Civil Procedure
Prof. Rhonda Wasserman
Exam from Spring 2007
CIVIL PROCEDURE
SECTION A
Final Examination
Three and ½Hours
May 7, 2007
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. One of the essay questions has sub-parts. Suggested time limits, which reflect the relative weight of each question or group of 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 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 Number 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)
[deleted]
ESSAY QUESTIONS
The following facts apply to both essay questions.
Harold and Maude, both citizens of Pennsylvania, have three wonderful sons. Their youngest son, Benny, has a passion for baseball. Benny not only loves to watch the Pittsburgh Pirates play, but he also loves playing baseball himself. Benny has participated in Little League for several years and often plays in a pick-up game with Harold and his friends. During his first Little League season, Benny was not a reliable hitter and he batted toward the bottom of the batting order. As he grew older, Benny improved dramatically. He now bats in the "clean-up" position and his teammates refer to him affectionately as "Benny the Basher." Benny could not wait for the spring 2007 season to begin. He got new cleats, a new glove and even a new aluminum bat. Benny had insisted that his old bat, an 18-ounce aluminum bat, was not heavy enough. He was sure that if only he had a 21-ounce aluminum bat, he could smack the ball out of the park. Harold, who also is a baseball nut, immediately acquiesced to Benny's request and spent an obscene amount of money to buy Benny a 21-ounce, aluminum Prodigy 3000 baseball bat. The Prodigy 3000 bat is manufactured by Prodigy Bats, Inc. ("PBI"), a Delaware corporation with its principal place of business in Louisville, Kentucky. PBI buys all of the aluminum used in its bats from Alumco, a Pennsylvania corporation with its principal place of business in Pittsburgh, Pennsylvania.
The opening game of the 2007 season was played on a glorious, sunny April day. Benny's team, the Sand Gnats, was hosting a visiting team from Morgantown, West Virginia, called the Biscuits. When Benny was first up to bat, the pitcher, Jordan, accidentally hit him with the ball and Benny advanced to first base without even a chance to swing. When Benny was up to bat the next time, the bases were loaded and his team had two outs; Benny felt enormous pressure to get a big hit. Jordan threw a fast ball and Benny hit it so powerfully that two events occurred almost simultaneously: (1) Benny's line drive sent the ball speeding toward Jordan with such force that Jordan could not react in time and was knocked unconscious by the ball; and (2) the bat actually split in two and, as Benny raced toward first base, the barrel end of the bat flew into the air and its jagged edge hit Benny in the head, causing a deep cut, a huge contusion and a concussion.
Jordan's father, Bob, a citizen of West Virginia, played college baseball and is still an amazing athlete. Bob has been closely following a brewing controversy surrounding the use of aluminum bats in children's and teens' baseball. He has read a number of scientific studies that show that baseballs hit by aluminum bats come off the bat much faster, and are much more likely to cause injuries to pitchers and infielders, than balls hit by wooden bats.
Assume that Harold plans to file suit against PBI on behalf of his son Benny in the United States District Court for the Western District of Pennsylvania. Harold intends to include state-law claims for products liability, negligence and breach of warranty in the design, manufacture and sale of the Prodigy 300 aluminum bat and to seek damages in excess of $75,000, exclusive of costs and interest, to compensate for Benny's injuries. Assume that the district court would have original subject matter jurisdiction to adjudicate Harold= s claim against PBI (if sued upon alone) and further assume that PBI is subject to personal jurisdiction.
QUESTION ONE
(Suggested time: 75 minutes)
A. Bob would like to sue PBI on behalf of Jordan, claiming negligence, products liability, breach of warranty and fraudulent concealment in the design, manufacture and sale of the Prodigy 300 aluminum bat (which Bob claims PBI knew was unreasonably dangerous to young pitchers and other infielders). Bob intends to seek damages in excess of $75,000, exclusive of costs and interest, to compensate for Jordan's injuries. Do the Rules permit Harold and Bob to sue PBI together in a single action in federal court? Which Rule in particular is implicated? Please explain your answer fully. (For purposes of Question 1(A), do not concern yourself with the availability of subject matter jurisdiction.)
