CIVIL PROCEDURE ONE
FINAL EXAMINATION: FALL 2014
PROF. SLOMANSON
EXAM # _______
TABLE OF CONTENTS
Page
Contents ...................................................................................................................... 1
Instructional Memo ….…............................................................................................ 2
FILE
P’s Complaint .............................................................................................................. 3
D’s Complaint ............................................................................................................. 4
LIBRARY
Federal Rules of Civil Procedure ………….……………………………………….. 5
Federal Statutes ..………………………………………………………………….... 5
State Statute ……..………………………………………………………………….. 5
Page 1 of 14
Memorandum
Fm: Managing Partner
To: Job Applicant
Re: JFK Deli Case
Date: December 15, 2014
We are among the growing number of law firms using a three-hour, closed book exercise to
screen applicants during our interviewing process. Regarding format, we recommend the
“IRAC” format you likely used in law school.
You do not represent a particular side in this litigation. So provide the respective arguments for
the issues that can be argued by the parties, and reason to a conclusion for each issue.
This exercise consists of five (5) pages. Your task is to respond to the dozen questions presented
in the FILE below. The LIBRARY does not contain all relevant legal resources. Not every scrap of
information in the FILE and LIBRARY is necessarily relevant.
There are no waiver or date-related issues in this exercise.
Good luck,
MP
Managing Partner
Page 2 of 14
FILE
Pat Plaint, an individual
)
v.
)
Dan Delight, an individual, and )
Delectable Foods, a corporation )
UNITED STATES DISTRICT COURT
Southern District of California
File Number 654321-S.O.B.
COMPLAINT
Filing Date: January 2, 2014
1. This case arises under federal Diversity jurisdiction, and under section (b) of the National
Safe Chow Act §999 (see LIBRARY).
2. Pat resides in San Diego, California. Dan resides in Newark, New Jersey. Dan owns and
operates a deli in New York City’s John F. Kennedy Airport (JFK). Dan obtains all of his raw
food produce for his deli from Delectable Foods. Delectable is incorporated in Delaware.
Delectable markets its produce in multiple states—including California, where some of its
offices are located.
3. Pat was a passenger on a nonstop Atmos Airlines flight from JFK to San Diego. Before
boarding her flight, she ate at Dan’s deli in the JFK Airport. She became sick from food
poisoning during her flight. Pat went to a San Diego hospital upon her arrival in San Diego.
4. Wherefore, Pat seeks compensatory damages, for her suffering, medical bills, and lost
wages in the amount of $100,000,000.00 (one hundred million dollars).
Signed: Jumpin’ Jack Flash
Dewey, Cheatem, Bilkem & Howe
Attorneys for Plaintiff Pat Plaint
Question #1: Do the parties’ domiciles satisfy diversity jurisdiction requirements?
Question #2: The defendants file a FRCP 12(b)(1) motion. They attack Pat’s complaint, on
the basis that Pat cannot possibly obtain a verdict for the amount stated. How
should the court rule?
Question #3: Does the court have subject matter jurisdiction to hear the federal claim?
Question #4: Can Dan successfully attack Pat’s complaint via a FRCP 12(b)(6) motion for
failure to state a claim?
Question #5: Does the court have personal jurisdiction over Dan?
Question #6: Is venue proper?
Question #7: Could the case be transferred to the New York City federal court?
Question #8: The Ds file a 12(b)(7) motion, arguing that Pat must join Atmos Airlines, a
California corporation. How should the court rule?
Question #9: Now assume that there were no motions filed. Would Pat be able to amend the
complaint to join Atmos Airlines to this suit under FRCP 20(a)? (Do not argue
jurisdiction, nor FRCP 15 regarding amendments, nor FRCP 19 regarding absent
parties—just FRCP 20a.)
Page 3 of 14
More Facts: Assume the court denies all of the above dispositive motions. Dan and Delectable
ultimately file answers to Pat’s complaint. They also file the following document:
UNITED STATES DISTRICT COURT
Pat Plaint, an individual
)
Southern District of California
v.
