Professor Henry H. Perritt, Jr.
Civil Procedure (Three Hours)
Exam No. ___________
Time: 1800-2100, 13 December 2005
Chicago-Kent College of Law
Final Examination in civil procedure
1. This examination consists of 7 pages. Please check to make certain you have the complete examination, including the statutory and rule appendix.
2. Read these instructions carefully and read each question 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.
13 December 2005
I. Edmund Burke is a song writer and singer from Glasgow, Scotland, whose genre is songs about the American Revolution and the end of the British Empire. He has decided to seek fame in the American music market, having been disappointed with his fortunes in the British market. He hears about a producer and recording studio proprietor named Junior Dozier. He makes contact with Dozier via email and they agree to discuss the possibility that Dozier will produce Burke’s next album.
In several face-to-face discussions that follow, some held in Edinburgh, Scotland, some in Boston, they reach agreement on the following terms:
· Burke will write and sing ten new songs, never before released to the public.
· He will deliver the musical score and a “scratch track” for each song to Dozier by 4 July 2005. A “scratch track” is an informal recording of a song with its accompaniment, intended to allow other contributors to the song to prepare drum tracks, bass tracks, other instrumental tracks, and the final vocal track, all of which are assembled with digital music software into a final “master” recording that can be written to CDs or distributed in the form of MP3 files.
· Dozier will arrange for a drummer, a bass guitarist, and such other instrumentalists as the two of them may agree on.
· The final master of the songs are due from Dozier to Burke by 1 September 2005.
· Burke will own all intellectual property in the songs and the music, including, but not limited to, copyright, trademark, patent, and trade secret.
· Dozier will not make any of the music in any form available to anyone except to the performers, who will be required to sign similar non-disclosure pledges, and to Burke, and Dozier will not discuss the project with anyone until after he has fully performed his contractual obligations.
· Burke will pay Dozier $7,500 upon the signing of the contract and another $7,500 upon delivery of the final master containing the music.
When they sign the contract, in Boston, on 1 May 2005, Burke gives Dozier $7,500 in cash.
Several times between the signing of the contract and 4 July, Burke sends emails to Dozier asking for suggestions and reactions to particular ideas he has for lyrics and music. He receives no response. Worried, Burke nevertheless wrote the ten songs, sat down in front of a small digital recorder, played his guitar and sang them. He transferred the recording to digital audio files in MP3 format and emailed all ten of these “scratch” files as attachments to Dozier, on 24 June 2005. He sent repeated emails to Dozier thereafter inquiring as to Dozier’s progress. He received only one response saying, “I’m working on it; give me some space for my creative effort.” Increasingly concerned about the fate of his music, Burke decided to go to Worcester, in Worcester County, Massachusetts, where Dozier lived and had his recording studio, in mid-August 2005. As he was waiting for his baggage in Boston’s Logan Airport, he was startled to hear four of his new songs played in a row on the airport audio system. Furious, instead of going to Worcester, he went into downtown Boston, walked into the first law firm he saw and retained a lawyer, instructing him to sue Dozier.
During his initial consultation, the lawyer, George Puppe, said to Burke, “Well this is really fascinating. I heard an interview on the local NPR radio station several weeks ago in which some guy was saying that he has a friend who runs a recording studio. He said the friend decided that some music he was working on properly belonged to the American people because of its subject matter, and the friend had decided to put it in the public domain. I wonder if that’s your music.”
Puppe and Burke decided to file suit in Massachusetts state court in Cambridge, Massachusetts, where Burke had some friends working on digital music technology at MIT. Because MIT is in Cambridge within walking distance of the Middlesex County Courthouse, he figured he could kill two birds with one stone when he came to Cambridge to help with the litigation.
The complaint filed in the Middlesex Superior Court has four counts. The first is for breach of contract, on the grounds that Dozier never delivered the recorded music. The second is for breach of contract on the grounds that Dozier failed to honor the intellectual property clause of the contract. The third is for conversion, on the grounds that, when Dozier made the music available to the airport, he substantially interfered with Burke’s property interest in the music and the songs to such an extent that he should be made to pay full value. The fourth is for fraudulent misrepresentation in that Dozier failed to inform Burke about his plans to make the music available to the Logan Airport entertainment system manager and that Burke relied on that failure to his detriment.
