UNIVERSITY OF KENTUCKY
COLLEGE OF LAW
FALL 1991

Examination No.

CIVIL PROCEDURE I (815-01) Professor Harding
December 19, 1991 Room 215

FINAL EXAMINATION
INSTRUCTIONS - READ CAREFULLY

1. This is a closed-book examination. You are only allowed
to bring and use your Federal Rules of Civil Procedure. Your
Rules book must not contain any tabs, annotations, outlines, or
other written material. You may, however, have underlined or
highliqhted 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. Please write your first and last name on the inside cover of
your copy of the Federal Rules of Civil Procedure.

3. The Federal Rules of Civil Procedure will be exchanged and
each student will receive another student's book to use during
the final examination. When the examination is finished, and
after all the blue books have been collected, you may retrieve
your copy of the Rules.

4. You have three (3) hours to complete the examination. The
final examination is worth 150 points.

5. The final examination has three questions. The first
question is worth seventy-five (75) points and you should spend
approximately ninety(90) minutes formulating and writing your
answer. The second question is worth fifty (50) points and you
should spend approximately sixty (60) minutes formulating and
writing your answer. The third, and last question, is worth
twenty-five (25) points and you should spend approximately thirty
(30) minutes formulating and writing your answer.

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

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

8. Write only in pen.

YOU MAY TURN THE PAGE TO CONTINUE READING THE INSTRUCTIONS.

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

10. Please write only on one side of the blue book page.

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

12. Answer only the question(s) asked; points will be deducted
for irrelevant discussion.

13. 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.

14. 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.

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

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

QUESTION 1
[1-1/2 hour/90 minutes]

This question is worth seventy-five (75) points.

John Carpenter lives in San Francisco, California. He
recently sold his condominium on Russian Hill in San Francisco
and purchased an extraordinary piece of real estate in Pacific
Heights, a prestigious neighborhood in San Francisco. The real
estate is situated on a hill and has a commanding and
spectacular view of the Golden Gate Bridge and of Marin County.
Mr. Carpenter has decided to demolish the house that presently
exists on the property and to build a real "showcase."

Mr. Carpenter used to own a lighting fixtures company called
"Lights Ready" when he lived in Delaware. When he owned the
store he frequently attended lighting fixture trade shows and
fairs. Because of his past experience in the area of lighting
fixtures, Mr. Carpenter feels it is very important that the
"crowd-stopping" house he plans to build have the most exquisite
and unique interior and exterior lighting fixtures.

Mr. Carpenter has already met with the demolition crew, the
architect and the construction company to settle the details on
his new home. They have all agreed that the house will be
completed before Christmas so that he can throw his grand house
warming party on Christmas Eve. Of course, the lighting fixtures
will be an integral part of the "showcase" look of the house.

After an extensive search of the lighting fixture stores in
the Bay Area, Mr. Carpenter was unable to find the lighting
fixtures he feels are necessary to go with the "masterpiece" he
is building. Mr. Carpenter decides to attend a trade show that
is being held in Dallas, Texas. At the trade show, he was
immediately impressed and overwhelmed by the display put on by
"Lites." The company had exactly what he was looking for. He
placed a huge order with "Lites" to manufacture, deliver and
install the exterior and interior lighting fixtures. He also
told them that everything had to be finished in time for the gala
affair he was having on Christmas Eve. The sales representative
from "Lites" assured him that the manufacturing and shipping
would be expedited and the lighting fixtures would be received in
time for his Christmas Eve bash.

About six years ago, Mr. Carpenter inherited a large amount
of money from his grandfather. He inherited the money when he
lived in Delaware and owned "Lights Ready." This financial
freedom has allowed him to significantly alter his lifestyle. As
soon as he received his inheritance, he immediately closed his
lighting fixture store in Delaware and moved to San Francisco
where he bought a condominium on Russian Hill. Mr. Carpenter
then went to Hawaii and bought a beachfront house. He usually
spends six months of the year in Hawaii and six months of the
year in California. He has a California driver's license. He
should probably get a Hawaiian driver's license.

"Lites" is a corporation that manufacturers and sells
lighting fixtures. The corporation has a national reputation
stemming from the modern and unusual lighting fixtures they
produce and market. "Lites" is incorporated in California, New
York and Delaware. It has several factories where the lighting
fixtures are manufactured and from which the merchandise is
shipped to the purchasers. These factories are located in
Hawaii, Louisiana and Delaware. All the facilities have a Plant
Manager and have about the same number of employees. The plant
located in Hawaii is larger than the other two facilities, but
has approximately the same production capacity as the other two
facilities. However, since the Hawaiian facility is the largest,
"Lites" could use that facility to expand its production
capabilities if there was a substantial increase in the number of
orders placed. "Lites" is a relatively small corporation and its
stock is traded over-the-counter. Samuel Green is the founder
and chief executive officer of the company. He lives in
Delaware.

