San Joaquin College of Law

Civil Procedure--FINAL EXAM 1996 Q1/Cartier

             Pourn, a citizen of Thailand who was legally in the United States residing in State B, filed a lawsuit in federal court in State A for an alleged sexual assault in State A by an on-duty county deputy sheriff, Deputy, after a routine traffic stop. Pourn’s suit seeks damages from Deputy for violating her rights under 42 U.S.C. 1983 and for assault and battery under state A law. She also seeks damages from deputy’s employer, County, on theory of respondeat superior. Deputy filed an answer admitting the occurrence of the sex act but asserting that, in the course of the traffic stop, Pourn took his service revolver and made him do it. County filed an answer denying any and all liability.

             During voir dire, the attorneys representing the County and Deputy, used preemptory challenges to exclude three Amerasian females, an Amerasian male and an adult book store owner. As regards the three female jurors--counsel for defendants indicated on the record that one was dismissed because, although she was an honor roll student at the university, her language skills might impede her ability to follow the evidence. Another was dismissed because she “looks like the plaintiff.” The remaining female, the Amerasian male and the book store owner were dismissed because each was involved in operating businesses and their business obligations could make it difficult for them to concentrate on the case. Pourn’s attorney objected to the dismissal of the prospective Amerasian jurors. No other Amerasian was included on the four woman eight man jury. During the trial, one juror was dismissed because of illness and another failed to report on a Monday morning after being caught in a severe blizzard in Colorado while on a weekend ski trip.

             At trial, Pourn introduced testimony of the physician who treated her after the incident. The doctor noted bruises and lacerations consistent with being pushed against a hard object such as an automobile and then being forced to the ground. Dirt and gravel chunks were deeply embedded on her hands, arms, face and knees. The doctor suggested that the injuries were consistent with Pourn’s statement to him that she was violently pushed to the ground and then sexually assaulted. Experts who examined the service revolver testified that while Deputy’s fingerprints were found on the weapon, Pourn’s finger prints were absent. There was no testimony that she was wearing gloves. Evidence was presented that, immediately after the incident, Deputy was treated for scratches on both sides of his face and neck and on his arms.

             At the close of all the evidence, attorneys for Deputy and County each requested a judgment as a matter of law. The Court refused to grant either of these motions. During closing arguments, Counsel, the attorney for Deputy said, “Now look at the plaintiff eyes and see if her story doesn’t look slanted.” Plaintiff’s attorney vehemently objected to Counsel’s comments. The jury was instructed to disregard the statement. Counsel then went on to say, “I need to remind you that you can take the girl out of the country but your can’t take the country out of the girl. You all know Thailand is the ‘sex and sin capital of the world’.” The court again cautioned counsel to cease making improper statements.

             The case was submitted to the 10-person jury which found for Deputy. Pourn’s attorney then motioned for a judgment as a matter of law. The court granted the motion and also ordered a new trial. During the trial Deputy moved to State B. He now files a timely appeal to the proper United States Circuit Court asserting that the District Court erred 1) in granting the judgment as a matter of law and, 2) in granting the new trial. Further, Deputy asserts that the case should be dismissed since he now lives in State B and the court in State A lacks personal jurisdiction over him and because the Court lacks subject matter over the case. County is not a party to the appeal.

Applying the law to the relevant facts, how should the appellate court respond to Deputy’s assertion:

             1.          That the Court erred in granting Pourn a judgment as a matter of law? DISCUSS.

             2.          That the Court erred in granting a new trial? DISCUSS.

             3.          That State A lacks personal jurisdiction over him? DISCUSS.

             4.          That the Court lacks subject matter jurisdiction? DISCUSS.

San Joaquin College of Law

Civil Procedure--FINAL EXAM 1996 Q2/Cartier

             Computer Pro Users (CPU) is a California corporation with offices in San Francisco and Los Angeles that provides computer training under contracts with local businesses. Last year, the purchasing agent for CPU contacted Discount Computer Warehouse (DCW), an Ohio corporation engaged in nation-wide sales of computers and peripherals, to purchase $65,000 of equipment for the CPU office in San Francisco and $35,000 of equipment for the office in Los Angeles. CPU also purchased a $10,000 service contract that covered the equipment at both locations. DCW sent the order for equipment to Computer Inc. (C-Inc), a Delaware corporation with its sole place of operation in Utah. C-Inc does no direct sales to retail consumers but regularly fills orders sent to it by various mail order computer merchants. As instructed, C-Inc sent the CPU equipment to San Francisco and Los Angeles, via FedAir, under separate purchase orders. FedAir is a Mississippi corporation that provides air express delivery throughout the 48 contiguous United States.

             Upon receiving its equipment, the San Francisco office sent a check to DCW for $65,000. Shortly thereafter, the equipment delivered to the San Francisco office failed to function properly. Attempts to correct the problems have failed. CPU filed an action against DCW in the Superior Court of the State of California in and for the County of San Francisco to rescind the contract (a revocation of acceptance of contract under UCC 2-608) seeking return of the monies paid under the contract. CPU has withheld payment of the remaining $45,000 (for the Los Angeles equipment and for the service contract) owing to DCW.

             DCW promptly removed the case to the United States District Court for the Northern District of California and filed an answer and a counterclaim against CPU to recover the $45,000 balance. Additionally, DCW impleaded C-Inc--the computer manufacturer. For its part, C-Inc seeks to join 1) FedAir--since equipment may have been damaged in transit, and 2) Asahi Components--since the failure of the equipment to function properly may have resulted from a defective component supplied by Asahi, a Japanese Corporation that provides electrical components for computers to C-Inc and to other computer manufacturers in Washington and Ohio.

             C-Inc also asserts claims against CPU and DCW for the wholesale purchase price of the equipment for which C-Inc has not been paid.

Assuming that all appropriate objections have been made, which of the above claims (claims, counterclaims, cross-claims or third party claims) are properly before the United States District Court. DISCUSS.