CIVIL PROCEDURE ONE PROF. SLOMANSONFINAL EXAMINATION: SPRING 2015 EXAM # _______

TABLE OF CONTENTS Page

Instructional Memo ........................................................................................... 2

FILE

Ps Complaint ............................................................................................................... 3Ds Counterclaim .......................................................................................................... 4

LIBRARY

Federal Rules of Civil Procedure ........ 5

Federal Statute ............ 5State Statutes....... 5

Memorandum

Fm: Managing Partner

To: Job Applicant

Re: Swell Hotel

Date: May 11, 2015

We are among the growing number of law firms using a three-hour, closed book exercise to screen applicants during our interviewing process. You do not represent a particular side in this litigation.

Regarding format, we recommend the IRAC format you likely used in law school. So your task is to articulate the respective arguments, while analyzing the issue presented. You should reason to a conclusion for each issue.

The dates in this exercise do not present any issue. There are no waiver issues. Do not use a subsequent event to analyze an earlier one. For example, do not use any counterclaim facts to analyze earlier attacks on the original complaint.

This exercise consists of five (5) pages. Your task is to respond to the questions presented in the attached File. The Library contains some actual and hypothetical sources that may apply to this exercise. The Library does not contain all relevant legal resources. Not every scrap of information in the File and Library is necessarily relevant.

Good luck,

MPManaging Partner

FILE

Peter Plaint, an individual ) v. )

Ted Trainer, an individual, and ) Swell Hotel, a corporation. )

UNITED STATES DISTRICT COURTSouthern District of California

File Number 654321-S.O.B.

COMPLAINT

Filing Date: January 2, 2015

1. This case alleges claims arising under the Diversity Jurisdiction Statute and the National Hotel Safety Act.

2. Peter is domiciled in California. Swell Hotel is incorporated in New York. Its only place of business is in New York City. Ted Trainer is a U.S. Naval officer from San Diego, who lives in New Jersey. Ted has been assigned to military duty in New York for several years. He moonlights as a physical trainer at the Swell Hotel guest gym. Ted is an expert on the use of exercise machines which are manufactured by Fitmart, a California corporation.

3. Peter was on vacation. He saw a Swell Hotel billboard advertisement, while driving his rental car from a New York airport to New York City, in search of a place to stay. He thus decided to stay at the Swell Hotel.

4. On August 1, 2014, Ted negligently advised Peter on how to do some physical exercises on the hotels Fitmart machine. Teds negligence caused harm to Peter. Swell Hotel is also responsible for Peters injuries.

5. Peter thus seeks compensatory and punitive damages in the amount of $200,000.00. Signed: Jumpin Jack Flash

Dewey, Cheatem, Bilkem & Howe

Attorneys for Plaintiff

Question #1: Based on Peters allegations, would the court have the subject matter jurisdiction (SMJ) to hear this case? Assume the jurisdictional amount in controversy is met.

Question #2: Would the court have in personam jurisdiction (IPJ) over Swell Hotel?

Question #3: Is venue proper?

Question #4: Assume that the court can transfer this case to the federal court in New York City. Should it order the transfer?

Question #5: The defense initially responds with a Rule 12 motion. The first of its two grounds is for failure to state a claim. How should the court rule?

Question #6: Assume that the court denies the 12(b)(6) part of the motion. The defense also re- quested a More Definite Statement regarding damages. How should the court rule?

Question #7: The defense makes a timely motion to dismiss for failure to join Fitmart. How

should the court rule?

Assume that all the above motions are denied. Nancy Grace represents both defendants. She files only the following document:

Peter Plaint, an individual ) v. )

Ted Trainer, an individual, and ) Swell Hotel, a corporation. )

UNITED STATES DISTRICT COURTSouthern District of California

File Number 654321-S.O.B.

COUNTERCLAIM

Filing Date: February 2, 2015

1. Ted Trainer herein countersues Peter Plaint, in the action initiated by Mr. Plaint against Ted and Swell. Ted hereby incorporates all charging allegations from the plaintiffs original complaint, as if they were fully set forth in this paragraph of the counterclaim.

2. At the time of the incident which is the basis for this action, Plaint, a former U.S. Marine, knew that Trainer was a Naval officer. When Plaint failed to follow Teds instructions, Plaint thus hurt himself. Plaint, who was then supposedly in pain, shouted: You slimy sailor squid! You are a poor excuse for a military officer who doesnt know how to stand a safe watch. You just fussed with the wrong Marine! Ill have you court-martialed!

3. I (Ted) was not physically injured. But I suffered emotional distress as a result of Plaints outrageous outburst.

4. Wherefore, this counterclaimant seeks damages from Peter Plaint, in the amount of ten thousand dollars ($10,000.00).

Signed: Nancy Grace

Last, Hope & Chance

Attorneys for Defendants

Question #8: Should Nancy have filed another document, in addition to this counterclaim? What would that document generally contain? Question #9: Does the court have subject matter jurisdiction (SMJ) over Teds counterclaim?

Question #10: Assume that Ted subsequently files a timely indemnity (liability-shifting) claim in this case against Fitmart; that it does not present any new federal question; and that there is no amount in controversy problem. Ted is bringing this claim against Fitmart. Would the court have SMJ over Teds Fitmart claim?

[End of File]

LIBRARY

Federal Rules of Civil Procedure:

FRCP 12: Defenses and Objections:

(b) How to Present Defenses: Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue; * * * (6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Rule 19.

Federal Statute:

999 United States Code 999: National Hotel Safety Act

(a) The district courts shall have original jurisdiction of all civil actions concerning any hotel that advertizes outside of its home state, when ten or more personal injury lawsuits are filed against that hotel in any one year. * * *

State Statutes:

California Labor Code 123456789.01. A nonresident employer may be sued in this state, if engaged in conduct that causes physical harm to a California resident.

California Code of Civil Procedure 410.10. A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of * * * the United States.

[End of LIBRARY]

#1: SMJ

Diversity

* no P no D same state * corp D inc + PPB

* Swell NY only PB

* Teds domicile?

* indiv = pres + intent

* military (stud & jail) rule

* lives NJ * assigned NY few years

* tossup w/o further evid intentHotel Safety Act* Ds conduct w/i stat?* ads outside home state * only g