Civil Procedure Exam

Fall 2005

Model Answer

 

QUESTION I

 

  1. Burke can argue that the case still is in state court because Dozier did not send a copy of the notice of removal to the clerk of the state court.  Under 28 U.S.C. § 1446(d), a case is not removed until a copy of the Notice of Removal is filed with the state court. 

 

Assuming the case has been removed, Burke should file a motion to remand and has several good arguments that are likely to result in the case being remanded.  First, the only stated basis for removal was federal question jurisdiction.  Under 28 U.S.C. § 1441, a United States District Court has removal jurisdiction only if the case could have been filed in federal court in the first place.  In other words, removal jurisdiction exists only if federal question or diversity jurisdiction exists over at least one claim and supplemental jurisdiction over the others.  This case appears to be a classic instance where the Supreme Court’s decision in Louisville and Nashville Railroad v. Mottley bars removal.  Burke did not assert any claims based on federal law in his complaint, only claims based on state law.  The federal question appears only in the preemption defense asserted in Dozier’s removal statement.  That does not create federal question jurisdiction.  The only possible counterarguments by Dozier to overcome the Louisville and Nashville Railroad v. Mottley precedent are (1) the possibility of complete preemption by the Copyright Act, and (2) the possibility that federal law would have to be applied to resolve one or more of the state claims even though they are not pleaded as federal claims.  I know that complete preemption may justify removal, but I’m not sure how far beyond the Labor Management Relations Act complete preemption extends, so I would have to do some additional research on whether the Federal Copyright Law completely preempts state law. 

 

As to the possibility that a federal issue must be resolved in order to decide one of the state claims, the leading case is Merrill Dow.  Merrill Dow says that the existence of a federal issue in a state claim is not enough to justify federal question jurisdiction, but there is some possibility that Merrill Dow leaves open the possibility that if the state claim depends completely on resolution of the federal issue then perhaps federal question jurisdiction does exist.  If for example the state claim asserting conversion of intellectual property requires the application of federal law to determine if intellectual property exists that can be converted, then Dozier has a reasonable argument that federal question jurisdiction exists.  Otherwise, Burke has a good chance of getting the case remanded. 

 

Diversity jurisdiction may well exist in this case.  Burke and Dozier meet the requirements of diversity inasmuch as Dozier is a citizen of Massachusetts and Burke is a citizen of Scotland, and the tort claims for conversion and fraudulent misrepresentation may result in damages—both compensatory and punitive—far in excess of the $15,000 value of the contract, and possibly in excess of the jurisdictional amount of $75,000, that does not matter because 28 U.S.C. § 1332 (b) explicitly bars removal by a defendant who is a citizen of the state in which a case is filed in state court. 

 

Moreover, Burke has an argument that the removal statement identified only federal question jurisdiction as the basis for removal and therefore his assertion of a basis for removal is limited to that by the pleading rules of 28 U.S.C. § 1447. 

 

  1. There is little doubt that Dozier can get the case in state court dismissed or transferred for insufficient venue under the Massachusetts statute.  That statute requires that cases be filed in the county that is the home or principal place of business of one of the parties.  Burke lives and mostly works in Scotland.  Dozier lives and works in Worcester County .  Venue is improper in Middlesex County. 

 

Nothing in this case involves a negotiable instrument and what happened in Boston is irrelevant because Boston is in a third county (Suffolk).

 

  1. Because neither the radio station nor the interviewee are parties, they have no obligation to respond to the usual discovery mechanisms such as interrogatories, requests for production, or notices of deposition, absent a subpoena.  Accordingly, I would cause a subpoena to be issued to the radio station and would depose their named representative under Rule 30 and ascertain through that representative’s personal knowledge or programming records the name of the interviewee. 

 

Then I would cause a subpoena to be issued to that interviewee compelling him to attend a deposition under Rule 30 and I would ask him about his “friend” and what the friend said about the music.  The interviewee’s testimony well might be useful at trial because it could be admitted to show Dozier’s intent to convert the music, an element of conversion.  The subpoena to the radio station probably should be linked to Rule 34 as well as Rule 30 asking the designated representative to bring copies of any programming records showing on the air interviews about the music. 

 

A subpoena to the radio station might not be necessary if a telephone call suffices to obtain the identity of the interviewee or if a Web search of the station’s Web site show enough detail about the interview to ascertain the identity of the interviewee.  But I can count on neither of those things and I know I can count on the subpoena because Rules 30(a)(1), 34(c) and Rule 45(a)(2)(B) and (C) say so.

