Civ Pro Exam 1997

CIVIL PROCEDURE EXAMINATION
Fall 1997
Professor Thornburg
(Note: 1997 Grading Key follows text of exam)

This examination consists of four essay questions, each of approximately equal weight. You should read each question carefully, and think about your answer before you begin to write. All assigned texts, your personal notes, and any materials you prepared or acquired may be brought into the exam. Your answers should be well organized and written in complete sentences. A diagram is not an answer. Please write only on every other line of your bluebook.

Read the following facts carefully. They apply to all questions.

Gomez and Morticia Addams are lawyers. After graduation, they both began practice in Texas. After she became a partner at her law firm, Morticia had a baby son, Pubert. Both parents were thrilled with the child, and both reduced their billable hours in order to spend more time with him. Concerned about quality child care, the Addamses contacted Nanny Nation, a respected national agency that trains and recruits child care providers from throughout the United States and the world, providing those nannies to families all over the United States. Through Nanny Nation the Addamses hired Debbie Jelinsky, a twenty-two year old British citizen, to live in their home, do light housework and cooking, and care for Pubert while they were at work. After about a month, the Addamses decided that a simpler life would be better for their family, and they moved to Montana, taking Debbie with them. Debbie intended to return to England at some point, but was happy living with the Addamses for the time being.

About a month later, tragedy struck. Debbie picked up Pubert from Gymboree and was driving him home. Unfortunately, Debbie had succumbed to homesickness for the local pub and had three beers before getting Pubert. On the way home they were involved in a serious traffic accident. Debbie suffered only superficial injuries, but Pubert received significant head and neck injuries (despite the fact that he was firmly and correctly placed in his car seat). The Addamses fired Debbie, and she returned home to England.

Pubert has recovered from most of his injuries, although the doctors continue to watch for signs of permanent brain damage. The Addamses have paid substantial medical bills for his treatment, and have lost income while tending to his psychological and medical needs. They have suffered from mental anguish, watching Pubert suffer from his injuries. They no longer feel comfortable leaving Pubert with anyone other than a family member, and so Gomez has retired from practice and takes care of Pubert full time. They want to sue Nanny Nation for damages.

QUESTION ONE

Nanny Nation is a Delaware corporation with its principal place of business in Massachusetts. It recruits nannies by interviewing at high schools and colleges, primarily on the east coast of the United States and in English-speaking countries worldwide. They also place advertisements in magazines aimed at young women, such as Seventeen, Glamour, and their international equivalents. Prospective nannies send their resumes to the Massachusetts office. If they make the initial cut, the nannies are interviewed, sometimes at the Massachusetts home office, and sometimes in their own home state or country. Nanny Nation also does a background check on each applicant by calling references and checking for criminal records. Once selected, nannies receive a month-long training course (in Massachusetts) before they are eligible to be placed.

Nanny Nation solicits business from prospective customers in a number of ways. It advertises in Parents, a nationally-circulated magazine aimed at parents of young children. Parents sells about 25,000 copies a month in Texas, and about 1,000 copies a month in Montana. It employs a public relations director, who strives to get news organizations to write favorable stories about Nanny Nation and about the "nanny option" in child care. It also operates a web-site, which gives general information about the agency and solicits direct inquiries by phone (to its 800 number) or E-mail.

Nanny Nation has never placed a nanny directly in Montana, and has never recruited a Montana resident to serve as a nanny. (It's not that they're not willing to; it just has never happened). It has no office, employees, agents, or phone there. It is not licensed to do business there. Since it checks on existing nanny placements regularly, Nanny Nation was aware that Debbie and the Addams family had moved to Montana. Nanny Nation called the Addamses in Montana once to ask whether they were still satisfied with Debbie. Nanny Nation received four checks from the Addamses (for $25 each) that were mailed from Montana but drawn on a Texas bank.

