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                                                    CIVIL PROCEDUR;f:
  PROFESSOR                                                                                                FALL 2000
                                                    DECEMBER 5, 2000
                                                      OPEN BOOK
                                                       2.5 HOURS

  2) The exam is open-book. You may consultany materials you wish. You may usea calculator.
 3) Although you can allocateyour time asyou wish, I have indicatedthe time I suggest each
 question. The times add up to 2 hoursand fifteen minutes, which gives you fifteen minutesfor
 additional reflection, checking,andproof-reading.
  4) Directions for Part I (multiple choicequestions):Write your examnumberon the attached
  computersheet. Mark your answers                                              completely. No
                                        clearly and darkly, and eraseyour changes
 points will be awardedfor incorrectanswers, neither will suchanswersbe penalized. If you
 think a questionis ambiguousor unfair, you may make a written challenge. You may make at
 most two suchchallenges.If you makemore than two challenges,I will ignore all but thefirst
 two. Make your challenges a Blue Book or in ExamSoft or howeveryou are writing PartsII
 and III of the exam.                                                                  .

 5) Directions for Partsn and ill (long hypotheticaland policy questions): (A) Make arguments
for both sides,wheneversucharguments plausible. (B) Make alternativearguments the           for
sameresult, wheneversucharguments plausible. (C) Addressall plausibleissues, spend        but
more time on issueswhich aremoredebatable. Cite to cases,         rules, and statutes  whenever
relevant. You may leaveout parentheses    when citing rules and statutes. That is, it is fine to cite
Rule 12b6rather than 12(b)(6).
6) For all questions,assume: The relevantstatuteof limitations is 1 year. (B) Los Angelesis
in the Central    District      of California.   San Francisco   is in the Northern   District,   and San Diego   is
in the Southern     District.     (C) California,   Delaware,    and Michigan    apply the Restatement     Second
approachto choice of law. Massachusetts Nevada apply the traditional approach.        (D)
California, Delaware,Massachusetts,  Michigan, and Nevadahaveproceduralrulesmuchlike the
FRCP, exceptthat Massachusetts   allows more discovery. (E) California product liability law is
                                         product liability law is moderatelyfav°
very favorableto plaintiffs. Massachusetts                                             to
plaintiffs, and Delaware,Michigan, andNevadaproduct liability law favors defendants.

 Part I (65 minutes)

 Directions, reprinted word for word from the cover page:
         Write your exam numberon the attached      computer sheet. Mark your answers clearly and
 darkly, and eraseyour changes    completely. No points will be awardedfor incorrectanswers,  but
 neither will such answersbe penalized. If you think a question is ambiguousor unfair, you may
 make a written challenge. You may makeat most two such challenges. If you make more th~n
 two challenges, I will ignore all but thefirst two. Make your challengesin a Blue Book or in
 ExamSoft or however you are writing PartsII and III of the exam.

 1. Recent decisionsin the Second Fourth Circuits have held that personsdetained prison     in
 have a fedefal right to internetaccess.Decisionsin the Seventhand Fifth Circuits haveheld that
 personsin prison have no suchright. Courtsin other circuits have not addressed issue. Jane
 Q. Plaintiff, a prisoner in Los Angeles,filed suit in federal district court in the CentralDistrict of
 California alleging that shewasheld in prison and denied internet access.The prisonhasfiled a
 motion to dismiss and a motion for sanctions   under Rule 11(b)(2). The court should:

        A. Grant both motions.
        B. Deny both motions.
        C. Grant the motion to dismiss,but denythe Rule 11 motion.
        D. Grant the Rule 11motion, but denythe motion to dismiss.
        E. Deny the ~ule 11motion, and grant or deny the motion to dismiss depending the
           strengthof the legal argumentssubmittedto the court

2. Which of the following would be most appropriatefor a classaction suit underRule 23(bX3).

        A. A classconsistingof all neighborsof a nuclear power plant, in a suit to enjoin the
           plant from doubling its capacity.
        B. A classof all children of persons  killed by handguns,in a suit againstgun
           manufacturersfor wrongful death.
        C. A classof all children of persons  killed by handgunsin California, in a suit against
           gun manufacturers wrongful death.
        D. A classof all U.S. depositors the CheathamBank. in a suit againstthe bankfor
           damages,           the
                     because bank had beensecretly subtractingten centsfrom everyinterest
           payment,in violation of federallaw. The damagesaverage$50 per classmember.
        E. A classof all persons harmedin accidentsinvolving Sport Utility Vehicles(SUV's), in
           a suit againstthe manufacturers making a defective product.

