Final Examination Feedback memorandum
Procedure for Examination Review. I will discuss exams individually with students, by appointment, beginning with the 3rd week of the Fall Semester. You must review your exam and the feedback memorandum before scheduling an appointment with me. If you wish to review your exam, please come by my office to pick it up. You may make a copy of it and return the original to me. I will not be available to discuss the examination during the Summer term.
Review Policy. I believe in examination review. It is a good way to learn from your mistakes, and from your successes. I encourage you to review this memo and your exam. I will be happy to sit down and discuss substantive matters with each student. I will first tell each of you what you did right. I will also gladly suggest ways to improve your exam-taking abilities and to point out why an essay was not the best and how it could be improved. However, I do not wish to sound harsh, but I do want to make one thing perfectly clear: barring mathematical errors, your grade is not going to be changed. Grading is a time-consuming and difficult process. The only fair way to do it is to grade in the context of the class. I look for a fair overall grade distribution and follow the rank of each student within the class in awarding the final grade. I will not rehash every computation with individual students.
General Comments. The responses to the multiple-choice questions produced a normal average. This part of the exam did not require any adjustment. Many students got perfect scores, only one exam had just three correct responses. The essays proved to be the most difficult part of the examination, as I expected. The first essay was the most difficult of the two, which is the reason I encouraged you to read the entire exam before starting your answer. I adjusted the raw score of the two essays to reflect their degree of difficulty. I was very happy to note that most people wrote two-to-three pages for each essay answer. That is, in my book, a "short" essay answer. Penmanship was also good, and I thank you for it.
Below, I reproduce the instructions and questions in their entirety, and have inserted the answers.
Answer: B. Once the court has found that the party is necessary, as it has here under Rule 19(a)(1), and found that the party is indispensable, under Rule 19(b), the only choices left to it are to order joinder if feasible, or to order dismissal. Joinder is not possible here, because that would destroy diversity because both Mr. Seinfeld and Mr. Costanza are citizens of New York. No supplemental jurisdiction is available as to plaintiff's claim. Thus, A is incorrect, while the preference is to use discretion to avoid dismissal, as noted in Provident Tradesmen and note 9 at page 242, the court had found that impossible to do when it decided that the party was indispensable, i.e., discretion is used in making the "indispensability" decision. C and D are incorrect because Mr. Cramer is moving for compulsory joinder under Rule 19 and not for impleader under Rule 14. Cramer is trying to get Jerry's case dismissed for failure to join a non-diverse party. Mr. Cramer may choose to file a Rule 19 motion first, even if impleader were possible (recall Janney v. Sheppard at page 228 of the casebook). Moreover, you do not know from the facts what the law of New York is regarding contribution, so you cannot establish if Rule 14 impleader is available to Mr. Cramer. Therefore, the only clear choice available to the court, under the facts given to you, is B, to dismiss. All three elements are met, (1) the party is necessary under 19(a)(1); (2) the joinder is not feasible because it would deprive the court of jurisdiction over the subject matter; and (3) the party is indispensable.
Even if impleader had been available, the answer should still be "b". It is just like Janney v. Sheppard, at page 228 of the casebook, the defendant moved for dismissal for failure to join a compulsory party, even though a Rule 14 impleader was available to it. The court discussed how the fact that defendant had Rule 14(a) impleader available to it, did not change the Rule 19 analysis. The argument that supplemental jurisdiction might make joinder feasible, as to plaintiff, is rejected in Janney at page 238, footnote 15. As noted in note 7 at page 242, some courts have used the availability of supplemental jurisdiction over impleader claims by defendants, in making determinations as to indispensability, i.e., they consider it a factor in deciding if there is prejudice under 19(b). However, once the court makes the finding that the party is both necessary and indispensable, there is no longer room for discretion. Therefore, the only clear choice available to the court, under the facts given to you, is "B", to dismiss. All three elements are met, (1) The party is necessary under 19(a)(1); (2) the joinder is not feasible because it would deprive the court of jurisdiction over the subject matter; and (3) the party is indispensable.
Answer: C. The Hospital is not a party, therefore, you had to look for discovery devices available against non-parties. A request for production compels a party to produce documents under its control. You could argue that Dr. Livingston has control over the hospital records, but that is not getting them from the hospital anyway, and not compelling them to produce, just having the doctor prevail upon them. The argument also makes this complicated, not simple. The one discovery device available against non-parties in this situation is a deposition under Rule 30, and the subpoena duces tecum under Rule 45(a)(1)(C). B and D are discovery devices not available against non-parties.