The Addamses learned of Nanny Nation through neighbors. Morticia Addams called Nanny Nation at its Massachusetts office. A local representative visited the Addamses in their home, interviewed them about their needs, and sent that information on to the Massachusetts office. Debbie was recruited by Nanny Nation's London office. The contract between Nanny Nation and the Addamses was signed by Nanny Nation in Massachusetts and then sent to the Addamses in Texas, where they signed it. Nanny Nation was paid a one-time fee of $5,000 for locating and training Debbie as well as $25 per week as long as Debbie remained with the Addamses. The contract between Debbie and the Addamses was signed by Debbie in England and by the Addamses in Texas. It provided for monthly payments by the Addamses to Debbie. Either party could cancel the contract at any time with thirty days notice to the other. Neither contract has a choice of law or choice of forum clause.

The Montana long-arm statute provides for personal jurisdiction where a defendant has:

"(1) entered into a contract to be performed in whole or in part in Montana; (2) committed a tortious act in Montana; or (3) committed other acts which may constitute doing business in Montana."

The Addamses want to sue Nanny Nation in federal district court in Montana (the entire state is a single judicial district). Since they're lawyers, they're aware that there may be issues about jurisdiction and venue. They also know that they are too emotionally involved in the case to think clearly, so they have come to your law firm for help. They want to know whether they can file the suit in Montana and keep it there. (If it's likely to move, they'd like to know where it could go.)

You are new associate at the law firm. The senior partner in charge of the Addams matter is your new Mentor. She has asked you to research each of these issues. You want to make a good impression, and you know that she prefers to know her clients' strengths as well as their weaknesses. She has also told you she's not interested in any issues of subject matter jurisdiction (she has a good feel for that herself). Write her a memo that she can use to advise the Addamses.

QUESTION TWO

The Addamses have decided to go ahead and file suit against Nanny Nation in federal court in Montana. (They have already settled their claim against the driver of the other car involved in the accident.) The Addamses are alleging that Nanny Nation negligently recruited and trained Debbie and defrauded them by saying that Debbie was "well qualified to care for small children." The Addamses further allege that as a result of both the negligence and the fraud, they hired a nanny with a drinking problem and that the drinking caused the automobile accident which injured their child. In order to prove negligence, the Addamses will have to show that Nanny Nation was not as careful as a reasonable child care agency would have been under the same or similar circumstances, and that that negligence caused their injuries. In order to prove fraud, the Addamses will have to show that Nanny Nation knew that Debbie was not well qualified when it made that representation, that the representation was false, that they relied on the representation, and that it caused their injuries.

The complaint states:

"Nanny Nation was negligent in hiring Debbie Jelinsky without adequately checking her background. Further, Nanny Nation defrauded plaintiffs into believing that Debbie Jelinsky was 'well qualified to care for young children', as stated in its promotional literature. In fact, Debbie Jelinsky was prone to drink and drive and was therefore not so qualified, as Nanny Nation well knew."

There were no further factual allegations elaborating on these allegations.

The lawsuit has been an active one. First, Nanny Nation filed a motion for more definite statement, arguing that the Addamses must plead their claims more specifically. Next, a bunch of new claims and parties were added. Nanny Nation brought Debbie into the lawsuit, claiming that Debbie is really the one responsible for the accident and so she should have to pay the judgment, or at least contribute to its payment. Then Debbie responded by bringing a claim against the Addamses for slander. She says that since the accident, the Addamses have been telling their Montana friends and neighbors bad things about Debbie, calling her a "child abuser" and a "drunken monster" because she drove while intoxicated with their baby in the car.

Your clients, the Addams family, are also considering additional claims. First, they think they might have a breach of contract claim against Nanny Nation, but they hate to clutter a tort lawsuit with contract claims. They also prefer the tort measure of damages, the possibility of punitive damages for the fraud claim, and don't want to worry about all that contract law about consequential damages. The Addamses also wonder if the airbag in their Chrysler minivan contributed to Pubert's injuries. On the other hand, they hate to add a new and well-financed defendant.

Please write (yet another) memo to your Mentor partner. She wants you to discuss:

1) how the Addamses should respond to the motion for more definite statement (including any potential lurking Rule 11 liability);

2) whether Debbie was properly brought into the lawsuit;

3) whether Debbie's slander claim against the Addamses is properly joined in this lawsuit (the Addamses would prefer that the court's time and attention not be distracted from its claims about Pubert's injuries, and they are furious that Debbie is suing them); and

4) whether the Addamses can defer their contract claim against Nanny Nation and their tort claim against Chrysler until after this lawsuit is over.

