EXAM NO. UNIVERSITY OF CALIFORNIA, HASTINGS COLLEGE OF THE LAW FINAL EXAMINATION

Transcription

1 EXAM NO. UNIVERSITY OF CALIFORNIA, HASTINGS COLLEGE OF THE LAW FINAL EXAMINATION CIVIL PROCEDURE () TUESDAY, MAY 16 PROFESSOR AMAR (3 HOURS) I. This is an open-book exam. You may consult any books, notes and other inanimate objects of your choice. II. This exam and all exam materials must remain in the examination room at all times. Both the exam and your blue books must be turned in at the end of the examination time. III. I designed this exam to last two hours and forty five minutes, but have given you three hours in which to complete it. I suggest you use the extra fifteen minutes to read the exam through entirely before you begin outlining and writing. IV. I have indicated the approximate amount of time you should spend on each of the questions. These time allocations, which add up to two hours and forty five minutes, correspond to the relative weights I will give to the questions when I grade the exams. V. Order your thoughts before you write your responses. Be thorough and be clear. Your grade will be based in part on the organization, clarity and precision of your responses. Use your imagination as well as your analytic powers. Refer to principles, ideas, doctrines, cases, constitutional provisions, statutes and rules to the extent they are relevant to your discussion. And remember to answer the questions being posed. VI. It is possible that you may not have been given all of the facts or information as to governing legal rules that a lawyer would need to resolve each problem. In any such cases, do not assume new facts or legal rules to solve the problem. Rather, briefly state what additional facts or information as to governing rules you would seek and why. VII. Write (or type) legibly; I cannot appreciate remarks that I cannot read. VIII. Please refrain from doing anything that will jeopardize your (or anyone else's) anonymity on this exam, either during the exam itself or in any other context, before the exams have been graded. DO NOT TURN THIS PAGE UNTIL INSTRUCTED TO DO SO 1

2 I. (45 minutes) Imagine that you are the counsel to the Senate Judiciary Committee. The Committee Chairman, Senator Orrin Hatch (R - Utah), approaches you with concern about the so-called wellpleaded complaint rule. He has two problems with the rule. First, he thinks the rule, if it is to continue, ought to be expressed in the text of 28 U.S.C. section 1331; today, he correctly points out, the rule exists only as an interpretive gloss that courts have placed on Second, he is not sure that the well-pleaded complaint limitation on federal question jurisdiction makes sense. He asks you to draft a revised section 1331, which embodies whatever version of the well-pleaded complaint rule you think makes good sense. That means you may choose to codify the current well-pleaded complaint doctrine into your proposed section 1331, or you may reject entirely the well-pleaded complaint limitation and draft your 1331 as generously as the Constitution permits. Or you may do something in between. In any case, Senator Hatch wants you not just to draft the statute, but also explain why you have chosen to draft it the way in which you have. In other words, he wants you to explain why you have chosen to embrace, reject, or modify the current well-pleaded complaint doctrine. If you think modification of other statutory provisions (besides 1331) is necessary to implement your approach, make that clear as well. Senator Hatch also tells you to ignore, as you go about your assignment, the availability of declaratory relief; act as if such declaratory relief does not exist. II. (30 minutes; 5 minutes each) Each of the following 6 statements about procedure is in one or more respects false. Explain briefly why and/or to what extent each statement is false. If your answer turns on a specific provision of a statute or rule, make sure you cite to such provision. If a statement is false because it contradicts a case, be sure to name the case. Be brief: you should be able to provide an answer that will receive full credit in a few sentences. Unless otherwise specified, assume that each lawsuit occurs in a federal court in May, An example follows: 2

3 Example Statement: Bill sues Hillary for slander. If Hillary believes that the statute of limitations has run, she should answer by denying the relevant parts of the complaint. Sample Answer: Expiration of the statutory period of limitation is an affirmative defense under Rule 8(c). Hillary must plead it as such or else she waives the defense. A. If a witness who is favorable to the defendant refuses to answer interrogatories served upon him, the plaintiff can ask the court, in its discretion, to enter judgment against the defendant as a sanction for this discovery abuse. B. A federal court may exercise supplemental jurisdiction over a state law claim by a plaintiff against a non-diverse impleaded third-party defendant, where the court's subject matter jurisdiction over the claim between the plaintiff and the thirdparty plaintiff is based upon diversity of citizenship. C. A party who fails to adduce evidence can never successfully move for summary judgment. D. Dick sues Jane in a federal district court in the Central District of California (Los Angeles) for breach of a contract. Subject matter jurisdiction is founded on 28 U.S.C. section Jane successfully moves for dismissal on the ground that venue in the Central District is lacking. Dick files a new suit in a federal district court in Jane's hometown of New York, where venue does lie. Jane has a good argument for dismissal of this second action on claim preclusion grounds. E. A plaintiff who can show that he will suffer more injury if a preliminary injunction is denied than defendant will suffer if the preliminary injunction is granted will be entitled to the preliminary injunction. F. Because deference to a district court by an appellate court on factual matters depends upon credibility determinations the district court may have made, deference is not appropriate where the district court has made its findings purely based on documentary (that is, paper) evidence. 3

