Civil Procedure Examination

Fall, 2007

Model Answer

QUESTION I

Subquestion A.

On behalf of Foglietta, I would argue that the Arizona federal court lacked subject matter jurisdiction. It plainly did not have federal question jurisdiction, because the foreclosure action was premised on state law and not federal law. No doubt the condo association would argue that the court had diversity jurisdiction, but it did not. First, the amount in controversy is far less than $75,000. The standard for assessing the amount in controversy requirement is whether it is a legal certainty that the plaintiff cannot recover more than $75,000. Here that standard is met because there is no basis whatsoever for the plaintiff to claim more than $250 plus associated attorneys and administrative fees which, the question says, would total no more than $1,250. Any surplus produced at the foreclosure sale is not the property of the plaintiff, but instead is held by the sheriff to be remitted to other lien holders or to the owner, as was done in this case.

The actual amount of the condo association’s claim was $250. The way foreclosure works, the property in question is sold at an auction to generate a fund that can pay the plaintiff’s claim. Merely because the condo was worth, in our view, $750,000, that does not alter the amount of the plaintiff’s claim. 28 U.S.C. § 1332 uses the phrase “matter in controversy.” That is only the amount of the lien.

Foglietta also has arguments that the he and the plaintiff condo association are not citizens of different states. Citizenship, for purposes of diversity jurisdiction, is decided as a matter of federal law, which generally tracks the concept of domicile. Foglietta can argue that a domiciliary of Arizona if he can truthfully testify that he an intent to make Arizona his domicile while he was physically present in Arizona. That well may have occurred on one of his visits to his condo or, it may indeed have occurred because he was born and raised there (we are not told). This is not as strong an argument as the argument over the amount in controversy, however. The condo association can argue that he is a domiciliary of Illinois because he is physically present in Illinois, only “vacationed” at his condo in Arizona, and because his taking the Illinois Bar Exam supports an inference that he intends practice law in Illinois and make Illinois is domicile. The association would attack any testimony by Foglietta that he intended to remain in Arizona as not credible.

We have strong arguments that the judgment is void because not supported by subject matter jurisdiction.

Subquestion B.

In assessing personal jurisdiction, the first question is always whether the sovereign has asserted it on behalf of its judicial institutions. In this case, Arizona has asserted jurisdiction to the limits permitted by the United States Constitution.

On behalf of Foglietta, I will have considerable difficulty in arguing successfully that personal jurisdiction is lacking. A foreclosure action looks like an in rem action. Schaffer while invalidating quasi in rem jurisdiction, explicitly acknowledged the possibility that traditional in rem jurisdiction would remain constitutional, even without assessing minimum contacts and fair play and substantial justice. Justice Scalia’s opinion in Burnham reinforces this proposition by arguing that any traditional basis for asserting jurisdiction is constitutional without assessing minimum contacts. Under Pennoyer v. Neff, rem jurisdiction was one of the two traditional bases for jurisdiction.

We can argue that in rem jurisdiction did not exist in this case for two reasons: First, that the Arizona statute did not assert in rem jurisdiction but only in personam jurisdiction because of its focus on persons and its failure to mention in rem jurisdiction. Second, it is not clear that—we would argue that posting the summons and complaint on the door of the condo unit did not effect an attachment. Pennoyer plainly says that in rem jurisdiction does not exist unless the property that is the subject of the action is attached at the beginning of the lawsuit.

Even if in rem jurisdiction was not validly asserted by the state of Arizona or was not validly established by attachment, we still must overcome the plaintiff’s certain argument that in personam jurisdiction existed. Given the content of the Arizona statute, we must establish that the requirements of International Shoe and its progeny were not satisfied. That will be an uphill battle, to say the least. Foglietta had extensive contacts with Arizona, the forum state. Most importantly, he bought and continues to own real property there—the condominium unit. Even if he had never been to Arizona, ownership of real property in a forum state almost certainly establishes systematic and continuous contact, necessary for general jurisdiction to be constitutional. Moreover, he went there on occasion to vacation, using the condominium unit. The dispute arises over his ownership and use of the condominium unit and therefore the dispute is related to the contacts, making only the contacts necessary to support specific jurisdiction necessary constitutionally. I don’t see any non-frivolous way that we can establish the absence of minimum contacts.

