Civ Pro Exam 2001

Civil Procedure December 13, 2001
Professor Thornburg

FINAL EXAMINATION

Time: 3 hours

Directions

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 8.

The exam contains 4 questions; the instructions indicate the approximate time each one is expected to take.

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. Be sure to thoroughly discuss the way in which the facts given in the questions support 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. If you are given an explanation of the law, you should assume that that explanation is correct even if you know that in real life the law is different.

Write legibly. 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. Please place them all inside of Bluebook #1 when turning them in.

Good luck, and have a good holiday.

Question One

(One hour)

While in his patrol car close to midnight on April 26, 2001, Trooper Ralph Daniels observed a vehicle without headlights skidding into a ditch. Its driver was Lionel Peters (“Peters”). Lionel’s brother Victor Peters and friend Roger Salinas were passengers in the vehicle. Following a confrontation between Peters and Trooper Daniels at the vehicle, Peters fled into a field. Trooper Daniels chased him and, while the two were alone there, Daniels shot Peters. He died from the wound.

Peters’ widow Victoria Rose Peters, individually and as administrator of Peters’ estate, sued Daniels in federal district court under the federal civil rights act, 42 U.S.C. § 1983, for use of excessive force. In excessive force cases involving the use of deadly force, the officer violates section 1983 by using deadly force unless he has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others. In addition, Trooper Daniels has raised the affirmative defense of qualified immunity; he alleges that he was acting in good faith within the scope of his discretionary authority. Since he has properly alleged this defense, plaintiff must establish that Daniels’ conduct violated clearly established law in order to prevail on her claim. Both Peters’ claim and Daniels’ affirmative defense thus boil down to the same issue: can plaintiff prove that Trooper Daniels did not have probable cause to believe that Lionel Peters posed a threat of serious physical harm to Trooper Daniels on the night in question?

The case survived disputes about the sufficiency of the pleadings and proceeded to the discovery phase. The depositions of Daniels, Victor Peters, and Roger Salinas have been taken by the parties. There are, however, two outstanding discovery disputes:

1. Trooper Daniels has been attending law school at night, and is about to obtain his law degree. He has therefore been subject to an investigation by the State Bar of Texoma regarding his character and fitness to practice law. The application required Daniels, who is 45 years old, to list all employers since the age of 16 and all addresses he lived at since he was 16, to answer a series of questions about arrests and convictions, mental health treatment, and school discipline, and to give the names of 10 people who know him well. The State Bar follows up on this information, contacts all the people listed and asks those people for the names of additional informants. Plaintiff has subpoenaed the State Bar official with custody of this file to produce it at a deposition. Defendant has filed a motion to quash the subpoena, arguing that this file is not discoverable in this case.

2. There was a life insurance policy covering Lionel Peters, which would pay his widow $5,000 in the event of his death unless that death was caused by suicide. The insurance company did not pay immediately, because it suspected that Peters may have provoked Daniels to shoot him in an occurrence known colloquially as “suicide by cop.” Victoria Rose Peters threatened to sue the insurance company for breach of contract (she needed the policy proceeds to pay for Lionel’s funeral), and the insurance company began an official investigation. As part of this investigation, the claims investigator interviewed passenger Roger Salinas and took notes on this interview. The insurance investigation is still pending, and Mrs. Peters is still threatening suit. Defendant Daniels has subpoenaed the claims investigator for deposition, including a subpoena for production of the notes on the interview with Salinas. Plaintiff has filed a motion to quash the subpoena as to these interview notes.

In addition to these discovery disputes, Daniels has filed a motion for summary judgment. He contends that he is entitled as a matter of law to qualified immunity and that plaintiff will have no evidence to prove her excessive force case. Plaintiff opposes the motion.

Daniels supported his motion with his own affidavit and that of an expert witness. The expert witness is Albert Rodriguez, Commander of the Texoma Department of Public Safety’s training academy. (Defendant Daniels is an employee of TDPS). Rodriguez’s affidavit states his opinion that any reasonable and prudent law enforcement officer faced with the same or similar circumstances as those described in Daniels’ affidavit would have taken the same actions as did Daniels, perceiving an imminent threat to his life when faced with the totality of the circumstances created by Peters.

Daniels’ affidavit describes the events surrounding Peters’s death as follows:

• He was patrolling alone in a dark, high-crime area

• He instructed Peters to exit the vehicle, and Peters did not comply promptly. When Peters did exit, he did it suddenly, acting “fidgety,” was talking too loudly and flinging his arms, and his eyes were bloodshot and glassy (he shined a flashlight into Peters’s face).

• Peters moved toward Daniels, who placed his foot in Peters’s abdomen and “pushed” him away.

