Breach of Contract - Civil Procedure - Past Paper, Exams of Civil procedure

Download Breach of Contract - Civil Procedure - Past Paper and more Exams Civil procedure in PDF only on Docsity! UNIVERSITY OF MARYLAND SCHOOL OF LAW Legal Method & Civil Procedure (3 hours and 30 minutes) Section D Friday, December 18, 1998 Professor Chibundu 9:10 a.m. - 12:40 p.m. No.________ Name______________________________ Signature___________________________ INSTRUCTIONS: You have three and a half hours to complete the examination. Because scores will not be distributed equally to all three parts, I have made suggestions as to time allocation, using three hours as the benchmark. This is an open book examination. You may consult any material you brought personally into the examination room. You may not exchange material or consult orally or in writing with any one taking the examination during its pendency. Read the questions carefully. Before you start writing, take the time to think through and organize your answers. Clarity and coherence of thought as demonstrated through clear, concise and straightforward answers will be favored. If you believe that your answer to a question would be incomplete without reference to a fact not stated, clearly so state; then, expressly state the missing fact and explain the impact of the fact on your answer. Except where otherwise explicitly indicated, you should assume that mythical jurisdictions pattern their laws and relationships after those that operate in the contemporary United States. You should also assume that, unless as otherwise expressly stated, court rules are modeled after those of the Federal Rules of Civil Procedure. Unless you are using a typewriter or a computer, all answers should be written in the "blue books" provided. The answer to each part should begin in a new blue book with the part clearly indicated on the cover and first page of the blue book. Where more than one blue book is used in answer to a part, the additional blue book(s) should bear notation identifying the part as well as the number of the blue book: e.g. "PART I, BOOK 2". Answers to individual questions within a part should begin at the top of a new page, with the numbering of the question clearly identified. Do not hand in your personal notes. Such 1 notes will not be read. Write as legibly as you can. Use only one side of a page. If you are using a typewriter, make sure that the pages are properly and legibly numbered, and that each page clearly identifies the question to which it is responding. Each question should begin on a new typewritten page. You may word-process your answers using a computer. It is your obligation to ensure that you furnish to the examination administrator a hard-copy printout of your answers. The printout must meet all of the standards for typewritten answers. You may enclose a floppy disk, if you wish, but in order to be read, the file on the disk containing your answers must be retrievable by an IBM-compatible Personal Computer running WordPerfect 5.1. Print and sign your name in the provided blanks. Write your examination number on each blue book, typewritten or printed page, and on any loose piece of paper you hand in. Do not write your name on the blue books, typewritten page, computer printout, or floppy disk. You are each individually responsible for assuring that all of your answers and the top page of this examination are handed in to the examination administrator at the end of the examination period. No material will be accepted or graded after the examination administrator has collected the answers. When you are satisfied that you are through with the examination, put your blue books, typewritten or printout pages, and any other paper that you used in answering the questions (excepting your personal notes) in the envelope provided. Fasten the envelope with the clasp, write your examination number, and add the legend CIVIL PROCEDURE, SECTION D, CHIBUNDU on the envelope, and hand it in to the examination administrator. Do not write your name on the envelope. Do not put the top page of the examination in the envelope. Hand in the top page separately to the examination administrator. You may retain the remainder of the examination questions for use not inconsistent with copyright laws. Good luck. 2 PART II (55 Minutes) Syncomp, Inc., a Maryland company, builds computer systems in large quantities on demand. Its customers provide it with detailed specifications for the systems that they desire, and Syncomp builds them accordingly. Because it deals in large volumes, using standardized inputs, Syncomp is usually able to sell its computer systems for significantly less than comparable systems in retail outlets. Syncomp's initial customers were large corporations buying for their own use. Then Syncomp began to build customized systems for mail-order retailers who obtained the specifications from individual customers over the internet, aggregated the orders, and placed them with Syncomp. With its business booming, Syncomp more recently began to sell directly to individual end-users. For this purpose, it maintains a toll-free (877) telephone exchange number as well as a "home page" on the "World Wide Web internet network" of computer systems. Individual end-users may "customize" their own computer systems by selecting from a melange of a la carte components. Each transaction is separately negotiated, between Syncomp on the one hand, and the particular corporation, retailer or individual buyer on the other. In each case, the invoice which constitutes the written contract specifies the number of computer units to be built, the components to be used, the price of the units, the delivery date, the place of delivery, the method and place of payment. On November 1, 1998, Comart, Inc., a national retailer of computer systems which is registered under the laws of the state of Delaware, and which has its headquarters in Yonkers, New York, commenced an action in the Circuit Court for the City of Baltimore against Syncomp. The Complaint, claiming breach of contract, fraud, conversion and money had and received, demanded the imposition of a constructive trust on $250,000 that Comart had allegedly paid to Syncomp for certain as-yet undelivered computer systems, plus interest and costs. Simultaneous with the filing and service of the Complaint on Syncomp, Comart filed and served a writ to attach $375,000 purportedly held in a bank account maintained by Syncomp at a City of Baltimore Branch of the Bank of America Corporation ("BAC"). BAC is a bank chartered under the laws of the United States with branches in forty states and having its headquarters in Charlotte, North Carolina. In compliance with Maryland law, the writ was submitted to a judge, and it was accompanied by an affidavit and a bond in the amount of $375,000. 