Answer: C. The Sipowiczs cannot recover punitive damages as a matter of law on their tort allegations. The party has made an appropriate motion, and they have failed to answer, entry of summary judgment is the only appropriate alternative. B is incorrect, as was clearly decided in Celotex, page 412. A is a truism, but does not apply to the facts of the question. D is not what the party moved for, or is entitled to in response to its Summary Judgment Motion.
Clarification as to questions 2 and 3, as the word "claims" indicates, the plaintiffs had claims other than punitive damages.
Answer: C. A is wrong, 1332(a)(2) allows suits against citizens or subjects of a foreign state. The last sentence of 1332(a) covers a special case of permanent residents. B is incorrect, the federal courts would have subject-matter jurisdiction over the case -there is diversity and jurisdictional amount, given the damages of $80,000.00-, but personal jurisdiction and venue are separate matters. Since Daphnee is not a permanent resident alien, there would be venue under 1391(d). A general statement that an individual would be subject to personal jurisdiction in any district is simply wrong. D is wrong, because the case does not raise any federal question, and because the venue and personal jurisdiction of the court are not established. C is correct because there is alienage diversity jurisdiction under 1332(a)(2), there would be venue under 28 USC § 1391(d) in any district. Personal jurisdiction was the tough one here, and that is why this was correct instead of "b". Personal jurisdiction could be obtained because she was present in Seattle and could be served personally there, at least. I decided to indicate that the accident occurred there, to make personal jurisdiction even clearer under Hess v. Pawlowski.
Answer: D. The documents are discoverable and not protected by work-product because they were not prepared in anticipation of litigation. C is attractive because even if the privilege (I told you in class that I did not care if you called "privilege" or "doctrine" so long as you knew how it was applied) applied, the statement is not protected by express application of FRCP 26(b)(3) paragraph 2. B is incorrect because Rule 26(b)(3) expressly applies to persons other than lawyers, including insurers. C is incorrect because the work was not prepared in anticipation of litigation. A is just an incorrect legal statement.
This was a Rule 26 question. Some students thought it might be 28 USC § 1332(c)(1) question. If it had been, the answer would have been "D" anyway, however, the question was about rule 26, going to 1332 is looking for an issue that is not there. Moreover, 1332(c)(1)'s "direct action" exception does not apply here, because "direct action" means an action by a tort victim against the insured's insurance company, instead of against the tortfeasor. Here it is the insured who is suing.
Answer: B. A sounds good, but it is wrong for two reasons, it is lack of subject-matter jurisdiction that can be raised at any time, and personal jurisdiction is a disfavored defense that is waived if not raised, FRCP 12(h)(1). B is correct by application of Rule 12(g). C is an incorrect legal statement. D might look good if you just read rule 12(d), but remember that this rule applies only if the defense has been properly preserved, which this one was not. Therefore, B, as the only alternative that recognized the failure to preserve the defense by not raising it in the first motion, was correct.
Answer: A. The court should not hear the case, it should grant dismissal for lack of personal jurisdiction, there are no minimum contacts and certainly no general jurisdiction over any of the defendants in Arizona. Additionally, the court should dismiss for lack of venue, or alternatively transfer the case to California, but it should not hear it. The acts occurred in Los Angeles, all the defendants are from Los Angeles, and none can be found in Arizona. See 28 USC § 1391(b). The proper place to file would be the U.S. District Court for the Central District of California, Western Division, at Los Angeles. 28 USC § 84(c)(2). Lack of personal jurisdiction and venue are reasons for the court not to hear the case, even if it has subject matter jurisdiction, which it would under federal question, thus B is incorrect. Even if the case could be brought under diversity, the red herring of C, the lack or personal jurisdiction and the venue defect would prevent the Arizona court from accepting the case, upon motion, and one has been made. Moreover, jurisdiction must be pleaded, and Mr. González only pleaded federal question. D is inapplicable, since A is the right answer.
Some students thought that venue was provided by 1391(e), based on the residency of the plaintiff. Even if it had applied, the correct answer was still A, the court should not hear the case because it lacked personal jurisdiction over the defendants. However, that provision applies to cases involving employees of the US government, not the state officers involved here. As to them, we still use 1391(b). Since the defendants cannot be found in Arizona, are not citizens of Arizona, and the acts did not occur in Arizona, the court lacks venue as well.
