Civil Procedure

Prof. Rhonda Wasserman

Exam from Spring 2006

CIVIL PROCEDURE
SECTION A

Final Examination                                                                                                     Three and ½ Hours
April 27, 2006                                                                                                        9:00 a.m. - 12:30 p.m.

THIS EXAMINATION AND ALL USED SCRAP PAPER MUST BE RETURNED TO THE PROCTOR WITH YOUR SCANTRON ANSWER SHEET AND BLUEBOOK(S)

INSTRUCTIONS

    This is an open-book exam. The exam consists of ten (10) multiple choice questions and two (2) essay questions. Both of the essay questions have sub-parts. Suggested time limits, which reflect the relative weight of each question (or group of questions, in the case of the multiple choice questions), are indicated at the beginning of each question or group of questions. Although the exam is three and one half hours long, the suggested time limits total three hours. You should use the remaining half hour to read through the essay portion of the exam before you start writing. You should apportion your time carefully.

    This exam has fourteen (14) pages. If you do not have all fourteen (14) pages, please inform the proctor immediately.

    Please write your exam number in the space provided in the upper right-hand corner of each page of the exam and be sure to return the exam, together with any scrap paper used, to the proctor at the conclusion of the exam. Please be sure to include your exam number in the appropriate space on the Scantron answer sheet for the multiple choice questions and on the cover of each bluebook that you use to answer the essay questions. If you use more than one bluebook, please number your blue books (e.g., "1 of 3," " 2 of 3," and "3 of 3"). When answering the essay questions, please write legibly and on every other line and on only one side of each page.

    When answering the multiple choice questions on the Scantron answer sheet, please use a No. 2 pencil to facilitate the machine-grading of your answers. Each of the multiple choice questions will be weighted equally. Unless otherwise indicated, the facts of each multiple choice question stand on their own. Choose the best answer.

    When answering the essay questions, please raise, discuss, and decide all issues presented, whether or not they are dispositive, and whether or not your resolution of one issue in a problem makes discussion of other issues in the same problem technically unnecessary. If you need to assume additional facts, please state what those facts are and how they affect your analysis.

    If a rule of procedure, statute, or constitutional provision is relevant, you should refer to it specifically. You are encouraged to refer to other relevant authority, including cases. You should explain fully the relevance of all authority cited. Unless otherwise indicated in the exam question, all references to a "Rule" or the "Rules" are to the Federal Rules of Civil Procedure.

    Best of luck, and enjoy the summer!

 

MULTIPLE CHOICE QUESTIONS

Suggested Time: 60 minutes (6 minutes per question)

[omitted]

 

ESSAY QUESTIONS

    Harold and Maude live in Pittsburgh, Pennsylvania, with their three wonderful sons -- 13-year old twins --  Eric and Scott -- and 10-year old Benny. In late March, Eric and Scott jointly celebrated their Bar Mitzvah.* The religious service in the synagogue was moving and many members of the extended family were honored with special roles in the service. Eric and Scott did a magnificent job chanting in Hebrew and their younger brother Benny impressed the crowd as he led the congregation in song toward the end of the service. All in all, the religious portion of the Bar Mitzvah was just beautiful. As is often the case these days, Harold and Maude decided to honor Eric and Scott with a big party in the ballroom of the synagogue that evening. When they were looking to hire a disc jockey for the evening party, Harold and Maude had been referred to Entertainco, an Ohio corporation that employs a number of disc jockeys throughout the Ohio, western Pennsylvania and West Virginia area. Entertainco has its principal place of business in Cleveland, Ohio. Harold and Maude watched videos of several disc jockeys employed by Entertainco and decided they wanted Kerri, then a Pennsylvania citizen, to perform at the twins' Bar Mitzvah party. Harold and Maude signed a contract with Entertainco agreeing to pay a total of $1500 for Kerri' s services, of which $500 was paid upon signing the contract and $1000 was to be paid at the conclusion of the party. The contract obligated Entertainco to supply Kerri as a disc jockey and to ensure that the requisite equipment would be in "proper working order."