Don't raise any issues of subject matter jurisdiction. Another associate has been assigned that problem.

QUESTION THREE

Addams v. Nanny Nation is now entering the discovery phase. The District of Montana has opted out of the automatic disclosure rules, so the parties will use formal discovery from the beginning. Right now, the Addamses and Nanny Nation are the only parties to the suit, and the only claims are for negligence and fraud. (All other claims have been abandoned or resolved by the parties and eliminated from the lawsuit). The Addamses claim actual and punitive damages for both parents and for Pubert.

A number of issues have arisen during discovery. First, Morticia Addams is seeking damages for mental anguish, alleging that caring for her injured infant has caused her great distress. Such damages are theoretically recoverable under applicable tort law. Nanny Nation has learned that while she was in law school, Morticia saw a therapist and was treated briefly for depression. Nanny Nation has sent the Addamses a Request for Production of Documents seeking the therapist's records.

Second, Nanny Nation is skeptical of Gomez Addams' lost income claim. They think that his practice in Montana was speculative from the beginning and already doomed to failure before Pubert's injury. It therefore has requested production of "any and all documents evidencing the past and potential income from and expenses of Gomez Addams's law practice" from the time he moved to Montana through the present. This would include both law firm financial statements and individual client files and billing records.

A third discovery dispute surrounds the Nanny Nation Claims Manual. Nanny Nation was aware of the potential problems that could arise if it chose its nannies poorly. It was concerned about its potential liability, about possible harm to its clients' children, and about damage to its business reputation. Therefore, about a year before the Addamses first contacted them, Nanny Nation's executive director Mary Poppins instructed Tully Alford, the company's general counsel, to draft a manual regarding claims procedure and he did so. The claims manual discusses the applicable law, the proper procedure for talking to clients with complaints, the proper response to discovery requests, and the company's strategy for defending lawsuits against it. Ten copies of the manual have been made. They were distributed to the President, Marketing Manager, Human Resources Director, Training Manager, Nanny Placement Director, and the company's five telephone operators. All are marked "CONFIDENTIAL -- KEEP IN A LOCKED DRAWER" on the cover. The Addamses have requested production of the manual, and Nanny Nation has objected to its production.

Your Mentor partner wants another memo. Since she doesn't yet know your work well, she is more interested in your thorough analysis than your ultimate conclusions. She's asked you to explain both the arguments in favor of the Addams family's positions and the weaknesses of those arguments. She's particularly insistent that you address the following issues:

1) whether Morticia Addams can avoid the disclosure of her therapist's records (including both technical and substantive objections to the request);

2) how much of Gomez Addams's law firm financial information, if any, he is likely to be required to produce; and

3) whether the Addamses should file a motion to compel production of Nanny Nation's claims manual.

QUESTION FOUR

Addams v. Nanny Nation has been pending for six months. Nanny Nation has just filed a motion for summary judgment. It argues that the Addamses will be unable to prove two parts of its case:

(1) that Nanny Nation knew or should have known that Debbie had a drinking problem; and

(2) that Debbie's intoxication was the cause of the crash that injured Pubert Addams.

Nanny Nation supports its motion with three affidavits. First, they attach the affidavit of Amanda Buckman, Debbie's best friend from school, stating that although Debbie liked to go to the pub as much as any English teenager, she did not have a drinking problem. Second, they include the affidavit of Fester Wednesday, an employee of Nanny Nation, stating that he had investigated Debbie's background by checking for a criminal record (finding none) and by talking to Amanda, whom Debbie had listed as a reference. Wednesday's affidavit further states that nothing he found led him to believe that Debbie had a drinking problem. Third, Nanny Nation relies on the affidavit of Lurch Pugsley, accident reconstruction expert, stating his credentials and opining that the accident that injured Pubert Addams would have happened even if Debbie had not been intoxicated. It is Pugsley's opinion that the driver of the other vehicle changed lanes so unexpectedly that Debbie could not have avoided a collision even if she had been perfectly sober. Pugsley has an engineering degree and has been certified as an expert in accident reconstruction by the NSRE (National Society of Reconstruction Experts).

