Examination Number ________________





Professor Carl H. Esbeck Spring Semester 2010





Civil Procedure II, 5015L, Section 1



Directions to Part I - Essay

(1 hour)


Place your examination number in the upper right-hand corner of this examination.

When finished, return these essay examination questions and submit your essay answers.


Answer only the question asked. Do not raise or answer questions not asked.


Arrange your answers in sequential order. That is, put your answer to Question 1 first, then your answer to Question 2, and etc. If you want to skip over a question and come back to it later, leave a page or two blank and begin the next question.


You may use your laptop to complete this Part I.


If you do not use your laptop, write your answer in the bluebook provided.  Use a pen with blue or black ink. Write on only one side of each page.  Do not write in the left-hand margin. Do not tear pages out of the bluebook. 


You may bring with you into the examination room your casebook, photocopied class handouts, your current federal rules supplement, and your own classroom notes (not borrowed notes). You may also bring a course outline provided it is entirely your own work product. It is an Honor Code violation to have any other materials with you during the examination.



* * * Part I begins on the Next Page * * *



PART I (one hour)


Question One (15 minutes): It was a dark and stormy night. A yellow car and a red car enter an intersection at right angles and strike one another killing both drivers. There are no passengers. There are no eyewitnesses to the collision. The only evidence is that there was a working traffic light. Thus, one of the drivers had to have run a red light. The Estate of the driver of the yellow car sues the estate of the driver of the red car in federal court. The defendant timely moves pursuant to Rule 12(b)(6), and attaches an affidavit of the investigating police officer setting forth the facts stated above.


(a) How should the court rule? Explain.


(b) Does your answer change if the plaintiff timely requested a jury trial? Explain.



Question Two (20 minutes): In the course of a divorce proceeding between Harry and Sally in New Mexico state court in Albuquerque, the court's decree expressly finds that one child, Alexis age 12, has been born of the marriage. The court orders Harry to pay child support to Sally until Alexis reaches the age of 21. Ten years pass and Alexis is now 22 years old and living in Denver. Soon thereafter another man living in Albuquerque, Sam, dies without a will. Sam, who never married, leaves an estate worth millions of dollars. Because Sam died without a will, his estate passes pursuant statute to his closest living relative(s). Proceedings to administer and eventually distribute Sam's estate are filed in probate court in Albuquerque. Both Sam's parents predeceased him. Everyone thinks Sam's closest relative is Walt, Sam's brother and only sibling. However, Alexis suspects that Sam is her biological father. If true, Alexis inherits all Sam's estate and Walt takes nothing. Alexis files a diversity claim in the federal court in New Mexico seeking a declaratory judgment that Sam is Alexis' biological father. She sues Sam's Estate and Walt. Harry intervenes in the suit claiming a right to reimbursement from Alexis of $80,000, plus interest, the amount of the child support he paid over nine years.

Assume you represent Walt. What defense(s) should you raise? How should the court rule on the defense(s)? Explain.



Question Three (10 minutes): Assume a trial in federal court where the plaintiff seeks injunctive relief. At the close of all the evidence judgment is entered for plaintiff and the sought-after injunction is entered. Defendant timely appeals challenging certain: (a) findings of fact; and (b) conclusions of law. Which of these two challenges has the more rigorous standard of review on appeal? Explain.



Question Four (5 minutes): Did the adoption of the FRCPs expand or contract the constitutional right to a civil jury in federal court? Or neither? Explain.



Question Five (10 minutes): Plaintiff is suing the City of Ladue School District in federal court. The judge discloses that he is a homeowner in the school district and hence a payer of property taxes to the Ladue schools. The complaint requests injunctive relief against the Ladue District's free speech suppression of a student organization. Under federal law civil rights law, if plaintiff prevails plaintiff is also entitled to payment of reasonable attorney fees and costs. Should the judge disqualify himself? Explain.



* * * END OF PART I * * *


Turn in both these examination Questions and your Answers.


After a 10-minute break, all students will begin Part II together.