Nor can we make a much stronger argument on the fair play and substantial justice factors. Foglietta can hardly argue that it is prohibitively expensive or otherwise burdensome for him to litigate in Arizona; he bought a condo there and vacations there. He has no plausible impediments to travel, because he also just went to Mongolia for vacation. Second, the forum state obviously has an interest in having its courts adjudicate foreclosure actions with respect to real property in Arizona. Third, the plaintiff condo association has a strong interest in bringing its foreclosure action in the Arizona courts, because only the courts of Arizona can execute a judgment of foreclosure over real property located in Arizona. Litigating this matter somewhere else would, in the end, require importing a judgment from another state into Arizona and domesticating it so a writ of execution from an Arizona court could be issued. Fourth, whatever evidence is necessary to establish the validity of the assessment and Foglietta’s failure to pay it is available in Arizona.

Fifth, The facts provide the only glummer of an argument for Foglietta that personal jurisdiction is not valid. The question states that Illinois has a statute permitting owners of property to redeem the property after foreclosure sale. If Arizona has no such statute, then it is out of step with other states and this might support an argument that the fifth factor militates against the exercise of jurisdiction by Arizona courts if they are—as is likely—going to apply Arizona law.

So the sovereignty-basis for personal jurisdiction seems well established, beyond the likelihood of a successful attack by Foglietta.

On the other hand, the exercise of personal jurisdiction requires that the defendant be validly served with process. That did not occur here. Constitutional issues are addressed in the answer sub question (D). Here, we would argue that the statutory and rule-based requirements for personal service in a civil action have not been satisfied. The Arizona statutes and rules appended to the question do not permit service to be made merely by affixing the summons and complaint to the outside of a residence or dwelling; they must be delivered to someone inside. Even without getting to the likely successful argument that the condominium unit is not Foglietta’s dwelling or usual place of abode the attempted service on the condo unit plainly did not meet the requirements of the rule.

Nor did the mailing of the summons and complaint to Foglietta satisfy the requirements of the rules. For service to be effective on an out of state defendant, process must be sent with signed and returned receipt requested. This was not done.

If we can establish the absence of personal jurisdiction, the judgment is void. That is precisely what happened in Pennoyer.

Subquestion C.

Foglietta is going to have an uphill battle challenging venue. The foreclosure action took place in federal court so 28 U.S.C. § 1391 is clearly the appropriate venue statute. While Foglietta likely can establish that he does not reside in Arizona for purposes of the statute, it is pretty clear that the substantial part of the events giving rise to the action occurred in Arizona, thus making venue proper in the United States District Court for the District of Arizona. Foglietta may argue that the triggering event was his nonpayment of the special assessment, which occurred in Illinois, but that is not going to be enough to overcome venue because all that is required is that a substantial part of the relevant events occurred in the forum state, and that test surely is met here.

Subquestion D.

Assuming that the attempt to give Foglietta notice of the foreclosure action satisfied the Arizona rules for service of process (and we argue in the answer to sub question (B) that it did not), Foglietta has some plausible arguments that the notice nevertheless was constitutionally insufficient.

The Mullane and Greene v. Lindsey cases establish the proposition that the Constitution requires the best means of giving notice, practicable under the circumstances, likely to result in actual notice. While a certain deference in given to traditional means of giving notice, such as attaching real property and sending notice by U.S. mail, the Mullane and Greene v. Lindsey analysis clearly is pragmatic and sensitive to evolving lifestyle changes and the circumstances of particular cases. Greene, after all, invalidated posting a notice to the door of a residence unit, although it was a traditional means of attaching property. Thus, while Mullane repudiated notice by publication, suggesting that U.S. mail would have been more likely to result in actual notice, it should not be read as holding that U.S. mail always is constitutionally sufficient.

In this case, the condo association knew that Foglietta only occasionally used the condo unit, and therefore that it was likely that anything taped to the door of the condo unit would not be there for Foglietta to see it. It also knew, because of Foglietta’s failure to respond to the initial notice of the special assessment that Foglietta was, at least to some extent inattentive to notices sent to him by U.S. mail.