)
File Number 654321-S.O.B.
Dan Delight, an individual, and )
Delectable Foods, a corporation )
COMPLAINT
for INDEMNITY
v.
Filing Date: April 4, 2014
Atmos Airline, a corporation )
1. Atmos Airline (AA) is a California corporation.
2. Defendants Dan Delight and Delectable Foods have been sued by plaintiff Pat Plaint in
this law suit, for the alleged food poisoning that occurred during Plaint’s AA flight. AA is thus
needed for a complete adjudication of the food poisoning issues in this action.
3. Wherefore, Dan and Delectable pray for a judgment against AA that will exonerate them
from any potential liability for Pat’s alleged food poisoning.
Signed: Nancy Grace
Last, Hope & Chance
Attorneys for Defendants
Question #10: Does the court have subject matter jurisdiction to hear the above claim against
Atmos Airlines?
Question #11: Assume that Dan has not yet answered the complaint, and that his deli went out of
business shortly after serving Pat’s meal. Pat’s lawyer wants to attach a bank
account that Dan maintains in San Diego. Would federal law permit this attachment?
Question #12: At the trial, Pat loses. The defendants immediately file a FRCP 11 motion for
sanctions, on the basis of their defense judgment. Should the court grant their
motion?
[End of FILE]
Page 4 of 14
LIBRARY
FEDERAL RULES OF CIVIL PROCEDURE
FRCP 11: Signing Pleadings, Motions and Other Papers; Representations to the Court:
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other
paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party
certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances: * * * it is not being presented for any improper purpose * * * .
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.
FRCP 19(b): WHEN JOINDER IS NOT FEASIBLE.
If a person who is required to be joined if feasible cannot be joined, the court must determine
whether, in equity and good conscience, the action should proceed among the existing parties or should be
dismissed. * * *
FRCP 20(a): PERSONS WHO MAY JOIN OR BE JOINED.
(1) Plaintiffs. Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
(2) Defendants. Persons * * * may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
FEDERAL STATUTES
999 United States Code §999(b): National Safe Chow Act
Any public restaurant which serves soft/soda drinks larger than 16 ounces, shall be liable for a
fine of $100.00 per violation.
28 United States Code §1332(a): Diversity of citizenship; amount in controversy; costs
The district courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state * * * .
STATE STATUTE
California Code of Civil Procedure §410.10: Basis
A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution.
[End of LIBRARY]
Page 5 of 14
Issue Outline / Civ Pro I / Fall 2014 / Prof. Slomanson / “@” = complaint / “ ±” = not /
1. Domicile
* 1332(a) articulation
* residence not synonymous with domicile
* reside + intent
* Pat alleges CA, flew to, filed in SD
* Pat alleges Ds “reside” CA & NJ
* Dan operates JFK deli NY but ± impact Div.
* corp = inc + PPB
* Delectable inc./domiciled DE
* PPB = nerve center (Hertz)
* DF “some offices” located CA
could PPB
* facts silent CA offices = HQ
2. Amount
* 1332(a) > 75k good faith
* burden D: P legal certainty ± obtain minimum
* 100M ± good faith, but if likely 75k+, then min AIC
* hospitalized suggests significant expense
* but food poisoning usually ± long
3. Federal Question
* FQ articulation (D’s conduct w/i stat)
* no min amt FQ
* JFK deli = “public restaurant”/consume premises?
* Def’t Delectable probably ± “serves”
* no drink size allegation
* P entitled sue? How P harmed if stat viola?
4. Fail Claim (Dan)
* Rule 8 general notice
* Iqbal = nudge across line so plausible
* consistent w liab ± suffice
* no fact matching show Dan = cause
* “sick from food poising on flight” Dan’s doing?
* “before” boarding could have been a number of hours
* alleges “food” poisoning, but 999(b) “drinks”
* P ± allege drink soda/size
* did she go to hosp for food poisoning?