5 The Affidavit recited that on or about May 31, 1998, Comart ordered from Syncomp 1,000 units of "Pentium II (tm) based Windows 98" (tm) operated computer systems. In accordance with the terms of the invoice, Comart's bank on June 10th transferred $250,000 into Syncomp's BAC account. On June 25th, in keeping with the terms of the invoice, Comart representatives went to Syncomp's warehouse in Baltimore City to take delivery of the computers. In keeping with their customary practice, they selected at random five computer systems for inspection. The inspection disclosed that the computer systems ran on "Windows 95 (tm)" software, and did not contain "genuine Pentium II (tm)" microprocessors. They declined to take delivery of any of the computer systems. The affidavit further averred that Comart's efforts to obtain return of the money paid for the computer systems, or in the alternative for adequate replacement of the computers have been "stonewalled" by Syncomp; that widely publicized news stories in such reputable news outlets as the Wall Street Journal, The Washington Post, Forbes Magazine and the Cable Financial News Network indicate that Syncomp's aggressive expansion into direct end-user sales is going poorly, and that the company may be on the verge of bankruptcy; and that under these circumstances, Maryland law authorizes the Circuit Court to issue a writ of attachment upon the provision of a bond in the amount of the value of the property to be attached. * * * Questions 1. Following service of the application for the writ of attachment, Syncomp informs you that for a variety of reasons (including the potential make-up of the jury pool and the likely disposition of federal judges to the federal claims that it has against the enforcement of the Maryland law), it would rather litigate in the federal court, and it consults you on whether it can remove Comart's action to the United States District Court for the District of Maryland. What is your advice? Explain. If removal is unavailable, is there any way in which it can nonetheless obtain access to the federal forum? Explain. 2. Assume that Comart's action is removed to the United States District Court for the District of Maryland, and that Janice Bigalow, a native of Baltimore City, claiming to own 2,000 shares of Syncomp Stock which she purchased at $100,000, and which has since declined to $10,000, seeks to intervene in the action "on behalf of all stockholders who purchased Syncomp stock between April 1, 1998, and October 31, 1998. Bigalow contends that these stockholders had been induced to purchase shares of Syncomp stock at artificially inflated prices because of three erroneously rosy corporate reports put out by Syncomp's officers on April 30, June 30 and Sept. 30, 1998 relating to the business prospects of Syncomp. These misleading reports on which she and others had relied, she contends, were in violation of the Federal Securities Laws. Should the intervention be allowed? 3. Assume that Janice Bigalow is allowed to intervene, and Syncomp files a counterclaim against her in the amount of $50,000 for computer systems allegedly delivered to her in July, 1998, but for which she had not paid. Should the Court entertain the counterclaim? 6 PART III (50 Minutes) The questions in this part seek to have you articulate as best you can your conceptual understanding of some of the material we covered over the course of the term. Your responsibility is to frame in your own words your reactions to the five assertions below. Ordinarily, you should be able to communicate your views responsively and effectively in fewer than ten sentences. Note that my interest is not in the simple regurgitation of Hornbook statements of doctrine, although such statements may well be relevant to your understanding of and reaction to some of the assertions below. 1. While it is true that ordinarily, the Plaintiff ultimately bears the burden of proving all elements of her claim, it is nonetheless elementary first-year Civil Procedure that when deciding a Rule 12(b) Motion, the trial court is required to accept as true all well-pleaded allegations of a Complaint, and this is true regardless of whether the issue relates to the court's jurisdiction over the person of the defendant, the subject matter of the claim, the venue of the action, or the failure of the Complaint to state a claim for which relief can be granted. 2. When confronted with challenges as to the existence of both personal and subject matter jurisdiction, a federal district court must first ascertain whether it has jurisdiction over the persons before it prior to an inquiry into its jurisdiction of the subject matter of the cause. 3. It is true that the majestic terms of the due process clause cannot be applied mechanistically or inflexibly to right all wrongs; but it is equally true that if any lesson is to be learned from the Supreme Court cases construing the clause, it is that the courts are not in the business of assigning relative weight to the liberty or property interests at stake when the clause is invoked by aggrieved persons. 4. Because the determination of whether to dismiss an action on forum non conveniens grounds is left to the sound discretion of a trial court, judicial review of the trial court's decision to grant such a motion must be limited to asking whether there is at least a scintilla of evidence to show that litigation in the forum would be inconvenient for the parties and witnesses. 5. That the service of process upon a person within a state is without more sufficient to confer personal jurisdiction over the person is both firmly approved by tradition and still favored, that it is impossible to imagine what other standard we could appeal to for the proposition that it is "no longer justified." THE END 7