Your Mentor partner has been very impressed by your work on the Addams case, and so she has asked you to look at the summary judgment motion and accompanying papers. She wants to know if a response is necessary, what the response should contain, and what else, if anything, should be done. In making your recommendation, assume that you have access to the following material:

The memo. This is an undated memo to the file, produced by Nanny Nation during discovery, listing possible references for Debbie Jelinsky. It lists three names, of which Amanda Buckman's is one. There is a check by Amanda's name and by one other.

The phone call. One of the other names (not checked) is Becky Martin. You have called Becky on the phone. She told you that Debbie was a wild teenager who got drunk at least weekly, although she was becoming more mature with age. She further told you that no one from Nanny Nation ever called her, but that she would have shared the same information with them had they called. Since Becky lives in a small English village you have not yet been able to take her deposition or get her to sign an affidavit, but she would be willing to cooperate with you given more time. You have not managed to locate the other person listed in the memo. Becky thinks that the other person got married and moved to somewhere in Australia.

The deposition. The transcript of Pugsley's deposition indicates that he based his opinion solely on Debbie's version of the circumstances surrounding the accident. He has not interviewed the other driver. He was not able to inspect the crash scene (he was hired long after it was gone, and there is no police report), nor did he inspect the vehicles involved in the crash before they were repaired.

Please write a memo to your Mentor partner. Advise her what the Addamses should do in response to the motion for summary judgment. Include any questions you need answered about discovery in the case to date. She also wants you to predict how the judge will ultimately rule on the motion. If you do a good job, she's promised to recommend you for a fast track partnership.

SAMPLE GRADING KEY
1997 EXAM

QUESTION ONE

1. Personal Jurisdiction

Start with state long-arm statute ___________________________________________________________________________

"entered into a contract . . ." -- Analyze ___________________________________________________________________________

"Committed a tortious act . . ". -- Analyze ____________________________________________________________________________

"doing business" -- code for limits of due process

____________________________________________________________________________

Long-arm stats limited by due process

____________________________________________________________________________

No license to do business/consent

____________________________________________________________________________

Clearly nsf for general jurisdiction, so analyze for specific ____________________________________________________________________________

Step one -- contacts/purposeful availment

analyze facts, including specific Montana contacts

such as calling, accepting checks (bank source cf.

Helicopteros), knowledge that nanny in Montana.

also including nationwide acts ending up in Montana,

including magazines, pr agent, 800 number, web site.

incorporate purposefulness by NN. Who approached

whom. From tort perspective, compare with WWVW,

Calder, Asahi. From contract perspective, compare with

McGee, Burger King.

____________________________________________________________________________

Step two -- fairness factors

Burden on D. burden on P if no Montana forum. Montana

interest in providing forum. Interstate/international?

_____________________________________________________________________________

2. Venue in federal court in Montana

Just one district, so don't have to worry about splitting contacts

within state

_____________________________________________________________________________

Diversity -- so 1391(a)

____________________________________________________________________________

D resides -- see 1391(c) -- back to PJ (see above)

[Bonus: effect of adding add'l non-Montana D]

____________________________________________________________________________

Substantial part of c/a -- analyze

____________________________________________________________________________

PJ -- only applicable if no others applicable

___________________________________________________________________________

3. Change of venue -- 1404.

____________________________________________________________________________

to place where venue w/b correct

____________________________________________________________________________

list other possible places:

Massachusetts (explain why)

Texas (explain why)

maybe others but unlikely transfer in this case

___________________________________________________________________________

factors

convenience of parties & witnesses

interests of justice

____________________________________________________________________________

QUESTION TWO

1. Pleadings issues

General Rule 8 standard

_____________________________________________________________________________

Motions for more definite statement generally. Cf. Harbor

Commissioners

_____________________________________________________________________________

But fraud claim invokes Rule 9 -- discuss its requirements

specificity re statements vs. knowledge. Cf. Robbins

_____________________________________________________________________________

Rule 11 requirements

pre-filing investigation. Was it done?

requirement to plead things you have no basis for yet

_____________________________________________________________________________

[Bonus: effect on automatic disclosure of vague pleading]

2. Adding Debbie

impleader -- Rule 14. State test. apply.