5. IPJ (Dan)
Long-arm * non-resident D
* 410.10 = outer limits DP
DP√ * minimum contacts/ties forum
* specific IPJ
* Dan no physical connex CA
*
serves food major airport
* “nonstop flight” fm JFK to forum (MC/PA/RA)
* chow ~ car WWVW? (stream after consumed?)
6. Venue
* individual D = reside/arose (substantial portion)
* Dan ± reside forum
* hospitalization in CA = substantial?
* where served or across country flight?
* corp D = IPJ ties CA forum
* “markets” in CA
* some offices in CA
= therefore
7. Transfer
* gist: better forum elsewhere
* Step #1 where might brought
* substantial portion & IPJ must NY
* both IPJ NY
* Step #2: convenience parties/wits
* convenience parties factor split
* convenience witness factor
* facts silent re wit to liability
* likely NY foodhandlers
* wits to damages in NYC, on plane, and in SD
* P’s wage & medical wits in SD
* presumption favors P’s choice
8. Feasibility Joinder (19b)
* 12(b)7-Rule 19 absentee needed complete adjud
* airline food may be culprit (
“necessary”)
* infeasible joinder SMJ -> Airline & P both = CA
* joint tortfeasors usually ± indisp
* half a loaf...
9. Permissive Joinder (20a)
* same transaction/occurrence (or related series)
* food poisoning alternatively any of 3 Ds
* cmn Q law/fact
* jt, several, alternative liab
* which D(s) responsible P’s condition?
10. 3P@
* TP@ indemnity (Owen)
* problem: ± complete diversity
* P & AA both CA
* cure: supplemental SMJ
* cmn nucl op fact
* gist promote efficiency/avoid two actions
* but for P’s @ no 3P@
* P ± suing 3PD
11. Attachment
* gist: fiction D’s prop = D
rem juris
* Step 1: Rule 4 IPJ due diligence
* D east coast deli in NY
* Deli closed, suggesting harder find Dan (no answer)
* Step #2: presence+ (Shaffer)
* specific IPJ over D if requisite ties to SD
* juris by necessity if P can’t find D (Shaffer)
12. Rule 11
* Rule 11 gist/policy
* “investiga reas under circum”
* safe harbor period
* Ds “immediately file”
* but Rule 11 ± apply just b/c defense jmt (Prob)
Page 6 of 14
Civil Procedure I
Professor Slomanson
Final
Fall 2014
1)
Question 1: Do the parties' domiciles satisfy diversity jurisdiction requirements?
(SMJ)
In order to determine whether the parties' domiciles satisfy diversity jurisdiction
requirements, we must look at where each party is domiciled at the time the claim was
filed. Domicile is determined by the party's intention to remain within the domicile or
whether they own property or a business within the domicile. For Corporations, domicile
is determined by the state where they are incorporated and where the corporation's
principle place of business is. The principle place is where the corporation's "nerve
center' is, which basically means where the majority of the brainstorming for the entire
corporation occurs. Diversity of domicile is satisfied when no plaintiff or defendant share
the same domicile. Here, plaintiff Pat both resides in California and intends to stay
there, as the facts suggest that she was on her way home to California from New York.
Thus, because of her intention to remain and reside in California, she is domiciled there.
Defendant Dan Delight resides in New Jersey, and the facts don't say whether he
intends to live or owns property/business in any other states, thus he is domiciled there.
As for Delectable foods, they definitely have domicile in Delaware, because thats the
state where they are incorporated. As for principle place of business, the claim only
explains that Delectable Foods markets its produce in multiple states, where only some
of its offices are located, which includes California. These facts don't tell us where the
"nerve center" is and do not tell us enough about the weight of the business in other
states when in comparison to each other. Having "some offices" and "marketing its
produce" is not sufficient to satisfy a principle place of business. Thus, Delectable
Foods' domicile is in Delaware. Given that each defendant does not have domicile in
California, where the plaintiff has domicile, diversity of domicile is satisfied.
