Professor Henry H. Perritt, Jr.

Civil Procedure

Exam No. _____

Spring 2004

            Time: 0830-1130, 11 May

Chicago-Kent College of Law

Final Examination in civil procedure

Instructions

1.                  This examination consists of 8 pages.  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!


QUESTION I

Shelby Farmer, a domiciliary of Coaling, Alabama, has two passions: traveling and surfing the Web. One day, while browsing websites pertaining to travel, he finds a site, “CheapGo,” which promises its “American members” 50% discounts over the lowest discount fares offered by any airline, and free first-class upgrades. To become a member, the site says, one must have an address in the United States and pay a $500 “initiation fee” and $19.95 per month for three years. After doing some calculations on his travel plans for the next three years, Farmer decides he likes the deal and submits his credit card number in the form provided on the site. His next monthly credit card statement shows a charge of $1218.20.  Surprised, he does some arithmetic, and realizes that the amount represents the sum of $500 plus the monthly fee of $19.95 totaled over three years.  He goes back to the CheapGo website and notices a paragraph buried in the “terms and conditions” that says the monthly fee is payable in advance.

Repeatedly over the next six months, Farmer tries to obtain discounts and upgrades through CheapGo for planned travel to tourist destinations such as Afghanistan, Iraq, Kosovo, Belarus, North Korea and Lebanon. On several occasions, he gets an email message saying that CheapGo does not support travel to those destinations, and in some cases, he gets no response at all. Disgusted, and beginning to feel that he has been a sucker, Farmer consults a lawyer, telling the lawyer he wants to sue CheapGo. Creative investigation by his lawyer shows that CheapGo does business in Nassau, a sovereign state located in the Bahamas, and is solely owned as a proprietorship by one Edwina Smurke, who recently relocated from Nevada to Nassau. By means of data available from the registrar that issued CheapGo’s Internet domain name, and from technical tools such as “traceroute,” Farmer and his lawyer determine that the server on which the CheapGo website is operated is physically located in Nassau. They also discover that Smurke’s email address is esmurke@cheapgo.com.

Farmer asks his lawyer to file suit against against Smurke, in her individual capacity and “doing business as CheapGo,” in the United States District Court for the Northern District of Alabama, located in Birmingham. His complaint alleges two counts: breach of contract, and fraudulent misrepresentation, and seeks compensatory and punitive damages.

The Alabama Supreme Court has recently amended the Alabama Rules of Civil Procedure to provide that:

Rule 4.1. Process: Methods of in-state personal service.

(a) Methods of service. All service of process within this state shall be made as provided in this rule. Service within this state under this rule shall include delivery by a process server, service by certified mail, and service by email; and each of the foregoing methods of service shall be deemed to confer in personam jurisdiction. Unless otherwise requested or permitted by these rules, service of process within this state shall be made by delivery by a process server. In all respects, service pursuant to these methods shall have the same legal effect as if service was accomplished by a sheriff or deputy sheriff by delivering a summons and complaint by hand.

* * *

(d) Service by electronic mail.

(1) WHEN PROPER. When the plaintiff files a written request with the clerk for service by electronic mail (“email”), service of process shall be made by that method.

(2) HOW SERVED. In the event of service by email, the clerk shall attach a copy of the process and complaint or other document to be served to an email message addressed to any email address known to belong to the person to be served, and transmit that email message and attachment through a computer connected to the Internet. The clerk shall cause the subject line of the email message to contain the words, “IMPORTANT! This message contains a lawsuit against you. You must respond,” and cause the clerk’s email system to request a “return receipt.”

(3) WHEN EFFECTIVE. Service by email shall be deemed complete and the time for answering shall run from the date of delivery to the named addressee or the addressee's agent as evidenced by

(A) return receipt transmitted by the addressee’s email server or

(B) other proof of actual receipt of the email message by the addressee.

