SCHOOL OF LAW (BOALT HALL) SPRING, LAW 200B -- CIVIL PROCEDURE Instructor in Charge: Professor Fletcher Time Allowed: 3 hours.

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1 UNIVERSITY OF CALIFORNIA COURSE EXAMINATION SCHOOL OF LAW (BOALT HALL) SPRING, 1991 LAW 200B -- CIVIL PROCEDURE Instructor in Charge: Professor Fletcher Time Allowed: 3 hours Instructions This is an open book examination. You may bring into the examination room any assigned material in the course, plus your personal notes. No hornbooks or commercial outlines. The total time allocated for this examination is 3 hours. There are two questions. You have no choice on question one. You have a choice on questions two: answer either A or B, not both. I suggest that you allocate your time as follows: Question 1: 2 1/2 hours Question 2: 1/2 hour I will weight the questions according to the times I have suggested for answering them. You will have to move right along to stay within the allotted time. Please be sure to put your correct Spring exam number (or label) on the bluebook. Be sure to identify each page of typed answers with exam number, name of course, and name of instructor. Please do not leave your blue book or typed answers on the desk. They must be given to the person in charge. If you finish early, you must take your answers to Room 225 (the Registrar's Office). For your convenience, I have attached relevant sections of the December, 1990, statute at the end of the examination. For other statutory and rule material, I expect that you will have your regular blue paperbound book.

2 Question 1 (suggested time: 2 1/2 hours) Carnival Cruise Lines is a Canadian corporation operating cruise ships around the world. A substantial part of Carnival's business consists in carrying passengers from ports in the United States on cruises along the west coast of Mexico and in the Caribbean. Carnival's United States headquarters is in Miami, Florida. Mr. and Ms. Shute live in Seattle, Washington, and are citizens of that state. They buy tickets on a Carnival cruise through their local travel agent. Mr. and Ms. Nevil, friends of the Shutes, live in Vancouver, Canada, and are citizens of that country. The Shutes purchase tickets for the Nevils from their Seattle travel agent at the same time they purchase their own. (The Nevils later reimburse the Shutes.) The cruise begins in Los Angeles, stops at several Mexican ports, and then returns to Los Angeles. The ticket provides that to the extent not displaced by federal law, the contract will be governed by the law of the state from which the ship departs. The arrangement between the travel agent and Carnival is that the agent forwards the money for the tickets to Carnival in Florida. Carnival sends the tickets to the travel agent in Seattle, who turns them over to the Shutes. Carnival owns no property and pays no taxes in Washington; maintains no office or bank account in the state; and has never operated ships that stop at ports in the state. Carnival does advertise in Washington newspapers and provides brochures to Washington state travel agents. It conducts periodic seminars in Los Angeles for travel agents from the states along the west coast, and occasionally invites travel agents from western states on free cruises as a way of encouraging good will. Carnival pays a ten percent commission to travel agents for tickets sold through them. The Shutes fly from Seattle, and the Nevils from Vancouver, to Los Angeles. They meet there and board the cruise ship together. While in international waters off the coast of Mexico, the Shutes and the Nevils have dinner together, eating a meal especially prepared for them by the ship's chef. The next day, the Shutes and the Nevils are all violently ill, possibly due to spoiled canned crab in their meal the previous evening. The crab probably came from a can sold to Carnival by Pacific Packer, a Canadian corporation. On return to Los Angeles, the Shutes and the Nevils spend several days in a local hospital before returning to Seattle and Vancouver. A federal statute provides that cruise ships operating out of United States ports must provide "safe carriage" to all

