Law School of Harvard University / 2022-2023
Civil Procedure
Professor Jessica Clarke
Fall 2022
Available for download: Friday, Dec. 9, starting at 9am EST
Must be electronically submitted by: Three hours from download or by 12:30pm, whichever is
earlier
The exam mode is TAKEHOME.
This exam is six pages long. Please check to see that you have all six pages.
While taking this examination you may consult any materials other than the internet. Internet
research is prohibited. You may not discuss the examination with anyone, either while taking it or
thereafter until everyone has taken the exam.
Exam4 will automatically print your Anonymous ID and word count on the exam.
By submitting your exam answer(s), you acknowledge the above instructions, and
certify that the work you are submitting is your own, that you have not received
unauthorized assistance on the exam, and that you have followed applicable rules,
including rules for accessing reference and other materials during the exam.
Additional Instructions
1. This exam includes four essay questions in two parts. The first three questions are issue-spotting
questions worth 85% of your total exam grade. The last question is a policy question worth 15%
of your total exam grade. You may use your time to answer these questions as you wish. Here
are some suggested time limits that roughly reflect the number of potential points the question is
worth:
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Question 1: 60 minutes
Question 2: 40 minutes
Question 3: 50 minutes
Question 4: 30 minutes
2. You may recognize some of the hypothetical facts on this exam from real cases or fictional
sources. But you should not make any assumptions about the facts not explicitly stated in the
questions. If you believe that you require additional information to answer a question on the
exam, please indicate what that information is and why you think it is necessary. If you believe
you cannot answer the question without making certain assumptions, state whatever
assumptions you are making about the facts or the law and proceed to answer the question.
© 2022-2023 by the President and Fellows of Harvard College.
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3. I have invented some of the substantive law on this exam. Please assume I have correctly
described the substantive law, even if you know it to be different.
4. All events referred to on this exam take place within the hypothetical federal Twelfth Circuit
Court of Appeals. Please assume that the Twelfth Circuit was recently created and does not have
any of its own precedents. You should assume that the Twelfth Circuit follows Supreme Court
precedent (of course) and is likely to adopt persuasive precedents from other Circuits.
5. Although the question may ask you to imagine you are in a role, you should not write your
answer in the style of a formal memo—there is no need for formalities such as introductions,
summaries of the argument, or citations. Get straight to the point.
Good luck!
© 2022-2023 by the President and Fellows of Harvard College.
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Law School of Harvard University / 2022-2023
Part I – Issue Spotting
Please assume the following facts to answer questions 1 through 3.
Beth Harmon is a 19-year-old chess prodigy who lives in Methuen, Kentucky. In December 2021,
the International Chess Federation (known by its French acronym, “FIDE”) awarded Harmon its
highest honor by naming her a chess Grandmaster. On September 1, 2022, she was ranked the 40th
best chess player in the world.
Vasily Borgov is a 35-year-old chess Grandmaster who lives in New Jersey. He is the six-time
reigning Chess World Champion and is ranked the best chess player in the world. Borgov has
leveraged his success in chess into a lucrative global brand. He founded an online chess company,
Play Borgov, which is incorporated in Delaware and headquartered in New York. Play Borgov is one
of the two largest online chess companies in the world. The largest is Chess.com, LLC. Chess.com is
headquartered in New York and has members who reside in every U.S. state.
On September 15, 2022, Harmon and Borgov played each other at the Chess World Championship,
an annual in-person tournament in Atlantic City, New Jersey organized by Chess.com. The Chess
World Championship is one of a very few major chess tournaments that still takes place in person,
with most tournaments having moved online during the pandemic. Borgov easily defeated Harmon
in a preliminary round and went on to win the tournament.
The day after the tournament, while waiting to pose for a promotional photo, Harmon and Borgov
played each other at a chess board on the Atlantic City boardwalk for fun. A camera crew captured
the game on video. To everyone’s surprise, Harmon won easily. Borgov, shocked and angry, tossed
the chess board over and walked away. Harmon called him a bad sport and insulted him with a
stream of colorful profanity. The video was uploaded to social media and went viral.