4 III. (45 minutes) The organizers of the 2000 Tournament of Roses Parade decided to feature a motorcade of antique automobiles at the beginning of the parade, just behind the convertible carrying this year's Grand Marshal, Monica Lewinsky. As the cars passed in front of the main viewing grandstand, Lewinsky noticed a little boy screaming because he had let go of his helium balloon and it was beginning to float out of his reach. Oblivious to the traffic behind her, Lewinsky suddenly leapt from the convertible and rushed to the boy's aid. In an effort to avoid running into Lewinsky, three of the antique car drivers slammed on their brakes and swerved. Fortunately, all three successfully avoided hitting Ms. Lewinsky. Unfortunately, the drivers turned into each others' paths and a three-car collision resulted. Driver A believes her 1934 Roadster is scratched, but Driver A herself suffers no personal injury. Driver B is not so lucky; his Model T ignites into flames and he is badly injured, suffering serious burns over much of his body. Both Driver C and her car suffer only minor body damage. Lewinsky is so shaken up emotionally that she is unable to continue in her role as Grand Marshal for the rest of the parade route. Driver A brings suit against both B and C. Driver A alleges that the accident was caused by the negligence of both B and C; she seeks a total of $3,000 in compensatory damages (the cost of repairing the roadster). This suit is brought in the "small claims court" part of the California state judicial system. California's procedural rules are modeled in all respects after the Federal Rules of Civil Procedure and other federal procedural doctrines, with a single exception: parties in small claims court can proffer the testimony of only ten witnesses, and small claims cases are tried before a six-person jury. This lawsuit is tried before the mini (six person) jury. B raises no affirmative defenses; he argues only that he did not act negligently in any way. C, on the other hand, stipulates that she was not paying sufficient attention to the parade participants in front of her and hence was negligent. C also stipulates that her negligence was both a but-for and a proximate cause of the accident. C denies that A's car was affected at all by the accident, and also interposes the affirmative defense of contributory negligence. (Assume that under California law contributory negligence is a complete bar to recovery.) After hearing each party's witnesses, the jury renders a general verdict finding B liable to A and awarding $1,000 in compensatory damages. The jury also renders a general verdict finding C not liable to A. Part A. 4

5 One month later, Driver B sues Driver C in California Superior Court (the basic full-scale trial court of general jurisdiction in the state). Driver B alleges that his personal injuries were caused by C's reckless driving and seeks $500,000 in compensatory damages and one million dollars in punitive damages. C pleads contributory negligence as an affirmative defense. (1) (7.5 minutes) Can Driver C validly argue that B's claim against C is barred because of B's failure to introduce this claim in the original lawsuit brought by Driver A? By what procedural means could C raise any such argument(s)? (2) (7.5 minutes) Can Driver B in any way use to his advantage A's suit against C? By what procedural means could B raise any such argument(s)? (3) (15 minutes) Can Driver C in any way use to her advantage the outcome of A's suit against B? By what procedural means could C raise any such argument(s)? Part B. One month later still, Monica Lewinsky sues Driver A in California Superior Court. Lewinsky alleges that her inability to finish the parade as Grand Marshal after the accident (which she claims was caused by Driver A's negligence) cost her $100, the amount of money he would have been paid by corporate sponsors had she fulfilled her contractual obligation to finish the parade route. She accordingly seeks $100,000 in compensatory damages from A. (1) (15 minutes) Can Lewinsky in any way use to her advantage the filing or outcome of either or both of A's claims against drivers B and C? By what procedural means could Lewinsky raise any such argument(s)? IV. (45 minutes) Using its vast powers to regulate interstate commerce, Congress has passed into law a comprehensive health care reform package known as the Federal Health Care Reform Act of An integral part of the Act deals with medical malpractice litigation, which Congress believes has historically created excessive costs within the health care system. Under the new legislation, all state law causes of action for medical 5

6 malpractice are expressly preempted and eliminated. Aggrieved patients do, however, have a new, federal statutory cause of action. This new federal right, the contours of which will be developed by federal courts, is limited in a few respects. In particular, before initiating litigation, a plaintiff must present her case to the newly-created Malpractice Claim Review Board (MCRB) and receive a "right to sue" letter. If the MCRB determines a case to be frivolous, and declines to issue a "right to sue" letter, no suit may be filed. If a "right to sue" letter is issued, the plaintiff may file an action before a United States Magistrate Judge (who, unlike Article III judges, is appointed by the President for only a seven-year term rather than for life). In order to expedite cases and keep costs low, trial before Magistrate Judges under the Act is conducted without a jury; the Magistrate's rulings are appealable to the United States Courts of Appeals. Deborah Boyer obtained a "right to sue" letter from the MCRB for her claim that the doctors at John Muir Hospital in Walnut Creek were negligent in failing to diagnose her illness at a time when treatment would have been more effective. Despite her timely request for a jury trial, her case was -- pursuant to the provisions of the new law -- tried before a Magistrate, who found against her. She then appealed her case to the United States Court of Appeals for the Ninth Circuit, and raised a claim that she was entitled to a jury trial under the Seventh Amendment. The Ninth Circuit agreed with Boyer that the Act violated her rights under the Seventh Amendment. The Ninth Circuit recognized that Magistrates lack statutory authority under the Act to convene juries, and for that reason the Ninth Circuit did not remand the case to the Magistrate. Instead, the Ninth Circuit merely vacated the Magistrate's judgment below and wrote an opinion suggesting that because the Act violates the Seventh Amendment, its preemptive language should not be given effect, such that Boyer is free to raise a state law malpractice claim in state court. The United States Supreme Court granted the cert. petition filed by the defendant doctors. Imagine you are a law clerk to Justice Stevens. Please draft a memo for him addressing the contention made by the doctors and by the Solicitor General (who filed an amicus, or "friend of the Court" brief) that the Act comports with the Seventh Amendment as it has been interpreted by the Supreme Court. END OF EXAMINATION 6