Civ._Exams - Copy

Civ._Exams - Copy - nay 100! EQSAVS - Part II Two Essay...

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Unformatted text preview: nay 100! EQSAVS - Part II Two Essay Questions Each with Two Subparts Total time allocated: 1 hour 45 minutes Essay Question 1 Time allocated: 45 minutes Adventure Apparel, a sole proprietorship owned by Jeffrey Grouch, sells swim wear and other leisure clothing. It has two stores, both in Tuscon, Arizona. Grouch himself is a citizen of Arizona. In January, 2000, Grouch developed an internet web site for Adventure. The domain name for the site is "adventureapparel.com" and it is hosted by Yahoo, a company located in California. At the same time, Grouch also registered the internet domain names "barbiesclothing.com" and "barbiesbeachwear.com". These names are registered with Network Solutions, a company located in Virginia and are "parked" at the Adventure website pursuant to Network Solutions' registration requirements. When a domain name is "parked" at another site, that name can only be accessed through the parking site; thus “barbiesclothing.com" and "barbiesbeachwear.com" can only be reached by accessing the "adventureapparel.conw web site. Neither "barbiesclothing.com" nor "barbiesbeachwear.com" are registered with any search engine. Adventure’s website has produced exactly one sale. On April 11, 2000, while in his Manhattan office, Michael Marlowe visited the "adventureapparel.com" website and, while there, entered the "barbiesbeachwear.com" site and ordered.a pair of sandals. Marlowe is an investigator for Mattel, the manufacturer of Barbie dolls and the holder of the "Barbie" trademark. Marlowe learned of the "barbiesbeachwear.com" and "barbiesclothing.com" sites through a contact with Network Solutions. Although the "barbiesbeachwear.com" site was listed as "not open for business," Marlowe’s order was honored and the sandals were shipped to Marlowe at an address in Manhattan. Marlowe received an email confirming his order on April 11, 2000. The sender was identified as "advantureapparel@aol.com" and the recipient was Marlowe, at mmarlowe®aol.cout The confirmation email provided a separate internet address for Adventure Apparel at which the current status of the order could be checked at any time. On June 1, 2000, Mattel filed a complaint against Grouch/doing business as/Adventure Apparel with the United States District Court for the Southern District of New York, asserting claims under the Lanham Act for cybersquatting, 15 USC 1125(d), trademark dilution, 15 USC 1125(c) and trademark infringement, 15 USC 1114(a), and a common law claim for unfair competition. Defendant Grouch responded with a motion to dismiss pursuant to Fed. R. Civ. P. l2(b)(2) and 12(b)(3), or, in the alternative to transfer the action to Arizona pursuant to either 28 USC 1404(a) or 1406. New York CPLR 302(a) provides in pertinent part that "As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non— domiciliary...who in person or through an agent: 1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or 2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or 3. commits a tortious act without the state causing injury to person or property within the state...if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services renders, in the state, or (ii) expects or should expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce... p A. How should the Court rule on the Grouch‘s motions? Make‘ sure to consider separate element of his motion fully. J B. Write a dissent from the foregoing opinion. ‘ Essay Question 2 Time allocated: 1 hour Plaintiff, a California corporation, sued Defendant, a Maryland corporation, in California state court for~ breach of contract and other related business torts. Defendant properly removed the case to federal court in California on the basis of diversity of citizenship pursuant to 28 USC 1332 and 1441. Once in federal court, Defendant successfully moved.to dismiss Plaintiff’s action as time barred by California's two—year statute of limitations for breach of contract and tort claims. Under California case law, California courts treat the state's two~year statute of limitations as barring the remedy for a cause of action rather than as barring the right itself. In its order, citing Fed. R. Civ. P. 41(b), the California federal district court stated that Plaintiff's claims were dismissed "in their entirety based on the expiration of the California statute of limitations." Plaintiff appealed the dismissal to the Ninth Circuit, which affirmed the district court’s decision. Plaintiff subsequently brought suit against Defendant in Maryland state court asserting the same claims based on the