There were several things that the condo association could have done to make it more likely that Foglietta would receive actual notice, and it could have done any of them without undue burden. It could have sent the mail notice, including the summons and complaint, by certified mail, return receipt requested. Foglietta, despite his preoccupation with studying for the bar, might have been more likely to pay to attention to a special notice that he had received certified mail and must sign for it. Also, the condo association likely knew Foglietta’s email address. That is not entirely clear from the facts, so we would have to do some additional investigation. It is common business practice for any business to ask for email addresses from its customers. Further, the condo association must have known Foglietta’s telephone number, given that the new “owner” of the condominium unit knew it. So the likelihood is great that the condo association could have emailed Foglietta or telephoned him, or both.

Given the magnitude of the amount at stake—the total value of the condominium unit, even though the condo association’s claim was for far less than that, the Constitution requires that at least these extra efforts have been made to give Foglietta actual notice of the foreclosure action.

Because the service of process was constitutionally insufficient, the district court never had jurisdiction, and therefore the judgment for the judgment is void.

Subquestion E.

If we prevail on behalf of Foglietta and get the judgment reopened, the question of whether he can sue the snow removal service in the same civil action raises questions of joinder and subject matter jurisdiction. The only joinder rule that might permit a defendant like Foglietta to bring in a third party is Rule 14— the impleader rule. In order for Rule 14 to permit the snow removal company to be impleaded, the snow removal company must be liable to Foglietta for his liability to the condominium association. Foglietta is not going to be able to establish that because the relationship between his claim against the snow removal company and the condo association’s claim against him is, in some sense, backwards compared to the derivative claims that Rule 14 contemplates. There is no basis for any argument that the snow removal company was contractually obligated to cover Foglietta’s liability to the condo association. Indeed he does not assert that; he asserts simple breach of contract for failure to remove the snow. So he is not going to be able to get this claim in the lawsuit under the Rule 14 joinder rules.

Not only that; even if he could somehow get the claim in the lawsuit, it is unlikely that subject matter jurisdiction would exist over that claim. While Foglietta almost certainly is a citizen of Illinois, and the snow removal company likely is a citizen of Arizona, any damages for breach of the snow removal company’s contract cannot possibly exceed the jurisdictional amount of $75,000, unless Foglietta somehow can concoct an argument that the damages incident to the foreclosure sale of the condo are attributable to the breach of the snow removal company’s contract to remove the snow. That argument is frivolous because contract doctrine is reticent to allow consequential damages of any kind and the relationship here between the failure to remove the snow and the foreclosure damages is far too attenuated to have been impliedly within the contemplation of the snow removal company when it entered into the contract.

So, since no federal question is anywhere in the picture, the only real possibility is supplemental jurisdiction, and Foglietta would have to establish that the claim against the snow removal company and the condo association’s claim against him have a common nucleus of operative fact. He is unlikely to be able to establish that; they were two completely separate transactions; indeed—and this would be a problem on the merits of Foglietta’s breach of contract action against the snow removal company—the snow removal company did not have a contract with Foglietta, but only with the condo association. The failure to remove the snow, if that occurred, occurred at a different time from Foglietta’s failure to pay the special assessment. The obligation to remove the snow arose at a time different from his obligation to pay the special assessment. It is hard to find anything common between the two claims.

On the other hand, if Foglietta’s challenge to the foreclosure rests on a challenge to the special assessment, and that challenge rests on some kind of attack on formation of or performance under the snow removal contract, then there might be sufficient commonality of events and evidence to support an ambitious argument that there is a common nucleus of operative fact.

While Foglietta may be able to concoct a supplemental jurisdiction argument, I do not see how he brings his claim against the snow removal company within the scope of Rule 14.

QUESTION II

Subquestion A.

[this model answer does not  exhaust all the permutations of arguments for and against summary judgment in the two hypothetical cases; instead, it limits itelf to the positions taken in most of the exam answers]

Bennaza for summary judgment against Ryan Clay

The plaintiff is entitled to summary judgment in his favor against defendant Ryan Clay because there are no issues of material fact that need be determined by a factfinder in order for him to recover on the three counts in the complaint.

