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									Civil Procedure                                                                      Maranville




                               Skanars v. Creative Tattoos
                           Summary Judgment Simulation Exercise


For our final written exercise and the final installment of our simulation exercise, Yvonne
Skanars v. Creative Tattoos, Inc. you will draft a summary judgment motion and supporting
Affidavits (or the Washington variation, the sworn but not notarized Declaration), respond to
opposing counsel’s motion (if you choose), and orally argue the motion before a judge. You will
work in your original four person teams to draft the written work, and do your oral arguments in
two-person teams, as indicated on the attached sheet. In order to keep this assignment
manageable, this is a “closed universe” problem based on the materials summarizing the
applicable law. Do not perform additional legal research.

1) Background: Summary Judgment Motions

Under both FR 7(b) and the corresponding state rule, “[a]n application to the court for an order
shall be by motion . . . shall be made in writing, shall state with particularity the grounds
therefore, and shall set forth the relief or order sought.” The state rule also provides that “[w]hen
a motion is supported by affidavits or other papers; it shall specify the papers to be used by the
moving party.”

In many courts, the motion itself is very brief and the legal argument supporting the motion is
submitted in the form of a memorandum or brief. In recent years, other courts, including both
the Federal District Court for the Western District of Washington, and the King Co. Superior
Court, have adopted rules that require the legal argument in support of the motion to be
incorporated in the motion itself. See U.S. D.Ct. W.D. WA, CR 7(b)(1) and King Co. LR.
7(b)(4)(B).

The purpose of this exercise is not to teach you how to write a memorandum or brief, but to help
you understand:
    The legal standard for granting a summary judgment (“no genuine issue as to any
       material fact and that the moving party is entitled to judgment as a matter of law” – that
       part’s easy);
    What the parties must present to the judge in order to demonstrate that the legal standard
       is met. For the facts, affidavits (signed in front of a notary) or, in Washington
       declarations sworn under penalty of perjury, and references to the discovery;
    How the court determines whether the legal standard is met.

At the same time, however, you cannot understand these summary judgment requirements except
by applying the standard to specific legal issues. So, for this exercise you will prepare a motion,
declarations, and an abbreviated summary of the legal argument using the format used in our
local courts. The legal argument may not exceed three double-spaced pages. If you prefer it
may be an outline, or some other form that does not consist of complete sentences. It goes under


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Civil Procedure                                                                    Maranville

the Authorities heading in the template. I’ve started a “point heading” for your summary that
you should complete as appropriate.

2) Background: Where We Are in Skanars v. Creative Tattoos

Pleadings
Make the following assumptions as to the pleadings filed in this case:
     The complaint filed in this case is the one filed by your plaintiff’s group for the
       complaint drafting exercise last quarter.
     The answer filed in this case is the one filed by your defendant’s group in response to
       plaintiff’s complaint.
     Thus, the complaint and answer determine what was alleged and admitted or denied, as
       well as what court you are litigating in.
     If defendant did not raise the affirmative defense of release in the original answer,
       assume that defendant has properly amended the answer to add it.

Discovery

Unlike the F.R.Civ. P.’s, the Washington Civil Rules for Superior Court do not require initial
disclosures. Assume that in both courts, the parties have taken depositions of the key witnesses,
and that plaintiff has obtained through requests to produce documents the release form, the
health department report, and a Creative Tattoos employee work schedule for November 22,
2002 that does not show Sarah Meyer on the work schedule. Relevant excerpts from the
depositions are available on the website casefile and attached to these instruction.

3)     Tasks

Your tasks are as follows:

Plaintiff’s Lawyers
1) Prepare a motion for partial summary judgment on behalf of Yvonne Skanars, including
   references to the discovery, as appropriate to support your motion. Follow the format of the
   plaintiff’s summary judgment template for federal or state court, as appropriate (these are
   posted on the website). Include both the negligence per se and release issues. Instead of
   relying on the answers to the discovery, if you prefer you may submit declarations in support
   of your motion, using the appropriate declaration template on the website. If you choose to
   submit declarations, stick to the information uncovered in the interviews, follow-up
   investigation, and discovery. (In other words, do not go off on a lark creating favorable facts
   that are not otherwise available.) Note that this is a “partial” summary judgment, because it
   concerns liability, not damages.

2) Explain in no more than a page whether you expect to win this motion and why or why not.

3) After you receive Creative Tattoo’s Motion for Summary Judgment, prepare your response,
   if any. This could be an affidavit (or declaration), or a short legal argument citing any



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Civil Procedure                                                                     Maranville

   applicable authorities. Use the declaration template previously provided for a factual
   response. If you decide not to respond, explain why.

