COURSE TITLE: Civil Procedure

PROFESSOR:
Friedman
SEMESTER:
Fall 2009
EXAM
# OF HOURS:

Three (3)

TYPE OF EXAM: Limited Open Book

# OF PAGES:

Six (6)

PLEASE VERIFY NOW THAT ALL PAGES

ARE HERE

EXAM INSTRUCTIONS:
This is a limited open book examination: you may have with you ONLY your
casebook and the casebook supplement containing the Federal Rules of Civil
Procedure. If you make any assumptions of either law or fact, be sure to state
them explicitly and explain how you rely upon them in your answers. PLEASE
NOTE that you are limited in answering to the confines of one (1) bluebook,
writing only on EVERY OTHER line.
PERCENTAGES & ALLOCATIONS
As indicated on individual questions.
WRITE JENZABAR # ON:
1. BLUEBOOK
2. EXAM ATTENDANCE RECEIPT
WHEN ALLOTTED TIME HAS EXPIRED, DISCONTINUE WRITING!!!
DO NOT TURN PAGE UNTIL INSTRUCTED TO DO SO

QUESTION ONE
(approximately forty-five (45) minutes)
It is the summer of 2010 and you are clerking in the chambers of the Honorable
Susan R. Finneran of the United States District Court for the Southern District of New
York. Judge Finneran, onetime owner of the Brooklyn Bridge, is considered to be among
the brightest trial judges on the federal bench in the state, and her particular interest is
contracts cases. Judge Finneran has assigned you a matter that, according to the docket
clerk, concerns complicated issues of civil procedure. This case involves Jack Shepherd
and the LaFleur Insurance Company. Shepherd is a medical doctor working in Los
Angeles, California, where he owns a home and where he spends a majority of his time.
He also owns an apartment in New York City, where he spends a few weeks every year.
LaFleur is a French company providing marine insurance coverage. It is incorporated in
Paris, France, but its headquarters is in New York City. LaFleur issued a marine policy
for Shepherds sailing yacht, The Swan, on March 18, 2007. On June 14, Shepherd
departed in The Swan from Miami on a trip to St. Thomas, in the U.S. Virgin Islands.
Immediately out of port, a fire broke out in the engine room and Shepherd abandoned
the vessel. Shepherd and the Florida-based crew swam to safety. The Swan sank to the
bottom.
Shepherd contacted LaFleur to file a claim for the loss of the boat. LaFleur denied
the claim because the file was missing certain paperwork regarding the technical
specifications of the vessel. Shepherd subsequently filed a complaint in the Supreme
Court of New York for Manhattanthe state trial courton June 14, 2008, claiming
damages in the amount of $100,000 (the value of the vessel) for bad-faith denial of an
insurance claim. This is essentially a contract claimShepherd is alleging that LaFleur is
bound to honor the terms of the insurance agreement. LaFleur timely removed the case
to the United States District Court for the Southern District of New York.

The record indicates that the insurance policy was drafted in Paris, France, but
underwritten and printed in New York City, and sent from there to Shepherd at his
house in Los Angeles.

Shepherd made all contact with LaFleur and conducted all

negotiations from California. The insurance policy contains a provision stating: Any
dispute or disputes arising between the parties hereunder, insofar as the same cannot be
settled by friendly agreement, will be determined by any state or federal court in the
State of Florida. Finally, it is undisputed that The Swan was stored and maintained in
Miami.
LaFleur has moved to transfer venue to the federal court for the southern district
of Florida, and Shepherd has moved to remand back to state court. Once again, Judge
Finneran would like you to draft an objective memorandum explaining and applying the
controlling principles of law to the facts of this case. Upon her initial review of the
pending motions, she is sure that the issues in the parties respective motions are
intertwined.
QUESTION TWO
(approximately one (1) and a half hours)
Impressed by your civil procedure abilities, Judge Finneran has asked for your
help with another matter. In this case, Homer Simpson has filed suit against Ned
Flanders following Simpsons purchase of a used car from Flanders through an online
site that Flanders set up to sell his car. A thorough reading of the record has revealed the
following facts.
In May 2008, Ned Flanders, who resides in Shelbyville, Michigan, set up a
websiteFlanderscars.comto advertise for sale a fire engine-red 1999 Plymouth
Prowler. The website contained one page, which featured four photographs of the car,
listed Flanderss phone number in Michigan, and contained a link permitting visitors to
e-mail Flanders directly with questions about the car. In addition to details about the car,

the webpage stated that Flanders would have the car delivered anywhere in the
continental United States by his brother, Ted. Flanders also advertised the sale of his car
in Northeast Car & Driver, a magazine that is widely circulated in New York, but which
Simpson avers he does not read (and in fact has never heard of). Flanders has never in
his life left the state of Michigan, and owns no property outside of Michigan.
Simpson, a resident of Springfield, New York, typed fire engine-red 1999
Plymouth Prowler into Google and Flanderscars.com came up as one of the first hits.
Simpson initiated contact with Flanders by sending an e-mail inquiry regarding the car.
Over the course of three e-mail exchanges, Simpson and Flanders negotiated the price
and delivery details. Simpson agreed to purchase the car for $75,000. He wired the
payment to Flanders in Michigan and, upon receipt of the funds, Flanders had his
brother, Ted, drive the car to the Simpson residence from Michigan. Ted turned the keys
over to Simpson and immediately went to the bus station and got on a bus back to
Michigan. Simpson inspected the car and now alleges that, when the car arrived in
Springfield, it required substantial repairsnew brakes, tires, and suspension, among
other items. He ultimately determined its condition did not match Flanderss
representations about the car on Flanderscars.com.
Simpson has sued Flanders for negligence and for breach of contract. He claims
damages of $75,000. As a part his negligence claim, Simpson alleges that Flanders s
actions violated the recently-enacted federal law, The Reasonable Condition Used Car
Sales Act. That statute provides, in its entirety:
I.
II.