Answer: B. A is incorrect because there is personal jurisdiction over the driver under Hess v. Pawlowski, and over Zodor because it is a citizen of Florida and is subject to general jurisdiction here. B is correct because there is subject-matter jurisdiction under diversity, if the damages exceed $50,000.00, there is personal jurisdiction as discussed above, and the facts occurred in Alachua county, see 1391(a)(2). C is wrong for failing to mention jurisdictional amount. D is also incorrect. The insurance company is indeed a citizen of Florida, but so what?, there is still complete diversity!
Answer: D. A is incorrect. There is indeed federal question jurisdiction, a substantial claim arising under the constitution and laws of the United States. There would be venue in Arizona under 1391(e)(2), which does apply here because the defendants are federal officers, but the facts of the question would produce the same result under 1391(b) as well. Arizona is where substantial part of the acts from which the claim arose occurred. There is a possible personal jurisdiction problem in Arizona, which is normally solved by the rule that a single tortious act is enough to establish minimum contacts, and you were instructed to assume that states had extended long-arm statutes to their constitutionally allowable extreme. The problem is the word "only". B is incorrect. There is federal question jurisdiction, venue can easily be based on 1391(e)(1) since all defendants are from there, and perhaps on 1391(e)(2), since planning was also done in Dallas; there is also even stronger personal jurisdiction, since all the agents are Texans, but again, "only" makes it incorrect. C is just wrong, because, as I emphasized a lot, you need subject matter jurisdiction, personal jurisdiction and venue. D is correct, there is subject-matter jurisdiction, there is venue and there is personal jurisdiction in both.
Essay No. 1 (25% of your score).
This was a very demanding question. It required you to discuss the proper standards with originality, given the constraints that I set up for you. I was really struck by the high number of persons who chose to ignore the instructions. This was a fairly fatal error. I evaluated the answers by seeing if you followed the instructions properly and forced yourself to argue the points from the judge's point of view. I then looked to see if the answer was properly structured and if the relevant tests and cases were discussed. Finally, I studied how the relevant facts and concepts were argued in support of the judge's conclusions. The answer should have been structured as follows.
(a) § 768.72 is "substantive".
Federal Courts sitting in diversity must follow state substantive law as established in Erie and its progeny. In this regard, the federal court is not bound by the Florida Supreme court classification of the statute. In determining if a statute is "substantive" we apply the Hanna twin-evils test: (1) forum-shopping and (2) unfairness. Byrd factors are still often used to support this analysis. The discussion might incorporate Davis v. Ross in identifying state interests.
(b) § 768.72 does not conflict with Federal Rule 9(g), in spite of the interpretation of 9(g) to require that "claims for punitive damages be set forth in the party's complaint."
The Federal Courts might allow a state substantive statute and an arguably-conflicting Federal Rule of Civil Procedure to co-exist by narrowly-interpreting the federal rule and superimposing the state law over it. Ragan, Armco. Arguably 9(g) requires specificity when the claim is made, and this is not inconsistent with the state law requiring an amended complaint.
(c) § 768.72 conflicts with Federal Rule of Civil Procedure 8(a)(2), and thus must be displaced when pleading in the Federal Courts.
The conflict with the federal rule cannot be avoided. Notice pleading, Conley v. Gibson, is incompatible with the hearing requirement. What happens when a conflict between a Federal Rule of Civil Procedure and a state substantive statute cannot be avoided? Burlington, Hanna. The state substantive rule is displaced by the federal rule if it is a valid exercise of Federal rule-making power.
Art. III and the Necessary and Proper Clause provide the rule-making authority. This authority was exercised by the Congress in the Rules Enabling Act. Is the specific rule consistent with the Act? This is a two-part analysis: (1) Is the exercise authorized by part (a) of the Act? (2) Is it precluded by part (b) of the Act because it infringes upon state authority? The answer to the last question is "no", if it can rationally be classified as procedure. This classification is up to the federal courts themselves.
This was not a particularly hard question, given our review and class discussion, but it required you to address a lot of issues. Initially, it would have been useful to do a diagram of this case, just to keep things straight.
1. Renauds v. Blaines. Motion to Dismiss Denied Correctly. Subject-Matter Jurisdiction: The Renauds are citizens of Wisconsin. The Blaines of Florida, because there is physical presence and general intent to remain there. Temporary work in Jamaica does not create new citizenship. There is diversity jurisdiction under 1332(a)(1) and Strawbridge v. Curtiss complete diversity. Of course, the amount in controversy must exceed $50,000.00 exclusive of interest or cost (1332(a)), but that does not seem difficult given the severity of the damages. Personal Jurisdiction: Since the Blaines are citizens of Florida, as shown by their physical presence there and intent to remain, they are subject to general jurisdiction there and personal jurisdiction is not a problem. Venue: is proper in the Southern District of Florida, which includes Miami, because all the defendants can be found there. 28 USC §§ 89(c), 1391(a)(1). The Motion to dismiss should be denied on all counts. The effect of adding Evinrude will be discussed below.