4) Sign up to argue your motion.


Defendant’s Lawyers
1) Prepare a motion for summary judgment on behalf of Creative Tattoos, including references
   to the discovery, as appropriate to support your motion. Follow the format of the
   defendant’s summary judgment template for federal or state court, as appropriate (these are
   posted on the website). Instead of relying on the answers to the discovery, if you prefer you
   may submit declarations in support of your motion, using the appropriate declaration
   template, and refer to them in your motion. If you choose to submit declarations, stick to the
   information uncovered in the interviews, follow-up investigation, and discovery. (In other
   words, do not go off on a lark creating favorable facts that are not otherwise available.)

2) Explain in no more than a page whether you expect to win this motion and why or why not.

3) After you receive Yvonne Skanars’s Motion for Partial Summary Judgment, prepare your
   response, if any. This could be an affidavit (or declaration), or a short legal argument citing
   any applicable authorities. Use the declaration template previously provided for a factual
   response. If you decide not to respond, explain why.

4) Sign up to argue your motion.

4) Schedule

Task                                                 Due Date
Motion for Summary Judgment                          Tuesday, February 15, 1:30 p.m.
(with supporting affidavits)

Response to Motion for Summary Judgment              Friday, February 18, 5 p.m.

Oral Arguments                                       Tuesday-Friday, February 22-25


4) Format, Filing, and Service Requirements

   1) In a header at the top right hand corner of your motion, write your group number and the
      time and date you are scheduled for oral argument. Your motion will not be accepted
      without this information.

   2) Serve your motion, or response, on opposing counsel electronically through the Law
      Firms on the course website. Then file them electronically with the Clerk’s Office on the
      course website.




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Civil Procedure                                                                 Maranville




5) Resources
Applicable Law (previously distributed)

RCW 5.40.050 (negligence per se)

RCW 70.54.350 (sterilization)

WAC 246-145-030 (sterilization)

Vodopest v. MacGregor, 128 Wash. 2d 840 (1996) and related cases as cited in Washington
Practice (advance release of liability)

Sample Summary Judgment Motions

On reserve:

Louis Grossman and Robert G. Vaughn, A DOCUMENTARY COMPANION TO A CIVIL ACTION, pp.
580-581 (motion) and pp. 558-577 (excerpts from Memoranda in support of and opposing
motion for summary judgment)

Nan Hunter, THE POWER OF PROCEDURE: THE PAULA JONES CASE, pp. 147-157 (excerpts from
Memoranda in support of and opposing motion for summary judgment)

6) Points

Total Exercise: 5 pts possible

Written Portion: 3 pts possible
   2 pts: for completion of the motion, declarations, and response
   1 pt: if your paperwork demonstrates that you can apply the summary judgment test (“no
      genuine issue as to any material fact” and “moving party is entitled to judgment as a
      matter of law”) appropriately to the issues in this case.

Oral Argument: 2 pts possible
    1pt: for doing the oral argument
    1pt: if your argument is exceptionally clear and well organized in explaining what the
      court should do.




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                                Skanars v. Creative Tattoos
                            Summary Judgment Simulation Exercise
                                 Excerpts From Discovery

Deposition of Yvonne Skanars- (by counsel for Defendant)

Q. Showing you the document marked as Ex. 1. Do you recognize it?

       A. Yes, I believe so.

Q. What is it?

       A. It’s a form that I signed before I had the tattoo done.

Q. I take it that you read it before signing it?

       A. Yes, of course

Q. And how many years of education do you have?

       A. I have a master’s in public policy

Q. When did you have the tattoo done?

       A. November 22, 2002. I remember, because it was my fiftieth birthday

Q. Who performed the tattoo on you?

       A. Well, I don’t recall her name, but she was a young woman, probably about thirty, tall
       and thin, with a red streak in long, dark hair. She told me she hadn’t been working there
       very long.

Q. Did you notice anything unusual while you were being tattooed?

       A. Well, a machine with some of the instruments came unplugged. The woman doing
       the tattoo plugged it back in and went on with the process. I didn’t think anything of it at
       the time.

Q. Did the woman performing your tattoo take any of the instruments out of the machine after it
became unplugged?
      A. Yes

Q. Did she use any of those instruments while working on your tattoo?

       A. Yes



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Civil Procedure                                                                    Maranville




Deposition of Dr. Isley- (by counsel for plaintiff)

Q. What are the possible causes of Hepatitis B?

   A. Hepatitis B can be transmitted by using unsterilized needles or sharp instruments either
   in the context of illegal drug use, improper medical treatment, or tattooing. It can also be
   transmitted by sexual contact.

