Professor Henry H. Perritt, Jr.

Civil Procedure (Three Hours)

Exam No. _________________

Fall 2009

            Time: 1800-2100, 11 December 2009

 

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, including both appendices.

2.         Read these instructions carefully, read each question, and read the appendix carefully.  As you answer each             question, make use of any materials in the appendix that are pertinent.  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.

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, cell phone, voice-over-IP, or any form of instant- or text-messaging is permitted during the exam.

GOOD LUCK!


QUESTION I

Sterling English and Nicole Minor decided to make a movie about young athletes in Uzbekistan after hearing of the exploits of their economics professor who had written and produced a play. After reading up on Uzbekistan, a state in central Asia, ruled by a brutal autocrat named Islam Karimov, mainly centered on the Wikipedia entry, Sterling sent emails to actors and athletes he knew from his work in Iraqi Kurdistan and Kosovo, asking them if they would like to audition for the cast. Three of them responded, auditioned (along with about twenty others), and were selected. Hannah Brown is a basketball player, a runner-up for the national team of Kurdistan. She is a citizen of Iraq. Brian Scott is a soccer player, who qualified for the national team of Kosovo, but was denied an opportunity to compete because of Serbian opposition to Kosovo’s statehood. He is a citizen of Kosovo. Andre White is a volleyball enthusiast who has entertained fantasies of qualifying for the Olympics, but who never actually entered any competition to that end. He is a citizen of Alabama.

Nicole made arrangements with Boris Dochnich, an Uzbek citizen, resident in Uzbekistan, to supervise the shooting (the photography that results in a movie) in Uzbekistan. Nicole had met Dochnich when they both were students in the masters program at the relatively new University of Chicago graduate program in Elite Preening. The program required two years residency in Chicago. Dochnich stayed for the required two years and received his masters degree

After some debate between Sterling and Nicole as to whether the movie should be shot in Chicago or in Uzbekistan, they decided to do the principal photography in Uzbekistan. Uzbekistan’s borders are closed, especially to persons with U.S. connections, so Hannah, Brian, and Andre had a very difficult time getting into the country. Finally Dochnich persuaded the border guards that the three of them wanted to enter in order to set up a narcotics and human-trafficking ring approved by Karimov and lubricated his persuasion with generous bribes. So they were allowed into the country.

Unfortunately, when the three actor/athletes entered Uzbekistan, they were detained by Karimov’s secret police because Karimov believed that their skills were not sufficient to reflect positively on his stewardship of Uzbek sports. All three claim they were tortured, Hannah by being forced to play volleyball in the national stadium. Brian by being forced to play basketball on a large field behind Karimov’s mansion, and Andre by being forced to play the piano in the national concert hall. All three were widely ridiculed.

Boris Dochnich, it turns out, was a secret police agent, who delivered the actor/athletes to the secret police and helped design the “torture” routines.

  1. (25 minutes) Nicole sues Dochnich in the United States District Court for the Northern District of Illinois for intentional interference with contractual relations. Dochnich’s counsel files a motion to dismiss on the pleadings under Fed.R.Civ.P. 12(c) for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2). What arguments should Nicole present to oppose the motion? Evaluate all relevant counterarguments.
  2. (15 minutes) Brian sues Dochnich in the United States District Court for the Northern District of Illinois for damages under the Alien Tort statute and for common-law intentional infliction of emotional distress. Dochnich files a motion to dismiss on the pleadings under Fed.R.Civ.P. 12(c) for improper venue under Fed.R.Civ.P. 12b(3). What arguments should Brian present to overcome the motion? Evaluate all relevant counterarguments.
  3. (25 minutes) Assume the motion referred to in subquestion (B) is denied. At the final pretrial conference, the Judge asks counsel, “Why do I have subject matter jurisdiction over these claims?” Counsel for Dochnich responds “Woops! I forgot about that.” Has Dochnich waived subject-matter-jurisdiction defenses by no including them in the motion referred to in subquestion (B)? If not, what arguments should he make as to subject matter jurisdiction? What counterarguments should counsel for Brian make? What result is likely?
  4. (10 minutes) Can Sterling, Brian and Nicole sue Dochnich in the same lawsuit? Why or why not. For purposes of this question only, assume that both personal and subject matter jurisdiction exist.

QUESTION II

Dochnich resigns from the intelligence service and apologizes to everyone. They voluntarily dismiss their lawsuits with prejudice. The team regroups and decides to shoot the movie in Chicago on the vacant property south of the Roosevelt Expressway and just east of the Chicago River. Nicole obtains all the necessary permits. As part of his masters program in Elite Preening, Dochnich took two courses in cinematography, both of which he failed because he spent all of his time in class texting his friends. Though he has never made a movie, he agrees to do the photography and sound for the movie. Nicole cobbles together a revised script and the necessary scenery and props, mainly comprising basketball and volleyball courts and a soccer field, and the requisite balls, hoops, nets, and goals. She recruits a number of law students from Chicago-area law schools as extras to fill out the basketball, soccer, and volleyball teams.

Dochnich completes the photography—in the sense that he captures five hours worth of basketball, volleyball, and soccer play. When Nicole reviews the video, however, she is appalled. Nothing much out of the ordinary happens, and Dochnich concentrated his close shots more on cute male and female extras than on Hannah, Brian, and Andre. Moreover, Andre does not play volleyball very well and the video captures him making a number of clumsy errors.

