Bryce Ski Corp's Motion to Dismiss: Jurisdictional Limits Case Study, Exams of Civil procedure

Download Bryce Ski Corp's Motion to Dismiss: Jurisdictional Limits Case Study and more Exams Civil procedure in PDF only on Docsity! UNIVERSITY OF MARYLAND SCHOOL OF LAW LEGAL METHOD-PROCEDURE (3 Hours) Day Division (§ G) Friday, December 23, 1988 Professor Condlin 9:10 a.m. - 12:10 p.m. No.____ Signature:____________________________ Printed Name:_______________________________ INSTRUCTIONS: Sign and print your name in the blanks above. Put the number found above on the outside cover of each of your blue books and on the envelope. Answer each question in a separate blue book and number the blue books by question. Do not put your name on the blue books or on the envelope at any place. Upon completion of the examination, put your answers to the examination in the envelope, fasten the flap with the clasp, and hand in the envelope to the exam administrator. Be sure to enclose all of your answers -- you will be graded only on what is inside the envelope. Do not put the exam questions in the envelope. Hand in the questions separately to the exam administrator. Do not put your name anywhere on your answers. Both the envelope and your answers should contain your course name, and the instructor. There are three questions and they are weighted differently. Question III, in my view, is the most difficult, and will count for fifty percent of the grade. Each of the other questions will count for twenty-five percent. Allocate your time accordingly. It might be best to answer question III first. It will be less familiar to you, and it has the largest number of issues. The risk in answering the questions in order is that you will know (and write) a lot about each of the first two, only to find that you have used up a disproportionate amount of time and do not have enough left to do an adequate job on the question that counts the most. This has proved to be a problem in the past. Relax, solve the problems, and do not leave anything relevant in your head. Good luck. Question I (forty-five minutes) Sandi Elan Allbrick, a Baltimore County resident, suffered severe and permanent injuries in February, 1985, when she fell while skiing at Bryce Mountain, a ski resort owned and operated by the Bryce Ski Corporation (Bryce), and located in the Pocono Mountains of Pennsylvania. In October of 1985, Allbrick along with her husband Pierce, sued Bryce in tort and contract in the Circuit Court for Baltimore County, claiming damages for Bryce's alleged negligence in the design, construction, maintenance, and grooming of one of its ski slopes, and for its failure to correct, or give adequate warning of, an unreasonably dangerous condition on its land. (Allbrick struck an exposed tree root and fell thirty feet into a hidden crevice. It took four hours to get her out.) Bryce filed a motion to dismiss for lack of personal jurisdiction, and that motion is before the Circuit court for decision at this time. Bryce is a Pennsylvania corporation with no charter or license to do business in Maryland, and no agent for service of process in the state. It sells no products in Maryland, maintains no bank accounts and owns no property there, and pays no Maryland state tax. Its total income is derived from the operation of its ski resort located approximately 150 miles from the Maryland - Pennsylvania border. Bryce's principle connection with Maryland is a toll free telephone number which Maryland residents may use to call the resort to inquire about reservations, ski conditions and the like. Bryce did not intend to provide toll free service to Maryland, but the number was a non-excludable part of a toll-free service package purchased from AT&T to advertise in the Pennsylvania, New York, and New Jersey markets. Bryce includes the Maryland number, along with those of the other three states, on its promotional brochures (which, ironically, emphasize the safety and superb condition of its slopes), but does not distribute these brochures in Maryland; and while it sends brochures to all ski shops requesting them, it receives only about five or six requests a year from Maryland. Bryce's only other direct contact with Maryland occurred in January 1985, when a Bryce sales representative spent one week calling on Maryland travel agencies and military installations, in an effort to stimulate mid-week business at the resort, but this effort was unsuccessful and was not repeated. Bryce is also part of a ski industry trade association, made up of resorts in the northeastern United States, which promotes ski vacations generally. The association distributes promotional literature to chambers of commerce, tourism departments of state governments, travel agencies, travel sections of newspapers and magazines, and major hotel and motel chains, in all of the eastern seaboard states, including Maryland, and sponsors television spots in major east coast metropolitan markets, including Baltimore, all extolling the virtues of skiing. Approximately two hundred individual resort members of the association, including Bryce, pay a small yearly fee to help support the association's two person staff, and in return are listed by name (in the credits) in the association's promotional literature and television spots. The ads and brochures themselves, however, are paid for with money provided by ski equipment manufacturers, and promote skiing generally, not individual ski resorts. Bryce, along with all other ski resorts in the vicinity, is also publicized widely in the Baltimore metropolitan area by individual entrepreneurs (e.g., ski shops, ski magazines,) interested in their own economic purposes. Radio and television stations, as well as local newspapers who pick up the information from wire services, routinely carry information about the snow conditions on its slopes, and every now and then a immediately moved to perfect under FRCP 4(h), fairness dictates that the motion to amend be granted. The amendments having been granted, plaintiffs service was proper, and defendant's motion to dismiss must therefore be denied. On appeal to the Fifth Circuit, the district court decision was overruled. Relying on the Ohio state case of Yefko v. Ochs, which contained almost identical facts, the Circuit Court held that: ...plaintiff had until April 10, 1987, to secure proper service of the summons and complaint, and did not do so. Actual notice within this time period does not erase the need for proper service. Having failed to secure timely service, plaintiff's action was barred by the Ohio statute of limitations. The Fifth Circuit agreed with the district court that FRCP 4(h) and 15 entitled plaintiff to amend his original pleadings and service documents to correct errors in identifying the defendant, and that these amendments, if they did not prejudice