Used automobiles not in reasonable driving condition present a

safety hazard to pedestrians and motorists.
No used automobile, not including commercial vehicles, shall be
sold if it is not at the time of sale in reasonable driving condition,
such that any and all safety features are in proper working
condition, including, but not limited to, such features as airbags,
and seatbelts.

Congress apparently enacted this law as a part of an agricultural subsidies act and there
is no relevant legislative history associated with it.
Flanders has moved to dismiss Simpsons suit in its entirety. Judge Finneran
would like you to draft an objective memorandum explaining how she should rule on the
motion. Your initial research has revealed the following New York law:
As to a cause of action arising from any of the acts enumerated in this
section, a court may exercise personal jurisdiction over any corporate or
natural non-domiciliary, or his executor or administrator, who in person
or through an agent:
1. transacts any business within the state or contracts anywhere to
supply goods or services in the state; or
2. commits a tortious act within the state, except as to a cause of
action for defamation of character arising from the act; or
3. commits a tortious act outside of the state causing injury to a
person or property within the state, except as to a cause of action for
defamation of character arising from the act, if he expects or should
reasonably expect the act to have consequences in the state and derives
substantial revenue from interstate or international commerce; or
4. owns, uses or possesses any real property situated within the
state.
QUESTION THREE
(approximately forty-five (45) minutes)
Judge Finneran next turns to you for help with a personal injury case. The record
indicates that, on May 15, 2009, Pam Beesly brought suit against the Dunder Mifflin
Paper Company for injuries she claims to have suffered as a result of an accident
involving one of Dunder Mifflins supply trucks.
From the facts alleged, you have learned that Pam, an aspiring graphic artist, set
out in September 2008 from Scranton, Pennsylvania, where she was born and raised, to
start a two-year program in graphic arts at the prestigious Pratt Institute of Fine Arts, in
New York City. Pam drove her 1999 Toyota Yaris, registered in Pennsylvania, and she
held a Pennsylvania drivers license. She packed into the car most of her belongings and
moved to a rented apartment in Brooklyn, NY, which she shared with another MSFA
student. They signed a one-year lease which contained a clause prohibiting the tenants

from subleasing the apartment. She did not set up a land line, but used her cell phone,
with its Pennsylvania number, as her primary telephone.
When she arrived on campus on the first day of school, she entered her Brooklyn
address on all of the various forms the school had her complete. She registered to vote in
New York at a campus registration drive in mid-September 2008. She went back to
Scranton for one month between the fall and spring semesters. In the spring of 2009 she
secured a summer internship with the graphic arts department at Cond Nast Publishing
in Manhattan, for ten weeks beginning June 1. She alleges she was thrilled to have this
opportunity because there are so few opportunities for graphic artists in Scranton.
On April 30, 2009, while driving to Scranton to visit her mother for a week before
starting her internship at Cond Nast, Pams car was struck at an intersection just
outside of Scranton by a truck operated by the Dunder Mifflin Corporation. The truck
had just left Dunder Mifflins Scranton, Pennsylvania, warehouse with boxes of paper
destined for customers in New Jersey. Dunder Mifflin, a Delaware corporation, operates
a large paper sales and distribution facility in Scranton, employing several dozen
Scrantonians. The company also operates two similar but substantially smaller sales and
distribution facilities in New Hampshire and Connecticut. The corporate offices are in
New York City. From there, company-wide policy is set and nationwide marketing
efforts are managed, but each of the local managers has substantial discretion to set
policy for the branches of the company in Pennsylvania, New Hampshire, and
Connecticut.
Pam alleges that she suffered injuries that will prevent her from pursuing her
dream of becoming a graphic artist. Between rehabilitation and lost wages from the
internship, she alleges damages in the amount of $80,000: $70,000 for her injuries and
$10,000 in lost wages. She has attached to her complaint a letter from Cond Nast dated
April 29, 2009, indicating that her summer internship pays $10,000.

But Dunder

Mifflin has in its answer to Pams complaint attached an article from the New York
Business Journal reporting on Cond Nasts financial constraints and the companys
announced intention to pay its summer 2009 interns $5,000. According to the article,
Cond Nast sent letters on May 20, 2009, to all its interns stating the same.
Before the court is Dunder Mifflins motion to dismiss. Judge Finneran would
like you to draft an objective memorandum explaining how she should rule on the
motion, being careful to note the controlling legal principles and how they apply to the
facts of this case.