Nicole is furious and decides to sue. She sues Dochnich for breach of contract and for damages under the federal Wire Fraud Act. Assume that the federal Wire Fraud Act has been interpreted to authorize private civil actions for violations as well as imposing criminal penalties. She sues Andre for fraudulent misrepresentation.

  1. (20 minutes) Nicole’s complaint against Andre reads, in material part:

“COUNT II FRAUDULENT MISREPRESENTATION

“1. On 13 January 2009, the defendant told the plaintiff he could play volleyball well.

“2. The defendant is a terrible volleyball player

“3. Wherefore, plaintiff demands compensatory damages in an amount the jury deems fair, in any event exceeding $75,000.”

Andre files a motion to dismiss Count II on the pleadings under Fed.R.Civ.P. 12(c) for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). If you represent Nicole, how should you respond? Be sure to deal with all relevant arguments Andre is likely to make and consider all relevant procedural avenues for your response.

  1. (15 minutes) In order to prove her claims against Dochnich, she needs to prove the existence of a contract and a fraudulent statement. She is sure she received an email from him agreeing to do the photography for “a blockbuster movie, with a compelling story, and evocative characters,” and trumpeting his virtues as “a highly educated and experienced cinematographer, with many awards.” Now she can’t find the email. Can you get them from Dochnich’s Internet Service Provider (“ISP”), which maintains a complete archive of sent emails? How would you attempt to get them? What objections should you anticipate? What arguments would you make to overcome them? Evaluate your prospects for success.
  2. (25 minutes) As Nicole’s lawyer, you write her an email saying, “I know we discussed your desire to sue Hannah as well as the other athlete/actors. I have reviewed my recollection and notes of our conversation. It is my professional judgment that you do not have a meritorious case against Hannah. She played basketball very well on the video. I’m not sure what you think she misrepresented. To be sure, she does not speak English very well, but what’s wrong with having a little Kurdish dialogue in the movie?”

Nicole responds by email: “You are not being aggressive enough on this. She looks like a fool, and it’s ridiculous to have one of the stars of an American movie speaking Kurdish.”

Nicole has been served with a set of interrogatories, which include the following question, “Have you had any communications by email or otherwise concerning the possibility of additional defendants in this controversy? If you have, attach copies of any such communications.”

If you represent Nicole, how should she respond? Is she obligated to answer the interrogatory at all? Is she obligated to produce both emails? Develop fully any arguments you have that she need not do so, evaluate counter arguments, and assess the prospects for success.

  1. Nicole notices Andre for a deposition, in the gym at a local high school. When Andre shows up, he discovers that two video cameras have been set up and that ten of the extras from the movie are there. After Andre is sworn by the court reporter, Nicole tosses Andre a volleyball and says, “Play!” Representing Andre, you say, “Don’t touch that ball!,” and to Nicole’s lawyer, you say, “This is outrageous! We’re leaving.” What should you expect Nicole’s lawyer to do? How should you respond? What arguments are likely? What outcome is likely?
  2. The judge assigned the cases calls counsel into chambers and pressures everyone to settle this “ridiculous lawsuit.” Is the judge authorized to do that? Why or why not?

 

 

 

 

 

 

 

 

 

 

Appendix of statutes, rules, and restatements

 

 

18 U.S.C. § 1343. Fraud by wire, radio, or television

 

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 20 years, or both.

 

28 U.S.C. § 1350. Alien’s action for tort

 

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

 

Restatement (Second) of Torts § 525. Liability For Fraudulent Misrepresentation

 

One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose of inducing another to act or to refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Illinois Service of Process and Jurisdiction Statute

 

(735 ILCS 5/2‑207)

Sec. 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, or . . . .

Sec. 2‑203.1. Service by special order of court.

If service upon an individual defendant is impractical under items (1) and (2) of subsection (a) of Section 2‑203, the plaintiff may move, without notice, that the court enter an order directing a comparable method of service. The motion shall be accompanied with an affidavit stating the nature and extent of the investigation made to determine the whereabouts of the defendant and the reasons why service is impractical under items (1) and (2) of subsection (a) of Section 2‑203, including a specific statement showing that a diligent inquiry as to the location of the individual defendant was made and reasonable efforts to make service have been unsuccessful. The court may order service to be made in any manner consistent with due process.

 

Sec. 2‑208. Personal service outside State.

    (a) Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the jurisdiction of the courts of this State, it shall have the force and effect of personal service of summons within this State; otherwise it shall have the force and effect of service by publication.
   
(b) The service of summons shall be made in like manner as service within this State, by any person over 18 years of age not a party to the action. No order of court is required. An affidavit of the server shall be filed stating the time, manner and place of service. The court may consider the affidavit, or any other competent proofs, in determining whether service has been properly made.

Sec. 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;

 

        (5) With respect to actions of dissolution of  marriage, declaration of invalidity of marriage and legal separation, the maintenance in this State of a matrimonial domicile at the time this cause of action arose or the commission in this State of any act giving rise to the cause of action;

 

        (6) With respect to actions brought under the Illinois Parentage Act of 1984, as now or hereafter amended, the performance of an act of sexual intercourse within this State during the possible period of conception;

 

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

 

        (8) The performance of sexual intercourse within this State which is claimed to have resulted in the conception of a child who resides in this State;

 

        (9) The failure to support a child, spouse or former spouse who has continued to reside in this State since the person either formerly resided with them in this State or directed them to reside in 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.