Sample Civil Procedure Exam Answers

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LexisNexisQuestions and Answers: Civil Procedure is designed to facilitate both continuous review and preparation for examinations. It provides an understanding of civil procedure and gives a clear and systematic approach to analysing and answering problem and exam questions. Each chapter commences with a summary of the relevant law and key issues. A suggested answer plan, a sample answer and comments on how the answer might be assessed by an examiner are provided for each question. The authors also offer advice on common errors to avoid when answering the problems.

Andrew Hemming is an Associate Professor in the School of Law and Justice, University of Southern Queensland. Andrew teaches and researches in criminal law and evidence, with a particular interest in the Criminal Codes.

Identify yourself on your blue books only by your examnumber. By placing your exam number on your blue book and bysubmitting your blue book for credit, you are agreeing to thefollowing pledge as required by law school policy:

1. Patterson, citizen of Mississippi, commenced a civilaction against Dwayne, citizen of Alabama in United StatesDistrict Court for the Northern District of Mississippi. Thecomplaint contains two causes of action. The first is a tortclaim for an automobile accident that allegedly occurred on Sept.1, 2003 in Mississippi. The second is a tort claim for assaultand battery that allegedly occurred at a football game inNovember 2004 in Tennessee. The claims are not related. Patterson demands personal injury and property damages inconnection with the automobile accident in the amount of $50,000. He demands personal injury damages in connection with the assaultin the amount of $25,000, and he demands punitive damages inconnection with the assault in the amount of $50,000.

Prior to serving an answer, Dwayne moves to dismiss for lackof personal jurisdiction pursuant to Rule 12. The trial courtdenies the motion, and Dwayne answers the complaint. Sometimeafter answering the complaint, Dwayne moves to dismiss for lackof subject matter jurisdiction.

2. Presley, citizen of Mississippi, entered into a writtencontract with Dudley, citizen of Tennessee, for the sale of 100acres of land in Mississippi. The agreed purchase price was$100,000. The real estate agent, Paul, who was a citizen ofTennessee, was supposed to receive ten percent of the purchaseprice upon completion of the sale.

You are clerking for Dudley's lawyer. She has twoquestions. First, she asks whether the federal court has subjectmatter jurisdiction over Paul's claim. Second, she asks whetherDudley may file a counterclaim against Paul for allegedmisrepresentations made in connection with the sale of land.

4. Phil Pinkerton was born and raised in Hinds County,Mississippi. He was a successful baseball player in high schooland was actively recruited by several colleges. DuringPinkerton's senior year in 1999, Robert Barker, a graduate of theUniversity of Northern Tennessee (UNT) who lived in the northernpart of Mississippi watched Pinkerton play baseball and arrangedto visit Pinkerton and his parents at the Pinkertons' home. Hepersuaded the Pinkertons to visit the UNT campus and helpedfinance the visit.

As a result of the visit, UNT sent Pinkerton a written offerof admission and an offer of an athletic scholarship. WhilePinkerton was trying to decide what to do, Barker said, "Iguarantee you won't regret signing with UNT." Pinkerton signedthe contract in Mississippi and returned it by mail.

In April 2001 during a home game at UNT, Pinkerton's handwas badly cut when it came in contact with the visor worn by amember of the visiting team. The visiting team was from theUniversity of Southern Kentucky (USK). USK investigated theaccident and learned that the hat had a sharp metal object in thevisor. The hat was purchased by USK from A&B Sportswear. A&BSportswear is partnership made up of Abe Able, a citizen ofWisconsin, and Bee Baker Inc., a corporation incorporated inDelaware with its principal place of business in Detroit,Michigan.

Pinkerton has commenced a civil action in MississippiChancery Court for Hinds County naming Robert Barker and A&BSportswear as defendants. The complaint asserts claims againstboth defendants based on tort and demands money damages in theamount of $1,000,000.

A&B Sportswear has filed a notice of removal to federaldistrict court for the Southern District of Mississippi, thedistrict in which Hinds County is located. In the motion itargues that because the Mississippi three-year statute oflimitations for torts has expired, Pinkerton's claim againstBarker is invalid as a matter of law and Barker was fraudulentlyjoined.

The trial judge asks you two questions. First, he asks foryour advice on how to rule on the motion to dismiss forfraudulent joinder. Second, he asks whether the fact that theaction was commenced in Chancery rather than Circuit courtaffects the federal court's jurisdiction. Please advise.

