Tort Action - Intro to Civil Procedure - Past Paper, Exams of Civil Law

Download Tort Action - 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 21, 1990 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. Both the envelope and your answers should contain your course name, and the instructor. There are three questions, weighted differently, and you should allocate your time accordingly. A superior answer to one question, produced by spending a disproportionate amount of time on it, probably won't compensate for a weak answer to another, produced by not having enough time to finish it. The exam is shorter than those on reserve and should be more manageable, but as always, work continuously and don't spend time worrying about whether you will finish. The first question is principally about personal jurisdiction, the second principally about the Erie/Hanna doctrine, and the third principally about subject matter jurisdiction, but each may contain other issues and unless instructed otherwise, raise and discuss all issues presented. In answering, avoid long descriptive statements about law in the abstract, just solve the problems presented by the fact patterns. Analysis counts, description does not. Work with elegance, insight and understanding, and you need fear no grader. I (sixty minutes) Scott Lake, Cathy Lake, and Scott Lake as guardian ad litem for their minor child Brian (the Lakes), appeal from an order of the United States District Court for the District of Idaho dismissing Stephen Taylor, for lack of personal jurisdiction, as a defendant in the Lakes' tort action against Taylor and several others. Scott Lake (Scott) is Brian's natural father, Cathy Lake (Cathy) his stepmother, and Diane Klymciw (Diane), formerly Diane Lake, his natural mother. In June 1975, at the request of both parties, the Los Angeles Superior Court entered a final decree dissolving Scott and Diane's ten-year marriage, awarding custody of Brian, then six years old, to Scott, and visitation rights to Diane. Diane visited Brian regularly for a little more than two years before gradually losing touch. By November 1978, when Scott married Cathy, Brian had not heard from Diane in over four months, and he had made no effort to contact her himself. Nearly a year later, in October 1979, Scott enlisted in the Air Force, and after basic training, was assigned to Mountain Home Air Force base in Boise, Idaho, where he moved with his family. No one told Diane of this move. In early 1982 Diane decided to re-establish contact with Brian, but was unable to reach him at his Los Angeles address, the only one she had. Unsure of where or how to look, she contacted Hour Magazine, a Los Angeles area television program known for its live broadcasts of the recovery of lost and kidnaped children. Hour Magazine put Diane in contact with Stephen Taylor, an attorney affiliated with the Citizens' League on Custody and Kidnaping, an advocacy and investigative organization with offices in all fifty states. Taylor, through the efforts of a Citizen's League investigator, learned in January 1983, that Scott had joined the Air Force, and had been assigned to the Mountain Home Air Force Base. On February 25, 1983, at the request of both Diane and the Citizens' League, which had promised to help Diane recover Brian, he filed an ex parte petition with the Los Angeles Superior Court asking the Court to modify its earlier custody order so as now to award custody of Brian to Diane. Taylor also notified the Court that he was now Diane's attorney of record, since he had not represented her in the earlier divorce proceeding. Because the request was made ex parte, Scott was not notified of this proceeding and, as a consequence, did not appear in court to oppose it. Both California and Idaho have adopted the Uniform Child Custody Jurisdiction Act (UCCJA), which establishes exclusive standards in adopting states for determining jurisdiction in multi-state custody disputes. Insofar as it is relevant here, the UCCJA grants jurisdiction for ex parte custody orders only when a non-notified spouse is likely to flee to avoid the court's order if the acceptance is made "under protest.") a) How should the Supreme Court rule on Silver's appeal ? Why ? b) If the federal rule prohibiting appeal was part of the Federal Rules of Appellate Procedure instead of federal decisional law, would the outcome be different ? Why or why not? c) If the federal rule was statutory, would the outcome be different ? Why or why not ? SOME BACKGROUND ON REMITTITUR: Remittitur is a quasi common law doctrine authorizing the grant of a conditional new trial. If a trial judge thinks that a jury verdict is incorrect (i.e., against the weight of the evidence), but not unreasonable (i.e., supported by some evidence), 80 that it should be set aside but a directed verdict still not entered, he/she may give the verdict winner the option of accepting a reduced award rather than going through a new trial. In effect, the judge determines what the jury should have awarded and gives the plaintiff the choice of accepting that lesser amount ("remitting" the rest), or taking her/his chances with another jury. The doctrine may or may not have been part of the English common law, and may or may not have predated the adoption of the U.S. Constitution, but it was found constitutional by the U.S. Supreme Court in an early nineteenth century opinion, and while this decision has often been questioned it has not been overruled. (The constitutional debate was over the question of whether the doctrine permits judges to usurp power granted to juries under the Seventh Amendment, and many still believe that it does. Even the Supreme Court, in a 1934 opinion, expressed reservations about the doctrine, stating that "if the question of [the constitutionality of] remittitur were now before us for the first time, it would be decided otherwise," but it also