GENERAL INSTRUCTIONS SPECIFIC INSTRUCTIONS

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1 WUCL Final Exam CIVIL PROCEDURE Student Exam No. Tuesday, Dec. 6, :30 a.m. 11:30 a.m. Professor J. Dobbins GENERAL INSTRUCTIONS Read only this sheet before the examination begins. Do not turn the page until the exam begins. It is the responsibility of law students to be familiar with the Student Grievance Procedure. The following acts are violations over which the Grievance Committee has jurisdiction: A. Acquiring or divulging unauthorized information concerning the content of an examination or other graded course material. B. Violating the time limits provided for an examination, either by beginning before the stipulated time or by answering after the time set for completion. C. Falsely representing another s words or ideas as one s own, in any academic work. D. Collaborating upon a course-required project without the authorization of the instructor. Put exam numbers on the exam envelope before the exam begins. Put exam numbers on the blue books as you use them. Page numbers are not necessary in the blue books. An announcement will be given in each test center to start and stop the exam, including a 5-minute warning before the end of allocated exam time. All writing and marking on exams must cease when the announcement is made that the allocated time for the exam has expired. No exceptions will be allowed. This includes writing page and/or exam numbers on your completed exam. All used scratch paper is to be returned inside the exam envelope. All unused blue books and scratch paper are to be returned to the collection box in the lobby. All exam questions must be returned at the end of the exam unless instructions clearly state that you may keep the questions. If you have software problems that you cannot remedy by re-booting and re-launching the Exam4 software, you must hand-write the remainder of your exam. SPECIFIC INSTRUCTIONS 1) This is a closed-book exam, although you may consult a single 8.5 x 11 sheet of paper, with writing (of any kind) on both sides, that you have personally created or had a substantial role in creating, as well as clean class handouts (posted on WISE) and the attached rules / statutory supplement. 2) There are three essay questions in which your score will depend on your ability to spot issues and analyze problems. Your performance depends on: (a) identifying and describing the legal issues presented in a manner consistent with the call of the question; (b) presenting the relevant legal analyses regarding those issues (including, where appropriate, mention of significant cases discussed in class that were critical to the development of the analysis), and (c) the application of the relevant analysis to the facts presented in the problem, with an eye to identifying what you believe is the most likely outcome, although many of the issues will not have obvious answers. Though not penalized for discussing irrelevant matters, the more time you spend on irrelevant matters, the less time you will spend discussing the issues that are really presented, and your performance may suffer as a result. 3) This is a 180-minute exam, and 180 total points are available; each question indicates the maximum number of points that I intend to award for that answer. You ll do best if you read carefully, consider the question posed, outline your legal responses and how the facts fit with them, and then begin writing. 4) You should not rely on independent knowledge of any substantive state or federal law that may bear on issues addressed in the exam. This is a civil procedure test, and all knowledge relevant to the specific areas of substantive law that are necessary to the exam is set forth in the questions presented. If you are missing facts that you believe you need to answer a question adequately, tell me the facts you need, and why. End of Instructions Page 1 of 5

2 WUCL Final Exam CIVIL PROCEDURE Student Exam No. Tuesday, Dec. 6, :30 a.m. 11:30 a.m. Professor J. Dobbins EXAMINATION QUESTION I. ESSAY ONE (60 minutes total) Background: Paulette s Pleasing Pies, Inc., is a Delaware corporation with its sole factory located in Portland, OR (although its 5-person headquarters is in Vancouver, WA). PPP comes to your Portland law office to hire you to register a federal trademark for PPP s Diamond Custom Pies. These pies are custom-made by PPP, and baked in a diamond-encrusted pie pan (which is to be returned upon finishing the pie). You know that it is not necessary to register their trademark pie pans in order to protect others from using the idea (federal law recognizes a cause of action for infringing on any recognizable trade dress like the diamond pans, whether formally registered or not), but you also know that registering the trademark may help in future litigation. But before you can complete the registration. Problem: As he does every Thanksgiving Eve, Darryl DeFries dropped into the Portland, Oregon store of Paulette s Pleasing Pies to pick up his Diamond Custom Pie: Chipotle Habanero Pumpkin, in the PPP-standard diamond-encrusted pie pan. Darryl is a Dutch citizen living in Vancouver, Washington on a temporary visa. Five days after Thanksgiving, the local manager of PPP (Perry Paulson) learned that Darryl had just opened a competitor pie shop in Vancouver, Washington, called Darryl s Dutch Delights (it s registered in WA as a sole proprietorship). Perry learned that Darryl was offering custom pies in a jewel-encrusted pie pan when he went by to visit, at least ten people came out the door with bejeweled pans in hand -- and immediately came to your law office in Portland for advice. A new associate in your office, Larry Lestrange, a recent graduate of the Northwestern Oregon Law School, bumped into Perry when he entered the office. Trying to show initiative, Larry took Perry into a conference room, drafted a complaint then and there (on behalf of PPP against Darryl DeFries), and filed it later that afternoon in the U.S. District Court for the District of Oregon. The substance of the complaint follows: Jurisdiction 1. Plaintiff does business in the state of Oregon as Paulette s Pleasing Pies, Inc., and defendant is a resident of the state of Washington. 2. Jurisdiction is proper based on diversity. 3. Venue is proper because the events giving rise to this complaint arose in this District. Count One (Conversion) 4. On or after November 23, 2011, the defendant converted to the defendant s own use property owned by the plaintiff. The property consists of one diamond-encrusted pie pan, worth at least $75,000. Claim for Relief 5. Therefore, the plaintiff demands judgment against the defendant for the value of the pan, plus such other relief as the court deems appropriate. You know nothing about this until, at the end of the day, Larry pops his head into your office and proudly shows you the filed complaint (he says he plans to serve it on Darryl tomorrow). The form of the complaint meets all relevant requirements, and the specific elements of conversion are adequately stated (defendant s use of property owned by plaintiff), but you notice some problems. You take this as an opportunity to teach Larry some things about Civil Procedure. What concerns do you have regarding the complaint, what risks would you face if you proceed with it as is, and how might you go about correcting the problems if they are correctable at all? END OF QUESTION 1 GO TO NEXT PAGE Page 2 of 5