Question 2: The defendants file a FRCP 12(b)(1) motion. They attack Pat's
complaint, on the basis that Pat cannot possibly obtain a verdict for the amount
stated. How should the court rule?
Though the defendant raises both a federal question and a federal diversity claim, the
amount in controversy is only a requirement under diversity jurisdiction. In order for the
court to rule as to whether the amount stated is satisfactory or not, it must either equal
or exceed the $75,000 requirement. Here, plaintiff Pat is claiming $100,000,000. for
general damages resulting from her personal suffering, medical bills, and lost wages.
Though compensatory damages do not normally have to be specifically plead with a
heightened standard for particularity, which is required for special damages, the
defendants will argue that this amount is excessive and potentially frivolous for getting
Page 7 of 14
food poisoning, even if she went to the hospital afterwards. Normally a reasonable
person would not need hospitalization for food poisoning. Though this requirement more
than exceeds the $75,000 requirement, it is unlikely that the court will allow
$100,000,000 in general damages for food poisoning. Thus, depending on how much is
determined to be excessive and frivolous, the plaintiff could still potentially meet the
$75,000 requirement, but it is still very unlikely. So depending on the court's opinion on
this, the 12(b)(1) motion's success would depend on having to next analyze the
plaintiff's federal question claim, in order to decide if the court has jurisdiction to hear
this case.
Question 3: Does the court have subject matter jurisdiction to hear the claim?
Subject matter jurisdiction is the power of the court to hear a claim. There are two front
door ways to approach subject matter jurisdiction: Federal question and Diversity
jurisdiction. The back door approach is supplemental jurisdiction. For a federal question,
there is no minimum amount of controversy but there is a heightened pleading standard,
requiring the plaintiff to specifically show that the defendant's conduct fit the statute with
plausibility. For diversity jurisdiction, there is a minimum amount of controversy
requirement of $75,000 and a general federal notice pleading standard, requiring the
plaintiff to show that he or she is entitled to relief. Under diversity jurisdiction, no plaintiff
and defendant can share domicile. In supplemental jurisdiction, a non-federal claim can
be tried with a federal claim as long as there is a common nucleus of operative fact
between the two claims, and that the claims would be expected to be tried together. For
diversity jurisdiction, as we have discovered above, the plaintiff is domiciled in CA, while
defendant Dan is domiciled in NJ and Delectable Foods is domiciled in DE, thus the
diversity of domicile requirement is satisfied. As for the $75,000 requirement, though the
plaintiff's request of $100,000,000 exceeds the minimum requirement, it is unlikely that
food poisoning actually requires such an excessive amount in damages, possibly
suggesting a frivolous claim. Thus, because the minimum amount of controversy is not
likely met, Diversity jurisdiction does not apply, so we must next analyze Federal
question jurisdiction.
Here, the federal question raises the National Safe Chow Act, which states that "Any
public restaurant which serves soft/soda drinks larger than 16 ounces, shall be liable for
a fine of $100.00 per violation. This statute is very specific and more than likely hard to
meet. First, Dan's deli serves to any assumed person within the JFK airport, so it
satisfies the "public restaurant" requirement. As for the requirement of serving soft
drinks larger than 16 ounces, nothing within the claim says that Dan's Deli serves such
an amount. Further, Plaintiff pat is suing because she ate at the deli due to food
poisoning. Given this, we don't even know if she even consumed any beverage or that
they were even offered from the deli. Thus, this statute is not met and Federal question
jurisdiction is not satisfied. In conclusion, the only way jurisdiction can be given by the
court here, is if the amount in controversy still meets or exceeds the $75,000
requirement after the court has analyzed what damages are necessary for food
poisoning and the associated hospital bills/personal suffering. If this amount still meets
the minimum requirement, diversity jurisdiction will govern this case. Because Pat's
Page 8 of 14
federal question claim is not satisfied, supplemental jurisdiction cannot be applied
either.