After the lawsuit was filed, Dozier returned to Glasgow, and shortly thereafter, got an email from Puppe saying that the case had been removed to the United States District Court for the District of Massachusetts. Puppe attached the Notice of Removal, which had been filed with the clerk of the federal court, which alleges that the grounds for removal are, “preemption of state law claims by federal copyright law.” Puppe is unfamiliar with federal procedure and told Burke that if the case stays in federal court, Burke will need to get another lawyer. In his response, Burke said, “Wherever we end up litigating, I want to get started on building our case. Even as you try to get the case back in state court, which I want you to do, I want you to find this guy who gave the radio interview and see what he knows.”
A. (30 minutes) What should Puppe do to get the case back in state court, or to establish that it still is in state court? What arguments should he make? What counterarguments can he anticipate? Evaluate his prospects for success.
B. (5 minutes) Assume the case has been returned to state court. Would Dozier have any meritorious objections to venue? Pertinent provisions of the Massachusetts Venue Statute are attached as an appendix to this exam.
C. (15 minutes) Assume that Puppe’s efforts to get the case back in state court have been unsuccessful and that it is proceeding in federal court. What can Puppe do to find out the identity and contact information for the person interviewed on the radio, and force the individual to answer his questions, assuming that when Puppe calls him up on the telephone (after learning his identity) the individual hangs up as soon as Puppe identifies himself. Be sure to evaluate all alternatives and their advantages and disadvantages.
D. (30 minutes) Burke and Puppe believe they will need an expert witness to provide evidence of the revenue the songs would have earned but for the misconduct by Dozier. They contact a famous folk musician, Sofia Lahn, who agrees to listen to the scratch track and to get back to them. Will Dozier be able to find out about Lahn and what she thinks about the music’s economic potential? At what point in the litigation and through what means?
E. (10 minutes) In addition to damages and an injunction at the end of the lawsuit, Burke would like to get possession as soon as possible of the recording master containing his songs. Is there any way he can do that in the course of the litigation? Please consider all alternatives and evaluate their advantages and disadvantages. Is there any way Dozier can prevent his obtaining possession of the recording master?
II. Margaret Bayless, a citizen of Texas, is about to receive her Ph.D. from a specialized epidemiology program at Rice University. Rice University is located in Houston, Texas. The program she is completing is the only one in the United States that does specialized research in avian influenza, popularly known as “bird flu.” She is beginning her job search, intending to seek a tenure-track faculty position at a major research university somewhere when she sees an ad in a special Web job service called “Charlie’s List.” The ad says, “Just getting your Ph.D. in bird flu epidemiology? Thinking about college teaching? Don’t teach; do something useful. Send us your resume at the following email address—firstname.lastname@example.org.” Intrigued, though somewhat offended by the content of the ad, Bayless submits her resume by email (her email is email@example.com) and immediately gets a response offering her a position for one year at a salary of $200,000 per year. She immediately accepts the offer by email and asks for the details of her employment. She receives further emails instructing her that she can make her own arrangements for laboratory access, that her employer does not care where she performs her research, and that she is to investigate issues that will be submitted to her from time to time and report her results by email. She is told that she will be paid by wire transfer into her bank account in Houston, for which she is to send routing and account number information to the employer. Still a little suspicious, Bayless opens a new account in her Houston bank, deposits no money in it, and sends the routing and account number to the employer. She then begins to receive assignments posing a number of very interesting and challenging research questions. She undertakes the research, reports periodically to the employer and everything goes well for six months. The wire transfers with her salary come regularly into her bank account, and the promised reimbursement of her expenses in setting up labs and otherwise conducting the research likewise come promptly by wire transfer after she invoices for them. Then she stops receiving payments and gets no further research assignments. She consults a lawyer in Austin, Texas, and he tells her it sounds like she has a strong breach of contract claim against the employer. They decide to file a breach of contract lawsuit for the $100,000 still to be earned on her employment contract in the United States District Court for the Southern District of Texas, which is convenient both to Bayless and to the lawyer.
