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| Civil Procedure Fall 1995 Mid-Term Exam |
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| Sunday, 03 December 2006 | |
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UNIVERSITY OF THE PACIFIC McGEORGE SCHOOL OF LAW CIVIL PROCEDURE- PROFESSOR F. GALVES FALL SEMESTER 1995 WEDNESDAY, MAY 6, 1996 MID-TERM EXAMINATION 6:15 P.M. -7:30 P.M. SPECIAL EXAM INSTRUCTIONS In addition to the preceding standard McGeorge exam instructions, please READ THE SPECIAL EXAM INSTRUCTIONS BELOW CAREFULLY! 1. Write your student exam number: (1) in the upper right hand corner of this page, and (2) on the covers of your Blue Books when you receive them. 2. Answer according to the applicable Federal Rules of Civil Procedure, Federal statutes, and/or U.S. Constitutional provisions, and applicable case law. 3. You must return the WHOLE exam with your Blue Books, or YOUR EXAM WILL NOT BE GRADED. 4. The following schedule (1:00 P.M. - 4:00 P.M.) will be followed for this exam (the weight of each question is commensurate with the time allotted): READING: 1:00 - 1:15 p.m. You will have 15 minutes to read Part I of the exam (which is ONE essay question, with FOUR sub-parts) and think about your response. Use this time-period to organize your answer and decide how you will approach the exam question. You may use the scratch paper provided to organize/outline your answer during this time period. You may not write in your Blue Books until 1:15 p.m. PART I: Essay Question. 2 Hours (75% of grade): 1:15 - 3:15 p.m. The Proctors will collect the exam question and your Blue Books for Part I at 3:15 p.m. You must return Part I of the exam with your Blue Books. You may keep the Rules Packet for use in answering Part II of the exam. 15 Minute Break: 3:15 - 3:30 p.m. -- During this break, the proctors also will distribute Part II (the "short answer" section) of the Exam. PART II: Short Answer Section; one-half hour (25% of grade): 3:30 - 4:00 p.m. SPECIAL INSTRUCTIONS FOR PART I Part I of the exam consists of one (1) three-page essay question (with four question sub-parts [sub-parts (A), (B), (C), and (D)]). To the extent you use case names, Title 28 U.S. Code Sections, U.S. Constitutional provisions, or the Federal Rules of Civil Procedure, make sure you explain how they are applicable and why they might be controlling. Cover all reasonable arguments and state your reasoning as fully as possible within the time limit given. Note that implausible arguments or recognition of non-issues will not receive credit. Be sure to make necessary interrelationships between the rules, law, and facts. Be sure to budget your time. DO NOT RELY ON THE PROCTORS TO KEEP YOUR TIME. Although there are four question sub-parts, they do not necessarily call for "equal time" -- your legal judgment is being tested regarding how much analysis is required to address each sub-part. PLEASE KEEP IN MIND THAT CLARITY OF EXPRESSION, CONCISENESS AND EFFICIENT ORGANIZATION OF YOUR EXAM ANSWER ALL CONTRIBUTE TOWARD A GOOD SCORE. THEIR OPPOSITES DETRACT. GOOD LUCK. PART ONE OF TWO PARTS Demon Records ("Demon") is a compact disc ("CD") distribution company based and incorporated in New York. Demon's business operations are limited to running a mail-order business distributing CDs across the U.S. for various "heavy metal" bands. Demon keeps 20% of the purchase price from sales of all CDs as a commission for distributing them. Although Demon does not advertise, most knowledgeable heavy metal fans across the country are aware of Demon. When they want to buy a CD from Demon they simply write to Demon and request the CD. One of the bands for whom Demon distributes CDs is called "Dark Dungeon Death" ("DDD"). DDD is quite popular in Europe, but they have released only one CD in the U.S. The five band members of DDD currently live in Germany, but they were all born in New Jersey and went to the same high school before they left for Europe 5 years ago to "chase their musical dreams." They have not been back to the United States since, except for the lead singer on a couple of occasions, (see below). As of January 31, 1994, only 1,000 copies of DDD's CD had been sold to purchasers throughout the U.S., and most of those were sold in New York. Peter Punk ("Punk") is a 17-year-old who lives with his parents in Los Angeles. Punk is a big fan of "hard-core," heavy metal music. On Jan. 1, 1994, Punk read an article in "Heavy Metal Today" featuring DDD. Demon was quoted in the article as saying that DDD is the "best new hard-core, heavy metal band to hit the scene in years." Punk immediately became interested in DDD's music so he sent a letter to Demon asking if Demon knew how Punk could obtain DDD's CD. Demon wrote back telling Punk that Demon happens to distribute for DDD. Demon promptly shipped off DDD's CD, and an invoice, to