The elements of a battery are established by Bennaza’s affadivit testimnony that Clay grabbed Bennaza’s wallet out of his hand and by Clay’s testimony admitting that he did.. Clay admitted, in his deposition testimony, that he grabbed the wallet, and that he did so intentionally. Clay does not testify that Bennaza consented to this touching of something connected with his body. Bennaza testifies that he found the touching offensive. Damages are not an element of battery. The only conceivable issue is a purely legal one—whether contact with a wallet held by a victim qualifies as contact with the victim’s body. Accordingly the batter y claim is ripe to be decided by the court.

The elements of an assault are established by Bennaza’s affidavit testimony and Clay’s deposition testimony that Clay raised his flighlight and moved it toward Bennaza’s head.  This constitutes an act that reasonably could be apprehended an an imminent battery. Bennaza testified that he actually apprehended it as such.  Damages are not an element of a common-law battery, and thus this claim is ripe for a decision by the court in Bennaza’s favor.

The elements of a section 1983 violation are established by Bennaza’s affidavit testimony that he was stopped without cause and by Clay’s repeated declarations that he was motivated by the need to control  spoiled rich kids. All of the testimony by Bennaza and Clay establish that Bennaza was stopped and was not free to go, thus establishing detention.  Accordingly, there is no factual dispute necessitating a trial on this claim, and Bennaza is entitled to summary judgment.

Clay opposing summary judgment for Bennaza

Material issues of fact must be decided before Bennaza can establish the elements of any of his three claims.

On the battery claim, a factfinder must decide whether the touching of the wallet was unreasonable, thus giving rise to a battery, or, in the alternative, whether Clay was privileged to do this under his authority of law to make a reasonable investigation incident to his traffic stop. There are also triable issues of fact as to whether Bennaza impliedly consented to Clay taking hold of his wallet to assist Bennaza in getting his documents out.

On the assault claim, the evidence is conflicting as to whether Clay moved the flashlight toward Bennaza’s head. Clay’s deposition testimony establishes at most that Clay “may have” moved the flashlight involuntarily as he was working with his other hand to get the documents out of Bennaza’s wallet. In any event,  an intentional act by Clay is an element of an assault and a fact finder much decide whether Clay intentionally moved his flashlight toward Bennaza’s head.

Finally, regarding the assault claim, Bennaza can establish an assault only if he can prove this his apprehension of an imminent battery from the flashlight was reasonable. Reasonableness is the paradigmatic fact issue that must be reserved to the factfinder.

Establishing a section 1983 violation requires Bennaza to prove that there was no probable cause for detaining him or that Clay used excessive force in connection with the detention. Clay’s deposition testimony establishes probable cause for the traffic stop, and the use of ordinary police procedures once Benaza had stopped. Any claim otherwise by Clay must be assessed by a fact finder.

Christiansen against Bicycle Messengers

The plaintiff Ryan Christensen is entitled to summary judgment against Bicycle Messengers on his ADA claim because the evidence in the record, limited to Christensen’s affidavit and Ryan Strong’s deposition shows that there are no disputed issues of fact for a jury to decide.. Christensen’s testimony established that he is disabled—suffering a bodily impairment that significantly and adversely affects life activities such as walking, squatting, and running. There is no evidence contravening this proposition in the record. Christensen’s testimony also establishes that he is qualified for the job of bicycle messenger, and can perform the essential functions of the job. There is no contravening evidence—only the unsupported opinion by Strong that he cannot, based on no objective data whatever, but based only on his brief visual observation that Christensen has only one leg. Christensen’s testimony and Strong’s testimony both establish that Christenson applied for and was denied a return to his job by Strong. Strong’s testimony establishes that the only reason for the adverse employment decisions was Christensen’s disability—that he had only one leg.

Strong’s deposition testimony also established that Bicycle Messengers has more than fifteen employees, the threshold for coverage by the ADA statute.  There is nothing for a factfinder to decide at trial. Christensen has established that he is entitled to recover on his ADA claim.

Bicycle Messengers opposing summary judgment for Christensen

Christensen cannot recover under the ADA unless he satisfies his burden of proving that he is qualified, with or without reasonable accommodation to perform the essential functions of the job of bicycle messenger. There is no evidence in either Christensen’s affidavit testimony or in Ryan Strong’s affidavit testimony that Christensen requested any form of accommodation. So Christensen is not entitled to recover unless he proves that he could perform the essential functions of the job without accommodation. Christensen’s unsupported opinion that he could peform the job is not enough to satisfy his burden of proof at the summary judgment stage.  He must offer additional evidence at trial that he can perform he job, and at least subject himself to cross examination on this subject.  The fact finder must decide, after observing him and evaluating his testimony on direct and cross examination whether he can in fact perform the essential functions of the job.

