Professor Henry H. Perritt, Jr.

Civil Procedure (Three Hours)

Exam No. ___________

Fall 2006

            Time: 1800-2100, 13 December 2006

 

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 the statutory and rule appendix.

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!


 

CIVIL PROCEDURE

Final Examination

 

13 December 2006

 

QUESTION I

Tommy White was moving from Youngstown Ohio to Alachua, Florida to take a one-year position with a new Internet video sharing enterprise. He left some his possessions with his former roommates, and shipped some clothing, his guitar and his desktop computer to Florida. He decided to sell his Jeep Wrangler and to buy a new car when he got to Florida. Having heard about the growth of successful used car sales on v-Bay, a rapidly growing Internet auction site, he decided to list his Wrangler on that service. His listing said, “Moving to Florida; selling Jeep Wrangler; make me an offer.” He was delighted when, within a day, he got an offer of $20,000. He accepted the offer contingent on working out payment and delivery details. In an email exchange with the buyer (White’s email address is twhite82@google.com and the buyer’s was rcataldo@yahoo.com), the buyer said, “I don’t know where you live, but would it be convenient for you to meet me in Pittsburgh, PA on Thursday to deliver the car? I will give you my credit card number now so you can process the payment. Please be sure and bring the title.” White agreed and used his existing merchant account to submit the credit card charge to his bank.

He took the car to Pittsburgh, delivered it to the buyer and signed over the title. Having shipped all his goods, he took a taxi to the Pittsburgh airport where he caught a flight to his new apartment in Florida. Three days later he received a notice from his bank that the credit card debit had been reversed because the name, address, and account number on the card were fraudulent.

Alarmed and angry, he contacts you and asks you to represent him in an action for breach of contract and conversion. He tells you that, due to the time pressures of his new job, he would prefer to litigate in Florida. You get the details from White about the dates and times he communicated with the buyer on v-Bay and by email. You file a civil action against John Doe in Florida state court in Alachua County, Florida, where White lives now.  

The complaint has straightforward counts for breach of contract and conversion against the defendant and also contains the following paragraph under a heading that says, “COUNT 3 – WIRE FRAUD:”

“15. By breaching the contract and converting the jeep by means of fraudulent communications, the defendants violated the federal Wire Fraud Act [as set forth in the appendix to this exam].”

Immediately after filing suit, you obtain subpoenas from the relevant courts and serve them on v-Bay and Yahoo, demanding contact information for the buyer. Both firms respond and inform you that the buyer is one Dick Cataldo, who lives in Buffalo, New York. You amend the complaint to name Cataldo as the defendant, rather than “John Doe,” and contact Cataldo by phone. He is not glad to hear from you and tells you that you are not going to get much even if you win the lawsuit because he sold the car on v-Bay to June Barton, who is domiciled in Gainesville, Florida, the county seat of Alachua County. He remarks that his low price caused Barton to tell him, “I bet this car is stolen, because the price is so low.” But she bought it anyway and came up to Buffalo to get it and drove it back to Florida.

You amend the complaint again to add Barton as a co-defendant, and to include a paragraph in the conversion count against her alleging that she was not a bona-fide purchaser for value because she knew or should have known that Cataldo was not the rightful owner. Thus, if she has the car, she is liable for converting it.

You mail a copy of the summons and complaint to Cataldo in New York, and have a Deputy Sheriff for Alachua County, Florida serve a copy of the summons and complaint on Barton by leaving it with the receptionist at her place of employment.

Documents potentially relevant to your analysis of the following questions are included in the appendix to this examination.

  1. (30 minutes) Both Cataldo and Barton file motions to dismiss for lack of personal jurisdiction. What arguments would you make in opposing the motions? Assess the probability of success.
  2. (10 minutes) Both Cataldo and Barton file motions to dismiss for improper venue. What arguments would you make in opposing the motions? Assess the probability of success.
  3. (10 minutes) Both Cataldo and Barton file motions to dismiss for improper service of process. What arguments would you make in opposing the motions? Assess the probability of success.
  4. (25 minutes) Barton removes the case to the United States District Court for the Northern District of Florida, which includes Alachua County. You want to litigate in state court. What arguments would you make to effect a remand? Assess the probability of success.
  5. (15 minutes) Assuming that one or more of the motions identified in subquestions (A)-(C) is granted with respect to both defendants. Where can you sue, and how should you effect service, to obtain better results against both Cataldo and Barton?
  6.  (15 minutes) Your associate comes to you, concerned about Paragraph 15 of the complaint, which he drafted. Assuming that the phrase “wire communications . . . in interstate or foreign commerce” includes all communications over the Internet, what feedback do you give the associate and what revisions, if any, do you ask him to make?
  7. (10 minutes) Assuming the case stays in federal court, can you get a preliminary injunction forbidding Barton from selling or otherwise disposing of the car before the lawsuit is decided?

