San Joaquin College of Law                                                                                     PIN: ______________

Civil Procedure – Final Exam May 2004 / Cartier                                                                 

QUESTION 1 – [50 points]

Pat, a Louisiana citizen, was injured on the job in Mississippi when he was struck in the head by a boom on a cement truck operated by Ned, an employee of a subcontractor, Delta Concrete, Inc. (“Delta”). The general contractor, Don, doing business as Don’s Construction Co. (“Don”), is licensed to do business in Alabama, Mississippi and Louisiana. Pat filed suit against Delta and Don in the state court in Louisiana claiming special damages (medical bills and lost wages) in excess of $50,000 plus general damages. Delta, an Alabama corporation that has never conducted any work in Louisiana, was properly served at its corporate headquarters in Alabama. Defendants promptly removed the action to the appropriate federal court. Delta filed a motion to dismiss for want of personal jurisdiction. Delta then filed its answer to Pat’s complaint AND filed and served a cross-claim against Don to enforce the indemnity clause of its contract for the Mississippi job. Don answered Pat’s claim and Delta’s cross-claim with general denials. At the hearing on the motion to dismiss, the court found 1) that although the parties agreed service on Delta was within the grasp of the state’s long-arm statute, Delta was not subject to personal jurisdiction in Louisiana AND 2) that Delta was a “necessary party” to the lawsuit. The court, on its own motion, transferred the case to the district in Mississippi where the cause of action arose.

1.          Was this case properly removed? DISCUSS.

2.          Was Delta subject to personal jurisdiction in Louisiana? DISCUSS.

3.          Was the court’s determination that Delta was a “necessary party” correct? DISCUSS.

4.          Considering all relevant matters, was case properly transferred? DISCUSS. 

QUESTION 2 – [50 points]

In 2002, Pete took his wife (“Wife”) to the local hospital in western Kentucky for the delivery of their first child. During the birth of Child, delivery complications arose and Wife bled to death. Pete, as representative of Wife’s estate, obtained a judgment for wrongful death against Doc in the state court of Kentucky after establishing Wife’s death was the result of Doc’s negligence. This judgment has been satisfied. A Kentucky court decision in 2003, for the first time, recognized a child’s right to maintain an action for loss of parental consortium. It is unclear if the case holding applies retroactively (i.e. whether it applies if the cause of action arose before the case was decided). A recent intermediate appellate court decision allowed retroactivity. The state supreme court, without commenting on the retroactivity issue, reversed the decision on other grounds. Although Pete and Child recently moved to Tennessee, Pete, as guardian ad litem for his minor child, commenced a timely action in the United States District Court for the Western District of Kentucky against Doc, a resident of Kentucky, for Child’s loss of consortium. After the complaint and answer were properly filed and served, Doc and Pete each filed timely motions for summary judgment. Doc claims 1) the former state court action bars this suit AND 2) the state case law is not retroactive. Pete claims the former action conclusively establishes Doc’s negligence.

1.          Does the federal court have subject matter jurisdiction over this state law claim? DISCUSS.

2.          Assuming jurisdiction is proper, how should the court rule on the following motions:

a.   Doc’s motion for summary judgment? DISCUSS.

b.   Pete’s motion for summary judgment? DISCUSS.