San Joaquin College of Law

Civil Procedure – Interim Exam Dec 2007 /Cartier

Time: 2 hours 20 minutes

Question 1

After Mom and Dad divorced in Maryland, Mom was awarded physical custody of their precocious minor child, Petro. After the divorce, Dad moved to California. Last year Dad ordered a toy rocket from D-Online, Inc., (“D”), for Petro’s tenth birthday. D, a Delaware corporation, maintains its corporate office in Virginia but conducts its on-line business operations in California. D shipped the toy rocket from California to Petro in Maryland. The toy rocket was manufactured by Toyco, a Delaware corporation with its principal place of business in Texas. Toyco manufactures all of its products in Texas and ships them to on-line distributors in Illinois and California. While Toyco does no direct sales to retail consumers, its products are advertised on the web pages of the on-line distributors that market Toyco products. On its first flight, the toy rocket exploded causing serious injury to Petro resulting in medical bills in excess of $50,000. On behalf of his child, Dad has filed a diversity action in federal court in Maryland against D. After being properly served, D filed an answer denying liability and objecting to subject matter jurisdiction. D subsequently filed a third-party complaint under Rule 14 (and invoking supplemental jurisdiction) against Toyco. Upon being properly served at its corporate office in Virginia (150 miles away from the Maryland federal court), Toyco moved to dismiss the third-party complaint 1) for want of subject matter jurisdiction and 2) for want of personal jurisdiction.

1.         How should the court rule on D’s motion to dismiss for want of subject matter jurisdiction? Discuss.

2.          Can the court properly exercise supplemental jurisdiction over D’s third-party claim against Toyco? Discuss.

3.          How should the court rule on a motion by Toyco to dismiss D’s third-party claim for want of personal jurisdiction? Discuss.

Question 2:

Plaintiff, a juvenile confined to an adolescent drug treatment facility operated by Wyoming, alleges she was sexually abused by a counselor (“Counselor”) while detained at the facility in Wyoming. Alleging a violation of her civil rights by a person acting under color of law, Plaintiff, a citizen of Wyoming, filed suit in state court against the Counselor, also a citizen of Wyoming. Upon being properly served, Counselor removed the action to the United States District Court in Wyoming. State law requires that an action be filed and served before the statute of limitations expires. The civil rights suit was served in a timely manner according to state law. Subsequently, Plaintiff amended her complaint to assert 1) a related state law claim against Counselor, 2) a state law claim against the state facility based on negligence in supervision of Counselor, and 3) a federal claim against Counselor’s immediate supervisor (“Supervisor”). While the amended complaint against the state facility was filed and served before the statute of limitations expired, the amended complaints asserting claims against Counselor and Supervisor, while filed timely, were not actually served until after the statute of limitations expired. Counselor and Supervisor filed motions to dismiss the claims against each of them for failure to state a claim since the claims against them are time-barred. The state facility, asserting a lack of diversity, seeks to have the action against it dismissed for want of subject matter jurisdiction.

1.          Was this case properly removed? Discuss.

2.          Is Plaintiff’s amended complaint asserting claims against Counselor and/or against Supervisor barred by the statute of limitations? Discuss.

3.          Does the court have subject matter jurisdiction over Plaintiff’s claim against the state facility? Discuss.