    On the day of the Bar Mitzvah, Kerri, the d.j., arrived in the late afternoon to set up the speakers, sound board, lights and other equipment. It was amazing how many wires and cables were needed to hook everything up! The evening began well as Kerri introduced Eric and Scott to the assembled guests. Eric and Scott, who had turned 13-years old just a month earlier, had set up 13 candlesticks on a table and, one by one, invited 13 important people in their lives -- their brother, parents, grandparents, aunts and uncles and friends -- to join them as they lit the 13 candles. Following the candle-lighting ceremony, Kerri played a traditional Jewish song and all in attendance danced a traditional Jewish dance, known as a hora. Following the hora, Kerri played popular music and the young people began to dance. She also engaged the kids in games, like the limbo and a hula-hoop contest. Harold, who is young at heart, decided he would participate in the kids' activities. Everyone laughed as he danced and played with the kids. Horse play turned to disaster, however, when Harold's foot got caught in one of the equipment wires, which caused an enormous speaker to topple off the stage and onto his head. Harold was rushed to the hospital and required emergency medical attention and ongoing follow-up care in the weeks that followed. Harold's injuries were sufficiently serious that he missed several weeks of work and incurred tens of thousands of dollars in medical bills. Harold and Maude never paid Entertainco the $1000 payable at the end of the party.

QUESTION ONE
Suggested Time: 75 minutes

    For purposes of Question One only, assume that Harold filed suit against Entertainco in the United States District Court for the Western District of Pennsylvania. His complaint contains two counts: one for breach of contract, which alleges that by allowing the wires and cables to extend across the dance floor, Entertainco failed to maintain the equipment in "proper working order," and the other for negligence, which alleges that Entertainco was vicariously liable for Kerri's negligence in allowing the wires and cables to extend across the dance floor. Please assume that the federal district court has both personal jurisdiction over Entertainco and subject matter jurisdiction pursuant to 28 U.S.C. § 1332 to adjudicate Harold's claim against Entertainco and that venue is proper.

    1. Entertainco believes that Harold really should be suing Kerri and in fact thinks the lawsuit should be dismissed in her absence. Which Rule or Rules might Entertainco invoke to raise this argument? Is the argument likely to succeed? Why or why not? What consequences, if any, will Entertainco suffer if it does not raise this argument in a pre-answer motion? Please explain your answer fully.

       

    2. Entertainco would like to sue Harold for the $1000 owed under the contract. Do the Rules permit Entertainco to join this claim against Harold in the context of Harold's suit against it? Which Rule in particular is implicated? What consequences, if any, will Entertainco suffer if it does not join the claim for the $1000 in the context of Harold's suit against it? Please explain your answer fully. (For purposes of Question 1(B), please do not concern yourself with the availability of subject matter jurisdiction over Entertainco's claim against Harold.)

       

    3. Assuming that the Rules permit Entertainco to join the claim against Harold for the $1000 in the context of Harold's suit against it, do the Rules permit Entertainco to join Maude as a party to this claim? Which Rule in particular is implicated? Please explain your answer fully. (For purposes of Question 1(C), please do not concern yourself with the availability of subject matter jurisdiction over Entertainco's claim against Maude.)

       

    4. Would the United States District Court for the Western District of Pennsylvania have subject matter jurisdiction to hear Entertainco's claim against Harold described in Question 1(B) above? Why or why not? Please explain your answer fully.

QUESTION TWO
Suggested Time: 45 minutes

    1. For purposes of Question 2(A) only, assume that Harold initially sued only Entertainco in the United States District Court for the Western District of Pennsylvania, alleging both breach of contract and vicarious liability. The jury returned a general verdict for Entertainco. The judge entered judgment on the jury verdict and neither party appealed. Immediately following the twins' Bar Mitzvah, Kerri moved to Ohio and became an Ohio domiciliary.

      Several months after the judgment for Entertainco was rendered, Harold filed a second suit, this one against Kerri in the United States District Court for the Northern District of Ohio. Harold alleges that Kerri was negligent in the placement of the wires and cables at the Bar Mitzvah party. Assume that the court has both personal jurisdiction over Kerri and subject matter jurisdiction to adjudicate Harold's claim against her and that venue is proper. Can either party take advantage of the judgment rendered in the first suit? Why or why not? How?

       

    2. For purposes of Question 2(B) only, assume that Harold initially sued only Entertainco in the United States District Court for the Western District of Pennsylvania, alleging only breach of contract. The jury returned a general verdict for Entertainco. The judge entered judgment on the jury verdict and neither party appealed.

      Several months after the judgment for Entertainco was rendered, Harold filed a second suit against Entertainco in the United States District Court for the Western District of Pennsylvania, this one alleging that Entertainco is vicariously liable for Kerri's negligence in allowing the wires and cables to extend across the dance floor. Assume that the court has both personal jurisdiction over Entertainco and subject matter jurisdiction to adjudicate Harold's claim against Entertainco and that venue is proper. Can either party take advantage of the judgment rendered in the first suit? Why or why not? How?

    * A Bar Mitzvah is a ceremony to welcome a 13-year old boy into the adult Jewish community.

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