2. Blaines v. Evinrude. Evinrude's Motion to dismiss denied. Subject-Matter Jurisdiction. Rule 14(a) allows the Blaines to bring Evinrude in, limited to contribution. This would of course destroy complete diversity, Strawbridge v. Curtiss, since under 28 U.S.C. § 1332(c)(1) a corporation is a citizen of both its state of incorporation and the state in which its principal place of business is found. In this case, the corporation is a citizen of Wisconsin and Florida. We must therefore look for supplemental jurisdiction. 28 USC § 1367(a). If the Blaines' claim against Evinrude meets the Rule 14 test, it will also meet the 1367(a) same constitutional case requirement, therefore, even though there is no complete diversity, under supplemental jurisdiction codified in 28 USC § 1367(a), the claim should proceed. Since the claim against someone made a party under Rule 14 is not been made by plaintiff, the action is not prohibited by 1367(b). If the Blaines had other claims beyond contribution, like loss of profits for the lost use of the boat, they could bring it under FRCP 18(a). If such a claim arises out of the same transaction or occurrence, there would be supplemental jurisdiction under 1367(a) as well. Personal Jurisdiction. The corporation would be subject to general personal jurisdiction in its principal place of business. Venue: We did not discuss this in class, but dismissal for lack of venue, is not available to impleaded third-parties. Some students approached the answer this way, and received full credit. Nevertheless, the lack of venue can be considered by the court in exercising its discretion to preclude the Rule 14 impleader, so the analysis is still useful. The corporation has its principal place of business in Miami, Florida, which is in the Southern District, and pursuant to 1391(c) it is deemed to be a resident of that district for venue purposes, therefore, venue would be proper under 1391(a)(1). Students who followed the venue analysis also received full credit.
3. Renauds v. Evinrude. Evinrude's Motion to Dismiss Granted. There is a subject-matter jurisdiction defect here, as discussed above. But the claim fits under Rule 14(a), this being the same "transaction or occurrence", and this would fit under supplemental jurisdiction codified in 1367(a), just like the prior claim. However, plaintiffs would not be allowed to make a state law claim against Evinrude, because of the language of 1367(b), which sought to codify the Supreme Court's holding in Owen Equipment v. Kroger. This language would preclude the claim, because there is a lack of subject-matter jurisdiction and supplemental jurisdiction. Personal Jurisdiction and Venue are not a problem as discussed in 2 above (a simple cross-reference was enough).
4. Evinrude v. Renauds. Renauds' Motion to Dismiss Denied. Here you could take two tacks to anchoring this claim to the Rules. First, you could call it a Rule 14(a) claim by third-party defendant against the original plaintiff, or, second, a compulsory counter-claim under 13(a), as indicated in the last part of 14(a). The courts have not been very careful about this distinction, so I did not care which one you chose. However, technically speaking, what we have here is a 14(a) claim by the original plaintiffs against the third-party defendant. Hence, because of its timing, Evinrude's claim against the Renaud's becomes a Rule 13(a) compulsory counterclaim, which is specifically allowed by the final part of 14(a). You might also wonder what effect the dismissal of the Renauds' complaint would have on a compulsory counter-claim. If Evinrude's claim against the plaintiffs, the Renauds, arises out of the same transaction or occurrence, to meet the Rule 14(a) or 13(a) test, it will also meet the 1367(a), same case or controversy under Article III, i.e., same constitutional case requirement. There is no diversity between the parties, as discussed above, so there is no independent subject-matter jurisdiction. However, both under Rule 13(a) and Rule 14(a), the defendant is allowed to pursue the claim, now under supplemental jurisdiction codified in 28 USC § 1367(a) (before it was considered ancillary to the original claim; we discussed this in relation to note 3 at page 195 of the casebook). The same boat accident destroyed the boat and caused physical harm. Unlike the claims by the Blaines against Evinrude, this is not precluded by 1367(b), this is a claim by someone made a party under Rule 14 against plaintiff. You might attack as unfair the different results in 3 and 4, or you might point out that courts treat the involuntary defendant better than the plaintiff that chooses the forum. Note that the Renauds did not move to dismiss for lack of personal jurisdiction or venue. That would have been silly, since they picked the court and thereby submitted to personal jurisdiction and venue there.
