Misappropriation of Name - Intro to Civil Procedure - Past Paper, Exams of Civil Law

Download Misappropriation of Name - Intro to Civil Procedure - Past Paper and more Exams Civil Law in PDF only on Docsity! UNIVERSITY OF MARYLAND SCHOOL OF LAW LEGAL METHOD-CIVIL PROCEDURE (3 Hours) Day Division Friday, December 17, 1993 Professor Condlin 9:10 a.m. - 12:10 p.m. Signature:____________________ __ Printed Name:_______________________ INSTRUCTIONS: Sign and print your name in the blanks above. Put the course and instructor names and your examination number, on the outside cover of each of your blue books, and on the envelope. Do not put your name on the blue books or envelope at any place. Answer each question in a separate blue book and number the blue books by question. Upon completion of the examination put your answers in the envelope, fasten the flap, and hand in the envelope to the examination administrator. Be sure to enclose all of your answers you will be graded only on what is inside the envelope. Hand the questions in separately. Do not put them in the envelope. There are three questions, weighted equally, and you should allocate your time accordingly. A superior answer to one, produced by spending a disproportionate amount of time on it, will not compensate for a weak answer to another, produced by not having enough time to finish it. The exam is moderately long, but if you work continuously you should have no difficulty finishing. The first question is principally about personal jurisdiction, the second principally about subject matter jurisdiction, and the third principally about the Erie/Hanna problem. Each may contain other issues, however, and unless instructed otherwise, discuss all issues raised. Avoid long descriptive statements of law in the abstract, just solve the problems presented by the fact patterns. Analysis counts, recitation of law does not. IF YOU NEED MORE INFORMATION TO ANSWER THAN IS PROVIDED IN THE QUESTION, SAY WHAT ADDITIONAL INFORMATION IS NEEDED. YOU MAY MAKE ANY REASONABLE AND NON-SELF-SERVING ASSUMPTIONS OF FACT THAT ARE CONSISTENT WITH THE QUESTIONS AS WRITTEN. THE EXAM IS OPEN BOOK. USE ANY BOOKS, OUTLINES, OR NOTES THAT YOU LIKE. I Plaintiff Frank Sinatra ("Sinatra") brings the present action under California Civil Code ' 3344, against Clinic La Prairie, S.A. ("Clinic"). Section 3344 provides, in relevant part: "Any person who knowingly uses another's name, voice, signature, photograph or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising, selling, or soliciting purchases of products, merchandise, goods or services, without such person's prior consent...shall be liable for any damages sustained by the person or persons injured as a result thereof." The dispute arises out of interviews given by Clinic employees in Switzerland to a reporter for The National Enquirer ("Enquirer"), about Sinatra's visit to the Clinic. Sinatra is a well-known (to anyone over fifty, ask your parents) entertainer in the recording, television and motion picture industries. He resides in Los Angeles, California. The Clinic is a Swiss corporation, with its principal and only place of business in Montreux, Switzerland. The Clinic employs New Life, Incorporated ("New Life"), a Missouri corporation with its principal place of business in Kansas City, to coordinate all of its reservations from clients in the United States, and also to direct all of its North American advertising. New Life is owned and operated by Richard Van Vrooman ("Van Vrooman"). New Life and Van Vrooman are the Clinic's sole representatives in North America. The Clinic does not own or control any part of New Life; no owner, employee, or officer of New Life is an owner, employee or officer of the Clinic; and New Life performs similar reservation and advertising work for many foreign corporations other than the Clinic. On July 27, 1992, acting on a rumor, a reporter from the Enquirer contacted the Clinic to ask whether it had treated Sinatra in its youth regeneration program. (The Clinic is a combination of a health spa, a fat farm, a de-tox center, a club-med style resort, and a medical research facility all in one. The youth regeneration program is part of the research facility.) The Clinic referred the reporter to Van Vrooman. After speaking with an Enquirer editor, Van Vrooman informed the Clinic that the paper was willing to do a full-length feature article on it if, when asked if Sinatra had been a patient, the Clinic would neither confirm nor deny the fact. Van Vrooman encouraged the Clinic to cooperate, on the grounds that a feature article "would be good for business," and that the statement would not be literally false. With 10% of its clientele coming from the United States, the Clinic thought that doing as Van Vrooman suggested was the wisest course. The Clinic viewed the feature article as essentially free advertising, supplementing the paid promotions it placed in magazines aimed at persons with high income to age ratios (e.g., San Diego Magazine, Town & Country, the Wall Street Neuf's agreement with Southwest is oral, so there is no written contract to consult to resolve this dispute. On September 26, 1992, Southwest fired Neuf without giving her a reason, or an opportunity for arbitration. Neuf filed suit in Texas state court, alleging a breach of her employment agreement. The material portions of Neuf's complaint state: Defendant has in effect now and at all material times during plaintiff's employment, an employment agreement("the agreement") between itself and the International Association of Machinist and Aerospace Workers. Plaintiff is not a direct party to said agreement, but is governed by same and is a third party beneficiary of many of its