Question 4: Can Dan successfully attack P's complaint via a FRCP 12(b)(6)
motion for failure to state a claim?
A federal pleading must contain three elements 1) jurisdiction, 2) claim for relief and 3)
prayer. Case law has required that the pleading be plausible when matching the
defendant's conduct to the claim. Plausibility requires that the complaint contain
substantial factual matter, rather than just mere conclusory statements of the law. For
fraud and SOL claims, the pleadings must not only be plausible, but must be specific.
For mere torts or crimes, the plaintiff must match the plaintiff's conduct to the necessary
elements of the complaint. Here, both diversity jurisdiction, domicile and federal
question jurisdiction are property stated, satisfying the first element of this motion. For
the claim for relief, this entire portion is conclusory and not plausible in nature. The
plaintiff merely states that she got sick on the plane from food poisoning. She does not
spell out the causal relationship between Dan's deli in particularity to her food poisoning.
There is no "meat on the bones" here. Though plaintiff does state that she ate at the
Deli before her flight, she is not plausibly ruling out potential outside factors. For
example, she could have ate several other meals during the day, which could have
contributed to her food poisoning. She also didn't state whether she ate any food or
drinks served on the plane, either. With out plausibly ruling out every potential factor to
her food poisoning, its unlikely to reasonably name only Dan's food as the main cause
to her food poisoning. For the prayer as stated above, $1000,000,000 seems excessive
for general damages supporting food poisoning. Normally people do not seek
hospitalization for food poisoning, as it can reasonably be cured at home. So requiring
that much money for suffering from something as common as food poisoning seems
frivolous and unnecessary. Thus, Dan's motion for plaintiff Pat's failure to state a claim
will likely succeed.
Question 5: Does the court have IPJ over Dan?
Personal jurisdiction is how the court obtains jurisdiction over the parties. There are two
portions of IPJ, which is procedural and substantive IPJ. Procedural requires the plaintiff
to give the defendant proper service of the claim and allows the defendant to respond
adequately and fairly. Substantive IPJ governs whether a non resident defendant can
be brought into the forum. SUbstantive IPJ contains two possible methods to obtain
jurisdiction: 1) specific and 2) general jurisdiction. Specific jurisdiction occurs when the
claim arises within the forum the claim is filed in, General jurisdiction occurs when a non
resident has sufficient ties within the forum in order to be able to litigate within the
forum. General jurisdiction examines the state Long Arm Statute, (LAS) and the federal
due process check. The Long arm statute is a state statute that requires the non
resident to litigate within the forum if the LAS applies. If the LAS does not traditionally
apply, the court examines the federal due process check, which contains three
requirements: 1) the defendant's minimum contacts with the forum 2) whether the
defendant has purposely availed themselves to the benefits of the forum and its
Page 9 of 14
residents and 3) Whether the defendant can reasonably anticipate being hailed into the
forum for litigation.
As for procedural IPJ, there aren't enough facts to support whether the defendants
received proper notice, however their amendments were filed within 3 months, which
had to be after their answers, which tells us that procedural IPJ was assumedly met. As
for specific jurisdiction, the claim could have arose in New York or California. Because
Plaintiff Pat consumed the food in controversy in New York, it could be argued that the
claim arose in New York. However, because she got sick on the way to California and
was essentially hospitalized in California, it could also be argued that the claim arose in
California. Because this is in dispute, we must next analyze general jurisdiction.
California's Long Arm Statute (410.10) states that "A court of this state may exercise
jurisdiction on any basis not inconsistent with the Constitution. This is a modern
approach on the Long Arm Statute, which basically means that the state of California
prefers the court to analyze IPJ under the federal due process check only.
