Question One

Question Two

Question Three

SMU School of Law December 13, 1993
Civil Procedure 1:30 p.m.
Professors Dolkart and Thornburg

This is an open book examination. You may use any books or materials you wish during the exam. Check to be sure that your copy of the examination contains pages sequentially numbered 1 through 9. The exam contains 3 questions, each of which should take approximately one hour to answer. The time allotted for a particular question approximates the maximum credit for that question; you should allocate your time accordingly.

Read the questions carefully. Discuss only the issues raised. Be sure to evaluate and discuss all possible approaches to each issue, but reach a conclusion that you think is correct given the applicable law and the facts. Fully explain the basis for your conclusions. Citation of cases or rule numbers is not a substitute for reasoned analysis of the issues. Your answer should be well organized and written in complete sentences.

Write legibly on every other line of your Bluebook. When you complete the examination, please return your Bluebook(s), being sure that your exam number appears on each Bluebook. If you have used multiple Bluebooks, please so indicate on the cover, e.g. "1 of 2"; "2 of 2"; and so on.

Good luck, and have a good holiday.

Plaintiff, Lakeside Bridge & Steel Company, is a Wisconsin corporation with its principal place of business in Milwaukee, Wisconsin. Defendant, Mountain State Construction Company, is a West Virginia corporation with its principal place of business in Charleston, West Virginia. In January 1992, Mountain State was preparing to bid on a construction project to construct the Gathright Dam and Reservoir near Charlottesville, Virginia. While Mountain State was preparing its bid, it was visited in its offices in West Virginia by Lakeside's agents, who solicited the subcontract to supply the structural assemblies needed for the dam and reservoir project. The Lakeside agent left a proposal for the structural assemblies work with Mountain State.

After Mountain State had been awarded the contract, it accepted the proposal by preparing and mailing a purchase order addressed to Lakeside in Milwaukee. Lakeside made a change in the purchase order and returned it by mail to Mountain State. The purchase order provided that the goods were to be supplied by Lakeside, "title transferred to Purchaser at Sellers Plant, Milwaukee Wisconsin, with transport at seller's expense to the rail siding nearest the project site."

Lakeside proceeded to manufacture the goods at its plant in Wisconsin and ship them to a siding in Virginia, where they were received by Mountain State and incorporated into the construction project. Subsequently Mountain State, asserting that the goods were defective in certain respects, withheld payment of $75,000, which represented a part of the purchase price.

Between the initial visit by Lakeside's agents to Mountain State and Lakeside's return of the purchase order, and thereafter until suit was filed, there were telephone conversations between Lakeside in Wisconsin and Mountain State in West Virginia, some placed by each party. There was also correspondence between the parties, some mailed by each party. Mountain State has no place of business or property in Wisconsin. It has never sent any officer, agent, or employee to that state; nor had it previously used suppliers or subcontractors from Wisconsin.

Lakeside filed suit in a Wisconsin state court to recover the unpaid balance under the contract, alleging that the court had personal jurisdiction over Mountain State under the Wisconsin long-arm statute which reads as follows:

(1) Any person, whether or not a citizen or resident of this State, who does any of the acts hereinafter enumerated, thereby submits said person to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of said acts:

    (a) The transaction of any business within this State;

    (b) The commission of a tortious act within this State;

    (c) The ownership, use, or possession of any real estate in this State;

    (d) Contracting to insure any person, property or risk located within this State at the time of contracting.

You are an associate in a law firm in West Virginia specializing in construction law. Mountain State has come to a partner in your firm for legal advice concerning how to respond to the law suit. The client is particularly concerned with having to defend this case in Wisconsin, and would like to know if there is any way to get the Wisconsin case dismissed or transferred closer to home. Of course, your firm also has an interest in having the case filed locally, especially in West Virginia, since the firm anticipates earning a healthy fee defending Mountain State if the case is litigated in West Virginia. The firm would also much prefer to litigate this matter in federal court.

You have been asked to determine if the Wisconsin court has personal jurisdiction over Mountain State. You are then to determine whether filing a motion to dismiss or some other strategy would best insure that the case ends up both in federal court and in either the Southern District of West Virginia or the Western District of Virginia. Write a memo evaluating the likelihood of success of a motion to dismiss for lack of personal jurisdiction and laying out your proposed strategy for using the available federal procedural rules and statutes to end up in one of the preferred federal district courts.

David Craig, a resident of Texas, was deer hunting on February 10, 1992, when he was shot in the right thigh by a bullet fired by Debbie James, a citizen of Oklahoma. He sued James for battery and for negligence, seeking $1 million in damages. The suit was filed in federal district court in Oklahoma.