provisions. Plaintiff and defendant have both express and implied understandings that plaintiff's job was governed by the terms of that agreement. Plaintiff's discharge was not for "just cause," in violation of said agreement, and was made without opportunity for arbitration as required by said agreement, thereby directly and proximately causing damage to plaintiff through her loss of wages and other employment benefits from date of discharge, in an amount in excess of the minimum jurisdiction of this Court. Southwest has removed the case to federal district court. It argues that Neuf's claim necessarily depends upon the resolution of a substantial question of federal law under the Railway Labor Act, 45 U.S.C. ' 151-188(RLA), because Southwest is a "common carrier engaged in interstate commerce," and its CBA covers "rates of pay, rules or working conditions." [The RLA establishes threshold standards of worker protection for collective bargaining in the interstate transportation industry. In accordance with that end, assume that it requires covered CBA's, of which Southwest's is one, to provide certain minimum procedural rights, among which are the "just cause" and "arbitration" provisions in dispute here. Assume further that it defines the content of these rights and describes the conditions under which they apply.] Neuf moved to remand on the ground that, as a supervisor, she was not covered directly by either the CBA or RLA. Does the District Court have removal jurisdiction over Neuf's claim? Why or why not? If Neuf had filed her initial action in Arkansas state court would an Arkansas federal district court have had removal jurisdiction? Why or why not? III. On July 9, 1991, Pan American Flight 759 crashed in Kenner, Louisiana, shortly after takeoff from Moisant International Airport. All 154 passengers on board, Uruguayan nationals on their way home from a soccer match in the United States, died in the crash. Eyewitness accounts established that seconds after takeoff the plane suddenly descended and pitched to one side. One of its wings struck a tree, causing the plane to swing perpendicular to the ground. Seconds later it crashed, exploding on impact. An investigation concluded that a micro burst wind shear caused the sudden descent and pitch. Within weeks, on August 12, 1991, personal representatives of the deceased passengers filed the present wrongful death action in the United States District Court for the Eastern District of Louisiana, against Pan American, the Boeing Corporation (manufacturer of the airplane), and the New Orleans Aviation Board (operator of Moisant International Airport). Plaintiffs are citizens and residents of Uruguay, and are the heirs of the passengers killed in the crash of Flight 759. On August 22, 1991, Pan American filed a motion to dismiss plaintiffs' claims on the ground of forum non conveniens. In connection with its motion, Pan American stated that it would: (1) submit to the jurisdiction of the courts of Uruguay, (2) concede liability, (3) waive any statute of limitations defense, (4) waive the Warsaw Convention limitation of damages provision (the Warsaw Convention restricts damages to $75,000 for any wrongful death of an international air passenger), and (5) guarantee satisfaction of any judgment entered against it by a Uruguayan court. Pan American argued that dismissal was proper because only the damages issue remained to be litigated, and this issue could be litigated most conveniently in Uruguay where all of the plaintiffs lived. The District Court held that while Uruguayan law did not permit pre-trial discovery of medical experts or provide for jury trial on questions of damages in wrongful death actions, it nonetheless was an adequate alternative forum because it recognized the plaintiffs wrongful death claims. (In some ways Uruguayan law was even broader than Louisiana law For example, a nephew could recover for wrongful death in Uruguay but not in Louisiana.). The Court denied Pan American's motion to dismiss, however, concluding that under the Rules of Decision Act, 28 U.S.C. ' 1652, it was bound to apply Louisiana law, and that under Louisiana law a court could not dismiss a claim on forum non conveniens grounds when the only alternative forum was in a foreign country. Because forum non conveniens is a common law doctrine, it is almost non-existent in a civil law system such as Louisiana's. the Court held, and to the extent it exists at all, it permits only intra-state transfer of cases from one state district court in Louisiana to another. (Assume that the Court is correct about the content of Louisiana forum non conveniens law.) The Court certified its ruling for interlocutory appeal pursuant to 28 U.S.C. ' 1292(b), and that appeal is now before the United States Court of Appeals for the Fifth Circuit. You sit on the Fifth Circuit. Pan American argues that the District Court should have applied the federal forum non conveniens doctrine (articulated in the Supreme Court cases of Piper Aircraft Co. v. Reyno and Gulf Oil Corp. v. Gilbert) in ruling on its motion to dismiss, and that under federal law a forum non conveniens dismissal is warranted if an alternative forum is available and adequate. Since a Uruguayan forum was available (given Pan American's agreement to submit to jurisdiction), and the District Court found explicitly that it was adequate (given Uruguayan law's recognition of the plaintiffs' wrongful death cause of action), Pan American argues that the Court should have granted its motion to dismiss. How would you rule on Pan American's appeal? Explain. Would your decision be different if the federal forum non conveniens doctrine had been codified in a Federal Rule of Civil Procedure? Why or why not?