A. (20 minutes) Is there any way she can make valid service of process on the employer by email? Be sure to cite any appropriate authority for your conclusion and explain the basic procedural steps for effecting service in this way.
B. (35 minutes) Does the federal court in Texas have personal jurisdiction over the employer? Evaluate all of the arguments Bayless might make with regard to personal jurisdiction, consider likely counterarguments, and evaluate her prospects for success on each of them.
C. (15 minutes) Suppose Bayless and her lawyer serve the summons and complaint by email, sending it to the last email address she has for the employer, according to whatever procedure you recommended in your answer to Question A. They receive no response. Assume Bayless gets a default judgment. Is there any realistic prospect for her recovering any money? Describe any steps that she and her lawyer might take to get the rest of her compensation. Be specific about how she would find assets.
D. (20 minutes) Draft the portion of Bayless’s complaint that would allege subject matter jurisdiction. After you have drafted it, separately summarize any concerns you have about its adequacy and any risks you take by including it in the complaint that you file.
Massachusetts General Laws
M.G.L.A. 223 § 1
§ 1. Transitory actions; general provisions
A transitory action shall, except as otherwise provided, if any one of the parties thereto lives in the commonwealth, be brought in the county where one of them lives or has his usual place of business; provided, however, that if the instrument of the crime is a forged check, credit card, or other negotiable instrument, intending on its face to be presented for payment at another place in another county and the value of the money, goods or services involved is in excess of one hundred dollars, the action may be brought in the county where the instrument was presented or at the place where the instrument was presented for payment, if such place of payment is located in the commonwealth; and provided, further, that except in actions upon negotiable instruments if the plaintiff is an assignee of the cause of action, it shall be brought only in a county where it might have been brought by the assignor thereof. If neither party lives in the commonwealth, the action may be brought in any county. If an action is dismissed because the defendant has raised timely objection to venue, the defendant shall be allowed double costs.
Texas Civil Practice and Remedies Code
In this subchapter, "nonresident" includes:
(1) an individual who is not a resident of this state; and
(2) a foreign corporation, joint-stock company, association, or partnership.
In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident:
In an action arising from a nonresident's business in this state, process may be served on the person in charge, at the time of service, of any business in which the nonresident is engaged in this state if the nonresident is not required by statute to designate or maintain a resident agent for service of process.
(a) The secretary of state is an agent for service of process or complaint on a nonresident who:
(3) is not required to designate an agent for service in this state, but becomes a nonresident after a cause of action arises in this state but before the cause is matured by suit in a court of competent jurisdiction.
(b) The secretary of state is an agent for service of process on a nonresident who engages in business in this state, but does not maintain a regular place of business in this state or a designated agent for service of process, in any proceeding that arises out of the business done in this state and to which the nonresident is a party.
(a) If the secretary of state is served with duplicate copies of process for a nonresident, the documents shall contain a statement of the name and address of the nonresident's home or home office and the secretary of state shall immediately mail a copy of the process to the nonresident at the address provided.
(b) If the secretary of state is served with process under Section 17.044(a)(3), he shall immediately mail a copy of the process to the nonresident (if an individual), to the person in charge of the nonresident's business, or to a corporate officer (if the nonresident is a corporation).
(c) If the person in charge of a nonresident's business is served with process under Section 17.043, a copy of the process and notice of the service must be immediately mailed to the nonresident or the nonresident's principal place of business.
(e) If the secretary of state is served with duplicate copies of process as an agent for a person who is a nonresident administrator, executor, heir, guardian, or personal representative of a nonresident, the secretary shall require a statement of the person's name and address and shall immediately mail a copy of the process to the person.
Texas Rules of Civil Procedure, Rule 106
Rule 106. Method of Service
(a) Unless the citation or an order of the court otherwise directs, the citation shall be served by . . . by
(1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or
(2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.
(b) Upon motion supported by affidavit stating the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service
(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.