Yamahonda for summary judgment against Christensen

The plaintiff Christensen could prevail on his claim of negligent design against Yamahonda only if he had admissible evidence that Yamahond breached its duty of care in designing the motorcycle involved in Christensen’s accident. Despite ample opportunity to take discovery, Christensen has produced no evidence whatsoever regarding Yamahonda’s design decisions. Accordingly, Yamahonda is entitled to summary judgment.

Subquestion B.

Bennaza further discovery against Officer Clay

We would not seek further discovery against Clay himself; we are pleased with what we have on the record: admitting the touching of the wallet; the movement of the flashlight and the prejudice against the rich, spoiled, drunken kids of Kenilworth.

It would be helpful however, to buttress our argument that Clay is a bigoted brute. We would serve on the Village a Rule 34 request to product  Clay’s personnel file, and any complaints or documentation regarding Clay. We would depose his fellow police officers and ask them about Clay’s reputation, seeking evidence that Clay regularly stopped kids like Bennaza withougt probable cause and used excessive force.

Officer Clay’s further discovery against Bennaza

At the very least, we want to depose Bennaza. Any possible recovery by Bennaza depends on the jury accepting his version of the events instead of Clay’s and also accepting the reasonableness of his apprehension that he was about to be struck by the flashlight, and of his lack of consent to Clay’s taking his wallet. Only a deposition will give us the opportunity to assess his credibility and our ability to shake his story through cross examination.

In addition, we want to ask him about his intake of alcohol on the evening preceding the traffic stop, both because his deposition testimony may support an inference that his handling of his wallet and his perceptions regarding the flashlight were impaired by alcohol and thus unreasonable. Even if he denies excessive alcohol consumption, his deposition testimony may set him up for impeachment based on evidence obtained from others.

We also want to find out the names of other people who saw him preceding the traffic stop. We will ask for their names and contact information when we depose him.

Then, we will depose them, along with the bartender at places where he was drinking. Although depositions are more expensive than other forms of discovery, we need the flexibility that we would have in depositions to follow up on their answers to our questions about Bennaza’s drinking and his behavior.

We will also send Rule 34 requests for production to the hospital where he was treated, accompanied by subpoenas, seeking all medical records, hoping they will reveal blood alcohol tests or record entries by treating medical personnel regarding his state of intoxication. We can anticipate resistance, based on Bennaza’s privacy interests, but we would argue that he has placed his physical condition at issue in the lawsuit and that access to these records should be compelled under threat of contempt penalties because what they may reveal is highly relevant to our defense.

We would seek copies of the same records from Bennaza himself through a Rule 34 request for production, backed up by Rule 37 sanctions as necessary.

Bennaza further discovery against Village of Kenilworth

Our 1983 case against the Village is thin. We should serve Rule 34 requests for production for (a) complaints against any Kenilworth police office for battery, assault or 1983 violations; and for the department’s procedure manual regarding traffic stops. We would depose any complainant thus revealed and would compare the department’s procedures with standard procedures we also would obtain from law enforcement associations, hopefully showing that the Village tolerates violations of constitutional or statutory rights.

Bicycle Messengers further discovery against Christensen

We are fortunate to have discovery reopened. Ryan Strong’s deposition testimony is potentially disastrous for our position. We badly need evidence either that Christensen is not statutorily disabled, and therefore outside the protection of the ADA, or that he cannot perform the essential functions of the job.

We would definitely depose Christensen. Generally, we want to assess how he would come across to a jury—sympathetic or arrogant? Deserving of pity because of his disability or target of envy because he is still such a good athlete? Self-reliant and modest, or greedy for a big, undeserved damages judgment?

We would begin by asking him why he thinks he can perform the duties of a bicycle messenger, encouraging him to be expansive on how successful his rehabilitation has been, leading him into a description of his athletic activities since the accident. After this line of questions we would ask him what he cannot do now. The purpose would be to marshal evidence that he is not statutorily disabled.