Section 1963 of the Federal Judicial Code, 28 U.S.C. § 1963 provides, in material part:

§  1963. Registration of judgments for enforcement in other districts

A judgment in an action for the recovery of money or property entered in any court of appeals, district court, bankruptcy court, or in the Court of International Trade may be registered by filing a certified copy of the judgment in any other district or, with respect to the Court of International Trade, in any judicial district, when the judgment has become final by appeal or expiration of the time for appeal or when ordered by the court that entered the judgment for good cause shown. . . . A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.

* * *

The procedure prescribed under this section is in addition to other procedures provided by law for the enforcement of judgments.

The Nevada legislature has enacted the following provisions of the Nevada Revised Statutes:

21.120. Garnishment in aid of execution; notice of writ of garnishment; third-party claims

1. If personal property, including debts or credits due or to become due, is not in the possession or control of the debtor, the sheriff, upon instructions from the creditor and without requiring an order of court, shall serve a writ of garnishment in aid of execution upon the party in whose possession or control the property is found.

The following statute, 18 U.S.C. § 1343, defines wire fraud as a federal crime. It has been interpreted as applying to fraud perpetuated through the Internet. Some courts have interpreted it as authorizing a private right of action and some courts have concluded that it does not authorize a private right of action:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than five years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

Farmer’s lawyer files a written request with the Clerk of the federal court, and the Clerk promptly dispatches an email message with the summons and complaint attached to esmurke@cheapgo.com, and receives an email message containing an electronic return receipt three days later.

Coincidentally, Smurke is on a vacation trip to Mobile, Alabama, located in the Southern District of Alabama, when she reads the email. Alarmed, she calls a high school classmate who is practicing law in Birmingham, retains him, and asks him to do whatever is necessary to get the lawsuit dismissed.

A.                          (50 minutes) What arguments should he present, and how, to protect Smurke from liability, without reaching the merits of the contract or fraud claims? Develop each argument in as much depth as is appropriate, and evaluate the strength of each argument you identify, explicitly considering any substantial counterarguments.

B.                           (15 minutes) Smurke’s lawyer wants to present a forum non conveniens argument. Please sketch that argument and evaluate its prospects for success.

C.                          (25 minutes) Instead of responding to the lawsuit, Smurke’s lawyer advises her to ignore it, and Farmer obtains a default judgment for $25,000 against Smurke. Smurke has a checking account in the Las Vegas, Nevada, branch of the Bank of America. What should Farmer’s lawyer do to find out about the bank account and to execute the judgment against it? What arguments can he anticipate that Smurke’s lawyer will make to protect the bank account against execution? In answering this part of the question, do not repeat arguments developed in your answers to other parts of this question; merely refer specifically reference to each material argument you have previously elaborated.

QUESTION II

42 U.S.C.A. § 1395dd(i) Whistleblower protections

A participating hospital may not penalize or take adverse action against. . . a physician because the person or physician refuses to authorize the transfer of an individual with an emergency medical condition that has not been stabilized or against any hospital employee because the employee reports a violation of a requirement of this section.

Pupwen consults a lawyer and they decide to sue the hospital in the United States District Court for the Western District of Arkansas for violation of section 1395dd(i). The lawyer, on Pupwen’s behalf files a complaint with the clerk and effects service of the summons and complaint on the hospital, meeting all the requirements of Fed.R.Civ.P. 4, and satisfying the constitutional due-process requirements.

The complaint, after an appropriate caption, and allegations of federal question jurisdiction and personal jurisdiction based on service on the hospital located within the Western District, continues as follows:

3.      Plaintiff Pupwen refused to authorize the transfer of a patient with an emergency medical condition that had not been stabilized and reported a violation of law to his superiors.

4.      Plaintiff Pupwen’s employment was terminated because of the conduct described in Paragraph 3.

5.      Plaintiff Pupwen has suffered loss of income because of the termination described in Paragraph 4.

6.      Wherefore, he seeks compensatory and punitive damages.

A.      (15 minutes) If you represent the hospital, what objections would you make to the complaint and how would you make them? Explain. Assume that Pupwen’s lawyer opposes your objections and that the judge is skeptical of your arguments. Be specific as to what changes to the complaint would be necessary to overcome your objections. Evaluate your prospects for success.

