The School of Law's Honor Code applies to this examination and all work done in this course. The Honor Code prohibits plagiarism (regardless of intent to deceive, misrepresent, or gain unfair advantage) and violation of oral or written instructions concerning this examination in order to gain an unfair advantage over other students or under circumstances which a reasonable law student  would know was likely to result in unfair advantage.


                                           UNIVERSITY OF MISSOURI-COLUMBIA

                                                              SCHOOL OF LAW


                                               CIVIL PROCEDURE II -- SECTION 2


                                                                 DEAN DESSEM


May 7, 2004




1. This is the second part of your two-hour final examination.  Please be sure that you have all three pages of this portion of the examination.


2. This portion of the examination should take approximately one hour.  During this examination, you are permitted to have with you any written or printed materials.  However, you are not to look at materials brought by others or speak with anyone concerning the examination during the examination period.


3. Please take sufficient time to think through and organize your answers before beginning to write your answers.


4. Explain your answers and, if any assumptions of law or fact are necessary for any answer, set forth such assumptions.


5. Don't belabor the obvious in your answers, but focus on the more difficult aspects of the question.


6. This examination consists of the following essay question and a series of multiple choice questions.  The essay question will count for approximately one-half of your grade, as will the set of multiple choice questions.  The subparts of the essay questions will not necessarily be worth an equal number of points.


7. Your examination number should be placed on your bluebook, as well as on your examination booklet (which must be handed in at the end of the exam along with your bluebook).  Please write legibly and only on one side of each page.





Ten buses of Cubs baseball fans are traveling from Chicago to St. Louis to watch a game between the Cubs and the St. Louis Cardinals.  Unfortunately for the 500 passengers on these buses (owned by the ChicagoLand Tour Company), a St. Louis citizens group ("Bring 'Em Home") chooses this same day to demonstrate against the war in Iraq by stalling their cars on all of the major streets and highways leading into downtown St. Louis.  None of the buses make it to the ball game on time, although the Cubs fans have the satisfaction of watching Cubs pitcher Greg Maddox pitch a perfect game against the Cardinals on the bus television sets.


Ten of the passengers (one from each bus) join as named plaintiffs in a class action lawsuit against "Bring 'Em Home" and its leaders filed in United District Court for the Eastern District of Missouri.  They seek damages of $100,000 per class member on a theory of public nuisance, and the federal district judge (Judge Holder) immediately signs the proposed order certifying a class of "all Cubs fans on the ChicagoLand buses and all other Cubs fans who could not witness this game because of the actions of 'Bring 'Em Home.'"


After certification of the class action, discovery ensues.  Although they receive proper notice, three of the named plaintiffs (Tom, Dick, and Harry) do not appear for their depositions.  Judge Holder therefore dismisses their claims.


After completion of discovery, the trial is held.  At trial several of the bus drivers testify that their route was blocked by "Bring 'Em Home" demonstrators and that they could not get to Busch Stadium.  However, the defendants offer testimony and photographs of demonstrators carrying signs saying "Welcome to Cubs Fans -- We're Not Blocking Your Route to a Cubs Victory!"  Several bystanders also testify that there was a clear route for the busses to drive past the demonstrators and to the stadium.  Nevertheless, Judge Holder denies defendants' motion for judgment as a matter of law.


The case is submitted by Judge Holder to the jury, the jury returns a verdict for the defendants, and judgment is entered for the defendants.  Fifteen days after the entry of judgment, the plaintiffs file a motion for a new trial.  In this motion plaintiffs argue that "the evidence at trial did not support the verdict for the defendants that the jury reached."  Judge Holder denies this motion, too, and the plaintiffs appeal.


While this case is on appeal, Tom, Dick and Harry bring a second action against "Bring 'Em Home" and its leadership (defendants in the first action) in Illinois state court (where they are able to obtain personal jurisdiction against all defendants).  They seek damages under state public nuisance law for defendants' actions in blocking their route to the ball game;  they also add a claim that had not been included in their first lawsuit: that defendants violated federal law by blocking federally-financed highways.  Joining them in this state lawsuit are Pat and Mike.  Pat and Mike were on one of the ChicagoLand buses and thus were unnamed class members in the first lawsuit.  Although they received notice of that first lawsuit, they did not opt out of that action or take any other action in response to the notice they received from the court.


Please answer each of the following questions.



(1) Should the federal court have certified this as a class action?


(2) Should the federal court have granted the defendants= motion for judgment as a matter of law and the plaintiffs= motion for new trial?


(3) Assuming the federal court properly certified the class action, should "Bring 'Em Home" be able to successfully assert claim preclusion against the five plaintiffs  in the Illinois state action?


Please explain each of your answers.