Later that afternoon, Borgov was sulking in his Atlantic City hotel room when he received a call on
the hotel land line from Harmon’s childhood friend, Jolene DeWitt. DeWitt and Harmon grew up in
the same orphanage in Kentucky, but DeWitt is now a college student in Nashville, Tennessee, on a
full scholarship. DeWitt never wanted to live in Kentucky and does not ever wish to return to
Kentucky. She has a Tennessee drivers’ license and bank account, and she voted in the midterm
elections in Tennessee. She lists her Nashville dormitory as her permanent address; she left no
personal possessions back in Kentucky. DeWitt has never set foot in any state other than Kentucky
or Tennessee. She isn’t sure what state she wants to live in after graduation.
DeWitt informed Borgov that in 2018, when she and Harmon were both fifteen years old, Harmon
was caught abusing Xanzolam, an addictive “neuro-enhancing stimulant” that has been shown to
improve a chess player’s win rate by up to 30% and is therefore a banned substance in chess. Based
on Harmon’s behavior in the viral video, DeWitt was worried that Harmon might be addicted to
Xanzolam again. DeWitt informed Borgov that in 2018, she overheard Harmon being reprimanded
by an official from the National High School Chess Association who had caught her using
Xanzolam in competition. The matter was resolved quietly. That official has since passed away and
there are no records of the incident.
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On September 29, 2022, Harmon and Borgov played an online chess match, each from their home
state, as part of the high-profile Kasparov Invitational Chess Tournament hosted by FIDE. To
everyone’s surprise, Harmon soundly defeated Borgov. Rather than accept defeat, Borgov accused
Harmon of cheating by taking Xanzolam and demanded that FIDE immediately disqualify her from
the tournament. Borgov confronted Harmon with DeWitt’s accusation. Harmon acknowledged to
Borgov and FIDE officials that she had been addicted to Xanzolam in high school as a result of
being overprescribed the drug to treat her attention deficit and hyperactivity disorder, but she denied
having ever using Xanzolam to win a chess competition.
FIDE requires that all chess tournament contestants pass a drug test. A special type of breathalyzer
device can detect Xanzolam with perfect accuracy. For online invitationals, FIDE mails all
contestants a package containing multiple breathalyzer devices in sealed bags. Immediately before
each match, contestants must open a bag on camera, take out the breathalyzer, breathe into it, and
then display the test result for officials. In response to Borgov’s accusation of cheating, FIDE
officials carefully reviewed their video of Harmon’s game with Borgov. The video shows that
Harmon’s breathalyzer test result was negative and that she put nothing into her mouth for the
entire one-hour match. Xanzolam is only effective if taken orally. FIDE therefore refused to
disqualify Harmon from the tournament, which she went on to win, collecting a $100,000 prize.
After FIDE announced its decision not to disqualify Harmon, Borgov quit the tournament and
accused Harmon of “doping with Xanzolam,” “cheating to win the Kasparov Invitational,” and
“destroying the integrity of chess” on social media. One week later, on October 6, Play Borgov
issued an online press release stating that it was imposing a lifetime ban on Harmon from all of its
tournaments as a result of its investigation into her cheating. The press release included a link to a
report by an expert on statistics hired by Play Borgov, Dr. Edward Cheng. Dr. Cheng analyzed
records of all of Harmon’s chess tournament games for the past five years and identified five online
tournaments in which Harmon’s performance was at least 30% better than what would be expected
of a player with her record, including the Kasparov Invitational. Dr. Cheng concluded that “it is
more likely than not” that Harmon had cheated at these five events. Later that same day, Chess.com
issued a statement nearly identical to Play Borgov’s concluding Harmon had cheated and banning
her from all events, including the Chess World Championship in New Jersey.
On December 1, Harmon filed a lawsuit in New Jersey state court bringing claims for defamation
against DeWitt, Borgov, and Play Borgov, alleging that she was falsely accused of abusing Xanzolam
to win chess tournaments, and that these accusations have caused her to be disinvited from all major
chess invitationals worldwide, losing millions in potential prize money. Her complaint requests $100
million in damages from each defendant. Defamation is a tort under New Jersey state law. Assume
that, to prove a claim of defamation in New Jersey, a plaintiff must show, by a preponderance of the
evidence, that a defendant (1) made a statement of fact concerning the plaintiff that was
communicated to a third party; which (2) was false; (3) was made with actual malice; and (4) caused
the plaintiff damages. New Jersey courts define “actual malice” to mean “with the knowledge that it
was false or reckless disregard for the truth.”