Civil ProcedureExam                      2                                ProfessorKleman. FaJI2000

  3. Andrea is a citizen of Nevadaand works on the Nevada SouthernRailroad. The Nevada
  SouthernRailroad is incorporated California and has its principal place of business   there. One
  day, her train left Las Vegason a routine trip to SanFrancisco. As the train approached San
  Francisco,however,the locomotiveexploded,leaving her with severeinjuries. An investigation
  revealedthat the locomotiveexplodedbecause defective maintenance         perfomtedin Las
  Vegas. Andrea suedthe NevadaSouthernRailroad in federal court in the CentralDistrict of
  California. Thejury returneda verdict againstthe railroad for one million dollars, consis'tmgof
  $500,000in lost wagesand $500,000in pain and suffering. California law placesno restrictions
  on pain and suffering awards. Nevadalaw capspain and suffering damages $100,000. The
 judge should enterjudgment for:

        A. $1,000,000,because accidentoccurredin California.
        B. $600,000,because defendant'swrongful act, its defectivemaintenance,        took place
           in Nevada.
        C. $1,000,000,because   federallaw placesno restriction on pain and suffering awards,
           and because  damage  rules are not outcomedeterminative.
        D. $1,000,000,because   Andreasufferedher injuries in California and because  the
           NevadaSouthernRailroadis incorporatedand has its principal place of business    there,
           so California hasthe most significant relationship to the case.
        E. $600,000,because   Andreais a citizen of Nevada.

 4. Plaintiff and DefendantaretI)'ing to negotiatea settlement. Plaintiff thinks that he hasa 70%
.chance prevailing at trial. Defendant    thinks that plaintiff hasa 30% chanceof prevailing at
trial. Both sidesagreethat, if the plaintiff prevails at trial, he will be awarded$10,000. Both .
sideswill incur $1000in litigation costsif the casegoesto trial. Under the economictheoryof

       A. The partieswill not settle,because they are too optimistic and litigation costsaretoo
          small to bring them together.
       B. The partiesmight settle,but one cannotbe sure, because     strategicbehaviormay
          prevent a settlement.
       C. The partieswill settle,because thereis a settlementrange($4,000to $6000).
       D. The partiesmight settle,if one or both is sufficiently risk averse.
       E. The answerdepends whetherthe caseis tried underthe American or the English

Civil ProcedureExam                    3                              ProfessorKlcm1an. FalJ2000

  5. The Nevadastatutegoverningserviceof processstatesthat processmay servedonly (a) by a
  court marshalor sheriff handingthe complaintand summonsdirectly to the defendant, (b) by
  an~'persondelivering the complaintand swnmonsto an agent authorizedto receiveserviceof
  process, PetersuedDick in Nevadastatecourt and hired a professionalprocessserver,who left
  copies of the complaint and swnmonsat Dick's home with Dick's wife. Serviceof process

      A. Improper.
      B. ProperunlessDick andhis wife are separated,  becausein that situation, shewould not
          resideat his house.
      C. Proper,both because   leavingcopiesof the complaint and summonsat the individual's
          dwelling housewith a personof suitableage and discretion residing thereinis pennitted
         by FRCP 4(e)(2), andbecause                                                at
                                       leaving copiesof the complaint and summons the
         defendant'shomewith the defendant'swife is reasonablycalculatedto ensure the that
         defendantreceivesnotice of the action.
      D. Proper,only because   leavingcopiesof the complaint and summonsat the defendant's
         home with the defendant'swife is reasonablycalculatedto ensurethat the defendant
         receivesnotice of the action.
      E. Proper,only because  leavingcopiesof the complaint and summonsat the individual's
         dwelling housewith a personof suitableage and discretion residing thereinis ~tted
         by FRCP 4(e)(2).