1. The gun that fired the bullet was a Remington Model 700 rifle, manufactured by Remington Arms Co., Inc. Remington is a Texas corporation with its principal place of business in Oklahoma. James would like to bring Remington into the lawsuit in order to claim that it was the rifle's defective design that caused it to fire and injure Craig. Can she properly add Remington to this suit?

2. Assume that James adds Remington to the suit. Remington has a claim it would like to assert against Craig. It seems that Craig went on the Larry King show and claimed that Remington has a history of negligence in the design and manufacture of the Model 700 and is completely indifferent to the resulting death and dismemberment. Based on these statements, Remington wants to assert a defamation claim against Craig. Can it properly add this claim to this suit?

3. As long as Remington is in the lawsuit, Craig wants to go ahead and assert a claim against Remington for ordinary and gross negligence and strict liability for Craig's injuries from the shooting, which he again claims amount to $1 million. In addition, Craig believes that he was libelled by a Remington press release issued after the Larry King broadcast that referred to Craig as "a lying opportunist with a frivolous lawsuit." Can he properly include these claims in this suit? Would it matter whether Remington's claim against him were allowed?

4. Assume that the parties have tried to assert all of the claims described above and that the court has not yet ruled on whether they are proper. While the court is deliberating, the parties proceed with discovery. The following disputes arise:

a. When Craig was shot, he was admitted to the local hospital. The hospital, as required by law, notified the Consumer Products Safety Commission ("CPSC") that an injury had been caused by a Remington Model 700 rifle. On March 1, 1992, the CPSC notified Remington about the incident. On March 15, 1992, Remington's general counsel hired Paul Drake to investigate pursuant to Remington's policy of investigating all notices from the CPSC. Drake talked to Remington employees who designed and marketed the Model 700 and to James, and wrote a report to the general counsel on April 1, 1992. The general counsel sent a copy to Remington's CEO. Craig's lawyer first wrote a demand letter to Remington on December 13, 1992, and James filed her third party action on August 1, 1993. Paul Drake died on July 4, 1992.

It is now December 5, 1993, and no discovery has taken place. The parties have agreed that the new automatic disclosure provisions of Rule 26 apply to fact discovery in this case. How should Remington handle Drake's report under the new procedures? (You may assume that the report is relevant to disputed facts alleged with particularity in the pleadings).

b. Colt, Inc. manufactures a rifle very similar to the Model 700. Craig would like to get all of the documents concerning the development of Colt's gun and its predecessor products from 1950 to the present and Colt's profits from these products for the same time period. Are these discoverable? If so, what mechanism(s) could Craig use to get the documents?

c. The parties have agreed that discovery about expert witnesses will be governed by the pre-December 1, 1993 provisions of Rule 26. James has hired an expert witness, Bat Masterson, to testify about the shortcomings of the Model 700 rifle. Masterson's testimony is expected to be devastating to Remington. On the day before Masterson's deposition was scheduled to begin, James and Remington settle their claims. James is paid an undisclosed sum of money, and Masterson is assigned to Remington to be its expert witness. Masterson agreed to the re-assignment. It is clear that the settlement was contingent on this re-assignment of Masterson. Remington immediately announces that Masterson is no longer a testifying expert. Craig now wants to depose Masterson, and Remington objects. Should the court allow the deposition to take place?

Laura Petrie sued a supermarket chain, Ralph's Pretty Good Grocery, for injuries received when she fell while attempting to get a grocery cart. When she reached for the cart and tried to pull it out, several carts stuck together and Laura lost her balance, fell on her wrist, and broke it. The suit was filed in the federal district court for the Northern District of Texas.

Under the applicable substantive law, in order to prevail Laura would have to prove that the particular carts that caused her fall created a "dangerous condition" and that Ralph's was or should have been aware of the dangerous condition.

You are the law clerk for Judge Nicknite, the federal judge in whose court this case is pending. The judge wants your advice about the following motions.

A. Motion for Summary Judgment

1. Ralph's moves for summary judgment, arguing that there is no genuine issue of material fact about the existence of a "dangerous condition" or about Ralph's knowledge of any such condition. In support of its motion, Ralph's attaches the following portion of Laura's deposition testimony:

Q: Tell me what happened.

A: I walked in the store, and I was going to get my basket. And they were all stuck together. And I pulled with my right hand and they were all, at the beginning --

Q: In other words, they were inside each other, like they stack them?

A: Yes.

Q: Do you know why the baskets stuck together?

A: No.

Q: And every week when you shop at Ralph's, the baskets are stacked in the same way?

A: Yes, sir.

Q: You don't have any idea why the two or three or four of them stayed together?