same underlying set of events that had formed the basis of the California action. The claims were not time barred under the relevant Maryland four year statute of limitations for actions in contract and tort, which was applicable under Maryland law. Defendant then successfully moved to dismiss the action on the grounds of claim preclusion (res judicata), citing the California federal court decision. The Maryland Court of Special Appeals affirmed the trial court decisionq holding that, eVen though California would not have accorded claim preclusive effect to a statute of limitations dismissal by one of its own courts, the dismissal by' the California federal district court barred the complaint filed in Maryland, since the res judicata effect of federal decisions is prescribed by Fed. R. Civ.P. 41(b), under which the earlier dismissal was on the merits and claim preclusive. After the Maryland Supreme Court declined to review the case, the United States Supreme Court granted Plaintiff’s petition for certiorari. Part A. Draft an opinion for the United States Supreme Court reversing the decision of the Maryland Court of Special Appeals. Part B. Draft an opinion for a minority of the United States Supreme Court dissenting from the opinion in Part A. END OF THE EXAMINATION EsaAVS HAY 2001 Part II Two Essay Questions Each with Two Subparts Total time allocated: 1 hour 45 minutes Essay Question 1 Time allocated: 45 minutes In 1988, Laura Anne Vermeulen purchased a used Renault LeCar from her brother in North Carolina. At the time of her pUrchase, she and her brother were citizens of North Carolina, where he had purchased the vehicle new in 1982. Vermeulen subsequently moved to Georgia, where she was seriously injured in an automobile accident in 1989. Contending that her injuries were the result of the negligent manufacture and design of the car’s driver restraint system, Vermeulen timely sued the French manufacturer, Regie Nationale des Usines Renault ("RNUR") in the United States District Court for the Northern District of Georgia. RNUR is a French corporation that designed and manufactured the 1982 Renault LeCar at issue in France. In 1979, RNUR entered an agreement with American Motors Sales Corporation ("AMSC")~—a corporation that went bankrupt in 1990-~in which AMSC agreed to act as the sole marketer and distributor of Renault cars in the United States. The stated goal of the agreement was, among other things "to promote the widest distribution of Renault products" and to "develop a dealer' network for Renault products in the United States." Accordingly, AMSC agreed to purchase Renault vehicles, including LeCars, in France and to import them for resale in the United States. The distribution agreement provided that AMSC would take full responsibility for marketing and distributing Renault vehicles throughout the United States. In return RNUR agreed to "use its best efforts to provide AMSC with suitable assistance" in training personnel in the repair and maintenance of Renault vehicles in order to provide appropriate customer service in a nationwide distribution network. As part of the agreement, RNUR licensed AMSC to use the Renault trademark in connection with building the Renault brand name in the United States. In return, AMSC covenanted to "work closely with RNUR in planning and developing themes, strategy and the related budget" for promoting the Renault line. AMSC also agreed to discontinue any advertising that RNUR deemed inconsistent with. RNUR’S image as the manufacturer and designer of "outstanding small care." To implement this agreement, meetings took place in France between AMSC and RNUR which resulted in modifications of the LeCar make the vehicle more attractive to the American market. It is undisputed that RNUR maintains no offices, plants, or other facilties of its own in the United States. Upon receipt of the summons and complaint, RNUR timely moved to dismiss Vermeulen's action pursuant to Fed.R.Civ.P. 12(b)(2). The Georgia long arm statute provides in pertinent part: A court of this state may exercise personal jurisdiction over any nonresident...as to a cause of action arising from any of the acts omissions, ownership, use, or possession enumerated in this Code Section, in the same manner as if he were a resident of the state, if in person or through an agent, he: (1) transects business within this state (2) commits a tortious act or omission within this state... (3) commits a tortious injury in this state caused by an act or omission outside this state if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed in this state... A. How should the District Court rule on the RNUR’s motion? B. Draft an opinion for the United States