Defendant Dan: As for minimum contacts, Dan's deli is located in New York. Dan
resides in New Jersey. There are no facts supporting any actual contacts with the state
of California, besides plaintiff Pat. However, because he operates a deli at one of the
largest airports in the country, he could possibly be purposely availing himself to the
benefits of California because he could potentially be serving its residents who are
traveling through the JFK airport, which might lead him to reasonably anticipate being
hailed into court in Ca. However, this argument would be stronger if he was operating a
deli in an airport that actually shared a state border with California, such as Arizona,
who's airports serve a greater amount of California residents over New York. Given that
he is all the way across the country, it would be a weak and unlikely argument that he
reasonably anticipated both the benefits and possible chance of litigation from the
residents of California. Thus, this court does not have personal jurisdiction over
Defendant Dan. As for Delectable Foods, they both market their produce and have
offices in the State of California, which automatically satisfies minimum contacts. By
serving California residents within the forum and having offices within the forum, it is
likely that Delectable foods purposely avail themselves to the state of CA and its
residents, as well as the possibility of being hailed into court. Thus, this court does have
IPJ over Delectable Foods.
Question 6: Is venue proper?
Plaintiff may lay venue wherever they wish, which is normally within the forum they are
domiciled in. The plaintiff both resides in California and filed the claim in California.
Given that Plaintiff Pat was hospitalized in California after getting sick on the plane, it
would seem reasonable to lay venue there. However, because both defendants are
domiciled in different states in addition to the controversy of where the cause of action
actually arose, the defendants will likely request a transfer of venue.
Question 7: Could the case be transferred to New York City Federal Court?
Page 10 of 14
Though the plaintiff has the original choice in venue, the defendant may request transfer
of venue to either 1) where the defendant resides, as long as there is diversity of
domicile between the defendants or 2) where the cause of action arose. The court will
also consider convenience factors such as accessibility of available witnesses and
evidence, and the financial costs of transferring both the venue and transportation of the
necessary parties. As analyzed above, the cause of action could be argued to have
arose in either New York or California. Because the plaintiff actually consumed the food
in New York it could be argued that the actual consumption suffices the cause of action.
However, because she got sick on the plain and eventually hospitalized in California, it
could also be argued that the cause of action arose in California. Thus, we would need
to analyze the defendant's residence. Defendant Dan resides in New York. Defendant
Delectable foods is domiciled in Delaware, however they do have business/produce,
thus essentially IPJ in California as well. Because both defendants live in separate
states, this factor doesn't weigh much in deciphering proper venue. As for convenience,
the witnesses were all likely on the plane on the way to California, where they could
potentially reside, as well as any evidence either within the actual plane incident or
under any necessary hospital bills. Thus, because the convenience factors weigh in
favor of California, it seems as though the burden would be heavier on the plaintiff as
well as the witnesses/evidence to be transferred to New York, in comparison to the
lighter burden of having defendant dan transfer to California for litigation. Thus, plaintiff's
choice of venue is proper.
Question 8: The D's file a 12(b)(7) motion, arguing that Pat must join Atmos
Airlines, a California corporation. How should the court rule?
A party who has IPJ and does not destroy diversity must be joined. Joinder is
dependent on whether the party is necessary or indispensable. The court cannot
proceed in good conscience and equity without an indispensable party. A necessary
party is required for the court to complete adjudication of the controversy without
prejudicing the parties or subjecting them to double, triple or multiple adjudication. If a
necessary is feasible (meaning it satisfies IPJ or SMJ), it must be joined. If the party is
not feasible, the court weighs the good faith and equity factors to decide if the absentee
can be fairly dismissed without prejudicing the parties. These factors include 1) the
extent to which the judgment would prejudice the parties, 2) the extent to which the
prejudice could be lessened or shortened by the court in the absentee's absence, 3)
whether the judgement of the absentee's absence is adequate and 4) whether the
plaintiff could receive fair remedy if the court dismisses the party.