• Peters told Daniels he had to urinate. Daniels allowed him to do so, and then reached for Peters to lead him back to the vehicle to arrest him. Peters grabbed Daniels’ flashlight, and asked why he was being arrested. Daniels replied it was because Peters was drunk. Daniels drew his baton, because the manner and force with which Peters had grabbed the flashlight led him to conclude that Peters would not be arrested willingly. Peters then grabbed Daniels’ baton. Daniels released the baton and drew his revolver. Peters released the baton. Peters asked, “why do you want to hit me?”

• Daniels told Peters to place his hands on the vehicle, then walked to his patrol car to radio for assistance. Peters began to run east across a field toward residences, yelling that he was going home. Daniels chased him, catching up to him easily. The two men were the same height, but Peters weighed about 50 pounds more and was intoxicated.

• Daniels repeatedly asked Peters to surrender, but Peters replied he was almost home. Peters tripped and fell. Daniels tried to keep him down, but Peters grabbed his flashlight and baton. When both were standing, struggling, Daniels released his flashlight to try to apply a carotid hold on Peters from behind. They fell to the ground; Daniels was on his back beneath Peters, with the front of his body to Peters’s back. Peters began swinging the flashlight over his head to try to hit Daniels on the head, and began to bite Daniels’ left fingers. Daniels feared that Peters might bite his fingers off, that a blow to the head from the flashlight could knock him out, and that Peters would kill Daniels with the revolver. Therefore Daniels discharged his revolver into Peters’s neck. It was this wound from which Peters died a few hours later in the emergency room.

Daniels’ motion for summary judgment emphasizes that plaintiff has no evidence to dispute his account of the scuffle in the field, including Peters’s hitting Daniels on the head with the flashlight and biting his fingers, and their relative size and position on the ground.

In opposing the motion for summary judgment, plaintiff points out that no physical evidence corroborates Daniels’ account of the events, and that no other witnesses are available to directly contradict Daniels’ story. She also filed affidavits from the two passengers in the car.

Victor Peters, decedent’s brother, states in his affidavit:

• Lionel Peters exited the vehicle when requested to do so. Upon exiting, Peters lifted his shirt, saying “I don’t have nothing on me,” apparently to show he was unarmed. Daniels then kicked Peters in the stomach. (At his deposition, Victor had testified somewhat differently -- that Daniels pushed Peters with his foot-- and Daniels argues that the inconsistent affidavit testimony should therefore be ignored.). Daniels appeared enraged from the very outset of the encounter.

• Daniels told Peters to get on the ground. Daniels repeatedly “went at” Peters with the baton as if to hit him, acting very aggressive. Lionel asked, with tears in his eyes, “why do you want to hit me?” Daniels kept attacking Peters when Peters had not said or done anything aggressive or disrespectful of the officer. All three men were afraid of Daniels. Peters ran away because he was afraid that Daniels would hurt him.

Roger Salinas, decedent’s friend, states in his affidavit:

• Daniels acted weird and aggressive from the beginning, taunting Lionel and threatening him several times. He kicked Lionel when Lionel was unarmed. He demanded Lionel lie face down on the ground while he would swing at him with the baton. Peters was only trying to protect himself when he grabbed the flashlight and baton.

• When walking to his patrol car, Daniels said, “Now you’re gonna get it.”

• After Peters ran into the field (in the direction of home) and Daniels chased him, Salinas and Victor Peters could see nothing but a shaking flashlight.

You are the law clerk for U.S. District Judge Ricardo Hinojosa of the Southern District of Texoma. Judge Hinojosa wants your advice on how he should rule on these pending motions:

1. Should he allow discovery of Daniels’ State Bar file?

2. Should he allow discovery of Salinas’ statement to the claims investigator?

3. Does Daniels’ motion for summary judgment meet his initial burden as a movant, thus compelling plaintiff to respond?

4. Should he grant Daniels’ motion for summary judgment?

Question Two

(Thirty minutes)

Really Big Chemical Company (“RBCC”) is a Delaware corporation with its principal place of business in Delaware. During the 1980s, it manufactured a chemical designed to enhance the productivity of banana growing by eradicating a worm that otherwise destroys a sizeable portion of the banana crop. The chemical is very effective because it sterilizes the worms, making them unable to reproduce. Unfortunately, the chemical has the same effect on banana workers – they were also rendered sterile, unable to have children. Use of the chemical was banned in the United States. RBCC, however, had already produced considerable quantities of the chemical, and sold it to banana growers outside the United States, including some in Costa Rica. RBCC has a number of offices, and a number of plants outside of Delaware, including large administrative offices and a manufacturing plant in Texoma.