Court of Appeals for the Eleventh Circuit reversing the District Court. Essay Question 2 Time allocated: 1 hour Desi, a citizen of Minnesota, timely sued Lucy, a citizen of Wisconsin in United States District Court in Wisconsin for $1,000,000 in damages arising out of an automobile accident that took place on a Wisconsin highway. In her answer, Lucy raised as an affirmative defense, pursuant to Fed.R.Civ.P. 8(c), the effect of a prior adjudication in a case in which she had sued Desi in the United States District Court for the Eastern District of Wisconsin for damages arising from the same accident; after a full trial in which both sides had presented substantial evidence, the jury had returned a defense verdict and, accordingly, had awarded Lucy no damages. On motion based on Lucy's affirmative defense, the district court dismissed Desi's action on the grounds that it consituted a compulsory counterclaim in the earlier action of Lucy v. Desi, pursuant to Fed.R.Civ.P. 13(a) and was therefore barred. Under the law of Wisconsin, all counterclaims are permissive. A. Draft an opinion for the United states Court of Appeals for the Seventh Circuit ruling on Desi’s appeal from the district court's decision. 8. Draft a dissent from the foregoing opinion. END OF THE EXAMINATION Part II Two Essay Questions Total time allocated: 1 hour 45 minutes Essay Question 1 Time: 1 Hour Dole Food Company (Dole US) is incorporated under the laws of Hawaii and has its headquarters and principal place of business in Sacramento, California. Defendant Watts is a citizen of the United Kingdom and now lives in France. At the time of the events at issue, he was Vice President and Regional Sales Manager of Dole Europe, a division of Dole US, which is based in Belgium. Watts's direct supervisor, Jocelyn, worked at the California headquarters of Dole US as Vice President of International Sales. Although Watts never visited the company’s California offices, he currently maintains a California bank account into which his Dole pension is deposited. Defendant Boenneken is a German citizen who currently lives in Spain. At the time of events at issue, he was employed as general counsel for Dole Europe in Belgium. In this role, he occasionally visited Dole US at its California headquarters on unrelated matters. the Netherlands port of Rotterdam in order to reorganize product distribution throughout the European Union. Dole asserts that as part of the scheme, Watts and Boenneken, along with a partner, Van Der Meer, formed a Dutch company called Speedtrans solely in order to lease warehouse space to Dole Europe. Both Watts and Boenneken dispute the existence of a conspiracy, although they admit advocating the reorganization of product distribution. Dole alleges that Watts aggressively pitched the benefits of leasing fax, and email; Watts also discussed the matter in face-to-face meetings with Jocelyn in Belgium. Dole US subsequently sued Watts and Boenneken in the United States District Court for the Central District of California (Sacramento Division), alleging California state law claims of (1) fraud and (2) breach of the fiduciary duty of fair dealing with their employer, properly invoking the subject matter jurisdiction of the district court pursuant to 28 USC 1332. Watts and Boenneken timely moved to dismiss the action against them pursuant to Fed.R.Civ.P. 12(b)(2), 12(b)(3) and, in the alternative, to dismiss the action on the grounds of forum non conveniens. QUESTION CONTINUED ON NEXT PAGE 16 For purposes of this I question, the California long arm statute states in pertinent part: As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non—domiciliary who... 1. transactions any business within the state or contracts anywhere to supply goods or services within the state; or 2. commits a tortious act within the state; 3. commits a tortious act without the state causing injury to person or property within the state, if she or he a. regularly does or solicits business, or engages in any other persistent course of conduct or derives substantial revenue from goods used or consumed within the state; or b. expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or 4. owns, uses, or possesses any real property situated within the state. Draft an opinion on behalf of the California district court resolving defendants' motions. Be sure to consider all the motions and, if appropriate, to differentiate between the grounds applied to each defendant. In addition, be sure to take account of the primary plausible arguments, if any, that do not support your conclusion. EXAMINATION CONTINUED ON NEXT PAGE 17 Essay Question 2 Time: 45 Minutes Five morbidly obese New York teenagers brought suit against