3 WUCL Final Exam CIVIL PROCEDURE Student Exam No. Tuesday, Dec. 6, :30 a.m. 11:30 a.m. Professor J. Dobbins II. ESSAY TWO (75 minutes total) Derek moved from his home in Colorado to a rental house in Taos, NM, for a month-long project for work. One sunny afternoon in November, Derek took his dog, Beast, out for a walk. As he exited his house, a delivery truck pulled up across the street, and the driver, Dave (who lives in Colorado, but works in Taos), climbed out to deliver a package to Maude, who lived across from Derek. Derek turned left, greeting his next door neighbor, Paul, who was planting bulbs out front. Jessie Maude Dave Truck Paul Derek At that moment, Jessie, a 5-year-old who lived across the street from them, climbed up into the open door of the delivery truck and blew the truck s horn. Startled, Dave dropped the Ming Dynasty vase that he was delivering to Maude (she estimates its value at $250,000). At the same moment, Maude shrieked loudly. This was all too much for the startled Beast, who severely bit Paul s leg. (Paul s medical expenses were over $100,000.) Paul yelled at Beast, who ran off in fear and was struck by traffic a block down the road; Beast survived, but required $10,000 in veterinary expenses. Except for Derek and Dave, all parties are NM citizens. A) (5 points) Paul sues Derek in NM state court, alleging negligence in failing to restrain Beast. Can Derek remove to federal court? B) (15 points) Assume we are in federal court. Derek wants to sue Paul for Beast s injuries. He would also like to join Jessie s parents, Dave, and Maude, believing that they all acted negligently in startling Beast, and contributed to Beast s injuries. Can he join those claims into the pending case? (Address joinder and subject matter jurisdiction here and in subsequent questions.) C) (5 points) Assume Derek is able to join all the parties as indicated in B, and that Paul thinks they are probably also responsible to him, too. Can Paul join claims against Jessie s Parents, Dave, and Maude? D) (10 points) Again, assume Derek has joined all the parties indicated in B. Maude wants to sue Dave for negligence in dropping the package. Can she? Is she required to do so? QUESTION 2 CONTINUES ON NEXT PAGE Page 3 of 5

4 WUCL Final Exam CIVIL PROCEDURE Student Exam No. Tuesday, Dec. 6, :30 a.m. 11:30 a.m. Professor J. Dobbins QUESTION II, CONTINUED E) (15 points). Ignore Parts A-D. Assume, instead, that Maude files a lawsuit in state court against Dave, alleging negligence in dropping the package. Dave hires Pat Terry, a New York University expert on dating pottery. Terry uses a newfangled technique called XTR exflorescence and concludes that the vase was, in fact, a fake. Maude attempts to exclude Terry s testimony as being unsupported by current science, but the trial court permits it. Dave also argues that it was Maude who caused him to drop the vase by shrieking at the honking horn, and that she was therefore liable for the loss. The jury returns a verdict for Dave. Maude then files a separate suit against Jesse s parents in NM state court, alleging that they should have better monitored their child. They want to take advantage of any preclusion arguments that might be available against Maude. Are any available? On what theory? F) (25 points) (Continue with facts from E) Jesse s parents think that Dave was negligent for leaving the truck door open. Can they join him in Maude v. Jesse s Parents? (Address joinder rules.) If he can be joined, does he have an argument regarding preclusion? Why or why not? If so, how is that fair to Jesse s Parents? If not, how is that fair to Dave? END OF QUESTION 2 GO TO NEXT PAGE Page 4 of 5

5 WUCL Final Exam CIVIL PROCEDURE Student Exam No. Tuesday, Dec. 6, :30 a.m. 11:30 a.m. Professor J. Dobbins II. ESSAY THREE (45 minutes total) Paulette Prince, a citizen of Washington, was in an automobile accident with Don DeVine, a citizen of Oregon. Paulette sued Don in Oregon federal district court for allegedly incapacitating injuries to her legs and back. At a break during a deposition of a witness to the accident, Paulette s attorney, Perry Pason, was talking with his client. The court reporter, who was still in the room, told his client that he saw her out running yesterday, and she shouldn t volunteer that information if she s ever asked about it at trial. The Court reporter later mentioned this to Don s attorney, Doris Declaim. A) (22 points) Attorney Declaim wants to get this information from Attorney Perry in discovery (she assumes that Paulette is simply going to lie about jogging in her deposition about jogging). What method would you recommend for doing so? Consider interrogatories, requests for production, and requests for admission. Is the attorney-client privilege going to be a problem? B) (23 points) Doris learns that Paulette is seeing a physical therapist (PT) for her injuries in Washington state. Oregon recognizes a PT-Patient privilege, but Washington does not, nor do the federal courts. Doris notices a deposition of Paulette s physical therapist, and Paulette wants to oppose the deposition of the therapist. What method would she use to oppose the deposition, and what is her best argument to successfully oppose? END OF EXAMINATION (Excerpts from 28 U.S.C. and F.R.C.P. follow) Page 5 of 5

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