Professor Henry H. Perritt, Jr.
Civil Procedure (Three Hours)
Exam No. _________________
Time: 1800-2100, 11 December 2009
Chicago-Kent College of Law
Final Examination in civil procedure
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.
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.
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.
“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.
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.
Appendix of statutes, rules, and restatements
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.
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.
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
(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.
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.