KingBurger, a Delaware corporation with its principal place of business in Miami, Florida and with outlets in all fifty states. Their complaint alleges that KingBurger's nationwide advertising over the last 10 years contained knowingly false statements of fact in violation of New York law. Further, it alleges that in reliance on these statements, the teenagers were misled into overconsumption of KingBurger food and, as a result, developed obesity—related diseases that have drastically affected their lifestyles and shortened their expected life span. The complaint was originally brought in New York state court; pursuant to 28 USC 1441, KingBurger removed the action to the United States District Court for the Southern District of New York Once in federal court, the plaintiffs moved for certification as a class action pursuant to Fed.R.Civ.P. 23(b)(3); the class would comprise all morbidly obese New York state teenagers with diabetes and hypertension who ate at a New York KingBurger outlet more than three times per week during the last five years. The court granted the motion and, after substantial discovery, the case went to trial. After a full trial on the merits, the jury returned a special verdict finding that defendant's nationwide advertising campaign for the last decade was knowingly false as to the amount of fat, salt, and artificial ingredients in KingBurger food and found defendant liable for plaintiffs’ injuries. Subsequently; a morbidly obese Michigan teenager brought suit in Michigan state court against KingBurger. His complaint was exposed to the nationwide advertising campaign in Michigan. Plaintiff moved for partial summary judgment, claiming that KingBurger was precluded from contesting the issue of whether its nationwide advertising campaign was misleading. New York does not recognize non—mutual offensive collateral estoppel, although it does permit defensive non—mutual issue preclusion. Michigan courts require mutuality for issue preclusion. In Parklane Hosiery v. Shore, the Supreme Court recognized the use of non—mutual collateral estoppel in the federal courts. How should the Michigan court rule on the pending motion. How should the Michigan trial court rule on plaintiff’s motion? Explain your answer fully. END OF THE EXAMINATION 18 ARKIN C [V Ego EssAys ’ (3‘? Part II Two Essay Questions Total time allocated: 1 hour 45 minutes Essay 1 (45 Minutes) Tosvar Aerosoles, an Italian company with its plant and offices in Milan, Italy, bought cans from Specchiasole, an Italian company, and filled the cans with hairspray under pressure. The cans were marked, falsely, "Made in the USA" and labelled in English with the trademarked name and Woodland Hills California business address of Sebastian, Inc., a California corporation. The can labels also showed a California license number and what purported to be a alifornia manufacturing plant number. Tosvar delivered the filled cans to Dollar Spray, another Italian company, for delivery to the port of Livorno, from which the cans were shipped to the United States. Dollar Spray's shipping documents presented to Tosvar referred to the port of "Miami" and shortly before the cans were shipped, Dollar Spray sent a FAX to Tosvar stating that "'The Americans' will leave on Thursday." Once the cans arrived in the United States port of Miami, they were distributed throughout the United States by Nortex Drug Distributors, a Texas Corporation with its principal place of business in Houston. Sebastian eventually discovered that cans of hairspray falsely labelled with its name and address were being sold in chain drugstores in the 48 contiguous states. It promptly brought suit against Tosvar, among others, in the United States District Court for the Central District of California, where Sebastian‘s principal place of business is located. The suit claimed a conspiracy to counterfeit Sebastian products and the actual counterfeiting of those products under California state law, with damages in excess of two million dollars. Tosvar was properly served with a request to waive service pursuant to Fed.R.Civ.P. 4(d) and it consented to the waiver. 