Let us now address the issue of subject matter jurisdiction. I expected you to both say how the motion to dismiss for lack of subject matter jurisdiction would turn out and how it ought to turn out. Many of you only did the former.
How would the motion turn out? It would probably succeed. As an initial matter, let’s look at P’s suit against D. This is an adequate diversity action. The parties are diverse and the amount in controversy is over $75,000, since P is asking for $100,000 in damages for the loss of his eye. Furthermore, D’s counterclaim against P for D’s damages in the brawl also has subject matter jurisdiction. It is not a diversity case on its own, because it does not meet the amount in controversy (D is asking only for $20,000) but it does have supplemental jurisdiction under 28 USC 1367. It is part of the same constitutional case or controversy (D’s action against P shares a core of operative fact with P’s action against D since they both concern the same brawl) and so satisfies 1367(a). Furthermore, it is does not fall under the exceptions to supplemental jurisdiction in 1367(b). True, 1367(b) is implicated, insofar as this is a civil action “of which the district courts have original jurisdiction founded solely on section 1332.” But the actions that are potentially excluded under 1367(b) are “claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or … claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules.” D’s counterclaim against P is an action by a defendant, not a plaintiff.
But P’s impleader against X does seem to fall under the exceptions. True, it is part of the same constitutional case or controversy as P’s claim against D. But this action appears excluded by 1367(b), since P’s action against X looks like a claim by a plaintiff against a person made a party under Rule 14. Furthermore, exercising supplemental jurisdiction over such a claim would be inconsistent with the jurisdictional requirements of section 1332. Some of you said it would not be inconsistent because P is diverse from X. But, as we have seen, P can’t be claiming more than $20K from X, so the amount in controversy is not satisfied. Thus there is no supplemental jurisdiction, although it is possible that a court might buy the argument that P’s impleader of X is not a claim by a plaintiff, but a claim by a “counterclaim defendant.” One person argued, creatively, that 1367(b) does not apply because it speaks of “claims by plaintiffs against persons MADEparties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure” meaning that the person the plaintiff is suing must have already been brought in as a party due to R 14 before P sues him (which is not true here, because P himself brought X in under R 14). This was a nice argument.
Should there be supplemental jurisdiction? The argument that there should be is very strong. First of all, there is the argument that efficiency would be enhanced by allowing supplemental jurisdiction. Without it, P is going to have to bring the impleader as a separate suit in state court, thereby wasting judicial resources. What is more important, this is not a case (like Owen) where if supplemental jurisdiction is allowed there would be worries that P could use supplemental jurisdiction to game the system and subvert the purposes of the diversity statute. Remember that in Owen, the question was whether there was supplemental jurisdiction (although it was not called that at the time, since 28 USC 1367 was not yet in existence) for the plaintiff’s Rule-14(a)(3) action against a non-diverse impleaded party. The worry was that if supplemental jurisdiction were allowed, a plaintiff who was really interested in suing the impleaded party in federal court (but could not do so as an original matter because there was no diversity) might sue the defendant, expecting that the defendant would implead the third party and then use supplemental jurisdiction to bring the action against the third party.
Some of you said that a problem of gaming the system exists in our example as well, since P might sue D knowing that D would bring a counterclaim against him, thereby allowing him to implead X. Indeed, given that D’s counterclaim was compulsory, whereas in Owen the defendant’s impleader was permissive, it seems that there are even greater worries here about plaintiffs using supplemental jurisdiction to game the system.
But there are not the same worries for the following reasons. First of all, in Owen there was genuinely no diversity, whereas here the only problem is the failure to meet the jurisdiction minimum. What is more important, in Owen the worry concerned a plaintiff whose real interest was in obtaining affirmative relief from the impleaded party in federal court. But in our case P is not suing X for affirmative relief. The only reason that P is suing X is to get compensation for some of the money he may have to pay out to D. The action of P against X is in no sense an action that P WANTS to bring (in federal court or elsewhere). He would prefer that it not be brought at all. He only has motivation to bring the action when D sues him.
Although I did not demand that you actually say that supplemental jurisdiction ought to be provided here, you needed to mention these considerations, which in fact strongly argue in favor of supplemental jurisdiction. The scenario in this question has often been cited as an example of how 1367(b) was misdrafted.