3 passengers embarking from a United States port. "Safe carriage" is defined in the statute as taking due care to ensure the health and safety of passengers. Shortly after their return to their respective homes, the Shutes and the Nevils jointly file suit in federal District Court for the Western District of Washington (located in Seattle) alleging violation of the federal statute providing for "safe carriage." They further allege, as a separate cause of action, breach of contract under state law. Motion (1): Defendant Carnival moves to dismiss for lack of in personam jurisdiction. The Washington state long-arm statute subjects defendants to jurisdiction within the state "as to any cause of action arising from... the transaction of any business within this state." RCW (l)(a). What result? Motion (2): Defendant Carnival moves at the same time to dismiss for lack of venue. What result? Motion (3): Defendant Carnival moves to dismiss the state law claim for lack of subject matter jurisdiction. What result? Assume that Carnival's motions (1), (2), and (3), above, are denied. Motion (4): Defendant Carnival now moves as to the Shutes that the suit be transferred under 28 U.S.C. 1404(a) to the federal District Court for the Middle District of California (located in Los Angeles), or, in the alternative, to the federal District Court for the Southern District of Florida (located in Miami). What result? Motion (5): Carnival moves as to the Nevils that the suit be dismissed for forum non conveniens, arguing that Canada is a more appropriate forum. Canadian procedures are somewhat, but not radically, different from the Federal Rules of Civil Procedure. The result as to liability if the Nevils sue in Canada will probably (though not certainly) be the same as in the United States, but an American jury is likely to award substantially higher damages than a Canadian court. Washington state forum non conveniens law requires only that there be a reasonable connection between the litigation and the forum. The purchase of the tickets in Seattle would constitute such connection under Washington law. What result? Assume that motions (4) and (5), above, are denied. Under Federal Rule of Civil Procedure 14(a), Carnival impleads Pacific Packer, the Canadian corporation, as a third-party defendant, alleging that it supplied spoiled canned crab that made its way into the Shutes' and Nevils' meal. Pacific

4 Packer sells fish products (including canned crab) directly to Carnival in Canada. Pacific Packer products are also sold, through retailers, in Washington state; but there is no claim that the canned crab in question was ever in Washington. The Shutes and the Nevils amend their complaint to add Pacific Packer as a defendant on a state law product liability cause of action. Motion (6): (Defendant) Pacific Packer moves to dismiss the Nevils' complaint for lack of subject matter jurisdiction. What result? Assume that motion (6) is denied. Carnival then moves for a dismissal of the federal cause of action under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, on the ground that "safe carriage" under the statute refers only to health and safety as it relates to the seaworthiness of the vessel. This motion is granted, and the federal claim is dismissed. Motion (7): (Defendant) Pacific Packer renews its motion to dismiss the Nevils' complaint for lack of subject matter jurisdiction. What result? Assume that motion (7) is denied. Defendant Carnival settles with the Shutes and the Nevils for $100,000 in return for a dismissal of the their claims against Carnival. Motion (8): (Third-party defendant) Pacific Packer moves for dismissal of (third-party plaintiff) Carnival's claim on the alternate grounds of lack of in personam jurisdiction and forum non conveniens. What result? Notes: (1) Admiralty, which we have not studied, is a possible basis for jurisdiction in this question. You may assume that none of the parties invokes admiralty jurisdiction, and that it is irrelevant to your analysis. (2) 1 have loosely derived a small part of this question from Carnival Cruise Lines v. Shute, 59 U.S.L.W (1991), reversing Shute v. Carnival Cruise Lines, 897 F.2d 377 (9th Cir. 1990). You may be interested in consulting these opinions after the examination.

5 Question 2 (suggested time: 1/2 hour) Answer either A or B. Do not answer both. Question A Auden lives in an apartment he has rented unfurnished in a building owned by Isherwood. A fire breaks out in the apartment that does considerable damage to the building. Auden's furniture is also destroyed. Auden sues his insurance company to recover the value of the furniture after the company refuses to pay on the ground that the policy excludes losses caused by the fault of the insured and that the fire was caused by the negligence of Auden. The insurance company wins. At the time of the judgment in favor of the insurance company in the first suit, another action is pending in which Isherwood has sued Auden, seeking to recover for the damage to the building caused by the fire. Isherwood alleges that Auden's negligence caused the fire, and argues that Auden's negligence is determined by the judgment in the first suit. (1) Is the issue of Auden's negligence in the second suit foreclosed by the judgment in the first suit? (2) If the suit by Isherwood had gone to trial first, and if it had been there determined that Auden had negligently caused the fire, would the issue of negligence be foreclosed in Auden's suit against the insurance company? Question B Criticize the results reached by the Supreme Court in Ferens v. John Deere Co. and in Burnham v. Superior Court.