75 days later, Tosvar responded with a nmtion raising objections pursuant to Fed.R.Civ.P. 12(b)(l),(2) and (3) and, in the alternative, with a motion to dismiss the action on the grounds of forum non conveniens. California Code 410.10 states in pertinent part: "A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." Draft a memorandum advising the court how it should rule on these motions. Be sure to give your reasons fully and to point out both the strengths and weaknesses of your positions. Allocate your answers according to the difficulty of the questions presented by Tosvar's motions. EXAMINATION CONTINUED ON NEXT PAGE 16 Essay 2 (1 hour) Pat, a Connecticut resident, was admitted to Caring Hospital in Greenwich, Connecticut, complaining of abdominal pain. Dr. David diagnosed acute appendicitis and recommended that Pat undergo exploratory surgery. Pat was then transferred to Ultracaring Hospital in Stamford, Connecticut, for the recommended surgery. While in the Ultracaring Emergency Room, Pat was examined by Dr. Field, who was also a lawyer admitted to the New York bar. Dr. Field examined Pat and diagnosed a perforated appendix. Dr. Field then made notes in Pat's medical chart reflecting his diagnosis and recommendation for treatment. After recovering, Pat retained Dr. Field as his attorney and sued Dr. David, a New York resident, for malpractice in the United States District Court for the Southern District of New York (White Plains Division). In response to Dr. David‘s discovery requests, Pat provided a list of treating physicians that did not include Dr. Field. In Pat's sworn deposition, defended by Dr. Field, Pat stated that Dr. Field had never given him medical treatment. At a pretrial conference, Dr. David's attorney informed the court that she had just discovered that Dr. Field had treated Pat in the Ultracaring Emergency Room while employed by the hospital. In response to questions by the court, Dr. Field admitted that he had written notes in Pat's medical chart but had failed to sign his name to them as hospital rules required. Dr. David then moved pursuant to Fed.R.Civ.P.37 to dismiss Pat's action. Rule 37 provides in pertinent part that a party who "without substantial justification fails to disclose information required" in discovery faces sanctions up to and including dismissal of the action. (Fed.R.Civ.P. 37(b)(2)(C)). The judge granted Dr. David's motion and entered an order of dismissal with prejudice pursuant to Fed.R.Civ.P. 41(b). Rather than appeal, Pat retained a new attorney and brought suit in Connecticut state court against Dr. David and Caring Hospital, once again claiming damages for malpractice connected to his perforated appendix. The court granted defendants' joint motion for summary judgment on grounds of claim preclusion. Pat appealed. Under Connecticut state law, a "decision whether to apply...res judicata to claims that have not actually been litigated should be based upon a consideration of the doctrine‘s underlying policies, namely the interests of the defendant and of the courts in bringing litigation to a close and of the plaintiff in the vindication of a just claim." Under New York state law, dismissals are not available for willful violations of discovery orders, but, rather such violations are punished as contempt of court. For those of you concerned with such matters you may assume that the suit was timely brought and that all issues of personal jurisdiction and venue were waived by the defendants. A. Draft an opinion for the Connecticut appellate court resolving the claim preclusion issues presented by this case. B. Draft a dissent from the foregoing opinion. Be sure to explain your reasoning fully. END OF THE EXAMINATION l7 _ 28 - ESSAY QUESTION 1 Fact Pattern 3 questions Follow the time allocation after each question Total time 1 hour and 45 minutes Be sure to explain. your reasoning for each answer fully' and clearly! Muskie, a cell phone user from Maine, timely brought suit in United States District Court for the District of Maine on behalf of a nationwide class of the users of cell phones manufactured by defendants Nokia (NJ corporation, ppb NJ), Erickson (MD corporation, ppb PA) and Moto (DE corporation, ppb ME), three of the largest cell phone makers in the United States. The suit claims injury from unshielded radiation emissions generated by cellphones manufactured by the three companies and demands damages in the form of medical monitoring to screen for brain tumors for the next twenty‘ years. Although. the estimated cost for the requisite medical testing is probably only $30,000 per plaintiff, the plaintiff class numbers well over a ndllion persons. In addition, plaintiff included a demand for punitive damages in the amount of $75 million per manufacturer. Although devices made by Nokia, Erickson and Moto are sold in all 50 states, they are only marketed through service providers such as Cingular and Verizon, who purchase the phones at the maker's principal place of business and distribute the phones to their own retail outlets for ultimate sale to the consumer. Neither Nokia, Erickson, nor Moto derives more than 5 per cent of its annual revenue from ultimate sales in Maine, although the cash value of the Maine sales exceeds ZOMM for each maker. 