                                                   1,              the
 6. On January1, 1990,David hit Patty. On Febru8:lY 1990 he slashed tires of her car. On
.December 1_990, sued
        .1."         Davidfor batteryin federalcourt. .On       I,    the
                                                         November 1991,
 judge scheduledtrial for DecemberI, 1991. On November 15, 1991,Patty askedpermission      to
 amendher claim to include a claim for property damage(tire slashing). If the caseis properlyin
 federal court, the judge should:

        A. Deny leave to amend,both because   trial is too soon, so the defendantmay be
           prejudiced,andbecause  relation back is improper under 15(c)(2),so amendment
           would be futile.
        B. De:nyleaveto amend,only because statuteof limitations hasrun out andthe new
           claim doesnot ariseout of the sametransactionas the original claim, asrequiredin
           Rule 15(c)(2).
        C. Deny leaveto amend,only because   trial is too soon, so the defendantmay be
        D. Grant leaveto amend,because    FRCP l5(a) saysthat leaveto amendshouldbe freely
           grantedwhenjustice so requires.
        E. Grant leaveto amend,because would be more efficient to try both claimsat the

Civil ProcedureExam                   4                              ProfessorKJennan,Fall 2000

 7. Shortly after a car accident,defendant   interviewed the bystanders and took notes(i)
 summarizingwhat eachbystander        saw,(ii) recording her impressionsof how well eachperson
 \\'as dressed, how well they spokeEnglish, and other factors which might affect their ability to
 testify effectively, and (ill) recordingher evaluationof how much eachperson'stestimonywould
 help her at trial, In a depositionof the defendant, plaintiff's lawyer askedthe defendant     to
 statewhat shewrote in her notesabouther evaluationof how much eachperson'stestimony
 would help her at trial. If the caseis properly in federal court, which of the following would be
 defendant'slawyer's bestresponse:

                                  not                                the
        A. Instruct the deponent to answerthe question,because plain language            of
           26(b)(3) protectsagainstthe disclosureof mental impressions.
                                  to                             the
        B. Instruct the deponent answerthe question,because work product doctrinedoes
                                                    if                         by
           not protect a party's mentalimpressions, the party is represented a lawyer.
        c. Instruct the deponent answerthe question,because      26(b)(3) protectsonly
           documentsand tangiblethings.
        D. Instruct the deponent to answerthe question,because       courtsare likely to go
           beyondthe literal meaningof26(b)(3) and protect againstoral disclosureof mental
        E. Stop the depositionto ask thejudge to rule on the propriety of the question.

Civil ProcedureExam                    s                              ProfessorKlerman, Fall 2000

8. On January 1, 1995,P was injured in a swimming pool accident,when the slide brokein half.
On December30, 1995,P filed suit againstD I in federal court. After a thoroughand speedy
investigation by both P and D I, it was revealedon June 1, 1996,that the slide was actuallymade
by D2. P immediately telephoned andtold it that it would soon be servedwith a complaint
and summonsand that only a mistakeaboutthe manufacturerof the slide had prevented from  P
suing D2 earlier. This phonecall was the first time D2 had heard about the suit againstD 1. On
June 1O,1996,P properly served with the amendedcomplaint and summons.After pleading
and somediscovery. D2 filed a motion for summaryjudgment, arguing that the statuteof
limitations afforded it a completedefense.If the caseis properly in federal court, which of the
following would be the judge's bestcourseof action:

        A. Thejudge shouldgrantD2' s motion for summaryjudgment because statuteof
           limitations had run out and relation back would be improper
        B. The judge should grantD2's motion for summaryjudgment, because,        eventhoughthe
           statuteof limitations hadnot run out, it was improper for thejudge to haveallowedP
           to amendhis complaint.
        C. The judge shoulddenyD2's motion for summaryjudgment, because amended  P's
           complaint aroseof the of the sametransactionor occurrenceas the original complaint
           and so relatesback.
        D. The judge shoulddenyD2's motion for summaryjudgment, because amended  P's
           complaint aroseof the of the sametransactionor occurrenceasthe original complaint,
           becauseD2 had noticethat it would be suedso that it will not be prejudiced,and
           becauseD2 shouldhaveknown that it would be suedbut for a mistakeby P.
        E. The judge should denyD2's motion for summaryjudgment, because statutethe      of
           limitations did not run out until December30, 1996.

Civil ~edure   Exam                    6                             ProfessorKlennan, Fall 2000

 9. Plaintiff, a citizen of California, sueddefendant, citizen of Nevada,in Nevadastatecourt,
 alleging that he was injured by a defectivetoasterand suffered $100,000in damages.Defendant
 manUfactured toaster. In its answer,defendantasserteda defensebasedon a recentfederal
 statutewhich barsproduct liability suits involving toasters. Defendantthen petitionedto remove
 the caseto federal court. Which of the following is most true?

