arlington Heights, Illinois, within the Federal Northern Judicial District of Illinois.  When she gets home, she sends an email to Lichtman, putting in motion negotiations that culminate in an agreement between her and Lichtman under which she promises to pay $10,000 for the horse and Lichtman promises to deliver it to her in Illinois.

Before Lichtman is due to deliver the horse, and after Chappell makes payment, Chappell calls him, and offers to pick up the horse in southern Michigan. Lichtman agrees and Chappell picks up the horse in Michigan. Chappell takes the horse back home to Illinois and to a veterinarian associated with the Arlington Raceway and the veterinarian tells her that the horse’s racing days are over. 

She visits her lawyer and her lawyer files a civil action on her behalf in the United States District Court for the Northern District of Illinois, asserting three counts:  violation of the Federal Interstate Sales of Horses Act (“FISHA”), common law fraudulent misrepresentation, based on Lichtman’s alleged misrepresentations in their telephone conversations, and breach of contract.

A.                 (10 minutes) How can Chappell effect valid service of process on Lichtman, assuming Lichtman remains at his home in Michigan, assuming that Lichtman is unwilling to waive service?  Do not, in your answer to this question, anticipate challenges Lichtman might make to litigating the lawsuit in Illinois.

B.                 (50 minutes) Assume that Lichtman is served with the summons and complaint.  He takes it to his lawyer.  What challenges can Lichtman make to the power of the Illinois federal court to decide Chappell’s claims against him? How and when must he express these challenges? Do not, in your answer to this question repeat the analysis of the validity of service of process from your answer to sub question (A).

C.                 (15 minutes) Suppose you represent Lichtman and he asks you what risks he takes if he simply ignores the lawsuit for now.  What advice would you give him?  Explain whether he must give up altogether the arguments he would make in your answer to subquestion (B) if he does not respond to the lawsuit at this time. Do not repeat the arguments you developed in your answer to subquestion (B)

D.                 (15 minutes) Suppose Chappell files her lawsuit in the Circuit Court of Cook County-Law Division. Can Lichtman remove it to federal court? Which claims can be decided there Why or why not? In answering this question, do not repeat the arguments or analysis in your answers to other subparts of this question; simply refer to them.

II.                 Will Sadler and IV Ashton are avid competitive sailors.  While participating in a race on Lake Michigan, their boats collided, resulting in substantial property damage.  Ashton sues Sadler in the United States District Court for the Northern District of Illinois.  Both are citizens of Illinois.  Assume the claims are within the admiralty jurisdiction of the federal court and that the Federal Rules of Civil Procedure apply. 

Ashton had two crew members on his boat:  Lindsay Duvall and Charles Rudnick.  Sadler had two crew members on his boat: Steve Collens and Jason Gordon, who was hoping to avoid the Lake County Sheriff’s Department while he was on the water.

A.                 (10 minutes) Sadler wants to file a counterclaim against Ashton for common law negligence under Illinois law.  May his counterclaim be litigated in this lawsuit?  Why or why not?

B.                 Ashton knows what his crew members will say about the collision.  He expects that Duvall will say that Ashton did everything according to the rules and that Sadler violated the rules.  He is annoyed to learn that Rudnick has doubts about Ashton’s seamanship and navigation and likely will express his doubts.  He does not know when he files his lawsuit what Sadler’s crew members will say.

1.                  (10 minutes) What is the latest that Ashton can make his Rule 26 (a)(1) disclosures, assuming that he and Sadler do not agree on the timing of Rule 26 (a)(1) disclosures and there is no explicit order by the court?

2.                  (10 minutes) Assuming that no discovery has taken place, what must Ashton include in his Rule 26 (a)(1) disclosures?

3.                  (10 minutes) Curious as to the position likely to be taken by Gordon and Collens, Ashton sends them each a set of identical interrogatories.  What recourse does he have if they do not answer the interrogatories, in terms of sanctions and further efforts at discovery?

C.                 (10 minutes) One of Sadler’s neighbors also participated in the race, crewing on another boat.  After the time limits for discovery have expired, and less a month before the scheduled trial date, the neighbor contacts Sadler and tells him he would like to testify in Sadler’s favor.  Sadler’s lawyer is delighted at the prospect of such a “surprise witness.”  What risks does Sadler run if he attempts to call this witness without informing Ashton or the judge before the trial begins? 

D.                 At trial, Sadler, failing to follow his attorney’s instructions, gets angry at Ashton’s lawyer while on the witness stand.  He blurts out, “I saw that we were about to collide.  I am a such a good sailor that I could have avoided you but I adjusted the sail to pick up speed to ram your boat, hoping to knock you overboard.”