Here, there are little facts to suggest a sufficient causal relationship between Atmos
Airlines and Plaintiff Pat's food poisoning. Though Pat essentially did get sick on the
plane to California, Pat alleges that it was Dan's Deli food that caused her food
poisoning. Though there isn't sufficient evidence to prove that it was Dan's food in
particular that caused her to be sick, there is nothing within the claim to support that she
even consumed any food or beverages offered by the airline. However, if it were to be
decided that she did consume food offered by the airline anyways, the court would need
Page 11 of 14
to decide if the necessary party Atmos Airline is feasible. The facts only state that
Atmos Airlines is incorporated in California, with nothing suggesting either a principle
place of business or any other business occurring in any other state. Because Plaintiff
Pat is domiciled in CA, there is no diversity of domicile, making Atmos Airlines
infeasible. The last attempt the court could make to join Atmos Airline is to weigh the
good faith and equity factors. Because there is nothing within the claim that suggests
that Pat consumed any food or beverage offered by the airline, it is very unlikely that
both defendants would be prejudiced by their dismissal. If it were to be proved that Pat
did in fact consume anything on the plane, joining Atmos Airlines would lessen the
burden of the original defendants, which would fairly divide the damages among the
correct defendants, potentially relieving the original defendants entirely. However,
because there is no factual evidence to support this, its more reasonable for the court to
deny the motion to join Atmos Airlines because the defendants could sue them in the
future if sufficient factual evidence was provided.
Question 9: Now assume that there were no motions filed. Would Pat be able to
amend the complaint to join Atmos Airlines to this suit under FRCP(20)(a)?
FRCP 20(a) states that "Persons may be joined in action as defendants of: a) any right
to relief is asserted against them jointly. severally, or in the alternative with respect to or
arising out of the same transaction, occurrence or series of occurrences; and b) any
question of law or fact common to all defendants. Here, plaintiff got sick within the plane
operated under Atmos Airlines while still in the air. Plaintiff claims that it was defendant
Dan's deli food which caused her to be sick. However, the complaint does not provide
any sufficient factual nor plausible evidence to rule out any other sources of food which
contributed to her food poisoning. Given that we don't have any proof for either source
despite plaintiff's word, Atmos Airlines could be a possible defendant to this claim.
Though the plaintiff's perception of the alleged "cause of action" was when she
purchased the food from Dan's deli in New York, she actually got sick in the plane
operated by Atmos Airlines. Though this isn't the same transaction as purchasing the
deli food, is does suffice a similar series of occurrences or transactions which causally
led to each other down the line. Because the defendants are requesting an amendment
to join Atmos Airlines in order to completely remove themselves from the claim, they are
literally replacing themselves as defendants under the exact same question of law,
which is whether they violated the federal Safe Chow Act section 999, in addition to
plaintiff's diversity claim. Thus, if evidence did provide that Atmos Airlines served
plaintiff Pat food or beverages on the flight she got sick on, Atmos Airlines could be
joined under the amendment because she got sick arising under a series of transactions
or occurrences relating to the the original defendants and the airline would be defending
themselves under the same question of law as defendant dan and defendant Delectable
Foods.
Question 10: Does the court have subject matter jurisdiction to hear the above
claim against Atmos Airlines?
Page 12 of 14
When analyzing SMJ under this claim, it depends on whether the party will be added as
a third party, sharing fault with the original defendants, or whether this will successfully
constitute a cross claim as the defendants have requested, which would completely
remove the original defendants from the claim. Under a third party claim, SMJ is
automatically met under supplemental jurisdiction, because adding the third party is
both arising out of a common nucleus of operative fact and expected to be tried together
by default. Because Both Atmos Airlines and the plaintiff share domicile in California,
the fact that they don't have diversity is irrelevant, because supplemental jurisdiction is
applied under SMJ anyways. If the claim is successfully analyzed as a cross claim, the
court would need to first determine if it is compulsory or permissive. A compulsory
counter claim arises out of the same facts or transaction, which bears a logical
relationship to the original complaint. A permissive counter claim is an entirely separate
claim arising out of a different set of facts or transaction, which would need to
independently satisfy SMJ.