Punk. After receiving the DDD CD on January 15, 1995, Punk began listening to it daily, sometimes for eight hours a day. His school work at Ridgemont High suffered tremendously. He then began to talk to many of his friends about committing suicide, especially just after listening to the DDD CD. This behavior continued and finally came to a head on April 1, 1994, when Punk drove his parents' brand new convertible BMW off a cliff going 80 miles an hour with the stereo blaring full blast. At the time, Punk had been listening to DDD's feature single on the CD: "Driving to Your Destiny -- Do It." Miraculously, Punk was not killed, he was only slightly injured, but, as Punk retells it, "the Beamer is history," as the BMW was completely destroyed. Punk's parents blame Demon and DDD for the "irresponsible suggestive song lyrics" on the CD which allegedly caused Punk to drive off the cliff purposefully. They did not sue, however, because a law suit seemed expensive and they did not think they could recover much money from Demon or the members of DDD. Besides, Punk's parents told their friends that, "the car insurance paid for everything anyway." Since Punk's "accident," DDD has received a great deal of negative media attention for the suggestive nature of their songs. The effect, however, has been that DDD's new CD, just released in the U.S. on November 1, 1995, already has hit number one on the Heavy Metal charts. DDD has sold a total of 1 million copies of this new CD through out the U.S., with Demon continuing to be the mail-order distributor (although Demon quit distributing the "Driving To Your Destiny -- Do It" CD in the U.S. immediately after Punk's accident). DDD has no idea who specifically is buying their CDs in the U.S., or even what states they are from, as DDD has left all of the marketing and distributing of its CDs completely up to Demon. An L.A. attorney recently informed Punk's parents that, "DDD and Demon now have a lot of money and should pay for the damages to the BMW, as well as for the injuries and emotional distress suffered by Punk." Punk's parents agreed, and on Dec. 1, 1995, they filed suit against both Demon and DDD in California State Superior Court (L.A. County) claiming a combined total of $40,000 in damages to the car and to Punk, and $5 million for punitive damages because of DDD's "gross negligence." On December 5, 1995, the following occurred: Punk's lawyer served Demon properly under Federal Rule 4. Punk's lawyer also served, in New York, the husband of one of the executives of Demon since Demon and DDD have a contract between them which provides that DDD has appointed the husband of one of Demon's executives as an agent to accept service on behalf of DDD in New York. Punk's lawyer also had a process server leave copies of the summons and complaint at each of the houses of the members of DDD in Germany, except for the lead singer, Courtney Uzi. Instead, Ms. Uzi was personally served by a process server when she was in Los Angeles answering a criminal charge that she had destroyed a Beverly Hills Hotel Room two months prior while appearing on the "Jerry Springer Show," taped in California, as a guest for an episode on "Surprise Rock Star Makeovers." Demon and all of the members of DDD have retained you as their counsel to defend them against Punk's parents. They want you to "make this most incredibly bogus lawsuit go away." You take the case believing that you can get it dismissed, somehow. Your preliminary research reveals the following: 1. California's service statute is exactly the same as Federal Rule 4. Also, California's long-arm statute provides: "A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." 2. California has a state statute designed to create liability when artists and record companies negligently place or allow suggestive song lyrics in their songs and teenagers get hurt because they follow the suggestions. 3. A federal statute, however, provides immunity for record distributors and artists, unless it can be shown that a record company or artist purposefully and with malice placed suggestive song lyrics in the songs. 4. The Ninth Circuit Federal Court of Appeals in another case recently held that an Oregon statute, very similar to the California statute, was invalid because it was "pre-empted by the federal immunity statute, and, in any event, violates all artists' and record companies' First Amendment rights." 5. That Ninth Circuit opinion, however, was not published in any legal reporter because the appellate judges simply ruled immediately after hearing oral arguments. This is due to the Ninth Circuit's attempt to give litigants "speedy justice," and not allow decisions to languish in the courts after oral arguments have been heard. Thus, the ruling was not written or published as it was simply an oral ruling from the bench. 