"Lighting Designs Unlimited"("LDU") is a company that
designs lighting fixtures. In fact, it has an exclusive
arrangement with "Lites" and designs all the lighting fixtures
manufactured, warehoused, distributed and marketed by "Lites."
This business started off as a small one woman operation.
Through hard work and dedication Mary Carroll was able to make
the company experience extraordinary growth. She finally decided
to incorporate last year and did so in Indiana and Delaware. She
lives in Terre Haute, Indiana and a design center is located
there. Through her years in the lighting design business Ms.
Carroll has met other talented designers who prefer to work at
their homes. These designers work for her on a contract or
freelance basis. These designers are located in Indiana,
Delaware, New York, Hawaii and California. There are several
designers who work in California and the designers in California
and Hawaii are among the most valuable and important because they
are among the best designers who work for LDU. Given their
extraordinary design talent, Ms. Carroll has been able to
transform the skills of the designers in California and Hawaii
into quite substantial profits for LDU. To assist them in
conducting their business for LDU, Ms. Carroll gave each designer
living in these other states corporate credit cards and LDU's
corporate telephone calling card. Ms. Carroll has also opened
checking accounts where each of these freelancers live. She makes
monthly deposits to pay for the expenses incurred by these
contract workers. The checking accounts are set up in the
following format: "Lighting Designs Unlimited"/[name of the
freelancer]. In addition, certain supplies that these
freelancers need on a regular basis are purchased and sent to
them by Ms. Carroll because she can buy them at a lower bulk rate
price. The packages are usually, but not always, mailed in the
following manner: [name of freelancer/"Lighting Designs
Unlimited].

As you know, Mr. Carpenter ordered the lighting fixtures
from "Lites" and LDU is the designer of "Lites" fixtures.
Unfortunately, several of the fixtures displayed at the Dallas
trade show were only prototypes. In fact, some of the designs
done by LDU were not in their final design form and "Lites" had
not yet purchased the equipment necessary to manufacture these
particular light fixtures. Needless to say, due to design
problems, manufacturing problems and delays, the order placed by
Mr. Carpenter did not arrive in time.

Christmas Eve came and passed. Mr. Carpenter had to use
candles to light up his "showcase." It was too late to cancel
the party because he had already mailed out 2000 invitations,
hired caterers, and valet parking services.

Needless to say, Mr. Carpenter is very angry. In his view,
all his grand plans were ruined because of "Lites" and LDU.

His best friend suggests that he meet with you because you
are the "best attorney" in town. He comes to your office and
wants you to take immediate action. He would prefer to bring the
action in California, in either state or federal court.
Although, he has a slight preference for the action being brought
in a California federal court.If the action cannot be brought in
California, then he prefers that it be brought in a federal court
in another state.

You are to determine where he has the best chance of
successfully bringing his action. What course of action do you
suggest he pursue?

To aid you in this task, requiring your immediate attention,
you asked Mr. Carpenter to assist you in determining what causes
of actions he has against "Lites" and "LDU" and the various
amounts in controversy. The two of you have come up with the
following list of causes of actions:

1. A claim against "Lites" based on fraud. You believe
that this cause of action might require the application of
federal interstate commerce law;
2. A breach of contract claim against "Lites" and "LDU"
for $1,000,000.00 that stems from the fact that the fixtures Mr.
Carpenter ordered were not delivered in time;
3. A fraud action against "LDU" for sending prototypes of
lighting fixtures of which the design was not complete. Mr.
Carpenter is uncertain about how much to claim for damages for
this cause of action. He thinks it is close to $35,000, but he
feels "certain" that it could be for more than $50,000. He is
willing to sign a document stating that he believes the amount of
this claim exceeds $50,000;
4. A cause of action against "LDU" and "Lites" for the
negligent infliction of emotional distress. You believe that you
can ask for $2,000,000.00 since this is the amount most attorneys
use in the prayer for relief section of the complaint for this
type of cause of action;
5. A cause of action for conversion against "Lites" for a
transaction that occurred when Mr. Carpenter owned his lighting
fixtures store in Delaware. Assume that the statute of
limitations has not run on this claim. The claim is probably
worth $5,000. Mr. Carpenter has promised that he will try to
find the documentation for this claim;
6. A cause of action against "LDU" for breach of contract
based upon Ms. Carroll hiring a contract designer who changed the
design on one of the lighting fixtures Mr. Carpenter had
originally ordered. This claim is probably worth $30,000.00; and
7. A cause of action against "LDU" for unfair competition
because Ms. Carroll "stole" an employee who worked at the
lighting fixtures store Mr. Carpenter previously owned in
Delaware. This individual, who now works exclusively for Ms.
Carroll, has gone on to become a famous lighting fixture designer
and has won numerous national and international awards for her
work. The exact amount in controversy is hard to assess, but
given the designer's status, it probably exceeds $50,000.00.