Here, because plaintiff got sick during the flight on the plane operated by Atmos
Airlines, adding the airline wouldn't add different facts to the original complaint, bearing
a logical relationship between the two claims. This would suffice a compulsory counter
claim, which automatically satisfies SMJ under supplemental jurisdiction. However, if
the court were to determine that it was a permissive counter claim, the court would need
to satisfy SMJ independently. Because Atmos Airlines and Plaintiff Pat share domicile in
California, diversity is destroyed, which essentially destroys the chance of obtaining
diversity jurisdiction. Because this claim doesn't specifically allege a federal question
independently, it might be able to obtain supplemental jurisdiction for SMJ. Under
supplemental jurisdiction, there needs to be 1) a common nucleus of operative fact and
2) the expectation that the two claims would be tried together. Because this claim is
arising out of the exact same fact pattern as the original complaint but-for the original
defendants, both claims arise out of the same nucleus of operative fact and would also
be expected to be tried together. Therefore, the court has SMJ over the defendant's
claim against Atmos Airlines.
Question 11: Assume that Dan has not yet answered the complaint, and that his
deli went out of business shortly after serving Pat's meal. Pat's lawyer wants to
attach a bank account that Dan maintains in San Diego. Would federal law permit
this attachment?
Before attachment, the plaintiff must have had used all means and methods to obtain
IPJ over the defendant prior to attachment. In order to properly attach property, the
property must be within the forum, seized prior to litigation and must have "presence
plus." Presence plus means that there must be additional factors tying the defendant to
the forum other than the property alone, such as necessity, a business, a tort or a crime
committed by the defendant within the forum. Here, defendant Dan has a bank account
in San diego. Given that San Diego is in California, the element requiring the presence
of the property within the correct forum is satisfied. Given that in this case, Dan has not
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yet answered the complaint, the property was properly seized prior to litigation.
However, it will be harder to tie Dan to California. As discussed above, California does
not have personal jurisdiction over Dan under both California's Long Arm Statute and
the required federal due process check. As for specific jurisdiction, it could be argued
that cause of action arose either when plaintiff Pat ate the food in New York or when
she got sick and hospitalized in California. If the court were to decide that the cause of
action arose in California, this would satisfy the "tort" committing option under the
presence plus requirement. If the cause of action were to be decided on New York,
plaintiff Pat couldn't argue the necessity doctrine because that is only reserved for when
the defendant is unreachable to be given proper notice. If, in this case, Dan cannot be
found to be given proper notice, plaintiff Pat could use the necessity doctrine under the
"presence plus" requirement, therefore allowing federal law to permit attaching Dan's
bank account in San Diego.
Question 12: At the trial, Pat loses. The defendants immediately file a FRCP 11
motion for sanctions, on the basis of their defense judgment. Should the court
grant their motion?
When an attorney files a document in court, he or she is certifying that they have
conducted a reasonable investigation under the circumstances, and have filed the
complaint in good faith. The opposing party must give that party a 21 day notice safe
harbor provision, to either withdraw or amend a defected complaint. If, after reasonable
opportunity and notice to respond, the court decides that the attorney has violated
FRCP 11, they may issue a sanction. An order for a sanction must contain the
reasoning and conduct for the sanction. Here, the statement requesting relief is
conclusory by nature and not plausibly supported by any causal connection between
both defendants and the Pat's food sickness. Though Pat alleges that the food she
purchased from the deli caused her food sickness, she didn't specifically rule out any
outside factors, such as whether she consumed any food either that day or on the
plane, where she got sick on. If her attorney had conducted a reasonable investigation
under the circumstances, her attorney would have stated whether she consumed any
other food that day, and why such food didn't contribute to her food poisoning.
Furthermore, the damages she claimed, ($100,000,000.00) seems extremely excessive
for food poisoning. As stated above, food poisoning isn't typically necessary for
hospitalization, and even if she went to the hospital, any bills or personal suffering
would not normally require one hundred million dollars. Given this, its either the case
that Pat's attorney was just lazy when conducting his or her investigation or the claim
was plead in a frivolous manner. Either way the court should properly grant the
defendant's sanction.
END OF EXAM
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