 

  1. Whether or not Dozier can find out about Lahn depends on whether Burke intends to use Lahn as an expert witness.  It is far too early to tell because she hasn’t even responded yet to his request that she review the music.  If he decides to use her as an expert witness, he must disclose, not only her identity, but also what she is going to say and the basis for it under Rule 26 (a)(2), which requires disclosure of expert witnesses at least 90 days before trial or as otherwise provided under the discovery schedule along with the expert’s report and other information supporting the expert’s qualifications and the basis for his or her conclusion.  Thereafter, Rule 26(b)(4) explicitly permits Dozier to depose her.  Even if Burke is pretty sure he is going to use her as a witness, I think he need not disclose her under Rule 26 (a)(1), although I am not completely sure about this and would need to do further research on the issue whether 26(a)(2) is the exclusive requirement for disclosing testifying experts.

 

If he is not going to use her as an expert witness, for example, because she doesn’t think the music is very good and therefore has little commercial value, he need not take the initiative under Rule 26 (a)(1) or any other rule to disclose her identity or the fact that he consulted her.  On the other hand, if he is asked about her in a deposition or interrogatory, he must disclose her identity and the fact that he talked to her.  Beyond that, whatever he said to her and whatever she said to him or wrote about the music almost certainly qualifies as work product—attorney commissioned communicative activities done in contemplation of litigation.  Under Rule 26(b)(3) and (4), Dozier is not entitled to access to this work product unless he can show extraordinary circumstances constituting a need for access.  He almost certainly could not do that here because there are so many other people available to him to review the music and testify about it, as consulting or testifying experts or otherwise.

 

  1. The most straightforward way for Burke to get access to the master recording is to send a Rule 34 request for production.  The master recording is a tangible thing or a data compilation and it certainly is pertinent to the litigation and is either evidence itself or information likely to lead to admissible evidence, thus well within the scope of discovery under Rule 26 (b).  This stratagem will get him a copy of the master recording which, given the characteristics of digital recording technology will be a perfect copy, which he then can do with as he wishes, absent a protective order limiting his use, which is unlikely.  On the other hand, Rule 34 allows Dozier to keep the original and Burke may be afraid that Dozier will continue to use the original to disseminate Burke’s music in a way that undercuts Burke’s opportunity to earn revenue from the music.  The only obvious way to prevent this is to seek an injunction during the litigation under Rule 65.  I would have to do more research on the standards for such an injunction issuing during litigation. 

 

There also may be some other ways to get prejudgment attachment, under for example Rules 64.  Constitutionality of such attachment is not likely to be in question because Dozier certainly has notice and is actively participating in the litigation; the only question would be finding affirmative state authority for such an attachment during litigation and the grounds that must be established to get a writ of attachment under that authority.

QUESTION II.

 

  1. There is a possibility that Bayless may be able to serve process by email, although it is far from a sure thing.  Fed. R. Civ. P. 4 does not explicitly authorize service of process by email.  Fed. R. Civ. P. 5 is irrelevant because it does not cover service of original process.  Fed. R. Civ. P. 4 (f)(3) might be helpful if Bayless can persuade the federal court that the employer is in a foreign country. 

 

More likely, she should rely on Fed. R. Civ. P. 4 (e)(1), which authorizes service of federal process according to Texas law. 

 

Texas Rule of Civil Procedure 106 (b)(2) empowers a state court to authorize service of process in any manner that will be “reasonably effective to give the defendant notice of the suit.”  The problem is that this authority has preconditions requiring the plaintiff to state the location of the defendant and facts that showing that service has been attempted by more conventional means.  One possibility is that Bayless, using the techniques discussed in the answer to subpart (C) of this question may be able to find some information as to where the defendant is located.  If she does that, she can attempt service by mail or by personal delivery at that location.  Alternatively, she can present an affidavit that she has attempted service through the Texas Secretary of State, as authorized by the Texas rules and that such service was ineffective.  In any event, she should make some kind of attempt to serve process in conventional ways so that she can try to meet the preconditions for authorization of email service.

 

Assuming she can persuade the state judge to authorize email service, she needs to make sure that it satisfies the constitutional limits of Mullane—reasonably calculated under all the circumstances to give actual notice.  Although stated in different words, this seems to be the same criterion as set forth in the Texas rule.  So if the state judge has determined that her proposed method of email service satisfies the requirements of the state rule, it probably satisfies the Mullane requirements.  In any event, she should be careful to include the full contents of the summons and complaint, and if her email software and that of the employer permit a return receipt, she should obtain one. 

 

  1. Bayless has a high probability of being able to establish personal jurisdiction.  Fed. R. Civ. P. 4 (k) gives each United States District Court the same personal jurisdiction as that exercised by the courts of the state in which the federal court sits.  That means Bayless must look to Texas law affirmatively asserting jurisdiction.  Such a law exists as set forth in the appendix.  In particular, Texas Civil Practice and Remedies Code §§ 17.042 and 17.043 authorize jurisdiction over a nonresident who contracts with a Texas resident to perform the contract in whole or in part in the state or recruits Texas residents for employment recruits Texas residents for employment inside or outside the state.  There is little doubt that the facts establish that the employer recruited Bayless through its email communications and contracted with her to perform services at least partially inside Texas. 