We also would ask him to identify people that have observed his physical capabilities and his physical limitations, and then we would depose them, asking similar questions.

We would serve a Rule 34 request for production for any videos or photographs portraying Christensen after the accident. We could anticipate a Rule 26(b)(3) work product objection with respect to some of the requested data, but we would argue that we either (a) must get access to it or (b) be allowed to compel him to subject himself to our own Rule 35 examination.

We would seek a Rule 35 physical examination order in order to put him through various practical tests, rigorously administered, illustrating his ability or lack thereof to ride a bicycle safely in Chicago traffic and deliver packages of all weights and dimensions promptly.

Christensen further discovery against Bicycle Messengers

We are delighted with Ryan Strong’s deposition testimony and would do nothing to allow Strong to inoculate himself or Bicycle Messengers from what he said. In no event would we redepose him or send him interrogatories.

It would be helpful, however, to have testimony from other bicycle messengers as to the essential functions of the job Christensen performed and sought to perform again. We would depose all of them. Cost is a factor, but what we might get is worth it. In each deposition, we would explore how supportive the deponent is of Christensen. Did the deponent like him before the accident? Does the deponent admire him now? Does the deponent think he should get his job back? None of the ansers would be admissible, but this information would be helpful in deciding whom to call as witnesses at trial. We would then ask each of them to specify the essential functions of their job and to opine whether Christensen, after the accident and his rehabilitiation could perform them. Those who say he could perform them we would call as witnesses. Those who say he could not perform them would help us know what we are up against. If some of these deponents say that Christensen is a jerk, always playing for sympathy, always slacking, and they have always hated him, that would be useful to undercut any trial testimony by showing bias against Christensen.

Christensen’s further discovery against Yamahonda

So far, we have no evidence of negligent design of the motorcycle. So we would send Rule 33 interrogatories to Yamahonda, asking for the names of all persons involved in design of the motorcycle. Then we would notice them for depositions and ask them about whether they were aware of the risk of leg injury from a skid followed by a sideways collision, what engineering calculations they did to minimize the forces on a rider’s leg in such a collision, what design features they considered to minimize such forces, and why they ultimately rejected such features.

Yamahonda’s further discovery against Christensen

We would send “contention interrogatories” to Christensen, asking him to specify the exact design characteristics he claims (a) were responsible for his injury and (b) were not part of the motorcycle as delivered to him. We would ask what product characteristics would have prevented his injury. We would ask for any estimates he has of the cost of his proposed product characteristics. The purpose would be to pin down Christensen’s theory of negligence.

We would depose Christensen. In his deposition, we would try to surprise him with a question regarding the offer of a safer model of motorcycle with leg-protection bars and ask him if he rejected this option and selected the less safe model instead. Regardless of his answer to this question, we would not confront him with the affidavit testimony of our salesperson, instead saving any conflicting testimony of what happened in the retail store for trial. We would ask him how fast he was going, and how he knows his speed, again saving any conflicting evidence we have or may obtain about his speed to confront him with at trial. We would encourage him to speak expansively about his rehabilitation and all the things he can do now, especially including athletics. The purpose would be to undercut his claims of damages. We would ask him about attempts to find employment since the accident. The purpose would be to show either that his lost-income damages are minimal, or that he has failed to mitigate damages.

We would subpoena the relevant police authorities for any accident reports, hoping to get information about speed and road conditions.

We would send interrogatories to or depose Christensen’s treating physician, asking him or her why he or she amputated Christensen’s leg, and why he or she amputated it mid-thigh instead of below the knee. We would ask whether delays in transporting him to a hospital or other conduct immediately after the accident (such as a misapplied tourniquet) made the amputation necessary, and what would have been necessary, in terms of the immediate injury or the following pre-hospital treatment, to save his leg. We would drill the treating phytsician on his or her qualifications to make an appropriate diagnosis and to proceed with such draconian surgery rather than seeking advice from more experienced specialists. The purpose would be to determine whether there might have been supervening causes for his injury.

We would serve Christensen with Rule 34 requests for production of any videos or photographs showing Christensen after the accident, including, but not limited to those portraying him engaging in athletic activities and/or talking about or illustrating the effect of his injuries. Ideally, they would portray him as a sports star, even after his accident. The purpose would be to undermine his claim for damages.