San Joaquin College of Law

Civil Procedure – Interim Exam Feb 06 / Cartier

Time: 1 hour 20 minutes

          Princess, an adult child who was attending college in New Jersey, went to her parents’ home in Maryland last December to announce she recently married Hank, a hunk from Holmdel, New Jersey. While in Maryland, Princess borrowed her father’s car to run errands. The car, while being driven on the turnpike by Princess, was struck by a vehicle owned and operated by Duke, a citizen of Maryland. The force of the impact forced the vehicle driven by Princess into oncoming traffic where it was struck by a truck that was owned and operated by Trenton Trucking, a Delaware Corporation with its principal place of business in New Jersey. As a result of this compound collision, Princess was taken to a local hospital where she died several days later.

          Hank, as representative of his wife’s estate, filed a diversity action seeking damages for wrongful death against Duke in federal court in Maryland. Duke filed a timely Rule 12(b)7 motion to dismiss for failure to join Trenton Trucking and its driver, Tim, as necessary and indispensable parties under Rule 19. The court denied this motion. Tim subsequently died as a result of injuries he sustained in the collision. Duke then filed an answer along with a counterclaim against Princess’s estate and against Princess’s father (“Father”), the vehicle owner, as a party, seeking damages in the amount of $30,000 for injuries Duke sustained in the collision.

          In the course of discovery it was learned that Attorney, who was hired by Hank as legal counsel for Princess’s estate, had interviewed both Princess (as a prospective client) and Tim (as a prospective witness) while they were still alive in the local hospital and that Attorney also interviewed the owner of Trenton Trucking. Attorney’s notes from the Princess interview also include Attorney’s strategic thoughts about how to handle the matter. Duke’s lawyer filed a motion to compel production of Attorney’s notes from each of these interviews. Attorney claims these materials are not discoverable.

          Father has filed a motion to dismiss the claim against him for want of subject matter jurisdiction.

1. Did the court properly deny Duke’s motion to dismiss for failure to join a necessary and indispensable party? DISCUSS.

2. How should the court rule on the motion to compel production each of the following:

A. Attorney’s notes from his interview of Princess? DISCUSS.

B. Attorney’s notes from his interview of Tim? DISCUSS.

C. Attorney’s notes from his interview of the owner of Trenton Trucking? DISCUSS.

3. How should the court rule on Father’s motion to dismiss? DISCUSS.

Exam Name:                      Civil_Procedure_S06_Interim_Exam(Cartier)

Instructor:                           Rich Cartier

Exam Date:                        February 28, 2006

1) DUKE'S MOTION TO DISMISS FOR FAILURE TO JOIN NECESSARY/INDISPENSIBLE PARTY?

To analyze this 12(b)7 motion, it will be necessary first to look at the original claim and whether it is properly before the court.

Subject Matter Jurisdiction (SMJ) is the court's power to adjudicate a particular type of claim. Hank, as representative of his wife's estate, has filed this diversity action against Duke in MD Federal court. Diversity jurisdiction requires complete diversity of citizenship (no plaintiff can be a citizen of the same state as any defendant) and the amount in controversy must exceed $75K. As his wife's representative, Hank's citizenship will actually be based on Princess. Princess was an adult child attending college in NJ who was visiting her parents in MD. An individual's citizenship is based on domicile, or permanent abode. While Princess attended college in NJ, it could be argued she was domiciled in MD, where her parents lived. It's also arguable that she was a citizen of NJ, since she had recently married Hank, who is from NJ and also attended college there. Duke is a citizen of MD. If Princess were a citizen of MD, complete diversity would be destroyed. If she were a citizen of NJ, complete diversity would be satisfied. There is nothing in the facts concerning the amount in controversy. Assuming Duke could not prove to a legal certainty that $75K could not be recovered, the amount in controversy is satisfied as well.

Personal Jurisdiction (PJ) is the court's power to make a binding order over an individual. PJ is obtained by giving notice within the state's long arm statute. PJ requires MINIMUM CONTACTS so the exercise of PJ does not offend traditional notions of fair play and substantial justice. Duke is a citizen of MD, where the claim was filed, so he is not considered an out-of-state defendant requiring the minimum contacts analysis and there is nothing unfair about holding him to answer in his home state.

Venue defines the appropriate place to bring suit. Generally it is proper where any defendant resides or where the cause of action arose. Duke is a citizen of MD and the accident occurred in MD. Venue appears proper.

The original claim of Princess v. Duke appears to be properly before the court.

Duke is using Rule 19 in attempt to join Trenton and Tim (Rule 19 is often raised as a defense.)