5. Same facts. Immediately after removing and beforeserving an answer, A&B Sportswear moves to dismiss on the groundthat venue does not lie in the Southern District of Mississippi. Please advise the judge as to the federal court's venue in thisaction.

6. Pam Peterson sued the state of Alabama in United StatesDistrict Court for the District of Colorado for assault andbattery and other torts in connection with her serving a prisonsentence for a criminal conviction that was eventually reversed. The state responded with a motion to dismiss for lack of subjectmatter jurisdiction, which the trial court denied.

Red Henna Shampoo is manufactured in Thailand by Red HennaManufacturing Corp., a corporation incorporated under the laws ofThailand. The shampoo is imported and distributed in the UnitedStates by Mega Mart Stores, Inc., a corporation incorporated inDelaware with its principal place of business in New Jersey.

The manufacturer advertises its products in magazines likeSixteen and Metrogirl that are aimed at teenage female readersand widely distributed throughout the United States. Itsadvertisements claim that Red Henna shampoo will add red streaksand highlights to hair. The manufacturer also hosts a web sitewith various interactive features that allow browsers to learnmore about the company's products. Although its products cannotbe purchased directly from the company over the Internet, the website does contain an icon that permits browsers to send and emaildirectly to company employees in Thailand.

Red Henna's shampoo is packaged in a box with the logo "Forthe New American Girl! For the New American You!" The shampoois advertised as containing all natural ingredients, including"red henna." The box contains a 1-800 telephone number forcustomer communications. However, the telephone number printedon the box does not exist, and the company never obtained a toll-free number to facilitate telephone communications withcustomers.

Missy Harrison is a fifteen-year old girl who was born inCanada but is an alien admitted to permanent residence domiciledin Lamarville, Mississippi. Missy always wanted red hair. Oneday while shopping for shampoo at the local Mega Mart Store, shewas attracted by the claims on the packaging on Red Hennashampoo. She bought a bottle, took it home, applied it asdirected, rinsed, and repeated.

When she brushed her hair, Missy was horrified to find largeclumps of bright orange hair falling off her scalp. She sufferedchemical burns from synthetic (non-natural) ingredients in theshampoo, and has to have two expensive and painful medicalprocedures. Moreover, her boyfriend dumped her the day beforethe prom.

Missy has commenced a civil action against Red HennaManufacturing Co. and Mega Mart Stores, Inc. in United StatesDistrict Court for the Northern District of Mississippi, thedistrict where Lamarville is located. She demands damages in theamount of one hundred thousand dollars. Defendants have moved todismiss for lack of personal jurisdiction, lack of subject matterjurisdiction, and improper venue. Rule on the motions andexplain.

Mrs. Mergatroid was born and lived her entire life inMemphis, Tennessee. She owned one valuable item of jewelry, herengagement ring. During the last three years of her life, shelived at Happy Time Retirement Center in Memphis. She died onDecember 9, 2003.

Mrs. Mergatroid had three daughters, Anne, Beth, and Cathywho also lived in Memphis. She promised at different times toleave her ring to each daughter. In a will executed in 1999, sheleft the ring to Anne. But when Anne forgot her birthday in2000, Mrs. Mergatroid sent a note (written entirely in her ownhandwriting) to Beth which ended, "By the way I hereby revoke allprior wills and leave you my engagement ring." On Mother's Dayin 2001, after Beth forgot to send her mother a card, Mrs.Mergatroid handed the ring to Cathy and said, "I always knew youloved me best. Here is the ring. Put it somewhere safe for meand when I die it is yours."

Cathy took the ring and placed it in a safe deposit box thatshe rented at a branch of Southaven National Bank in Southaven,Mississippi. The Bank is incorporated under the laws of Delawareand has its principal place of business in Southaven,Mississippi.

In 2002 Mrs. Mergatroid executed a new will revoking allprior wills but making no reference to the ring. Her 2002 willappointed her brother Bob Mergatroid as executor of her estate. At the time she executed the will in 2002 Bob Mergatroid was alawyer who lived and practiced in Memphis. But in 2003 BobMergatroid retired and moved to a retirement community innorthern Mississippi.

During 2003 Mrs. Mergatroid became increasingly forgetful. On separate occasions, she promised the ring to a large number ofhealth care providers and fellow residents at Happy TimeRetirement Center. Over one hundred persons (some of whom havedied) received such promises. Most of these people did notbelieve she meant to give them a ring. But a few people may havebelieved they had a special relationship with Mrs. Mergatroid andmight really have expected her to leave them the ring.

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