                                               (1)      the
         A. Removal is proper for two reasons: because casecontainsa federalissue,and
                        the                       are
            (2) because plaintiff and defendant citizens of different states,andthe amount
            in controversyrequirementis satisfied.
         B. Removal is proper, only because casecontains a federal issue.
         C. Removal is proper, only because plaintiff and defendantare citizensof different
            statesand the amountin controversyrequirementis satisfied.
                                                 (1)      of
         D. Removal is improper for two reasons: because the defendantis from Nevada
          . and (2) because the well-pleadedcomplaint rule.
         E. Removal is improper,only because the well-pleaded complaint rule.

  10. At a battery trial, the key issuewas whetherthe defendantactually punchedthe plaintiff. The
 plaintiff's only evidenceon that issuewas his own testimony. Five witnessestestifiedfor the
 defendantat trial that defendant not punchedthe plaintiff, but rather that plaintiff had injured
 himself by tripping over a small animal. At the closeof all evidence,the defendantmovedfor
 lMOL. The judge did not grantthe motion. Thejury came back with a verdict for the plaintiff.
 The defendantthen renewedher motion fora lMOL, and also moved for a new trial. If the case
 is properly,in federalcourt, which of thefollowing would be thejudge' sbest rulings?

        A. The district courtjudge shoulddeny both motions.
        B. The district court judge shouldgrantthe JMOL motion, but not the new trial motion.
        C. The district courtjudge shouldgrantthe new trial motion, but not the JMOL motion;-
        D. The district courtjudge shouldgrant both motions.
        E. The district courtjudge shouldgrantthe JMOL and conditionally grant the new trial

Civil ProcedureExam                    7                              ProfessorKlennan, Fal12000

  [Questions11-16havebeenomitted,so that I can reusethem in future years. Because this,
  the exam endson page 10rathertharipage 13, as indicated on the cover sheet.]

  Answers to Multiple ChoiceQuestions1-10:

  1. E~,
  2. :D~I
  -'.   D.
  4. D
  5. A:~
  6. A.
  7. DE
  8. A.
  9. D.

Civil ProcedureExam                8                           ProfessorKleman, Fall 2000

 Directions for PartsII and III, reprintedword for word from the cover page.
        A) Make arguments both sides,wheneversuch argumentsare plausible.
         B) Make alternativearguments the sameresult, wheneversucharguments  are
        C) Addressall plausibleissues, spendmore time on issueswhich aremore debatable.
        D) Cite to cases,rules, andstatutes                                             when
                                              when relevant. You may leaveout parentheses
citing rules and statutes.That is, it is fme to cite Rule 12b6rather than 12(b)(6).

Pan II. (55 minutes)
Peterwas born in Michigan andlived thereuntil last year, when he moved to California to clerk
for a federaljudge. After his clerkshipis over, he plans to stay in California for a yearor two,
and then to return to Michigan. While in Michigan, he purchaseda new ElectroFuelectriccar
                                       in                                       in
for $30,000. ElectroFuis incorporated Delaware,and has its headquarters Massachusetts.
Most of ElectroFu's products,including its electric cars, are designedand manufactured    in
Michigan. While Peterwas driving in Massachusetts, car caughtfire, totaling the car and
destroying an $70,000painting Peterwas transportingin the tnmk. Peterwould like to sue
ElectroFu for defectivedesignof the car. In what court or courts can PetersueElectroFu? In
which court would you advisehim to sue?For the purposeof this question,you my ignore

Civil ProcedureExam                   9                              ProfessorKlerman. Fall 2000

Part 1lI. (15 minutes)

U.S. SenatorPugilist is consideringthe following proposedaddition to Rule 56:

        If, on a summaryjudgment motion, thejudge determinesthat there is a genuineissueof
        material fact but that the moving party is highly likely to prevail at trial, thejudge shall
        grant "provisional summary   judgment." If thejudge grantsprovisional summary
       judgment, the nonmovingpart shall havethe option of acceptingjudgment againstit or
       going to trial. If the nonmovingparty opts to go to trial and the moving party prevailsat
       trial, the nonmovingparty shall reimbursethe moving party for all costsand attorney's
       feesthat the moving party incurs in litigating and trying the casefrom the time of the
       granting of the provisional summary   judgment.

You are SenatorPugilist's residentlegal policy analyst. Write a memo evaluatingthis proposal.

Civil Procedm-e
              Exam                      10                               ProfessorKlerman. Fa112000


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