There are 2 components to Rule 19. 19a applies to compulsory joinder of parties when feasible. The court must allow a party in under this rule if necessary to provide complete relief and to avoid prejudice. Feasibility means that SMJ and PJ must be satisfied. Trenton, though from DE and NJ, is a trucking company whose truck was involved in an accident in MD. Trenton purposefully directed its contact towards the forum state and availed itself of MD's laws and benefits. Based on specific jurisdiction (an isolated contact, the accident, related to the claim) Trenton would be subject to PJ in MD. However, if Princess was a citizen of NJ, diversity would be destroyed because Trenton, as a corporation, had dual citizenship in DE (state of incorporation) and NJ (principal place of business). Joinder would not be feasible under Rule 19a because SMJ would not be present. Under Rule 19b, compulsory joinder of parties when NOT feasible, the court must determine if in equity and good conscience the action can proceed in the party's absence or if it should be dismissed. Since joint tortfeasors are generally not considered necessary and indispensable parties, it would appear the court's denial of Duke's motion to dismiss was proper.

2) MOTION TO COMPEL

A motion to compel discovery requires analysis of scope, relevance, and applicable privileges. Under Rule 26, a party may discovery any matter, not privileged, relevant to the claim or defense of any party. The matter need not be admissible at trial if could reasonably lead to the discovery of admissible evidence. The court, upon a showing of good cause, can order discovery of any matter relevant to the subject matter of the claim. Information is considered relevant if helps decides who wins or loses. The discovery sought here is Attorney's notes from interviews with Princess, Tim, and Trenton, and would certainly be relevant in this action.

A.         NOTES RE PRINCESS

The attorney client privilege applies to communication between attorney and client incident to giving legal advice. Although Princess was a prospective client, it could be argued any communications between her and Attorney was not covered by the attorney-client privileged. Any communication between an attorney and client, prospective or otherwise, incident to obtaining or giving legal advice is covered by the attorney client privilege. This type of communication is privileged and is generally not discoverable. Was attorney merely getting general information in order to decide whether or not to take the case? Did his notes include information about whether the case was a good one or not? Under Rule 26, work prepared in anticipation of litigation would be protected from discovery as work-product. An attorney's mental impressions and theories are ABSOLUTELY PRIVILEGED and not discoverable. All other work is considered QUALIFIEDLY PRIVILEGED and could be discoverable upon a showing of UNAVAILABILITY and SUBSTANTIAL NEED. Another argument might be that Attorney's notes fall within work product, however, if Attorney's notes contain mental impressions and theories, they would be absolutely privileged. If not, Duke might be able to argue unavailability and substantial need (because Princess is dead.) There is no other way to obtain the information she provided.

It seems likely that during the initial interview, attorney would have given Princess some notion as to whether she had a good case and how she should proceed. Based on the attorney client privilege, the court should deny the motion to compel the notes from Attorney's interview with Princess.

B.         NOTES RE TIM

Tim was a prospective witness and his communications with Attorney would not fall within the attorney client privilege. However, Attorney was interviewing him in anticipation of litigation so his notes would be considered work product. Unless they contained mental impressions and theories, they would be considered qualifiedly privileged (as opposed to absolute) and again, since Tim is dead, Duke might be able to argue unavailability and substantial need. The court should likely grant the motion to compel production of the notes from Attorney's interview with Tim.

C.         NOTES RE TRENTON

Again, Attorney's interview and notes were prepared in anticipation of litigation and would be considered work product. Duke would have more difficulty proving unavailability and substantial need because the owner of Trenton is still around. Duke's lawyer can contact him and do his own discovery. The court should deny this motion to compel.

3) FATHER'S MOTION TO DISMISS FOR WANT OF SMJ?

Duke filed a counterclaim against Princess's estate for $30K in injuries. This claim would fall under Rule 13(a) as a compulsory counterclaim as it arose from the same transaction or occurrence (the car accident). If Duke had failed to make this claim, he would have waived the right to do so in the future. As it is a compulsory counterclaim, it is afforded SUPPLEMENTAL JURISDICTION (part of the same case and controversy) and SMJ would be satisfied. Duke's joinder of Father is permitted by Rule 13(h), under which additional claims may be joined to a counterclaim or cross-claim. Whether or not SMJ is present depends on what the 13(h) claim is attached to. Since it's attached to a compulsory counterclaim here, which is afforded supplemental jurisdiction, SMJ would be present.

A court always has the discretion NOT to exercise supplemental jurisdiction. If it chooses not to exercise supplemental jurisdiction, Duke's claim against Father would require independent SMJ. Duke and Father are both citizens of MD so complete diversity is lacking. Duke is seeking damages of $30K which fails to meet the amount in controversy requirement. Independent SMJ based on diversity jurisdiction would fail.

Based on Duke's original counterclaim under 13(a), it would seem the court would exercise supplemental jurisdiction because it would make no sense not to. Father's motion to dismiss should be denied.