San Joaquin College of Law

Civil Procedure – Interim Exam March 2009 /Cartier

Time: 1 hour 20 minutes

After working for D-Mart for thirty years, Phil was fired. He filed a timely suit against D-Mart in federal court in California alleging D-Mart willfully and intentionally discriminated against him in violation of the federal Age Discrimination in Employment Act. After the expiration of the applicable state statute of limitations but before D-Mart filed its answer, Phil filed an amended complaint alleging a state law cause of action for intentional infliction of emotional distress against both D-Mart and against Don, who was Phil’s supervisor at D-Mart. Phil and Don are both Californians; D-Mart is a Delaware corporation with its principal place of business in Illinois. D-Mart was properly served at its corporate headquarters; Don was served by leaving a copy of the summons and complaint with the store manager at the D-Mart where Don works. D-Mart filed an answer to the amended complaint along with a 12(b)6 motion to dismiss the state law claim as time barred. Don filed simultaneous motions to dismiss on grounds that the action against him is also barred by the statute of limitations; that he was not properly served; and that the court lacks subject matter jurisdiction over the state law claim against him since there is no diversity. The court denied each of these motions. In preparing the case for trial, D-mart sought an order to compel Phil to undergo medical exams pursuant to Rule 35 and to compel production of medical reports for services provided after the date of termination by Phil’s personal physician and by Dr. Cal, a psychiatrist, who examined Phil at the request of Phil’s attorney.

Did the court correctly deny the following motions:

1. Motion to dismiss the state law claim against D-Mart based on the statute of limitations? DISCUSS.

2. Motion to dismiss the state law claim against Don based on the statute of limitations? DISCUSS.

3. Motion to dismiss the action against Don based on improper service of process? DISCUSS.

4. Motion to dismiss the action against Don for want of subject matter jurisdiction? DISCUSS.

How should the court rule on the following motions:

5. Motion to compel Phil to undergo medical exams? DISCUSS.

6. Motion to compel disclosure of Phil’s medical records from his personal physician? DISCUSS.

7. Motion to compel disclosure of Phil’s medical records from Dr. Cal? DISCUSS.

San Joaquin College of Law

Civil Procedure Law Chart Interim Exam March 2009 / Cartier

ERIE DOCTRINE –    When a state law claim is filed in federal court, the court applies state substantive law to the state law claim but may use its own procedures.

Statute of Limitations – time limit for filing a claim

Notice – FRCP 4 permits service in accord with FRCP or in accord with state law where court is located.

FRCP does not permit substitute service at one’s place of employment but California does IF mailed.

Subject Matter Jurisdiction – the power of the court to decide the claim

When a court has original jurisdiction over a claim, the court may exercise supplemental jurisdiction over all other claims that are so related as to form part of the same case and controversy.

             [Rule 18; Rule 20. Federal question, diversity and supplemental jurisdiction.]

             P v. D-Mart – federal question; pendent state law claim is afforded supplemental jurisdiction;

P v. Don – No diversity but pendent party claim is also afforded supplemental jurisdiction IF “Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.”

SCOPE OF DISCOVERY – any nonprivileged matter relevant to the claim or defense of any party.

             Court may order medical exam R. 35) if party’s health is in issue.

             Relevance of medical records / limited in scope

             Privilege

                          Re private physician – physician-patient privilege (privacy)

                          Re Dr. Cal –

                                       Testifying expert? – subject to disclosure rules

                                       Consultant?

                                                    No atty-client communication but prepared in anticipation of litigation

                                                    Work Product: qualified privilege – discoverable on showing of

                                                    substantial need and unavailability

             * If P request copy of R. 35 report, he waives privilege for related records. Rule 35(b)(4).