Civil Procedure Exam: Tradememark Infringement and Defamation Cases, Exams of Civil procedure

Download Civil Procedure Exam: Tradememark Infringement and Defamation Cases and more Exams Civil procedure in PDF only on Docsity! Instructions-please read carefully. PLEASE USE THE EXAM NUMBER THAT IS ON FILE WITH THE REGISTRAR'S OFFICE This exam and your responses are due at 10 a .m. in the Registrar's office, Thursday, December 8, 2005 . 1 . Format : Your answer must be typed . Type on only one side of each page . • You are limited to a total of seven typewritten pages for your answer to both questions . I anticipate that most students will need approximately 2-3 pages to answer question IA, I %,-2 1/2 pages to answer question I B, 2 '/,-3 pages for 2A, and 1 7,-2 pages for question 2B. • Your answer should be double-spaced . Use 8 1/2" x 11" . Use 1 1/2 inch left margins . All other margins should be 1 inch . Use 12 point (or larger) Times New Roman font . • Put your exam number on the top of each typewritten page you turn in . Place a page number on the bottom of each page you turn in . The page numbers may be handwritten . 2 Honor Code Issues : • You are NOT permitted to discuss your exam answer, or questions you have about the exam, with anyone other than the Registrar during the exam . After you turn in your answer, do not discuss the exam with anyone who has not taken it . Note : there are a significant number of students who are not taking the exam until later in the exam period . You must ensure that anyone you speak to about the exam or who can hear you speaking about the exam, has already taken it . I will pursue honor code charges against students who violate this rule . You may use an outline you prepared, your textbook, and your rulebook to help you answer the questions . You may use any commercial study aids that you find useful to help you to understand the material . You shall not do any legal research to help you answer questions. Do not read or consult any judicial opinions other than the excerpts of opinions in your textbook . This is a test of your analytic skills ; it is not a test of your ability to find cases or narratives setting forth analysis performed by others . Violation of these instructions constitutes an honor code violation . Civil Procedure Fall 2005 Final Exam Professor Kimberly Kirkland Exam Number Exam Number Although you may refer to commercial outlines if you feel they help you understand the material, they are not authority for your answers. In other words, if you are stating the rule or test that applies in a given situation, you need to cite the Federal Rule of Civil Procedure and/or the judicial opinion in the text that addresses that rule or test. Gilbert’s, Emannuel’s and the like are not sources of authority. If you quote material you did not author in your exam answer, you must use quotation marks to identify the language as non-original and you must cite the source. You may cite cases from the text book using one of the parties names (e.g. Conley) and you may cite the Federal Rules of Civil Procedure as follows: R 15. You are NOT permitted to ask me any questions during the exam period. Test Taking Pointers: Think before you begin writing. Organize and outline your answer and thoughts before you begin writing. If your answer to an issue eliminates other issues clearly raised by the hypothetical, assume that the other issues will arise and discuss what would happen if the court addressed those issues. For example, if you conclude the complaint will be dismissed on statute of limitations grounds but the facts clearly raise an issue about whether the joinder of two parties as plaintiffs was appropriate, discuss the joinder issue even if you believe “in real life” the court would not reach that issue because the complaint would be dismissed on statute of limitations grounds. Explain your conclusions. That is, with respect to each issue raised in the exam, make sure you do “a” and “b” below. Do “c” and “d” where appropriate. a) Identify the applicable law (FRCP and/ or case law). b) Apply the applicable law to the facts given in the hypothetical, discussing any factual nuances that create uncertainty in applying the rules. c) If there is applicable case law on point, analogize and or distinguish the facts of the precedent to help you decide any “gray” areas raised by the hypothetical. d) Identify the policies underlying the relevant procedural rules and doctrine where appropriate (only where you encounter a “gray” area) Some of the names used in the questions below are the names of living individuals and existing corporations. The scenarios that follow are purely fictional. Use only the facts T give you in answering the questions asked. Do not assume any facts you may know independently about these people or entities. Failure to follow any of these instructions may result in loss of points. to treat. She spent $4,000 treating the rash (dermatologist charges and prescriptions) . She spent $200.00 on the earrings. Assume you have done some legal research and believe Liza has a viable products liability claim . San Francisco sits within the district encompassed by the USDC for the Northern District of California . Santa Monica is within the district encompassed by the USDC for the Southern District of California . Rhode Island has only one United States District Court . How will you respond to Sundance's complaint? (Do not try to answer the complaint. You do not have enough facts to do so .) Question Two. You area judge in a United States District Court in Texas . You are presiding over the suit about discrimination on the basis of national origin . Jeff Arsenault, a pitcher for the Texas Rangers, a professional baseball team located in Dallas Texas, filed suit against the National Baseball League alleging discrimination based on national origin. He claims the NBL disciplined him more harshly than other players charged with similar infractions because he is French Canadian . The National Baseball League has moved for summary judgment . You must decide the League's motion . The following information constitutes the record on summary judgment . Stipulation The parties stipulated (meaning they have agreed and it is undisputed) that under his contract with the Rangers, Arsenault is required to comply with all of the League's rule including the League's "professionalism" rules . The contract further provides that the League has the power to discipline any player who violates its rules . The League has the authority to impose discipline ranging from a reprimand to fines, suspensions and, in the most extreme cases, harming a player from play . The parties further stipulate that the League is subject to Title VII and, therefore, the League is not permitted to discriminate when it imposes disciplinary