Examination No. _ _

CIVIL PROCEDURE I, Section 1 (815-001) Professor Harding
December 15, 1993 Room 110

FINAL EXAMINATION
INSTRUCTIONS - READ CAREFULLY

1. This is a closed-book examination. You are only allowed
to use your Federal Rules of Civil Procedure ("Rules Book").
Your Rules Book must not contain any tabs, annotations, outlines,
or other written material. You may, however, have underlined or
highlighted words or passages. If this rule is violated, you
will not be permitted to finish the final examination and will
receive an "E" for the course.

2. You may not use commercial or personal course outlines.
Violation of this rule subjects you to the sanction mentioned in
Rule 1.

3. You have three (3) hours to complete the examination. The
final examination is worth a total of one thousand (1000) points.

4. The final examination has three questions. The first
question is worth four hundred and fifty (450) points. The
second question is worth three hundred and fifty (350) points.
The third, and final, question is worth two hundred (200) points.

5. You must write your examination number on the front of this
examination sheet and on the front of each blue book you use.

6. If you use more than one bluebook, mark the first blue book
"1 of 3", the second one "2 of 3", and so on.

7. Write only in pen.

8. Write all of your answers in your blue books. Please write
on every other line of each page.

9. Write only on one side of the page.

YOU MAY TURN THE PAGE TO CONTINUE READING THE INSTRUCTIONS

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10. Write your answers clearly and thoughtfully. If you believe
you need to make an assumption, then clearly note what it is you
are assuming. If you make a reasonable factual inference from a
given fact, clearly state the inferred fact and how you
reasonably inferred the fact.

11. Answer only the question(s) asked. You will not receive
points for irrelevant responses.

12. I will periodically write the time remaining on the
blackboard. In addition, I will verbally advise you when there
are fifteen (15) minutes remaining and when there are five (5)
minutes remaining.

13. After three hours have passed, I will call time and all
students must stop writing. Please place your pen on top of your
blue books so that I can verify that everyone has stopped
writing. If you do not follow this instruction, I will
confiscate your blue book(s) and you will receive an "E" for the
course.

14. I will be in the classroom during the examination. If you
have any questions, please come and ask me.

15. After you hand in your blue books do not ask me any
questions regarding the final exam.

16. You are required to adhere to the College of Law's Honor
Code. If you violate any provision of the Honor Code, then you
will receive an "E" in this course.

DO NOT TURN THIS PAGE OR BEGIN THE EXAMINATION UNTIL
YOU ARE TOLD TO BEGIN
GOOD LUCK!

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OUESTION 1

This question is worth a maximum of four hundred and fifty (450)
points. Be sure to allocate your time properly and to be thorough
in your identification and analysis of the issues.

Facts

Mr. and Mrs. Joinder were married fifteen years ago in
Lexington, Kentucky. The Joinder children, Amanda, ten years old,
and Peter,twelve years old, were both born in Lexington. Almost
one year ago Mr. and Mrs. Joinder decided to divorce. Mrs.
Joinder decided that she wanted to move to California in order to
"start a new life". She moved there approximately eight months
ago. When Mrs. Joinder moved to California, the children, Amanda
and Peter, stayed with their father in Lexington.
Six months ago Peter told his father that he would prefer to
go to California to live with his mother. Mrs. Joinder agreed
that Peter could come live with her. Since Peter is twelve years
old, Mr. Joinder let Peter fly alone from Lexington to San
Francisco, California. Mr. Joinder sends Mrs. Joinder a monthly
check in the amount of $150.00 to contribute towards Peter's
maintenance.
Four months ago Amanda wanted to see her mother so Mr.
Joinder took her to San Francisco for a visit. They stayed in San
Francisco for one week. During that time Mr. Joinder had a car
accident with Mrs. Potter, Mrs. Joinder's neighbor. No one was
seriously injured in the accident, but Mrs. Potter's car was
totalled. She is thinking about suing Mr. Joinder.
Two months ago Amanda decided that she too wanted to live
with her mother. Mr. Joinder called Mrs. Joinder to see if it was
alright for Amanda to move to San Francisco. Mrs. Joinder agreed
that Amanda could come and live with her. Since Amanda is only
ten years old, Mr. Joinder did not want her to fly to California
alone. He decided to take a couple of weeks off from work in
order to drive Amanda to San Francisco and to visit with his son
Peter.
Mr. Joinder and Amanda had a pleasant trip. They first
stopped in Los Angeles so Amanda could visit Disneyland.
Afterward, they took the long, dangerous, and scenic Highway Five
from Los Angeles to San Francisco. They came close to having a
terrible wreck on the way to San Francisco. Mr. Joinder had a
pleasant visit with Peter and Amanda is happy that she is living
with her mother.

TURN THE PAGE

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One month ago Mrs. Joinder called Mr. Joinder and asked him
to come to San Francisco because Amanda was in the hospital.
Apparently, Amanda had an allergic reaction to some children's
aspirin and had to be hospitalized. Of course, Mr. Joinder
immediately flew to San Francisco to be with his desperately ill
child. Amanda survived. The day before Mr. Joinder was scheduled
to leave San Francisco to return to Lexington he was visiting
Amanda at the hospital and a man entered her room and asked him
if he was Mr. Joinder. Mr. Joinder responded affirmatively and
the man handed him some documents. Mr. Joinder read the documents
and saw that his wife was suing him for divorce and for custody
of the children in a California state court. Mr. Joinder was
stunned! First, he thought it was in poor taste to serve him
while he was visiting his ailing daughter. Second, he was under
the impression that the divorce would be obtained in Kentucky,
where they had married.