defendant's efforts to prepare its defense, as they did not here, would relate back to the time of the original filing of the case. But the Court also concluded that the effect of such amendments would be to nullify the Ohio statute of limitations, and that this was something a federal court was not permitted to do. In the court's words: Had plaintiff's action remained in state court, it would have been jurisprudentially dead. Removal to federal court cannot breathe new life into it. The case is now on certiorari to the United States Supreme Court. Should that court affirm or reverse the decision of the Fifth Circuit? Why? In answering, assume that the Ohio statute of limitations is based on the same policies and has the same purposes as statutes of limitations generally. FRCP 4, on the other hand, is a rule for correcting formal errors appearing on the face of papers associated with the service of process. According to a principle commentator on the FRCP, "the most common occasion for use of Rule 4 is when a plaintiff has made a simple mistake or a technical error that results in a failure to identify a defendant properly, such as when a corporation is not denominated by its registered name or a defendant's name is misspelled. When the error goes to form rather that substance, and the proper defendant receives the original process, realizes it is directed at him, and thus is put on notice of the commencement of the action, there is no reason why a federal court should refuse to permit amendment, and no reason why the amendment should not relate back to the time of the original filing." Question III (ninety minutes) Norma Hickey (Norma), a citizen of Indiana, is the parent of a child who has received welfare benefits from the Illinois Department of Public Aid (IDPA), under the federal statutory program of Aid to Families With Dependent Children (AFDC). She separated from Julian Hickey (Julian) in March of 1985, before obtaining a final decree of divorce from him in Illinois Family Court in October of the same year. She then lived in Illinois until November 1985, when she moved to her present address in Indiana. The divorce decree ordered her to make child support payments prospectively from the date of the divorce, but not for the pre-divorce period during which Julian, with custody of their child, received Illinois AFDC benefits. IDPA intervened in the divorce proceeding in December 1985, as a "friend of the court" (the family court kept jurisdiction over the case to monitor compliance with the terms of its support order), petitioning the court to modify Norma's support obligations to require her to provide payments for the post separation-pre divorce period (March to October- 1985), during which Illinois had furnished Julian with $12,000 in AFDC benefits. IDPA relied on an Illinois statute permitting welfare officials to intervene in divorce cases "to obtain support for custodial parents and to recover aid granted during a period when support is provided." Once it succeeded in having Norma ordered to make pre-divorce support payments, IDPA hoped to recoup an equivalent amount of the AFDC payments it made to Julian during the same period. Norma opposed IDPA's petition, contending that the ordering of retroactive support was barred by Illinois and federal law. Before the family court had acted on IDPA's petition to modify the support decree, however, Norma filed a civil action in Illinois Circuit Court (the Illinois trial court of general jurisdiction), seeking a declaration under state and federal law that she was not required to make payments for retroactive support, and an injunction ordering IDPA to cease in its efforts to obtain such payments from her. Her state claim was based on the Illinois Dissolution of Marriage Act, which specifically prohibits "retroactive adjustments of support," and her federal claim on an interpretation of the AFDC Act. That Act requires participating states to recoup AFDC expenditures by pursuing "any rights to support an applicant for AFDC might have which have been specified in a court order." (emphasis added) Norma contended that the AFDC Act requirement of a court order, combined with the prohibition in the Illinois Dissolution of Marriage Act of court orders for retroactive support, meant that IDPA was not authorized, even under the AFDC Act, to recover retroactive support from her. And while the AFDC Act does not authorize individual citizens to enforce its provisions through private civil actions, Norma argued that the federal Civil Rights Act, 42 U.S.C. § 1983, supplies this missing right of action, by authorizing private suits against state officials who do not comply with federal statutes. (You may assume that this is a correct reading of the Civil Rights Act, if the federal statute in question unambiguously confers entitlements or rights on private citizens.) IDPA then removed the circuit court action to the United States District Court for the Northern District of Illinois, under 28 U.S.C. § 1441, claiming that the case arose under a law of the United States, was a dispute between citizens of different states, and contained a state law claim over which the federal court had pendent jurisdiction, and that as such, could have been filed originally in federal court. Once in federal court, Norma moved to remand the entire case to state circuit court pursuant to the provisions of 28 U.S.C. § 1441(c), but the court granted only part of her motion, remanding the claim based on the Illinois Dissolution of Marriage Act, while retaining jurisdiction over the AFDC claim. Subsequent to the remand, but before any further action was taken in either state circuit or federal district court, the Illinois family court, after receiving briefs from the parties (Norma, Julian and IDPA) but without hearing oral argument, denied IDPA's request for a modification of Norma's support order. In an unpublished, one paragraph opinion, the court held that orders for retroactive support were barred under both Illinois and federal law, adopting verbatim Norma's interpretations of both the Dissolution of Marriage and AFDC Acts. Norma then moved for summary judgment in both of her pending civil actions, the Dissolution of Marriage Act claim in state circuit court, and the AFDC Act claim in federal district court, arguing that the family court decision, based as it was on an interpretation of the two statutes, precluded any further litigation of those claims Please answer each of the following questions: a) Was the case properly removed to federal court? If yes, on which ground(s)? b) Was the decision to remand correct? If not, can it be salvaged? How? c) Should the motion for summary judgment be granted? In answering, please discuss every aspect of the fact situation which could in any way be relevant to the resolution of these questions. HAPPY HOLIDAYS