You are a summer intern at a law firm representing another chess Grandmaster who has also made
public statements accusing Harmon of cheating. Your firm is concerned that Harmon may sue your
client too, so it is keeping an eye on developments in the case against Borgov. Your supervisor asks
© 2022-2023 by the President and Fellows of Harvard College.
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you to draft a series of quick email messages, based solely on what you learned in your Civil
Procedure course, responding to the following questions. Assume the parties will make all relevant
arguments.
Question One. For purposes of this question, assume that before they were served, all defendants
filed a notice of removal in federal court in the District of New Jersey. Assume that New Jersey
defamation law provides for joint and several liability and allows claims for contribution among joint
tortfeasors. Borgov then brought a third-party complaint against Chess.com for contribution. In
response, Harmon amended her complaint to add a claim for defamation against Chess.com. At the
same time, she moved to remand.
Do the rules of joinder allow all the claims now included in this lawsuit, and will the federal court
grant Harmon’s motion to remand? Recall that, as per the exam instructions, New Jersey is now in a
new federal circuit, the Twelfth Circuit Court of Appeals, with no circuit precedents of its own.
Assume that this litigation does not raise any novel or complex issues of New Jersey law. Assume all
these motions were timely and all amendments to pleadings are allowed.
Question Two. For purposes of this question, assume that defendant DeWitt filed a timely motion
to dismiss for lack of personal jurisdiction. Assume the parties have submitted affidavits and other
evidence to support all relevant facts described above. Your supervisor asks for your analysis of
whether DeWitt will prevail. Do not analyze the New Jersey long-arm statute; please assume it
would apply.
Question Three. For purposes of this question, assume that Harmon has voluntarily dismissed
DeWitt from the case and has withdrawn her motion to remand. Harmon has amended her
complaint to include a new claim of unlawful group boycott under a federal statute, the Sherman
Act, against Borgov, Play Borgov, and Chess.com.
The amended complaint alleges all the facts described above except that Harmon has deleted all
references to DeWitt. The complaint now has no mention of DeWitt’s phone call to Borgov or
Harmon’s alleged use of Xanzolam in high school.
The amended complaint includes the following additional allegations:
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“Borgov’s statement that Harmon took Xanzolam to cheat in her match against him at the
Kasparov Invitational was plainly false and clearly malicious. As Borgov was aware, in accord
with FIDE rules, Harmon took a breathalyzer test to confirm there was no Xanzolam in her
system immediately before their match and she remained in full view of her camera for the
entirety of the one-hour game, with no opportunity to put any pills into her mouth.
Borgov was irate at Harmon because she had playfully taunted him after her victory on the
Atlantic City boardwalk two weeks earlier. Notorious for his inability to cope with defeat,
and angry at having been shown up by a teenage player—and a woman!—Borgov snapped at
the Kasparov Invitational and falsely accused Harmon of doping, without any evidence
whatsoever.
Chess.com, in collusion with Borgov and Play Borgov, banned Harmon from their future
events, all to lend credence to Borgov’s unsubstantiated accusations of doping, backed up by
© 2022-2023 by the President and Fellows of Harvard College.
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a false and defamatory ‘report’ by a so-called expert in statistics.” (Assume the complaint
includes no other mention of Dr. Cheng’s report.)
Borgov argues that Harmon must have used a rigged breathalyzer and denies having any motives
other than to protect the integrity of chess. Assume that during discovery, the parties will discover
evidence of the various facts described at the beginning of this exam and that the Rules of Evidence
will not bar the introduction of any of that evidence, including potential hearsay.
Your supervisor asks you to analyze whether Borgov is likely to prevail on a Rule 12(b)(6) motion
with respect to two elements that Harmon must prove to win her claim of defamation: (1) that the
statement about her was false and (2) that Borgov made the statement with “actual malice,” which
New Jersey courts define to mean “with the knowledge that it was false or reckless disregard for the
truth.” You are also asked to address whether, if Borgov does not win his Rule 12(b)(6) motion, he
would win a motion for summary judgment on either of these two elements. Assume the motions
would be timely.
Part II – Policy
Question Four. Please draft an essay explaining your answer to the following question: Which of
the cases that we read in this course is most inconsistent with the values that you think ought to
undergird a procedural system?
END OF EXAM
© 2022-2023 by the President and Fellows of Harvard College.
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