B.     Assume that any objections to the complaint have been resolved, either by rejection of your challenge or by acceptance of your challenge and subsequent amendment of the complaint. You interview Butzer, Boxer and all the personnel who were in the emergency room on Thanksgiving Day, namely two nurses, Alpha and Bravo, and an orderly, Charlie. They confirm that Pupwen sought to admit the patient, that Butzer told him not to, that Boxer tried to block the stretcher from being taken into the elevator, and that Pupwen “shoved” Boxer. They also tell you that Pupwen often was physically and verbally abusive to personnel with whom he worked. Boxer tells you that, in August, 2003, he wrote two “memos to the file,” documenting employee complaints of offensive physical contact by Pupwen. After your interviews, you write a memo to the hospital administrator and to the chairman of the board of trustees saying, among other things, “This is a tough case. It seems to me that the evidence will support Dr. Pupwen’s claim that he was terminated in violation of federal law. On the other hand, we also have evidence to support a possible argument that he was terminated mainly because he was physically abusive to his co-workers.”

You file an answer to the complaint, in which you admit Paragraph 3, deny Paragraph 4, claim insufficient information to respond to Paragraph 5 and therefore deny it on those grounds, and deny that Plaintiff is entitled to relief as set forth in Paragraph 6.

You participate with Pupwen’s counsel in a discovery conference as required by Fed.R.Civ.P. 26(f), and agree to make the disclosures required by Fed.R.Civ.P. 26(a)(1) within ten days, to take two depositions within 90 days, to exchange and answer interrogatories within 100 days, and to respond to any requests for production within 120 days. The federal judge approves the discovery schedule.

(1)   (15 minutes) What must you disclose in your Fed.R.Civ.P. 26(a)(1) disclosures, and why?

(2)   (15 minutes) Pupwen’s lawyer takes the deposition of Boxer and asks the following two questions, among many others:

a.       Do you have any memoranda or reports relating to the hospital’s position in this lawsuit?

b.      Summarize the conclusions in any such memoranda.

What objections, if any, would you make to these questions? What, if anything can you do, consistent with the Federal Rules of Civil Procedure, to prevent Boxer from answering the questions?

(3)   (15 minutes) Assume that you do not disclose any documents in your Fed.R.Civ.P. 26(a)(1) disclosures, and are successful in preventing Boxer from disclosing the content of any and all memoranda, and that you also are successful in denying production of any and all memoranda in response to requests by Pupwen. Can you use Boxer’s “memorandum to file” at trial, to support the hospital’s claim that Pupwen was fired, not for insisting on treatment for the patient, but for physical abuse of co-workers? In answering this question, be sure to consider all likely objections to your use of Boxer’s memorandum.

(4)   (15 minutes) You take Pupwen’s deposition. He says that when we was confronted at the door of the hospital and fired, he asked, “Why are you doing this to me?” and Boxer replied, “It’s simple. We are tired of your admitting patients without insurance coverage.” After the deposition, you reinterview the three Hot Springs police officers who were present. All three tell you that Boxer did not say what Pupwen claims, but instead said, “It’s simple. I’m tired of your physically attacking hospital personnel when you disagree with them. Your grabbing me yesterday was the last straw.” You decide to call the police officers as witnesses at trial only if Pupwen testifies as to his version of the conversation.

a.       Must you amend your Fed.R.Civ.P. 26(a) disclosures? Why or why not?

b.      Must you otherwise disclose, before trial, the possibility of calling the police officers? Why or why not?

(5)   (15 minutes) During discovery, the judge, in response to a motion under Fed.R.Civ.P. 37, orders you to disclose your memorandum to Boxer.

a.       Can you appeal immediately? Why or why not?

b.      If you cannot or do not appeal, what sanctions is the district judge authorized to impose if you refuse to produce the memorandum? Which sanctions would do the most harm to the hospital’s position in the litigation? Would it be permissible for the judge to impose any of them?

THE END