Professor Henry H. Perritt, Jr.

Civil Procedure (Three Hours)

Exam No. ___________

Fall 2007

            Time: 1800-2100, 13 December 2007

Chicago-Kent College of Law

Final Examination in civil procedure

Instructions

1. This examination consists of 6 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 2007

QUESTION I

Mike Foglietta, is a recent graduate of an Illinois law school, studying for the Illinois bar exam. He lives in Chicago. He has owned a condominium unit in Phoenix, AZ for five years. He likes to vacation there, but he does not keep very close track of it when he is not there, relying on the condo association to look after maintenance. In January 2006, the condo association (a non-profit corporation incorporated under Arizona law, with its principal place of business in Phoenix) imposed a special assessment of $250 per unit for snow removal because Phoenix had an inch of snow that winter. Mike overlooked the notice he received in the mail for the assessment, so he did not pay it. Under the condominium declaration (a formal document that is treated legally as though it were part of the Foglietta’s deed to the property), unpaid condo fees became a lien on the property after 60 days of their remaining unpaid. As with any other lien on real property, this lien, under AZ law, entitled the lienholder to seek foreclosure. Foreclosure is a process that ultimately results in a sheriff’s sale of property, with the proceeds of the sale being paid to a lienholder. Any excess of sale proceeds over the amount owed to a lienholder is paid to the former owner of the property. The condo association foreclosed under AZ law in the United States District Court for the District of Arizona, sending initial process and other notices by mail to Foglietta’s regular address in Illinois. Mike was preoccupied with studying for the bar exam and let his regular (snail) mail accumulate, though he was attentive to his email and to text messages and voicemails left on his cell phone.

The next time he paid attention to the condo was when he returned from a vacation in Mongolia after the bar exam and had a voicemail from someone purporting to be the “new owner” of his condo unit, asking Mike when he planned to remove a guitar and racing bicycle he had left in the condo storage bin in the basement of the building. When he got around to sorting his mail, he discovered the notices of the assessment, notices of the foreclosure proceeding including the summons and complaint, and a check for $50,000 purporting to represent the excess of the sale price over the amount owed to the condo association. He had paid $500,000 for the condo unit, and has information that its market value was $750,000 at the time of foreclosure.

Upon investigation, he discovered that his condo unit had been sold to the new owner at a sheriff’s sale that complied in every respect with AZ foreclosure law (except possibly with respect to the issues set forth below). The foreclosure proceeding itself was conducted by the United States District Court for the District of Arizona. A copy of the summons and complaint was served by taping a copy to the front door of Mike’s condominium unit in Phoenix and by mailing a copy to him at his address in IL. That court issued a default judgment against him, and then a writ of execution on the judgment authorizing the Sheriff of Maricopa County (the county in which Phoenix and his condo are located). He was shocked and has come to you to represent him and to get his condo back.

Illinois foreclosure law permits someone with an equity interest in property to reverse a sheriff’s foreclosure sale any time within one year after the sale in foreclosure by paying the amount due to the lienholder, plus legal expenses. The total amount due under IL law would be $1250.

You file a motion to vacate the judgment of foreclosure under Fed.R.Civ.P. 60(b). What arguments would you make on the following issues, to restore Mike’s fee-simple absolute interest in the condo unit? Identify probable counterarguments and evaluate the prospects for success on each argument you make.

A. (20 minutes) Did the Arizona court have subject matter jurisdiction?

B. (30 minutes) Did the Arizona court have personal jurisdiction over Mike?

C. (15 minutes) Was venue proper in Arizona?

D. (20 minutes) Assuming that the original process and notices mailed to him complied with statutory and rule requirements of Arizona law, was the form and manner of notice constitutionally sufficient?

E. (30 minutes) Suppose Mike gets the judgment of foreclosure vacated and the case reopened. He asks you if he can litigate a claim, in this same civil action, against the snow removal service for breach of contract for failing to remove the snow promptly during the winter of 2006. Can he? Why or why not? How should he attempt to do this?

QUESTION II

Select a party from either the hypothetical Bennaza or Christensen cases, assume that you represent that party, and:

A. (45 minutes) Write a brief, focused memorandum, either arguing for summary judgment in your client’s favor, or opposing summary judgment against your client in favor of either defendant, assuming that the record as it existed on Tuesday, 27 November 2007 is the record before the court. Assume that you or an opposing party has filed the requisite motion for summary judgment.

B. (20 minutes) Assuming that summary judgment is denied for all parties moving for summary judgment, and that the court has reopened discovery, detail the additional discovery you would undertake, indicating the specific methods of discovery you would use, the persons or entities to which it would be directed, the information you would seek, and any legal issues you anticipate. Assume that your client has instructed you to minimize expenses, while making sure you are as ready for trial as is feasible.

APPENDIX

Arizona Rules of Civil Procedure

Rule 4.2(a). Extraterritorial Jurisdiction; Personal Service Out of State

A court of this state may exercise personal jurisdiction over parties, whether found within or outside the state, to the maximum extent permitted by the Constitution of this state and the Constitution of the United States. Service upon any such party located outside the state may be made as provided in this Rule 4.2, and when so made shall be of the same effect as personal service within the state.

Rule 4.2(c). Service by Mail; Return

When the whereabouts of a party outside the state is known, service may be made by depositing the summons and a copy of the pleading being served in the post office, postage prepaid, to be sent to the person to be served by any form of mail requiring a signed and returned receipt. Service by mail pursuant to this subpart and the return thereof may be made by the party procuring service or by that party's attorney. Upon return through the post office of the signed receipt, the serving party shall file an affidavit with the court stating (1) that the party being served is known to be located outside the state, (2) that the summons and a copy of the pleading were dispatched to the party being served; (3) that such papers were in fact received by the party as evidence by the receipt, a copy of which shall be attached to the affidavit; and (4) the date of receipt by the party being served and the date of the return of the receipt to the sender. This affidavit shall be prima facie evidence of personal service of the summons and the pleading and service shall be deemed complete and time shall begin to run for the purposes of Rule 4.2(m) of these Rules from the date of receipt by the party being served, provided that no default may be had on such service until such an affidavit has been filed

Rule 4.1. Service of Process Within Arizona

(a) Territorial Limits of Effective Service. All process may be served anywhere within the territorial limits of the state.

(b) Summons; Service With Complaint. The summons and pleading being served shall be served together. The party procuring service is responsible for service of a summons and the pleading being served within the time allowed under Rule 4(i) of these Rules and shall furnish the person effecting service with the necessary copies of the pleading to be served.

(d) Service of Summons Upon Individuals. Service upon an individual from whom a waiver has not been obtained and filed. . . shall be effected by delivering a copy of the summons and of the pleading to that individual personally or by leaving copies thereof at that individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the pleading to an agent authorized by appointment or by law to receive service of process.

(m) Alternative or Substituted Service. If service by one of the means set forth in the preceding paragraphs of this Rule 4.1 proves impracticable, then service may be accomplished in such manner, other than by publication, as the court, upon motion and without notice, may direct. Whenever the court allows an alternate or substitute form of service pursuant to this subpart, reasonable efforts shall be undertaken by the party making service to assure that actual notice of the commencement of the action is provided to the person to be served and, in any event, the summons and the pleading to be served, as well as any order of the court authorizing an alternative method of service, shall be mailed to the last known business or residence address of the person to be served. . . .