Task

Mr. Joinder comes to you for advice. He wants to know what
he should do. Must he go to California to defend himself? Discuss
his dilemma. Be sure and answer Mr. Joinder's question as to
whether he will be required to go to California to defend this
action. For your information, California's long-arm statute
states: "California can exercise personal jurisdiction over a
litigant to the extent allowed by the U.S. Constitution."

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OUESTION 2

This question is worth a maximum of three hundred and fifty (350)
points. Be sure to allocate your time properly and to be thorough
in your identification and analysis of the issues.

As you know, Mr. Joinder had a car accident with Mrs. Potter,
Mrs. Joinder's neighbor, when he visited San Francisco. Mrs.
Potter decides that she wants to sue Mr. Joinder. She has the
following claims:l)property damage amounting to $40,000 -
$51,000(she drives a Mercedes); and 2)medical bills that she
anticipates will be between $10,000 and $20,000. You think she
has valid tort claims against Mr. Joinder. There is also a little
known federal statute that states:"It is important to the federal
government to improve safety on the nation's roads and highways".
Mr. Joinder is from Ohio; although he has lived in Kentucky
for the last twenty years. He owns a horse farm outside of
Lexington, Kentucky. Mrs. Potter is a Kentucky native. However,
due to her demanding career, she spends half her time in San
Francisco, California and half her time in New York City. She
owns the house next to Mrs. Joinder's in San Francisco. She also
maintains a duplex at the fashionable Trump Tower in New York
City. Her car still has Kentucky plates on it because she bought
it from the Mercedes dealership her father owns in Louisville,
Kentucky. However, her driver's license was issued by the state
of New York. She pays her car insurance to a branch of State Farm
located in San Francisco, California.
Mrs. Potter comes to you(you also represent Mrs. Joinder in
her divorce action) because she wants to commence a lawsuit
against Mr. Joinder. You must decide where she can sue.
Assume that you will not have any difficulty obtaining
personal jurisdiction over Mr. Joinder.

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OUESTION 3

Directions: Carefully read each question. From the
questions presented, select only one
to answer. Your answer should be well
organized and reflect your understanding
of the legal and policy issues involved.
This question is worth two hundred (200)
points.

1. If you are a federal district court judge hearing a case
pursuant to section 1332's diversity of citizenship jurisdiction,
how would you determine the status of a state's substantive law
on a particular issue if that state's highest court has not yet
decided the issue? Be sure and provide rationales for your
position. -

2. Assume that a federal rule and a state rule directly
conflict. Also assume that the federal rule is in the Federal
Rules of Civil Procedure and that the state rule, if applied
would bar a state court from hearing the case.If you are the
federal district court judge, how would you decide whether to use
the federal rule or the state rule? Would you adopt Erie,
Guaranty, Byrd, Hanna, some combination of the cases, or another
rule to decide the issue? Be sure and explain why you would adopt
a certain procedure.

3. You are a federal district court judge and must decide
whether to allow the exercise of general personal jurisdiction in
a situation where personal jurisdiction over a non-resident
defendant is based on transient jurisdiction. Would you allow
personal jurisdiction to be exercised pursuant to the transient
jurisdiction rule? How would Pennoyer, Grace, International Shoe,
Shaffer v. Heitner, and Burnham influence your decision?

4. You are a federal district court judge who must decide
whether a federal question exists in order for the plaintiff to
establish subject matter jurisdiction under section 1331.
Discuss the pros and cons of the four tests. Which of the four
tests would you prefer to adopt? Why?

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5. You are a member of the Advisory Committee responsible
for the revision of the Federal Rules of Civil Procedure. The
Committee must decide whether to make a recommendation that
Congress modify the transfer of venue statute, 28 U.S.C.A. 1404,
to prohibit plaintiffs from transferring an action. As a member
of this Committee, please give your views about the advisability
of this proposed modification. You may want to refer to the
Ferens case.

6. Nationwide class actions for tort actions are becoming more
commonplace. Since tort actions are traditionally governed by
state substantive law federal courts have been hesitant to use
federal common law to adjudicate these cases. Do you think the
better policy is to refrain from applying federal common law in
this area or to apply federal common law? You may want to
consider some of the concerns voiced in Erie. Be sure and provide
support for your position.

7. What is your position about some of the proposed changes to
Rule 11? Which ones are positive proposals and which ones are
negative proposals? Why? Do you have any suggestions for the
modification of Rule 11?

8. Discuss the pros and cons of federal subject matter
jurisdiction based on diversity of citizenship. Should it be
continued? Modified? Eliminated?

9. How would you describe and assess the interplay between Rule
ll's "policing function" and its potential to have a "chilling
effect' on certain types of litigation?

10. Pick a topic that you are interested in discussing and
analyzing. Be sure to present your question first.

HAVE A NICE VACATION!

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