 

So the Long Arm Statute asserts jurisdiction.  Then the question is whether this exceeds the limits permitted by the Fifth and Fourteenth Amendments to the United States Constitution under International Shoe and its progeny.  The first question is whether the employer purposefully made contact with Texas.  The answer is clearly yes.  The email communication, the giving of instructions to Bayless, and the sending of payments into her bank account all constituted contacts with Texas.  World Wide Volkswagen requires that the contacts be purposeful—not merely foreseeable, and Bayless has good arguments that the contacts were purposeful.  First of all, the ad for an avian flu expert targeted Texas because she was part of the only program in the United States that specializes in avian flu.  Second, it was evident from her email address that she was at Rice University which is located in Texas.  Third, her resume no doubt indicated that she lived and went to school in Texas.  Fourth, the routing information for her bank necessary for the wire transfer payments to work indicated that her bank was in Texas.  So she has very strong arguments that the requirements of minimum contacts under International Shoe have been satisfied. 

She also should have no difficulty with the five factors of the fair play and substantial justice test.  Although she does not have enough information to make arguments one way or another about the first factor, the burden on the defendant of litigating in Texas, she has strong arguments on all the other factors.  Texas has an interest in litigating this dispute because it was a Texas resident who has been injured by the breach of contract.  Bayless has a strong interest in obtaining effective and convenient relief in the Texas courts.  It is convenient because she lives there.  Since she does not know where else to sue, it’s hard to say that litigation anywhere else would be more effective in producing an enforceable judgment.  All of the relevant evidence is located in Texas, so there is no reason to believe that any other place would be a more convenient place to litigate.  Finally, there is nothing unusual about Texas law, and choice of law principles clearly require its application. 

 

Of course personal jurisdiction does not exist unless service has been made or attempted according to federal or state law inconsistent with the constitution, a question considered in the answer part (A). 

 

  1. Bayless’s default judgment is not worth anything unless she can execute it against some kind of tangible or intangible property.  Her prospects of doing that are actually not too bad, despite the fact that she has not idea where the employer is located.  Pursuant to Fed. R. Civ. P. 69, she can conduct post judgment discovery in aid of executing the judgment.  She should do several things in this regard.  First, she should cause a subpoena to be issued to her bank (if informal requests are not effective to obtain the same information) compelling the bank to disclose information about the bank that wired money into her account.  Having identified that bank and the employer’s account number, which will be on the wire transfer record, she can register her Texas judgment in the place where that bank exists, obtain a writ of garnishment and thereby attach whatever money is in the bank account.  Second, she should cause a subpoena to be issued on the Internet Service Provider that maintains the email address which she used to send to emails to the employer.  That subpoena should demand information about the identity of the employer, and of more immediate use, demand information about the way in which the employer paid for the email account.  If the employer paid by check, this will directly lead her to the employer’s bank account.  If it paid by credit card, she can issue another subpoena to the credit card company and obtain information about the employer, or, better yet, about its bank account. 

 

Finally, she can use Internet tools such as “whois” to find out the details of ownership of the domain name associated with the employer’s email address.  Though this may or may not lead to the employer’s bank account, but it should identify the employer’s location.  While it will not be worth much to her immediately, she certainly could get a writ of garnishment against the employer’s domain name and email address, which might smoke the employer out. 

 

Of course before she gets any actual money, she can anticipate that the employer would object to the validity of her default judgment, challenging personal jurisdiction and service of process, matters considered in the answers to part (A) and (B).

 

  1. “Jurisdiction

 

      “1. The plaintiff is a citizen of Texas

      “2. The defendant is not a citizen of Texas

      “3. The amount in controversy exceeds $75,000.”

 

My principal concern in drafting the jurisdiction section of the complaint in this way relates to Fed. R. Civ. P. 11, which authorizes sanctions against an attorney who signs a pleading (the complaint has to be signed) without making an adequate investigation as to the validity of facts asserted in the pleading.  The problem, of course, is that the assertion that the defendant is not a citizen of Texas may turn out to be untrue.  If it is a citizen of Texas, personal jurisdiction and execution of the judgment may turn out to be a lot easier, but Texas citizenship would defeat diversity jurisdiction. 

 

But I can satisfy Rule 11 by making a reasonable investigation.  If I have tried all of the things suggested in the answer to part (C) and either have come up with nothing, or have determined that the employer is or appears to be located outside of Texas, I surely have satisfied my obligations under Rule 11.  To make sure, I should search the Texas Secretary of State’s records to make sure that no entity with a name resembling the email address for the employer is incorporated in Texas. 

 

I also probably should send an email to the employer’s email address asking for its address and location.  If I receive no responses, at least I can point to this later as part of my reasonable investigation.

 

Obviously, if my investigation shows that the employer is a citizen of Texas, I may not plead that it is not without violating Rule 11.