6. There recently has been a directive from the California Supreme Court, and from the California state legislature, to all California courts which states: "California Courts will no longer recognize or follow any California court opinion which is not published. Thus, only written, published opinions are to be given any weight in California courts. YOUR ANALYSIS SHOULD CONSIDER THE FOLLOWING: A. Whether the California state court would be a proper court in which to sue either Demon or DDD. Be sure to examine all legal bases as to whether the law suit could be maintained. B. Assuming it would be legally proper to sue the defendants in California state court, could Demon and/or DDD remove the case to federal court? C. Assuming the case could be removed to federal court, would your clients be better off strategically removing to federal court rather than remaining in state court? Your analysis should include an explanation of the applicable law in federal court and a comparison with the applicable law in the California state court. D. How would your legal advice to your clients be affected, if at all, if you discovered at the beginning of the case that Punk's attorney was working on a contingency fee basis, rather than at an hourly rate? Exam No. _________ UNIVERSITY OF THE PACIFIC McGEORGE SCHOOL OF LAW CIVIL PROCEDURE PROFESSOR GALVES FALL SEMESTER 1995 DECEMBER 6, 1995 MID-TERM EXAMINATION SPECIAL INSTRUCTIONS FOR PART II 1. You have one-half (1/2) hour to complete this part of the exam. Write your exam number in the upper right hand corner of this page, as well as on your Blue Book. 2. There are 6 questions. You have 15 minutes to answer the first question. You will then have an average of 3 minutes to answer the remaining 5 questions. None of the answers to questions #2 - #6 requires more than a long paragraph of explanation. You will be able to answer some of these last five questions in as little as 30 seconds, others may take as long as 5 minutes. 3. Questions #2 - #6 are designed to elicit short answers which are direct and to the point -- YOU EITHER KNOW THE ANSWER OR YOU DO NOT. 4. Obviously, more elaboration and analysis is needed on Question #1 commensurate with the extra time given (15 minutes). 5. Still, these are SUGGESTED times only. You must be careful to budget your own time. You will have to discern from the question how much explanation is necessary (remember, your good judgment as well as your legal knowledge and analytical skills are being tested). PART TWO OF TWO PARTS (3:30 P.M. - 4:00 P.M.) SHORT ANSWER SECTION 1. Comment on the following statement: "Congress should eliminate §1332 diversity jurisdiction since it is no longer necessary and it merely clogs the federal courts with substantive state law issues which should be addressed in the state courts, by expert state law judges." Use examples to support your arguments/observations. * * * 2. Compare and contrast a §1406 transfer with a motion for forum non conveniens. 3. You represent a client in a securities fraud case and you plan to use a Wall Street Broker as an expert witness to testify in court. The trial is about to begin. Your opponent is unaware of the expert's identity or expected testimony. Your opponent failed to make any discovery requests regarding any expert witnesses. Explain your duties regarding this information and include (1) whether you had any legal or ethical duty to reveal the expert witness' identity to your opponent when the discovery period began, OR (2) whether you have a specific legal and ethical duty to your client NOT to reveal this privileged and confidential information until 30 days before trial since it is up to your opponent to make certain discovery requests during the discovery period in order to find out this information. 4. How is a "peremptory challenge" different from a "challenge for cause"? 5. P sues D for breach of contract claiming $100,000 in damages. D's lawyer sends P's lawyer a copy of an authenticated letter sent from P to D before P filed the lawsuit in which P threatens D, "If you (D) don't give me (P) $50,000 by the end of the week, then I am going to sue you, but I will then say in court papers that you really owe me $100,000, not just fifty, so you had better pay the $50,000 you owe me now, or pay me $100,000, or maybe even more, later!" Referring to this letter, D's lawyer tells P's lawyer that she had better amend the complaint so as to request only $50,000, instead of $100,000, and do so immediately or else D is going to file a Rule 11 motion. What should P do? Why? 6. P, from California, sues D, from New York, for federal antitrust injuries claiming $200,000 in damages. D impleads 3rd-party D from California. Has D destroyed subject matter jurisdiction? Why or why not? What if P amends her complaint in order to sue 3rd party D directly? |
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