re-affirmed its earlier holding on the ground that the doctrine had "been accepted as the law for more than a hundred years.") The policies and purposes underlying remittitur are fuzzy, but at a minimum the doctrine is designed to conserve judicial resources by cutting down on the number of new trials needed when juries make questionable decisions on the merits. St also shares the objectives of post trial motions generally, including that of providing opportunities for a second look at jury verdicts to make sure that justice has been done. You may make any (and all) additional speculations in this regard that you like, if necessary, and any purposes or policies you suggest that are reasonable will be taken as valid. The rule about being able to appeal from a remittitur accepted "under protest" is based on similar policies and purposes. III (seventy-five minutes) Beverly and George Thompson brought suit against Merrell Dow Pharmaceuticals Inc. (Merrell Dow), in Michigan Superior Court, for harm resulting from multiple birth defects suffered by the Thompsons' daughter Gretchen, allegedly because of Beverly's use during Gretchen's pregnancy of the drug Bendectin, which Merrell Dow manufactures. The Thompsons sought to recover in strict liability, breach of warranty, and fraud, all state common law theories, and in negligence under a Michigan statute which makes violation of federal law "a rebuttable presumption of negligence," and asked for declaratory, monetary and injunctive relief on all claims. To invoke the negligence statute they alleged that the Bendectin Beverly used was "misbranded," in violation of the Federal Food, Drug and Cosmetic Act (FDCA), because its labeling did not provide adequate warning that its use was potentially dangerous, and that this violation of the FDCA "directly and proximately caused (Gretchen's) injuries." (Assume that the other necessary elements of negligence were alleged, and also that the FDCA provides no private right of action, that is, that the Thompsons could not have sued Merrell Dow directly under the Act for misbranding.) Beverly and George met in September, 1987, when they were beginning graduate students at Michigan State University, in East Lansing, Michigan. She was from Port Charlotte, Florida, and he from Winooski, Vermont. They were married in the summer of 1988, and Gretchen was born in April 1989. The Bendectin was prescribed for Beverly by her family doctor in Port Charlotte, on a visit home during the Fall of 1988, and purchased during the same visit from a neighborhood Port Charlotte pharmacy. When they first went to Michigan State both were in two-year Masters programs, and both had planned to go on to The Ohio State University in Columbus, Ohio, for their Ph.D.'s. They lived rent free after their marriage in an East Lansing condominium owned by Beverly's parents, and drove around campus (and elsewhere) in a car purchased by and registered to George's parents in Winooski, where insurance was cheaper. They were a little embarrassed about being supported by their parents now that they were out on their own (their parents also paid for tuition, books and fees), particularly after Gretchen was born, but each of their graduate programs was demanding, and left little time on the side for remunerative work. The Thompsons filed their lawsuit on August 25, 1989, the day before they moved to Columbus (they wanted to file in Michigan to take advantage of the Michigan negligence statute). Service was made on Merrell Dow two months later, after the Thompsons had purchased a house (down payment from the parents), registered to vote for the first time, took part times jobs, and otherwise declared their intent to make Columbus their permanent home. Merrell Dow is a Delaware corporation, with its principal place of business in Detroit, Michigan, and its manufacturing and distribution facilities in various cities throughout Michigan. Upon being served, it removed the Thompsons' action to the United States District Court for the Eastern District of Michigan, pursuant to 28 U.S.C. ' 1441, and then answered, denying that Bendectin was the cause of Gretchen's deformities, alleging that Beverly was contributorily negligent because she had overused the drug, and counterclaiming for interference with contractual relations because the Thompsons had placed several advertisements in the Michigan State newspaper urging women not to use Bendectin. In early November 1989, pursuant to 28 U.S.C. ' 1404, the Thompsons moved to transfer the case to the United States District Court for the Southern District of Ohio, sitting in Columbus, and this motion was granted. Discovery was completed on an expedited schedule, pre-trial motions waived, and the case set for trial on August 26, 1990. On the first day of trial Merrell Dow moved to dismiss the entire action for lack of subject matter jurisdiction, arguing that the parties were not diverse, and that the complaint did not state a claim arising under federal law. The Thompsons, concerned that the one year statute of limitations on their negligence claim had run, countered with a motion to remand the case to Michigan Superior Court pursuant to 28 U.S.C. ' 1447. a) How should the Ohio federal court rule on the combination of the Merrell Dow motion to dismiss and the Thompson motion to remand, and if either dismissal or remand is appropriate should it be granted with respect to all or part of the plaintiffs' suit ? If part, what claims should not be dismissed or remanded ? Explain your answer fully. (This is the most important subpart of this question.) b) Should the Thompson's motion to transfer to the Ohio federal court have been granted ? Why or Why not? c) May Merrell Dow continue to prosecute its counterclaim for interference with contractual relations in the Ohio federal court ? Why or why not ? May it transfer it back to Michigan federal court ? Why or why not ?