 

 

QUESTION II

Nicole Lular recently bought a new motorcycle from the local Yamahonda dealer. She parked the motorcycle in a lawful parking space behind Chicago-Kent College of Law while she attended classes. After class, when she went outside to ride the motorcycle home, she was horrified to discover that it had been smashed to smithereens. She immediately called you on her cellphone and asked you to represent her in recovering enough money to allow her to buy a new motorcycle. While the litigation is pending, she contracts with a limousine service to transport her back and forth to law school from her home in northern Indiana at a cost of $500 per day.

You agree, and you send your investigator, who used to work for the Central Intelligence Agency, to interview people who might have seen what happened. The investigator reports to you that a parking lot attendant who works behind the law school told him that he saw a late model Chevrolet Suburban deliberately drive into the motorcycle, apparently because the driver of the Suburban wanted to displace the motorcycle so he could park in the parking space. Your investigator also tells you that someone called the police, who responded and wrote a report. The investigator has been unable to get more information from the attendant or from the police, telling you that he has followed your instructions and has not used clandestine methods he learned in his former employment.

You file a civil action in the United States District Court for the Northern District of Illinois, against John Doe, as the sole defendant, asserting claims for conversion, and for violation of the federal War Crimes Act. Your investigator suggested the War Crimes Act claim just in case the driver of the Suburban turns out to be a member of an international terrorist organization. You know very little about the War Crimes Act and do not have time to conduct research about it, so you take his word for it.

  1. (10 minutes) What discovery would you seek from the parking attendant and how would you seek it?
  2. (10 minutes) How could you compel the Chicago Police Department to give you a copy of the accident report?
  3. Through this discovery you “discover” that the Suburban is owned by Sebastian Corwin, and that it was being driven by Sebastian’s son Jamie, who has a different address from that of the father.
    1. (10 minutes) What discovery would you seek from Sebastian and how would you seek it? Summarize the top five questions you would seek answers to from him. Do not list more than five questions.
    2. (10 minutes) What discovery would you seek from Jamie and how would you seek it? Summarize the top five questions you would seek answers to from him. Do not list more than five questions.

The questions you pose may be pursued in multiple methods of discovery. Explain why some methods may be better suited for some questions than for others.

  1. (15 minutes) Would you be worried about sanctions against you for any of the discovery you propose or any of the documents you have filed? Why or why not? What sanctions, if any, would you be most worried about?

APPENDIX

Florida Statutes Annotated

Title VI. Civil Practice and Procedure

§ 48.193. Acts subjecting person to jurisdiction of courts of state

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:

(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.

(b) Committing a tortious act within this state.

(c) Owning, using, possessing, or holding a mortgage or other lien on any real property within this state.

(d) Contracting to insure any person, property, or risk located within this state at the time of contracting.

(e) With respect to a proceeding for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintaining a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirement for filing an action for dissolution of marriage.

(f) Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, either:

1. The defendant was engaged in solicitation or service activities within this state; or

2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.

(g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.

(h) With respect to a proceeding for paternity, engaging in the act of sexual intercourse within this state with respect to which a child may have been conceived.

(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

(3) Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, as provided in s. 48.194. The service shall have the same effect as if it had been personally served within this state.

(4) If a defendant in his or her pleadings demands affirmative relief on causes of action unrelated to the transaction forming the basis of the plaintiff's claim, the defendant shall thereafter in that action be subject to the jurisdiction of the court for any cause of action, regardless of its basis, which the plaintiff may by amendment assert against the defendant.

(5) Nothing contained in this section limits or affects the right to serve any process in any other manner now or hereinafter provided by law.

§ 47.011. Where actions may be begun

Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.[1]

§ 48.021. Process; by whom served

(1) All process shall be served by the sheriff of the county where the person to be served is found, except initial nonenforceable civil process may be served by a special process server appointed by the sheriff as provided for in this section or by a certified process server as provided for in §§  48.25-48.31.

§ 48.031. Service of process generally; service of witness subpoenas

(1)(a) Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.

§ 48.194. Personal service outside state

(1) Except as otherwise provided herein, service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service.

United States Code

Title 18. Crimes and Criminal Procedure

§ 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. . . .



[1] See Linger v. Balfour, 136 So. 433, 434 (Fla. 1931) (nonresident may be sued anywhere the court has jurisdiction over his person).