Q. Based on a reasonable medical certainty, what is your opinion as to the cause of Ms.
Skanars’s Hepatitis B?

   A. Given the timing of the onset of the disease, and the timing of the tattoo, as well as the
   health department’s finding, it is my opinion, based on a reasonable medical certainty, that
   the Hepatitis B was transmitted to Ms. Skanars when she received her tattoo.


Deposition of Johnny Wilson- (by counsel for plaintiff)

Q. How many employees do you have?

       A.. Five

Q. And how many of them perform tattoos?

       A. Three

Q. And, of these, how many men and how many women?

       A. Three men and two women

Q. And when were each of these employees hired?

       A. Well, the men have been with me the longest. Jamal’s been with me since I opened
       the shop. That was in 1993. I hired Ernesto in 1998 and Jake in 1999. Gillian started in
       2000, and Sarah Meyer came on the middle of 2002.

Q. Could you tell me what Gillian looks like? Or more precisely, what she looked like in
November, 2002?

       A. Oh, she’s about forty, five six, short, blonde hair, glasses.

Q. And Sarah Meyer?




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Civil Procedure                                                                    Maranville

       A. Sarah. Oh, Sarah’s about thirty, about 5’10’, slender. Medium length, dark hair.
       Usually has a streak in it of some color. I don’t remember what her hair was like back in
       November 2002.

Q. And I assume you keep records of your employee work schedules?

       A. Sure.

Q. Court reporter, could you mark this document as Deposition Exhibit A. Counsel: Mr.
Wilson, I’m showing you the document marked Deposition Ex. A. Do you recognize this?

       A. Yes, I do.

Q. Tell us what it is?

       A. Oh, that’s our work schedule for November 22, 2002

Q. Mr. Wilson, according to your records, was Ms. Meyer scheduled to work on November 22,
2002?

       A. No, she was not.

Q. And would your records indicate if the work schedule changed?

       A. They should.


Q. Court reporter, could you mark this document as Deposition Exhibit B. Counsel: Mr.
Wilson, I’m showing you the document marked Deposition Ex. B. Do you recognize this?

       A. Yes

Q. Tell us what it is.

       A. It’s a report from the health department.

Q. And was there anything unusual in this report.

       A. Yes

Q. What was that?

       A. Well, they did a special inspection because Yvonne Skanars’ doctor reported her case
       of Hepatitis B to them, and suggested that she got the hepatitis from the tattoo we did for
       her.




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Civil Procedure                                                                   Maranville

Q. And what did the Department of Health find?

       A. Well, they talked to Sarah Meyer and she indicated that she had accidentally
       unplugged an autoclave back in November and started it up again without following the
       proper procedure.

Q. And you don’t have any reason to believe that this incident did not happen as Ms. Meyer
described, do you?

       A. No

Deposition of Sarah Meyer- (by counsel for Plaintiff)

Q. Did you work at Creative Tattoos on November 22, 2002.

       A. Umm. Well, you know, I don’t think so. I know I wasn’t schedule to work that day.
       And my dad was really sick – lung cancer, you know – so, uhm, I don’t think I would
       have worked extra. I know sometimes we trade shifts when an emergency comes up, but
       I don’t remember doing that then.

Q. Do you recall doing a tattoo on a woman named Yvonne Skanars on November 22, 2002?

       A. No. I’m sorry, I don’t remember doing that.

Q. And do recall doing a tattoo on a woman named Yvonne Skanars on another day within a
month of that date?

       A. Y’know. I was so stressed about my dad and all, I really don’t remember a thing.
...

Q. Now, you told the state health inspector that you had accidentally unplugged the autoclave
sometime back in November, 2002, isn’t that right?

       A. Yeah, I guess so.

Q. And you told the state health inspector that after you unplugged the autoclave, you plugged it
back in and went ahead and used the sharp instruments in the autoclave?

       A. Yeah.

Q. And you did in fact accidentally unplug the autoclave device?

       A. Yes

Q. And you used the sharp instrument tattooing equipment in the autoclave without letting the
autoclave complete the full cycle?



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Civil Procedure                                                              Maranville



       A. Yes

Q. And that was in violation of the manufacturer’s instructions?

       A. Yes
.



Documents Produced by Defendant Creative Tattoos in Response to Plaintiff’s Request for
Production of Documents

The release of liability signed by Ms. Skanars on November 22, 2002

Department of Health Tattoo, Permanent Makeup and Body Inspection Checklist of February 12,
2003

Creative Tattoo’s Employee Schedule for November 22, 2002




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