NOTE: The venue laws of every state are identical to those
found in the Federal Rules of Civil Procedure.
QUESTION TWO
[1 hour/60 minutes]

This question is worth fifty (50) points.

Mary Sue Martin was twelve years old. She lived in Las
Vegas, Nevada with her parents Joe and Susan Martin.
Approximately one year ago, Mary Sue was kidnapped and murdered
when she was walking home from school on a Thursday afternoon.
Since the death of her daughter, Susan Martin has been
periodically hospitalized for psychological problems. It is very
difficult for her to travel because she never knows when she will
require hospitalization. Before Mary Sue's death, Joe and Susan
Martin both worked. Both incomes were desperately needed to
support the family. However, because of her mental infirmity,
Mrs. Martin had to quit her job. In addition, her disability
payments were recently discontinued. Mr. Martin is now the sole
bread winner of the family. He owns a hardware store in Las
Vegas.

Stephen Smith is the primary suspect for the murder of Mary
Sue Martin. While the Las Vegas Police Department is fairly
certain that Stephen Smith is responsible for Mary Sue's death,
the prosecutor feels that there is not enough evidence to warrant
seeking an indictment and prosecuting the case.

Stephen Smith was picked up by the Las Vegas Police
Department on Thursday evening for drunk and disorderly behavior.
While in custody, the police discovered a ten-inch Bowie knife.
They ran a check on Stephen Smith and found out that on Tuesday
he had been released from the California Youth Authority ("CYA").

The Las Vegas Police Department immediately called Joe
Black, Stephen Smith's case worker/parole officer, and informed
him that Stephen was in jail in Las Vegas and was in possession
of a deadly weapon. Mr. Black informed the police that Stephen
Smith should not be released because possession of a deadly
weapon was a violation of his terms of parole. Mr. Black
informed the Las Vegas police that he would make arrangements for
Stephen Smith to be returned to California.

Stephen Smith remained in the Las Vegas County Jail until
officers from the CYA came to Las Vegas on Monday to transport
him back to California. The officers made the trip to and from
Las Vegas in a special police transport van. They all arrived in
California late Monday evening. Stephen Smith is now
incarcerated at a CYA facility in California where he will remain
until he finishes the remaining years of his youthful offender
sentence. He will be released when he turns twenty-five.

Stephen Smith is now 22 years old. A year has passed since
Mary Sue was killed. Stephen Smith was raised in Fremont,
California. However, Stephen was a delinquent and at the age of
15, after committing a crime similar to the one involving Mary
Sue's demise, he was convicted and confined to the CYA. His
original release date was to be on his twenty-fifth birthday.
However, his case worker/parole officer, Joe Black, managed to
get him qualified for the early release program. Accordingly,
Stephen Smith was released on his twenty-first birthday. This
was on a Tuesday.

To celebrate his release, he and several of his cronies
decided to drive to Las Vegas, Nevada to do some "partying."
They left Fremont, California early Wednesday morning for their
"road trip" to Las Vegas, Nevada and arrived in Las Vegas late
Wednesday evening. This was Stephen's first visit to Nevada. It
was during this trip that Stephen Smith allegedly waylaid Mary
Sue Martin and killed her.

Stephen's parents, Joyce and Charles Smith, live in Fremont,
California. After Stephen was born in 1969, his parents moved
from Arizona to Northern California. They had been living in a
town in Arizona adjacent to the Arizona/Nevada border. Stephen
was born in this town. Charles Smith used to take regular annual
trips to Reno, Nevada to gamble with his fellow brothers in the
Moose Lodge. However, due to a disabling injury he received on
the job, he has not been able to make the trip to Reno for the
last two years. Joyce Smith disapproves of gambling so she
refuses to set foot in Nevada. However, she loves the woods in
the Lake Tahoe region and frequently visits the area. She
especially likes the area of Lake Tahoe where the
California/Nevada border is located. However, to her knowledge,
she has never crossed over the state boundary line onto the
Nevada side of Lake Tahoe.