____________________________________________________________________________

3. Debbie's claim against A's

State rule 14 test for claims by 3d-party Ds vs.

original Ps

Apply to these facts. Cf. Wigglesworth.

____________________________________________________________________________

4. Other potential Addams claims

contract claim vs. NN

joinder rules

____________________________________________________________________________

res judicata

____________________________________________________________________________

collateral estoppel

____________________________________________________________________________

claim against Chrysler

joinder rules

____________________________________________________________________________

res judicata

____________________________________________________________________________

collateral estoppel

____________________________________________________________________________

QUESTION THREE

brief discussion of general scope of discovery

____________________________________________________________________________

1. Morticia's therapist's records

technical problem -- Request for Production re someone else's

records. Does Morticia have control?

____________________________________________________________________________

substance issues

relevance? Distance in time? Relevant to mental anguish

claim?

____________________________________________________________________________

privilege? (therapist-patient?). Waived by bringing suit?

cf. Davis v. Ross

____________________________________________________________________________

[Bonus: could NN compel mental examination?]

____________________________________________________________________________

2. Gomez's law firm records

relevance?

logical relevance

burden

___________________________________________________________________________

sensitivity of financial info

other possible sources of same info

problem re unrealized future income

____________________________________________________________________________

attorney-client privilege

financial statements

billing records

client files

____________________________________________________________________________

3. Claims Manual

relevant?

_____________________________________________________________________________

work product?

define. purpose.

apply: anticipation of litigation?

apply: created by right kind of person?

apply: ordinary vs. opinion

[response to discovery requests factual?]

if ordinary, sn/uh?

____________________________________________________________________________

attorney-client privilege

attorney to client?

"client" in corporate context. control group vs. subject matter.

confidential?

waived?

____________________________________________________________________________

___________________________________________________________________________

QUESTION FOUR

intro: summary judgment generally

____________________________________________________________________________

intro: if either prong of NN M/SJ succeeds, A's lose

____________________________________________________________________________

1. Did NN meet its burden as movant? (or, do A's need

to respond?)

Discuss Adickes/Celotex re movant's burden

____________________________________________________________________________

Apply to these facts:

re knowledge: Fester on background check/Amanda on Debbie.

Does this eliminate all sources of actual knowledge? Does

it need to?

Does this show no fact issue re "should have known"?

____________________________________________________________________________

re causation: expert affidavit sufficient on its face?

____________________________________________________________________________

when in doubt, respond

____________________________________________________________________________

2. Addams response

general comment: depending on state of discovery,

consider motion for continuance pointing

specifically to need for some of the information

listed below. Downside: provides extra info

re state of case and strategy to NN lawyers.

______________________________________________________________ ______________

affidavit re interview with Becky Martin (doesn't need to be in

admissible form, just reducible to admissible ev. cf. Celotex)

____________________________________________________________________________

argue ease of contacting Becky -- reasonable agency s/h

contacted her

____________________________________________________________________________

argue fact issue exists re reasonable inquiry.

point to memo with checks. argue inference that other

checked name was called and gave bad info.

(ask Mentor: did we depose Fester? send interrogatories or depose

anyone else re their investigation? send document

production request that would have included any investigator

notes?

____________________________________________________________________________

[Bonus: (latter probably not work product as not in antic.

of litigation, and even if it were inability to locate third

person might show substantial need/undue hardship)]

argue month that Debbie was in training in Mass -- source

of knowledge re drinking problem? (ask Mentor:

have we done any discovery re this?)

____________________________________________________________________________

argue fact issue re actual knowledge of problems (probably

needed to sustain fraud claim)

____________________________________________________________________________

file Pugsley deposition and point to passages undermining

his opinion.

____________________________________________________________________________

Try to obtain affidavit from driver of other car re

circumstances of crash if it would help

(ask Mentor: any settlement provisions re

cooperation? any statements available to us? depo?)

____________________________________________________________________________

Hire own expert, if not already done, to counter Pugsley

opinion and file affidavit.

____________________________________________________________________________

argue fact issue re causation.

____________________________________________________________________________

Predict outcome, based on discussion of the above.