San Joaquin College of Law
Civil Procedure – Interim Exam (Mar 05) / Cartier
TIME: 1 hour 20 minutes.
Plaintiff, a resident of New Jersey, who was staying at a Marriott Hotel in New York, suffered serious injuries while exiting an unleveled elevator located at the hotel. Plaintiff filed this diversity action in federal court in New York against Marriott, Inc., “Marriott,” (a Delaware corporation with its principal place of business in New York). Marriot filed an answer denying liability and filed a claim in this action for contribution and/or indemnity against Otis Elevator, “Otis,” (a Delaware corporation with its principal place of business in New Jersey), that installed and maintained the elevator for Marriott. Otis believed the unleveled elevator was the result of a defective laser leveler manufactured by Trident Inc., “Trident,” (a New Jersey corporation that conducts business only in New Jersey). Otis filed a claim for indemnity against Trident in this action. While it is well known that Trident levelers are used in Otis elevators around the world, the leveler in question was delivered to Otis at its maintenance facility in New Jersey and was transported to and installed in the New York elevator by Otis employees. Trident, after being served at its corporate headquarters 90 miles away from the federal court where this action is pending, filed an answer denying liability and asserting a want of personal jurisdiction. Otis claims Trident has consented to personal jurisdiction because state law requires a party objecting to personal jurisdiction to make a special appearance.
Immediately after Plaintiff’s fall, Marriott’s loss prevention officer took a statement from a guest from France who was the only person to witness Plaintiff’s fall. The loss officer also took control of the surveillance video that captured the fall and showed that the elevator stopped in an unlevel position. Both of these items, along with Marriott attorneys’ notes from interviews of Marriott employees concerning the incident, are currently in the possession of Marriott’s attorneys. Plaintiff seeks discovery; Marriott claims privilege (attorney-client and/or work product).
1. Considering only the issue of subject matter jurisdiction, which of the claims (claims, counterclaims, cross-claims and/or third-party claims) are properly before the court? DISCUSS.
2. How should the court rule on a Trident motion to dismiss for want of personal jurisdiction? DISCUSS.
3. How should the court rule on Plaintiff’s motion to compel discovery of each of the following:
A. the attorneys’ notes from employee interviews? DISCUSS
B. the witness statement? DISCUSS.
C. the surveillance video? DISCUSS.
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San Joaquin College of Law
Civil Procedure Interim Exam March 2005 – Sketch Answer / Cartier
1. Subject Matter Jurisdiction – the power of a court to decide a particular kind of case.
P v Marriott. Plaintiff filed this diversity action in federal court in New York. The court may exercise diversity jurisdiction if 1) the plaintiff and defendant are citizens of different states AND 2) if the amount in controversy exceeds $75,000. Plaintiff resides in New Jersey. While citizenship is based on domicile rather than residence, no fact suggest New Jersey is not his domicile. If so, Plaintiff is a citizen of New Jersey and Marriott is deemed a citizen of both Delaware ( its state of incorporation) and New York (its principal place of business). If the amount in controversy exceeds $75,000, the requirements for diversity jurisdiction are met.
Under FRCP Rule 14, a party may join a non-party for contribution and/or indemnity (to recover any amount the party is compelled to pay as damages in the suit). Because R. 14 third-party impleader claims must form part of the same constitutional case and controversy, the court may exercise supplemental jurisdiction over such claims. Once the court has original jurisdiction over Plaintiff’s claim against Marriott, the court may exercise supplemental jurisdiction (based on 28 USC § 1367) over other claims that form part of the same constitutional case or controversy over a claim by a third-party plaintiff against the third-party defendant.
Marriott v Otis. Marriott seeks contribution and/or indemnity against Otis, the company that was responsible for maintaining the elevator. This is a suit by a party against a non-party permitted by R. 14. This claim is properly afforded supplemental jurisdiction.
Otis v Trident. Otis seeks indemnity from Trident on the theory that Trident’s product was responsible for the elevator failure. This claim by a party against a non-party is permitted by R. 14, with supplemental jurisdiction afforded by § 1367.
2. Personal Jurisdiction – the power to enter a binding order against an individual.
Here New York is purporting to exercise personal jurisdiction over Plaintiff, a resident of New Jersey. In order to exercise personal jurisdiction over an out-of-state defendant, notice must be given within the grasp of the state’s long-arm statute. Here, Trident was served at its corporate headquarters. No objection has been made concerning the method and manner or the content of the service. Assuming the state’s long-arm statute is coextensive with the U.S. Constitution, Trident will be subject to personal jurisdiction if it has certain minimum contacts so that the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. The facts tell us Trident conducts business only in New Jersey. With no contacts, ties or relations in New York, Trident will not be subject to personal jurisdiction there. The argument might be made that its products are used in New York and that on that basis alone Trident might be subject to personal jurisdiction in New York. Trident, however, did not direct its product into New York. Knowledge that the product might go to New York does not make it foreseeable to Trident that it could be forced into court in New York in the absence of conduct establishing purposeful direction or purposeful availment.
Bulge Rule. A party joined under Rule 14 served within a judicial district of the United States within 100 miles of the place from where the summons issues is subject to personal jurisdiction even in the absence of a showing of minimum contacts. Here, Trident was served within 90 miles of the court.
ERIE. A state law claim is heard in federal court may give rise to an Erie problem – Which law applies? The general rule is that in such cases the federal courts apply state substantive law and federal procedural rules. While state law would require Trident to make a special appearance to contest personal jurisdiction, the federal courts permit an objection to personal jurisdiction be made in the answer, as here, or in a pre-answer motion. The federal rule is derived from the Federal Rules of Civil Procedure and, as such, is deemed procedural for purpose of Erie. The federal rules to not require or permit a special appearance to contest personal jurisdiction.
3. Discovery. The scope of discovery extends to any material, not privileged, relevant to the claim or defense of any party.
Attorneys’ notes. Any communication between an attorney and a client regarding legal advice is privileged. This attorney client privilege now extends to conversations with employees of a corporation regarding matters within the employee’s area of responsibility within the corporation. The conversations of Trident employees and the attorneys may be covered the attorney-client privilege. If not, materials prepared in anticipation of litigation are protected as work-product. The attorneys notes, mental impressions and theories of the case are absolutely privileged. Other materials prepared in anticipation of litigation are only qualifiedly privileged and may be discovered upon a showing of substantial need and unavailability. If the attorneys’ notes contain mental impression, etc., those portions would not be discoverable. Even if the notes are only afforded a qualified privilege, the notes will likely remain not discoverable since there is no showing current employees are not available.
Witness statement. This item does not involve the attorney client -privilege since there is not communication between an attorney and a client. Whether this item is afforded work-product protect depends on whether it was prepared in anticipation of litigation. If it was prepared in the ordinary course of business, the statement would be discoverable. If it was prepared in anticipation of litigation, it is likely discoverable based on substantial need (the only witness) and unavailability (the witness is presumably now in France is beyond the subpoena power of the court).
Surveillance video. This item is not a communication between an attorney and a client thus there is no attorney-client privilege. Additionally, since this video was not prepared in anticipation of litigation, it is not protected as work product.