Juan Alfaro was a worker on a Costa Rican banana plantation. He was 25 years old, newly married, and wanted to have many children. However, he was exposed to the chemical at work and is now medically sterile. He and a number of his coworkers filed suit against RBCC in state court in Harris County, Texoma. RBCC removed the case to the federal district court for that area, the Southern District of Texoma, Houston Division. RBCC admits that it is subject to personal jurisdiction in Texoma. However, it filed in federal court a motion to dismiss the case based on the doctrine of forum non conveniens, saying that the case would be far better handled in Costa Rica where the plaintiffs live and where they were exposed to the chemical.

The federal common-law doctrine of forum non conveniens is based on a desire to achieve convenience for parties and witnesses, to avoid unnecessary burden on a forum with few ties to the case, and to allow the government with the greatest interest in the dispute to be the place of trial. The decision to dismiss (or not) is in the discretion of the court. Federal courts sitting in other states have considered forum non conveniens motions in these banana worker cases (there are a lot of them), and eight of the ten cases where the issue was raised have been dismissed.

Texoma law is different. The Texoma legislature passed a statute which eliminates the common law doctrine of forum non conveniens in personal injury cases. The legislative history indicates that Texomans believe that if a defendant has enough contacts with a state to justify personal jurisdiction, the plaintiff’s choice of forum should be respected. The legislative history also states that the lack of a forum non conveniens defense will bring legal business to the state’s lawyers, many of whom are members of the legislature. Under Texoma law, then, the trial court would have no discretion to dismiss the case based on forum non conveniens; the case would stay in Texoma.

You are the law clerk for Judge Justice, in whose court the case is pending. He wants your advice about whether he should apply federal or state law on this issue. Please write him a memo.

Question Three

(Thirty minutes)

While Judge Justice has the forum non conveniens motion under advisement, Alfaro’s lawyers are trying to devise a strategy to get the case back into state court. Alfaro’s lawyers have located Philip Aquino, a man who was injured by the same RBCC chemical while working on a plantation in the Philippines and who would like to join the lawsuit. This man has come to live in the United States as a permanent resident alien, and he is currently domiciled in Delaware.

Their research has also revealed that Texoma uses the Second Restatement of Conflict of Laws to make choice of law decisions, and would probably conclude that Delaware law applies to Alfaro’s claim against RBCC and Texoma law applies to Aquino’s claim against RBCC. The law of Texoma is particularly unsettled in the area of products liability.

1. Would the claim by Aquino be proper under the joinder rules?

2. Would adding this claim be likely to succeed in getting all or part of the case remanded to state court?

Question Four

(Forty five minutes)

George Shupbach, a resident of Texoma, is sole proprietor of Shupbach Trucks, which is located in Dallas, Texoma. For the past twenty years, Shupbach has been an authorized Dodge Truck dealer for the Dallas area. As a sideline, Shupbach purchases and then resells used tanker transports. During the past ten years, Shupbach sold ten tanker transports, six to residents of Texoma, one to a resident of Arkansas, and three to residents of Oklahoma.

Shupbach has marketed the transports by placing advertisements in the “Texoma Prairie Farmer,” a monthly magazine that, among other things, advertises new and used farm and farm-related equipment. Unbeknownst to Shupbach, ads placed in the “Texoma Prairie Farmer,” also appear in the Oklahoma edition of the “Prairie Farmer,” appropriately titled “Oklahoma Prairie Farmer.” In addition, Shupbach maintains a website on which he advertises his tanker trucks. The website contains a picture of the truck and information describing the truck and listing its price. Persons interested are invited to call Shupback at his Dallas, Texoma phone number.

In April 2001, Shupbach placed an ad in the “Texoma Prairie Farmer,” advertising for sale a used 1999 gas tanker transport. Goober Pyle, a resident of Mayberry, Oklahoma, read Shupbach’s advertisement for the 1999 tanker transport in the “Oklahoma Prairie Farmer.” He also checked the picture and related information on Shupbach’s web page (its URL was listed in the advertisement). Pyle then telephoned Shupbach and expressed his interest in buying the transport. In response, Shupbach mailed to Pyle additional photographs of the transport and literature describing it. Pyle then traveled to Dallas, examined the transport, and after several hours of bargaining, purchased it from Shupbach for $250,000. Pyle, with the aid of his brother, Gomer, then drove the transport back to Mayberry.

One week later, calamity, though not tragedy, struck. Goober Pyle had filled his transport with propane gas and was traveling down a road near Mayberry. Apparently a leak had developed in the tanker drum. Almost all of the gas had leaked from the tanker drum before Goober discovered it. Fortunately, no injuries occurred.

Pyle commenced a lawsuit in federal district court in the Eastern District of Oklahoma, where Mayberry is located. Pyle named as defendant George Shupbach, alleging breach of warranty. Pyle sought direct and consequential damages totaling $100,000.

Shupbach filed a motion to dismiss for lack of personal jurisdiction. For purposes of this question, you should assume that the Oklahoma long-arm statute goes to the limits of due process.

As the judge in this case, write an opinion ruling on Shupbach’s motion.