Mr. and Mrs. Smith were aware of their son's violent
behavior and propensity towards harming young girls. Before
being sent to the CYA Stephen had been caught molesting his
younger sister. After being released from the CYA on Tuesday,
Stephen returned to his parents' home and informed them that he
and his cronies were leaving the next morning to go to Las Vegas,
Nevada in order to celebrate his release. His parents did not
discourage him from making this trip.

Stephen Smith has had the same case worker/parole officer,
Joe Black, since he was first confined to CYA at the age of 15.
In fact, Joe Black actively advocated that Stephen Smith was a
perfect candidate for the early release program, which enables an
offender to be released on his or her twenty-first birthday;
instead of on his or her twenty-fifth birthday. Due to Mr.
Black's recommendation, the CYA authorities allowed Stephen to be
released on his twenty-first birthday. Mr. Black knew of the
crime that brought Stephen to the CYA. On Tuesday afternoon,
after arriving home from the CYA, Stephen Smith called Mr. Black
and asked if it would be alright if he went to Las Vegas, Nevada
with his buddies to celebrate his release. He promised to be on
his best behavior. Mr. Black agreed to the trip so long as
Stephen returned in time for his parole appointment on Monday at
10:00 a.m. Stephen assured him that he would be there.

Mr. Black was born at a town located near the Mustang Ranch
in Nevada. When he was approximately two months old his father
took him and his brother and moved to Northern California. Mr.
Black has not been in the state of Nevada since the day he left
it 40 years ago. However, it is Mr. Black's understanding that
his mother still resides in Nevada; although, he has not seen her
or had any contact with her since he was two months old. He also
thinks he has other relatives living in Nevada.

A year has passed since Mary Sue was murdered. Her parents
are distraught because even though the Las Vegas police and the
prosecutor feel that Stephen Smith is responsible for Mary Sue's
death, they believe there is simply not enough evidence to
support a prosecution. Obviously, this has made Mr. and Mrs.
Martin very unhappy. They feel as if nothing has been done to
avenge their daughter's murder. A friend suggests that they go
speak with an attorney to determine if there are other options
available.

Mr. and Mrs. Martin come to you for advice. You advise them
that they can bring a tort action for the wrongful death of Mary
Sue. They are relieved that some action can be taken against
Stephen Smith. Based upon your advice, Mr. and Mrs. Martin
decide to bring a wrongful death action for the death of their
beloved daughter, Mary Sue.

The Martins want to name Stephen Smith, Joyce Smith, Charles
Smith and Joe Black as defendants in the wrongful death action.

Given the financial and emotional state of the Martin
family, they would prefer to bring the action against all the
defendants in Nevada. Nevada's long-arm statute extends to the
constitutional limit.

It is your task to decide which, if any, of the potential
defendants can be compelled to defend themselves in Nevada. Be
thorough in your discussion and clearly state your conclusions.

QUESTION THREE
[1/2 hour/30 minutes]
INSTRUCTIONS:
There are six questions listed below. After reading all the
questions, select one to answer. Your answer should reflect your
appreciation and understanding of the complexities and issues
presented by the question posed. This question is worth twenty-
five (25) points.

1. What aspect, principle, characteristic or feature of
Civil Procedure do you agree or disagree with the most? Provide
reasons to support your position;

2. Given the current state of the law, discuss what you
believe to be the future of in personam jurisdiction based on the
transient physical presence of a non-resident defendant;

3. Discuss the pros and cons of federal subject matter
jurisdiction based on diversity of citizenship. State and
support your position;

4. Given that Erie v. Tompkins allegedly marked the
deathknell of "general federal common law," do you think the
choice of law rule that allows a federal court to make decisional
laws under the "guise" of ascertaining a state's law on an issue
that the state's highest court has not ruled on and refuses to
certify in order to obtain a definitive ruling, constitutes a
violation of the principles and theories embodied in Erie? If
so, why? If not, why?;

5. Discuss the Supreme Court's decision in Ferens. If you
do not agree with the opinion, explain why and state any
deficiencies or problems you believe the decision has the
potential to create and suggest measures that might be taken to
remedy the perceived inadequacies. If you agree with the
opinion, give your reasons why and explain why the criticisms
directed toward the decision are unwarranted; and

6. Erie v. Tompkins allegedly brought about the demise of
"federal common law." Is Erie being violated by the present
creation of "federal common law" in certain substantive areas?
Discuss.