sanctions . Affidavit of Jeff Arsenault submitted in support of Arsenault's opposition to the motion for summary judgment - I am French Canadian . I was born in Montreal, Quebec, Canada . My family moved to Manchester, New Hampshire when I was five . Both of my parents were born and raised in Quebec, Canada . Both of them are native French speakers and French was my first language . I speak English with a slight accent . I joined the Texas Rangers after my junior year in college . I was hired as a relief pitcher and have played for four years . The first time I met the Commissioner of Baseball, Henry Gates, he said he would never have believed that a "Hudson Bay Frog" would pitch for the all American Rangers . At various times he has called me a "Canuck", a "frozen frog", a "newfie", a "nade", and his favorite and most frequent name for me, "Canucklehead" . Every time I've seen him in 3 the last year he says something like "Canuckleheads are hockey players, not baseball players : you guys just don't have the genes for a game of strategy and finesse like baseball . You guys are bred for brute force. Baseball is a gentleman's game ." In June, a photographer, Jack Ford, began following me around taking pictures everywhere I went . He took pictures of me with my girlfriend, washing my car, at the ball field, and playing with my kids in my back yard . It got pretty annoying . He was really getting on my nerves . One day in July he followed my girlfriend and I to a restaurant in Dallas . When we came out he was waiting in front of the restaurant and I told him to get lost . He said he was on public property and had the right to take pictures . I told him he was invading my privacy . He told me I should be grateful anyone was paying attention to a choker like me . At that point, I punched him . Apparently, I broke his nose. There was no one on the street at the time . No one saw the incident but the restaurant's valet . A couple of days later, I was called into a meeting at the League president's office. At the meeting, the Commissioner told me he knew I was not cut out for baseball . He told me he was suspending me for 20 games for hitting the photographer and if there was one more incident, he was sending me back to the frozen frog pond in Canada where I belong. As a result of the suspension I am not entitled to payment under my contract for the 20 games . This will cost me about $500,000. A number of other players have been involved in altercations and none of them have been suspended for even 10, much less 20 games. The difference is, none of them were French Canadians . During my conversation with Gates, he never mentioned steroids . In fact, no one has ever asked me whether I use steroids. I take all the required drug tests and have never had a positive finding . (I.e. his blood and urine have never tested positive for drugs) . Interrogatory answer attached to Arsenault's objection : In an interrogatory Arsenault asked : "Is there any reference to steroid use or suspected steroid use in Jeff Arsenault's personnel file maintained by the League ." The League answered : "no ." Excerpts of Deposition testimony of Bill Brown, assistant to the Commissioner of Baseball cited and attached by both in support of their positions . I was present at the meeting where Henry Gates told Jeff Arsenault that he was being suspended. He did say something about Jeff being better off playing hockey in Canada. I don't remember his words precisely. I have worked with Gates for years . He is a character . He has nicknames for everybody and he is always making dumb jokes . He calls me "Brownie" . I'm from Georgia and he tells me I'm a "redneck" even though he knows I grew up in Atlanta, a relatively cosmopolitan city. He calls Sven Wahloo, a Swedish player, " Sweedie" and asks him whether he can get his hands on good smoked salmon . He recently said to Peter Olerud, a player for the Boston Red Sox, "Show some spirit, you're not in Norway anymore boy- if you are going to play in this league you need some passion". Olerud is American and as far as I know has never been to Norway, but for some reason Mr . Gates thinks he's Norwegian . We have disciplined other players for unprofessional behavior in the past . Roger Clemente was suspended for 3 games after he took a swing at a fan who was taunting him 4 about his weight as he left the field at the end of an inning . (His fist missed the fan, i.e., he did not actually hit the fan .) We also suspended Max Green after he hit an umpire during an argument over a call . Green was suspended for 10 games and was fined $1500 . Brown acknowledged on cross examination that both Clemente and Green are American players of nondescript national origin . Affidavit of Henry Gates submitted by the League in support of its motion . I am the Commissioner of baseball . One of my responsibilities is deciding what sanctions to impose when a player violates league rules . I am not a bigot. I don't have any prejudices . When I discipline a player, I fit the punishment to the crime . That's all there is to it . The photographer reported that Arsenault socked him in front of a restaurant in downtown Dallas . When I spoke to him, the reporter told us Arsenault looked wild and he thought he might be in a steroid induced rage . We have heard rumors that Arsenault uses steroids . We're getting a lot of pressure from Congress and the public about clamping down on steroids . I wanted to make an example in this situation . All you need to know about Title VII law to draft your opinion is the following : Title VII Title VII was enacted by Congress to prohibit discrimination in employment because of an employee's or prospective employee's race, gender, color, religion or national origin . Under Title VII the plaintiff has the burden to produce evidence on each of the following elements : Prima Facie Elements : (I) He is a member of a protected class (i .e ., in this case French Canadian national origin) (2) He was disciplined ; (3) He was qualified for the position ; and (4) Other players who were not members of the protective class were treated differently . Burden Shifts to Defendant : If the plaintiff satisfies his burden on the above elements, the burden of production shifts to the Defendant to produce evidence of a nondiscriminatory reason for its discipline of the plaintiff . Burden Shift Back to Plaintiff to produce evidence on Pretext Element : If the defendant satisfies this burden, the burden shifts back to the plaintiff to produce evidence (and ultimately, at trial, to persuade a jury) that the nondiscriminatory reason offered by the defendant is a pretext ; i .e. that it is more likely than not a false reason asserted to hide the actual motive which was discrimination on the basis of Arsenault's French Canadian heritage . 5