B. For purposes of Subparts B, C and D of Question One, assume that Harold and Bob sued PBI in a single action. PBI believes that the studies purporting to show that aluminum bats are more dangerous than wooden bats are methodologically flawed. Moreover, PBI believes that Benny's bat broke not because of any design flaw or negligence on PBI's part, but because the aluminum provided by Alumco, which PBI used to make the bat, was defective. Do the Rules permit PBI to join a claim against Alumco in the context of Harold and Bob's lawsuit against it? Does the theory of liability matter? Which Rule in particular is implicated? What consequences, if any, will PBI suffer if it does not join its claim against Alumco in the context of Harold and Bob= s suit against it? Please explain your answer fully. (For purposes of Question 1(B), do not concern yourself with the availability of subject matter jurisdiction over PBI's claim.)
C. For purposes of Subparts C and D of Question One, assume that PBI joined a claim against Alumco in the context of Harold and Bob= s lawsuit against it. Now that Alumco is a party to the lawsuit, Harold would like to join a state-law products liability claim against it on behalf of Benny. Assume that the court would grant him leave to amend his complaint as long as the Rules would permit him to join a claim against Alumco. Do the Rules permit Harold to join a claim against Alumco, which was first brought into the suit by PBI? Which Rule is implicated? What consequences, if any, will Harold suffer if he does not amend to join a claim against Alumco? Please explain your answer fully. (For purposes of Question 1(C), do not concern yourself with the availability of subject matter jurisdiction over Harold's claim against Alumco.)
D. Would the United States District Court for the Western District of Pennsylvania have subject matter jurisdiction to hear Harold= s claim against Alumco described in Question 1(C) above? Why or why not? Please explain your answer fully.
QUESTION TWO
(Suggested time: 45 minutes)
Jordan's father, Bob, has a friend, Phyllis, whose son Josh had been seriously injured by a baseball hit by an aluminum PBI bat about a year before Jordan and Benny were injured. Josh's accident first raised Bob= s awareness of the dangers of aluminum bats. Josh and his mother Phyllis live in San Diego, California. After Jordan's injury, Bob called Phyllis to share the bad news about Jordan's accident. After commiserating with Bob, Phyllis explained that she had filed a lawsuit on behalf of Josh against PBI in a federal district court in Kentucky, alleging products liability, breach of warranty and fraudulent concealment in the design, manufacture and sale of the Prodigy 2000 bat involved in Josh= s accident. (The Prodigy 2000 and Prodigy 3000 bats are very similar in design, but the Prodigy 3000 bat is an inch longer and has a larger sweet spot.) At the conclusion of the trial in Phyllis's case, the judge charged the jury in relevant part as follows: "Under governing law, you may find for the plaintiff only if you conclude first, that aluminum bats are significantly more likely to cause injuries to pitchers and other infield players than wooden bats, and second, that PBI knew of these heightened risks but concealed them from the public and purchasers of its products." The jury returned a verdict for the defendant PBI and answered four special interrogatories as follows:
Are aluminum bats significantly more likely to cause injuries to pitchers and other infield players than wooden bats? Yes
Did PBI know of this heightened risk at the time it sold the Prodigy 2000 bat in question? No
If your answer to the preceding question is Yes, did PBI conceal the heightened risk from the public and purchasers of its products? N/A
If your answer to all three of the foregoing questions is Yes, please specify the amount of damages sustained by the plaintiff and her son as a result of the accident. N/A
The federal judge sitting in Kentucky entered judgment on the jury verdict for the defendant PBI and neither party appealed.
In addition to Phyllis's suit on behalf of Josh and Bob's suit on behalf of Jordan, PBI has been sued ten times in lawsuits claiming that aluminum bats are significantly more dangerous than wooden bats. In nine of the ten suits, the jury has found that aluminum bats are significantly more likely to cause injuries to pitchers and other infield players than wooden bats.
Can either Bob or PBI take advantage of the judgment rendered in Phyllis's suit against PBI? Why or why not? How? Please explain your answer fully.
