GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
CIVIL PROCEDURE
FALL 2006
PROF. ABRAMOWICZ
PRACTICE MIDTERM EXAMINATION
GENERAL INSTRUCTIONS
This is an open-book examination. You may use any written materials, student-written
and/or commercial. Please write your examination number on the cover of each bluebook
or typewritten page. Do not write your name on any page or reveal your identity in any
way.
Apply current law rather than superseded law in answering each question unless the
question indicates otherwise. You should disregard any knowledge you may have about
particular state laws. If a question prompt makes a claim about federal or state law, you
should take it as true, even if you happen to know that the claim is incorrect.
Read the fact pattern and question carefully. Answer the question completely and in the
alternative. For example, even if you are sure that the outcome of a two-part test is
determined completely by the first part, analyze both parts. If you believe that additional
information is necessary to answer a question, or that a question is ambiguous, please
indicate that and discuss how the information or resolution of the ambiguity would affect
your answer.
If you are not typing, write legibly and clearly, and organize your answers carefully.
Write in complete, grammatical sentences. Cite cases and other materials in any way that
clearly identifies them.
DO NOT TURN TO THE NEXT PAGE UNTIL THE BEGINNING OF THE EXAM.
For Love or Money was a reality television show produced by Bruce Nash, a
California resident. The show, filmed in California, featured a bachelor, Rob Campos,
seeking to find a soulmate from among fifteen contestants, whom he gradually eliminated
until only one remained. The producers of the show provided information to the
contestants that they concealed from Campos until near the end of the show: The final
remaining contestant would be given $1 million if she rejected Campos and agreed never
to see him again. The final contestant was Erin Brody, and she decided to opt for the
money over love, telling Campos that she never felt a spark with him anyway. Brody has
recently published a nationally best-selling book about her experience, entitled For Love
and Money.
Campos, who resides in Texas, has decided to sue Nash for the tort of alienation
of affections, and to sue Brody for the tort of seduction under promise of marriage.
Unfortunately for Campos, 49 states have enacted statutes eliminating these torts, but the
state legislature in Virginia refused to abolish the statutes, out of concern that doing so
might tarnish the state tourism slogan “Virginia is for lovers.” Campos has never been to
Virginia before, but he regularly connects to the Internet through America Online, a
Virginia corporation.
Brody was born in Virginia when her father played college football there, but she
moved around to various cities over the course of her father’s professional football
career. She has lived most recently in California, but she told Campos on the show that
she was not committed to California and would move to Texas with him should they get
married. Nash has visited Virginia only once, to interview prospective contestants on For
Love or Money, but none of the candidates whom he interviewed there made it on to the
show.
In most states, For Love or Money was broadcast on NBC television stations, and
Nash has a contract with NBC to indemnify him in any lawsuit for any actions necessary
to ensure the television show’s success. NBC, a New York corporation with headquarters
in New York, owns numerous television stations around the country, but it does not own
any stations in several states, including Virginia. NBC sells broadcasting rights for its
shows in those states to an intermediary, which in turn sold the right to broadcast For
Love or Money to independent stations, including one in Virginia.
Campos has asked your law firm for advice on any procedural issues relevant to
his chance of successfully bringing suit in Virginia. Because Campos ideally does not
want NBC’s excellent lawyers involved directly in the litigation, he has also asked you to
consider whether there would be any obstacles to Nash’s bringing in NBC as a third party
defendant. A partner in your firm has asked you to draft a memorandum considering only
issues related to personal jurisdiction and venue. Draft the memorandum.
SAMPLE ANSWER
This is a sample answer that covers the critical points that I would be looking for
in an actual answer. It is always possible to provide deeper analysis or additional points,
and I would award bonus points for any correct analysis that goes beyond what is stated
here. Do not focus too much on the conclusions reached here, as in most cases, analyses
that reached the opposite conclusions but recognized the same issues would have
received equal credit.
For a court in Virginia to hear Campos’s case, it would need to have jurisdiction
over the defendants Nash and Brody. Whether Nash could bring in NBC as a third-party
defendant would depend in part on whether the court would have jurisdiction over NBC.
Even if jurisdiction over the parties exists, the court might apply forum non conveniens
(in state court) or transfer the case (in federal court), as explained below. Note that even
if a court in Virginia would hear the case, that court would not necessarily apply Virginia
law, but the choice-of-law analysis is beyond the scope of this memorandum. Because no
information is available on the Virginia state long arm statute, this memorandum will
assume that jurisdiction would be statutorily authorized in state court or via Rule 4(k)(1)
in federal court.
Minimum contacts for Brody. A Virginia court might seek to obtain in personam
jurisdiction over Brody on either a general jurisdiction or specific jurisdiction theory.
(Because Campos is the plaintiff, the substantiality of his contact with Virginia through
America Online is irrelevant.) If Brody is a domiciliary of Virginia, she is in effect
subject to general jurisdiction in Virginia under Milliken and can be sued on any matter.
Brody was presumably a domiciliary of Virginia at birth, but her domicile may have
changed. Her residence in California, however, does not by itself establish domicile, and
her comments on the show indicating a willingness to leave California might be taken as
evidence that she never had any intent to remain there.
Assuming that Brody is not a domiciliary of Virginia, she may nonetheless have
sufficient minimum contacts with Virginia to satisfy the requirements of the Due Process
Clause and subject her to general jurisdiction. Appearance on For Love or Money is not
likely by itself to be sufficient to establish general jurisdiction, however. Although the
show aired in Virginia over a period of time, the show apparently is no longer on the air,
and these contacts with Virginia are thus not continuous and systematic. This case is
analogous to Washington Equipment, in which a road-building project was not sufficient
to establish jurisdiction in a state, when the building project had concluded prior to the
lawsuit. There is a stronger chance that Brody’s sales of For Love and Money may
subject her to jurisdiction, if there are sufficient sales in Virginia to qualify as continuous
and systematic.