1.                  (10 minutes) After a brief conference, Ashton and his lawyer conclude this testimony supports a claim for battery.  Can Ashton amend his complaint to add the battery claim in this lawsuit?  Why or why not?

2.                  (10 minutes) If the court allows amendment, would it have jurisdiction over the battery claim?

E.                  (15 minutes) Ashton has strong computer skills.  In preparation for the sailboat race, he wrote a computer program that modeled boat movement under various wind conditions.  When he tells his lawyer about the computer program, the lawyer asks him to run the program to see if he can simulate the conditions leading to the collision.  Ashton does so.  Some of the results suggest that Ashton was at fault.  Others suggest Sadler was at fault.  Must Ashton disclose the computer program and the results of his simulations under Rule 26?  Suppose he has not (yet) disclosed it and is asked about it during his deposition.  His attorney objects to the question and instructs Ashton not to answer.  What are the likely results if he refuses to answer?


Appendices

The Illinois Code of Civil Procedure provides as follows:

5/2-209. Act submitting to jurisdiction--Process

 §  2-209. Act submitting to jurisdiction--Process.  (a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this State;

(2) The commission of a tortious act within this State;

(3) The ownership, use, or possession of any real estate situated in this State;

(4) Contracting to insure any person, property or risk located within this State at the time of contracting;

* * *

 (7) The making or performance of any contract or promise substantially connected with this State;

* * *

(10) The acquisition of ownership, possession or control of any asset or thing of value present within this State when ownership, possession or control was acquired;

(11) The breach of any fiduciary duty within this State;

(12) The performance of duties as a director or officer of a corporation organized under the laws of this State or having its principal place of business within this State;

(13) The ownership of an interest in any trust administered within this State;  or

(14) The exercise of powers granted under the authority of this State as a fiduciary.

 (b) A court may exercise jurisdiction in any action arising within or without this State against any person who:

(1) Is a natural person present within this State when served;

(2) Is a natural person domiciled or resident within this State when the cause of action arose, the action was commenced, or process was served;

(3) Is a corporation organized under the laws of this State;  or

(4) Is a natural person or corporation doing business within this State.

(c) A court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.

(d) Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this Section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as though summons had been personally served within this State.

(e) Service of process upon any person who resides or whose business address is outside the United States and who is subject to the jurisdiction of the courts of this State, as provided in this Section, in any action based upon product liability may be made by serving a copy of the summons with a copy of the complaint attached upon the Secretary of State.  The summons shall be accompanied by a $5 fee payable to the Secretary of State.  The plaintiff shall forthwith mail a copy of the summons, upon which the date of service upon the Secretary is clearly shown, together with a copy of the complaint to the defendant at his or her last known place of residence or business address. Plaintiff shall file with the circuit clerk an affidavit of the plaintiff or his or her attorney stating the last known place of residence or the last known business address of the defendant and a certificate of mailing a copy of the summons and complaint to the defendant at such address as required by this subsection (e).  The certificate of mailing shall be prima facie evidence that the plaintiff or his or her attorney mailed a copy of the summons and complaint to the defendant as required.  Service of the summons shall be deemed to have been made upon the defendant on the date it is served upon the Secretary and shall have the same force and effect as though summons had been personally served upon the defendant within this State.

(f) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him or her is based upon subsection (a).

(g) Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law.

5/2-203. Service on individuals

   §  2-203. Service on individuals.

  (a) Except as otherwise expressly provided, service of summons upon an individual defendant shall be made (1) by leaving a copy of the summons with the defendant personally, (2) by leaving a copy at the defendant's usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode . . . .  The certificate of the officer or affidavit of the person that he or she has sent the copy in pursuance of this Section is evidence that he or she has done so.

* * *

18 U.S.C.A. § 35781, the [hypothetical] Federal Interstate Sales of Horses Act, provides:
Ӥ 35781. Interstate sale of defective horses

“Whoever, intending to defraud another, sells or otherwise transfers a horse for valuable consideration to another across state lines, knowing that the horse is not as advertised or not fit for the purpose to which it is to be put by the transferee, shall be fined under this title or imprisoned not more than 5 years, or both. If the violation affects a horse that has raced, such person shall be fined not more than $100,000 or imprisoned not more than 7 years, or both.”

United States Courts of Appeals in other Circuits have held that § 35781 does not create a private right of action. Assume that federal courts in the Seventh Circuit have not resolved the question whether § 35781 creates a private right of action.

28 U.S.C.A. § 1333 provides:

§ 1333. Admiralty, maritime and prize cases

The district courts shall have original jurisdiction, exclusive of the courts of the States, of:

 (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

(2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize.