THE UNIVERSITY OF DETROIT MERCY SCHOOL OF LAW

THE UNIVERSITY OF DETROIT MERCY SCHOOL OF LAW

CIVIL PROCEDURE § O3

(3 Hours and 20 Minutes)

Professor Richard Myers Final Exam

May 7, 1993 Spring Term, 1993

Instructions

This examination consists of 5 pages plus this instruction page. This is a 3 hour and 20
minute exam. The time limit indicated for each question reflects the relative importance of the
question.

During the examination, you may consult the casebook, the supplement, any handouts,
your class notes, and your outline. You are not permitted to consult any “secondary” sources,
e.g., hornbooks, commercial outlines, or student prepared outlines to which you did not
contribute significantly.

A word of advice. Please read each question carefully. Pay particular attention to the
precise question I have asked. You should spend time thinking about and organizing your answer
before you begin writing. If your answer depends on facts you have assumed, please state them.

Finally, please write legibly!

Finally, please write legibly!

 THE UNIVERSITY OF DETROIT MERCY SCHOOL OF LAW
Professor Myers Page 1 of 5
Civil Procedure §03 May 7, 1993

QUESTION I
(95 Minutes)

John Wisdom has filed a civil rights action in federal district court in Michigan against
Frank Coffin, a police officer. Wisdom alleges that Coffin arrested him in violation of his federal
constitutional rights. Wisdom’s claim is based on allegations that the police officers who arrested
him used excessive force. Wisdom’s wife has joined in the suit to litigate a claim against Coffin
for emotional distress resulting from the arrest of her husband.

All of the parties are citizens of Michigan. Mr. Wisdom’s federal claim is based on 42
U.S.C. §1983, which is a remedial statute that provides a civil action for deprivations of
constitutional rights. Section 1983 claims are within the subject matter jurisdiction of the federal
courts. See 28 U.S.C. §1343(a)(3). The federal courts do not have exclusive jurisdiction over
section 1983 claims. Mrs. Wisdom does not have a section 1983 claim against Coffin; her
emotional distress claim is based on Michigan tort law.

You are the federal district court judge to whom this case has been assigned. How would
you rule on the following issues? Please explain your reasoning.

A. Citing Fed.R.Civ.P.12(b)(1), Coffin has filed a motion to dismiss Mrs. Wisdom’s

claim.

B. There were two police officers involved in Wisdom’s arrest, Frank Coffin and
Mel Corner. If he had wanted to assert a section 1983 claim against both officers, could
Mr. Wisdom have joined both Coffin and Corner in the same suit?

C. Assume Mr. Wisdom has only sued Coffin. Can Coffin bring Corner into the suit
to argue that the injuries Wisdom suffered were the result of actions taken by Corner and
that he (Coffin) was not a participant in the beating that gave rise to the excessive force
claim?

D. Again, assume that Mr. Wisdom has only sued Coffin. Can Coffin have the case
dismissed because Corner was not joined in the suit? Wisdom argues that there is joint
and several liability in this situation and that he can choose to sue either defendant, each
of whom is responsible for the entire damage.

Finally, please write legibly!

 THE UNIVERSITY OF DETROIT MERCY SCHOOL OF LAW
Professor Myers Page 2 of 5
Civil Procedure §03 May 7, 1993

Assume that you (the district judge) denied Coffin’s 12(b)(1) motion. Mrs. Wisdom now
seeks Rule 11 sanctions against Larry Legal. Legal, who signed the 12(b)(l) motion, is Coffin’s
attorney. Assume that you grant Wisdom’s Rule 11 motion and issue an order requiring Legal to
immediately pay Wisdom’s attorneys fees, which amount to $50,000.

E. Assume that Legal has filed an immediate appeal with the appropriate federal
court of appeals. Does the court of appeals have jurisdiction?

F. Assume that the court of appeals decides it has jurisdiction. How will the court of
appeals likely resolve Legal’s appeal on the Rule 11 issue?

QUESTION II
(40 Minutes)

Chabad House of Western Michigan sought permission to display a 20-foot high menorah
in Calder Plaza during the eight days of the Jewish holiday of Chanukah. Calder Plaza is a public
forum in the center of downtown Grand Rapids, Michigan. The mayor of Grand Rapids, Pierce
Lively, granted Chabad House’s request, although the mayor has begun to have second thoughts
about the propriety of that decision. Lively has nearly been convinced that the display of such a
religious symbol in a plaza surrounded by key government buildings would violate the
Establishment Clause.

Paul Kurtz, who is a prominent atheist, is a resident of Grand Rapids. Just prior to
Chanukah, Kurtz filed a lawsuit in federal district court against the City of Grand Rapids and
Mayor Lively seeking to enjoin the display of the menorah. This lawsuit is based on a federal
constitutional argument, i.e., that to allow the display would violate the Establishment Clause.

Chabad House is concerned about the suit and about Mayor Lively’s commitment to his
earlier decision. Chabad House’s attorney has informed Mayor Lively that it would violate the
federal Constitution (this time the Free Speech and Free Exercise Clauses) for Grand Rapids to
deny Chabad House’s request to display the menorah.

A. Is there any way Chabad House can participate in the federal lawsuit? Please
explain your reasoning.
B. Kurtz wants to know whether he can maintain this suit as a class action on behalf
of all non-Jews in Grand Rapids. What do you think? Please explain your reasoning.

Finally, please write legibly!

 THE UNIVERSITY OF DETROIT MERCY SCHOOL OF LAW
Professor Myers Page 3 of 5
Civil Procedure §03 May 7, 1993

QUESTION III
(40 Minutes)

Flight 167 of Capital Airways was just beginning its descent into the Topeka (Kansas)
airport. Patricia Pines, a flight attendant for Capital, sat in the jump seat of the sixteen-passenger
plane, next to the door. Having flown successive trips for the last two days, Pines was extremely
tired and, without thinking, leaned against the door. To her surprise the door flew open, violently
striking the side of the plane. (Unfortunately, the exhausted Pines had failed to secure the door
properly at take-off.) The force of the blow was sufficient to snap the rusty hinges off the door
and to put a substantial dent in the plane’s side.

A quick-thinking passenger saved Pines from being pulled out of the plane. Pines’s purse
and luggage, however, flew out of the plane, as did carry-on items of other passengers. In
addition, the sudden blast of air sent a number of objects whirling around the plane. Pines herself
was rendered unconscious by a wayward briefcase and other passengers also suffered various
injuries from the flying debris.

Pines brought suit against Capital Airways for her concussion, alleging that the airline
had been negligent in flying the aging airplane. Capital argued that Pines’s recovery was barred
by her contributory negligence in failing to secure the door. The jury found that Capital was
negligent but gave judgment for defendant because the jurors agreed that Pines had been
contributorily negligent.

A. What impact will this judgment have on the following actions? (You should spend
35 minutes on parts A and B of this question.)

1. Pines subsequently sues Capital for the value of her purse and luggage.
2. Capital subsequently sues Pines for damage to the plane caused by Pines’s
failure to properly secure the door.
3. A passenger injured by the flying debris brings suit against Capital
Airways. The passenger argues that Capital is precluded from relitigating the issue
of its negligence.

B. Assume that after a full trial the passenger in A. 3. obtains a judgment against
Capital based on the jury’s finding that Capital was negligent in flying an airplane with
rusty hinges. What impact, if any, will this judgment have in an action by a second
passenger against Capital for the loss of his carry-on luggage?

Finally, please write legibly!

 THE UNIVERSITY OF DETROIT MERCY SCHOOL OF LAW
Professor Myers Page 4 of 5
Civil Procedure §03 May 7, 1993

C. Shortly after the accident, as was the custom after all accidents involving Capital’s
airplanes, a Capital employee examined the plane and interviewed the passengers of
Flight 167 and others who witnessed the incident. The results of the employee’s
investigation were set forth in a report submitted by the employee to the president of the
airline.

Pines learns of the report’s existence during her lawsuit against the airline and
seeks to obtain a copy of the report. Can she obtain the report under the Federal Rules?
Explain your conclusion. (You should spend 5 minutes on part C.)

QUESTION IV
(25 Minutes)

Brad Reynolds was an administrative aide for the Mayor’s office in Tulsa, Oklahoma for
twenty-one years. Recently, however, he was fired from the job by Christine Craft, the city’s
newly-elected mayor, who at a press conference announcing the firing stated that Brad was a
“no-good lush.” (Both Brad and Craft are residents of Oklahoma.)

Brad claimed the firing was motivated by sex discrimination in violation of federal law.
He also claimed that Craft’s statement at the press conference constituted slander under state tort
law. Accordingly, he sued Craft in federal court in Oklahoma on both claims. Craft answered the
sex discrimination count, denying any anti-male bias and claiming the firing was due to
inadequate job performance. In response to the slander claim, Craft admitted she made the “lush”
statement but asserted that it was true, a complete defense to slander under Oklahoma law.

After discovery, Brad filed a motion for summary judgment on both claims. The
information submitted in support of the motion included the following evidence:

1) records establishing that Brad had never been reprimanded for poor work
performance during his 21 years with the Mayor’s office;
2) deposition testimony of two witnesses who stated that Craft had frequently told
them she felt Brad did not “fit in” in an administration run by a woman;
3) Brad’s affidavit stating that Craft told him he was fired because she wanted a
woman in his position; Brad’s affidavit also stated that he never drank on the job and had
only been intoxicated twice in his life; and
4) the transcript of the press conference at which Craft made the “lush” statement.

Finally, please write legibly!

 THE UNIVERSITY OF DETROIT MERCY SCHOOL OF LAW
Professor Myers Page 5 of 5
Civil Procedure §03 May 7, 1993

Craft also filed a motion for summary judgment on both claims. The following evidence
was submitted in support of her motion:

1) exhibits of Brad’s work product showing improper spelling, bad grammar, and
carelessness;
2) deposition testimony from three witnesses who testified they had seen Brad
intoxicated at the Dew Drop Inn at least twice;
3) deposition testimony from three of Brad’s co-workers that he frequently drank
from a brown paper bag at work and at times staggered to and from his office (on cross—
examination, all three admitted they had never actually seen him drink alcohol while on
the job); and
4) Craft’s affidavit stating that she has no anti-male bias (indeed is married to one)
and that Brad’s firing stemmed from his poor work rather than her sexist attitude.

The district court judge granted Brad’s motion for summary judgment on the sex
discrimination claim. The judge stated that Craft’s explanation for Brad’s firing was simply not
believable. The judge denied Brad’s motion on the slander claim and also denied Craft’s motion.

You are the judge’s new law clerk. The judge would like you to evaluate his rulings,
identified above. How would you respond? Explain whether you believe the rulings were correct
and the reasoning supporting your conclusions. (Ignore any subject matter jurisdiction issues,
which you may recall were the subject of a question on the Fall Semester exam.)

Finally, please write legibly!