A: No, sir.

Q: Did you ever make any sort of inspection of the baskets?

A: No, sir.

Q: Do you have any reason to believe that any employee of Ralph's knew about any problem with these particular baskets?

A: No, except there are a lot of baskets at that store that are in bad shape, and they must know that.

Ralph's also attached the affidavit of Allen Brady, the manager of the Ralph's store where Laura fell, which stated that Ralph's cares about its customers and would never knowingly allow a dangerous condition to exist.

IF LAURA DOES NOT RESPOND TO THIS MOTION, SHOULD THE COURT GRANT SUMMARY JUDGMENT FOR RALPH'S?

2. Ralph's makes the same motion described above, with the same supporting material. Laura opposes the motion, and attaches to her opposition the following additional excerpts from her deposition [this time, the testimony was given in answer to questions from Laura's own lawyer].

Q: For the sake of clarification, you are not saying that you actually bent down and made a close inspection of those baskets, are you?

A: That is right.

Q: But at the same time you are not saying that you just walked in and reached around without even looking, are you?

A: No, sir.

Q: You did look at the baskets?

A: I looked at them just like that, that is all, when I went to get one.

Q: What was the condition of the baskets on the day you fell?

A: I didn't see the baskets then, but I know they were pretty old in that store.

Q: How long have you shopped at this particular Ralph's store?

A: About five years.

Q: Did you ever see the grocery carts taken outside onto the parking lot?

A: Yes. Some of the kids take them outside and play with them.

Q: Did you ever see anyone abandon a cart out there and leave it out in the parking lot?

A: Yes.

Q: Did you ever notice carts at Ralph's that were bent?

A: Sometimes. I didn't pay any attention.

Q: Did you ever notice the carts were in less than perfect condition?

A: Yes, sir, because the wheel would go this way and that way, wouldn't go straight.

SHOULD THE COURT GRANT RALPH'S MOTION FOR SUMMARY JUDGMENT?

B. Motion for Judgment as a Matter of Law

Assume that the court denied Ralph's motion for summary judgment. Assume further that the testimony described above is trial testimony rather than deposition testimony.

During Laura's presentation of her case, she called the following additional witnesses:

*Sally Rogers. Sally testified that she was shopping at Ralph's on the day that Laura fell. She had a hard time separating her grocery cart from the others, and complained about it to an employee whose uniform shirt had the name "Mel" on it.

*Mel Cooley. Mel testified that he is a stock clerk and grocery sacker at Ralph's. He said that some customer had complained about the baskets sticking, but that she was a whiner who always complained about nothing and so he ignored it. He testified on cross examination that grocery carts are supposed to stick together, so he did not regard the complaint as something requiring action on his part.

During Ralph's presentation of its case, it called the following witnesses:

*Allen Brady. Allen testified that he inspected the grocery carts 30 minutes after Laura fell, and there was nothing wrong with any of the carts that would cause them to stick together. On cross examination, Brady testified that Mel Cooley has been reprimanded three times in the past for laziness. He further testified that he has worked for Ralph's for thirty years and that since the time of Laura's fall he has been assigned to manage a bigger Ralph's in a wealthier neighborhood.

*Buddy Sorrell. Buddy testified that he is a property accountant for all of the Ralph's stores in Texas. His job is to keep records of all equipment purchased for Ralph's, including grocery carts. The Ralph's where Laura fell received a shipment of 50 new carts a year before the fall. That store has a total of 50 to 65 baskets.

*Millie Helper. Millie testified that she works for Ralph's and is the supervisor in charge of repairing baskets in the Dallas, Tarrant, and Collin County stores. During the year that Laura fell, each store was visited for basket repairs every 90 days. About 25 damaged baskets would be repaired or replaced on each visit. On cross examination, she testified that the store where Laura fell was a "high loss" store, meaning that there was a high rate of basket damage and disappearance. High loss stores are not visited for repairs any more often than other stores. She further testified that basket frames become bent when hit by cars or damaged by children, and that this could cause a row of baskets to stick together.

The testimony described above is the only testimony relevant to the issue of the condition of the carts or Ralph's knowledge of the condition, if any.

Ralph's moves for judgment as a matter of law at the close of all of the evidence on the ground that Laura has not shown any dangerous condition in the particular carts that caused her to fall, and, in the alternative, that Laura has not shown that if there was a dangerous condition that Ralph's knew or should have known of the condition.

THIS COURT USES THE FEDERAL STANDARD FOR RULING ON MOTIONS FOR JUDGMENT AS A MATTER OF LAW. SHOULD THE COURT GRANT RALPH'S MOTION?