Professor Henry H. Perritt, Jr.
Civil Procedure (Three Hours)
Exam No. ___________
Time: 1800-2100, 13 December 2007
Chicago-Kent College of
Final Examination in civil procedure
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.
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 2007
Mike Foglietta, is a recent graduate of an
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
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.
minutes) Did the
minutes) Did the
minutes) Was venue proper in
minutes) Assuming that the original process and notices mailed to him complied
with statutory and rule requirements of
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?
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.
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
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
(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. . . .