San Joaquin College of Law

Civil Procedure FINAL EXAM 2009 /Cartier

Question 1: [50 points] – 1 hour 15 minutes

After Cal, a citizen of California, purchased a vacation cottage in Nevada, he hired a local Nevada dealer, Don, to install a solar-powered air conditioning unit at the cottage. The a/c unit was manufactured and sold nationally by Green Electronics, Inc, (“GEI.”), a Nevada corporation with its manufacturing plant in Arizona and with its principal distribution facility in California. The a/c unit failed to heat and cool as promised. Cal contacted both Don and GEI in an effort to reach an amicable resolution. After his efforts failed, Cal filed this diversity action in the United States District Court in Nevada against both Don and GEI seeking to rescind the contract and to recover damages. After each defendant answered

1) Don served pleadings to recover $30,000 Cal still owes Don on the installation contract and to seek indemnification from GEI; and 2) GEI filed served pleadings against Don to recover $10,000 owed for a GEI training program attended by Don and his employees. After GEI began receiving complaints about its solar-powered a/c units, the Board of Directors instructed its legal staff to investigate and report back to the Board. Incident to this instruction, GEI attorneys talked to various employees, hired an electrical engineer to conduct test on GEI solar a/c units, and wrote an extensive report of findings for the GEI Board of Directors. For purpose of this question you are to assume Nevada has abolished its work product doctrine and that Cal wants to discover each of the items prepared by GEI attorneys.

A. Considering only the rules of joinder (permission) and of subject matter jurisdiction (power), which of the claims (claims, counterclaims, cross-claims and/or third-party claims), if any, are properly before the count? DISCUSS.

B. How should the court rule on Cal’s motion to compel discovery of the following items:

1. GEI attorney interviews of employees? DISCUSS.

2. Test results from the electrical engineer? DISCUSS.

3. The report to the Board prepared by GEI attorneys? DISCUSS.

Question 2: [50 points] – 1 hour 15 minutes

Husband, a citizen of state B, was injured when he was struck by a snowmobile while skiing at a local snow park in State A. The snowmobile was operated by Driver, a student who attends college in State A. The investigation of the matter suggested that Driver had been drinking prior to the accident, that the snow park operator knew Driver had been drinking, and that the throttle on the snowmobile was stuck in an open position. Immediately after the accident, Driver returned to his parent’s home in State B where he resides when school is not in session Husband filed a timely diversity action in federal court in State A against Driver and against the snow park operator (“Snow Park”) seeking damages in the amount of $100,000. Snow Park was properly served at its corporate headquarters in State A. Upon being properly served in State B, Driver filed a motion to dismiss the action against him for both want of personal jurisdiction and want of subject matter jurisdiction. The court granted the dismissal on both grounds. The case against Snow Park proceeded to trial on a theory of negligence. The jury returned a general verdict in favor of Husband in the amount of $70,000. A year after the judgment against Snow Park was satisfied, Husband filed another suit against Driver in state court in State A seeking damages for the injuries Husband sustained at Snow Park. Husband’s wife (“Wife”) filed a timely action in federal court against Snow Park seeking damages for loss of consortium resulting from Husband’s injuries.

1. Was the decision to dismiss the federal suit against Driver for want of personal jurisdiction and subject matter jurisdiction correct? DISCUSS.

2. What preclusive effect, if any, will the prior federal court action have in Husbands’s present state court action? DISCUSS.

3. What preclusive effect, if any, will the prior federal court action have in Wife’s present federal court action? DISCUSS.

Question 3: Short answers [5 points] – 30 minutes

Briefly, but fully, compare and contrast the California and federal rules regarding the following:

1. Standard of Pleading

2. Offer of Settlement – 998 offers / Rule 68

3. Summary Judgment to test the sufficiency of evidence – Celotex / Aguilar

4. Challenging personal jurisdiction

5. Right to a jury trial in mixed law and equity cases

San Joaquin College of Law PIN _______________________

Civil Procedure Issue Chart Q1 May 2009

A. SMJ is power to decide the case; fed cts limited j

Cal v. Don and GEI – filed in diversity

Complete diversity and amt in controversy

Cal = CA; Don = NV; GEI – state of incorporation NV

and PPOB – application

Don v. Cal – 13(a) compulsory counterclaim

diversity – yes BUT amt in controversy -NO

but supplemental jurisdiction

Don v. GEI – 13(g) cross-claim

diversity - NO; complete diversity – NO

+ supplemental jurisdiction

GEI v. Don – 13 counterclaim

if compulsory 13(a)

if permissive 13(b)

B. Scope of discovery

ERIE – slc in fed ct state ub fed proc

state abolish work product but FRCP on int

Relevance

Privileged? Atty-client privilege

Work Product – materials prepared for litigation

Absolute privilege –

Qualified privilege –

Interviews – atty client? work product?

Test results – no atty client but work product?

Report to board – atty client? work product?

TOTAL ____________

San Joaquin College of Law PIN _______________________

Civil Procedure Issue Chart Q2 May 2009

Personal Jurisdiciton – defined

Notice + LAS / mc + fairness

Contact – purposeful activity

Nexus – arising from / related to

Fairness

Subject Matter Jurisdiction – defined

Diversity : complete diversity

H (B); Snow Park (A);

Driver (B)?

Amount in controversy – look to pleading

DID COURT RULE CORRECTLY – CONCLUSION

PRECLSION

claim: same claim, decide on the merits, valid final J, same parties

issues: same issue, actually litigated, essential to J/, mutuality OR

H v. Driver

claim – suit one not decided on the merits

Issue (PJ) – essential to j?

alternate findings: 1st Rest.

2^nd Rest

(Damages)* determined in prior suit

Defensive nonmutual collateral estoppel

If full and fair opportunity to litigate

W v. Snow Park

claim – not same claim ; not same parties

issue – negligence

offensive nonmutual collateral estoppel

may be permitted if not unfair

application to facts

TOTAL ____________