In the absence of general jurisdiction over Brody, Campos might argue that Brody
is subject to specific jurisdiction, for which only contacts related to the lawsuit are
relevant. The book is unlikely to count as a related contact, because even though the book
recounts her experience on the show, the lawsuit is about what happened on the show; if
Campos were suing for defamation based on what Brody said in the book, then the book
might count as a related contact. Brody’s appearance on the television show broadcast
into Virginia is probably a related contact, however, as the lawsuit arises out of her
appearance.
This related contact, however, is not likely to be sufficient to demonstrate that
Brody “purposefully availed” herself of the privileges and benefits of the forum state, an
important ingredient of the specific jurisdiction analysis since McGee. As Kulko reveals,
not any contact between an individual and a state will be sufficient to count as purposeful
availment. Kulko’s purchasing a one-way ticket for his daughter to California did not
amount to purposeful availment, because Kulko was not directly receiving any benefits
from California. Similarly here, although Brody has allowed her image to be transmitted
to Virginia, she has not directly received any benefit from the forum.
Although Brody is an individual, one could argue that the cases addressing
whether corporations are subject to specific jurisdiction are more on point, because Brody
was engaging in a commercial activity. Because Brody presumably received some
commercial benefit, at least in the form of public relations, from appearing on the
television show, she might seem analogous to a company that is selling its goods in a
particular jurisdiction. Even in World-Wide Volkswagen and Asahi, no Justice challenged
the proposition that direct sales into a jurisdiction could subject a company to specific
jurisdiction, despite some broader skepticism about the reach of a stream-of-commerce
theory of specific jurisdiction. This argument might be powerful if a viewer of the
television show were suing Brody, but it seems weak here, because Campos is suing for
personal conduct, not over a sale. Although Brody’s appearance on the show is a related
contact, her use of the airwaves to create publicity for her in Virginia is connected only
tangentially to the manner in which she treated Campos.
Minimum contacts for Nash. The case for jurisdiction against Nash is stronger.
Nash’s trip to Virginia is at least arguably a related contact, as the recruitment of
contestants was part of his alleged plan to commit the tort of alienation of affections, and
this might be found sufficient to justify a conclusion that he purposefully availed himself
of the benefits of doing business in Virginia and therefore is subject to personal
jurisdiction there. Serving as an executive producer of a television show broadcast in
Virginia is arguably another related contact, and it also might serve as the basis of an
argument that he is subject to general jurisdiction. Once again, though, because the show
is no longer airing, this does not seem likely to count as systematic and continuous.
Minimum contacts for NBC. Nash may be able to bring in NBC as a third-party
defendant if NBC is subject to specific jurisdiction or general jurisdiction. The specific
jurisdiction argument is weak, because any contacts between NBC and Virginia are at
most tangentially related to the indemnity agreement between NBC and Nash. The
stronger argument is that NBC is subject to general jurisdiction because it has continuous
and systematic ties with Virginia. NBC would argue that it does not directly broadcast
any of its shows in Virginia, and its shows reach the Virginia market only through an
intermediary.
Whether this argument would prevail depends on the reach of the stream-ofcommerce theory for asserting jurisdiction. Though typically invoked in specific
jurisdiction cases, there is no conceptual reason that the stream-of-commerce analysis
could not be applied in a general jurisdiction case. The doctrine, however, remains
somewhat uncertain, given the failure of any position on the stream-of-commerce issue to
garner five votes in Asahi. All of the Justices appear to agree that if a seller purposefully
avails itself of a forum state—for example, by advertising in the state or by customizing a
product for the state—that would trigger jurisdiction, but there is no indication here
whether NBC does so. If not, then this case presents the question that remains unresolved
after Asahi, whether placement in the stream of commerce with knowledge that a product
will be bought in the forum state is sufficient for personal jurisdiction.
Fairness. Even if the court finds that there are minimum contacts over any of the
defendants, it is plausible that the court could find that subjecting the defendant to suit in
Virginia would violate “traditional notions of fair play and substantial justice.” In
contrast to Burger King, jurisdiction in Virginia seems entirely arbitrary here. Virginia
has little interest in the dispute; Campos has no interest, other than the possibility of
obtaining favorable law, in trying the case there; and the lawsuit would require the
defendants to travel relatively great distances. NBC may have the strongest argument,
because, like the third-party defendant in Asahi, NBC would be forced to litigate solely to
resolve an indemnity claim. On the other hand, Asahi presents stronger facts for a finding
of unfairness, because the third-party was a foreign corporation and would have been
more inconvenienced by the lawsuit.
Venue. Even if jurisdiction does obtain over the defendants, venue could present a
problem for Campos. If Campos brings his lawsuit in Virginia state court, then Virginia
venue rules would apply. If Campos bring his lawsuit in diversity in federal court, then
§1391(a) would apply. Because the defendants do not all live in Virginia, the question
would reduce to whether a substantial part of the events leading to the cause of action
took place in Virginia. The only relevant events are Nash’s recruitment in Virginia, and
this seems unlikely to count as “substantial.” Because a substantial part of the events did
take place in California, there exists at least one state where venue would be proper, and
§ 1391(a)(3) would not apply. As a result, a federal district court might grant a § 1406(a)
motion to dismiss or transfer to a federal district court in California. Even if venue does
exist, the court might effect a § 1404 motion to transfer to a federal district court in
California, for the convenience of parties and witnesses.