1. (45 minutes) Each defendant timely filed a Rule 12 preanswer motion. All three raised objections under Rules 12(b)(l), 12(b)(2), and 12(b)(3). However, Moto raised 12(b)(2) objections only with regard to the claims against it that arose outside Maine, while Nokia and Erickson raised 12(b)(2) objections with regard to all the claims against them. How should the district court rule on the defendants' motions? For your information, right down to the grammatical errors, Maine Statutes, Title 14, Section 704-A.provides in pertinent part: 1) Declaration of Purpose: It is declared, as a matter of legislative determination, that the public interest demands that the State provide its citizens with an effective means of redress against nonresident persons who, through certain significant minimal contacts with this State, incur ~ CONTINUED ON NEXT PAGE - _ 29 - obligations to citizens entitled to the State's protection. This legislative action is deemed necessary because of technological progress which has substantially increased the flow of commerce between the several states resulting in increased interaction between persons of this State and persons of other states. This section, to insure maximum protection to citizens of this State, shall be applied so as to assert jurisdiction over nonresident defendants to the fullest extent permitted by the due process clause of the United States Constitution, 14th Amendment. 2) Causes of action. Any person whether or not a citizen or resident of this state, who in person or through an agent does any' of the acts hereinafter enumerated in this section, thereby' submits suckL person...to the jurisdiction. of the courts of this State as to any cause of action arising from the doing of any such acts: A. The transaction of any business within this State; B. Doing or causing a tortious act to be done, or causing the consequences of a tortious act to occur within this State;... F. Contracting to supply services or things within this State;...or... G. Maintain any other relation to the State or to persons or property" which affords a basis for the exercise of jurisdiction by the courts of this State consistent with the Constitution of the United States... 4. Jurisdiction.based.upon this section. Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this section " 2. (20 minutes) Assume for purposes of this subpart only that the court has denied the defendants’ motions in question.i. Defendants answer and Muskie moves formally to certify the class action. How I should the court rule on Muskie's motion? $5éfia3. (40 minutes) Assume for purposes of this question only that the \court has refused to certify the class action. Muskie perserveres a alone and, after a bench trial, obtains a judgment against Nokia, the maker of the cell phone model that he needs In a well reasoned decision, the district court issued a decision in which it imposed liability on grounds that the insulation in the cell phone Muskie used was improperly installed and, in the alternative, that NOkia failed adequately to warn of the dangers posed by cell phone use. Shortly thereafter, Dean, a New Hampshire resident, filed suit in ’wNew Hampshire state court alleging radiation exposure from the use of the same model Nokia cell phone at issue in Muskie's suit and ~ CONTINUED ON NEXT PAGE — _ 30 _ seeking damages under New Hampshire state law. After Nokia answered and some initial discovery, Dean.moved for partial summary judgment based on the decision in Muskie v. Nokia, seeking to establish that Nokia failed adequately to warn of the dangers posed by cell phone use. Both Maine and New Hampshire's decisional law provides that when a court issues a decision based on alternative grounds, both are "material" and entitled to equal weight in any subsequent litigation. The federal courts follow the Restatement (Second) of Judgments Section 27 which states that when trial courts base their decisions on alternatiVe holdings, neither holding is entitled to weight in. subsequent litigation. Maine continues to require mutuality of estoppel, while New Hampshire and the federal system’ both follow the rule of Parklane Hosiery V. Shore. In case you are concerned” both. NEW' Hampshire and Maine have adopted summary judgment rules that track Fed.R.Civ.P. 56. You are a law clerk to the New Hampshire state judge. How should the New Hampshire court rule on Dean‘s motion? Be sure to address all aspects of Dean‘s motion fully and point out to the judge the strengths and weaknesses of your argument. — END OF EXAMINATION — ...
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Civ._Exams - Copy - nay 100! EQSAVS - Part II Two Essay...

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