Examination Number ________________





Professor Carl H. Esbeck Spring Semester 2011





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 (25 minutes): Peter Paulson, a citizen of Rhode Island, files suit against Delivery Express, Ltd. [DEL], a Delaware corporation with its principal place of business in Rhode Island. Peter's suit is filed in Rhode Island state court and alleges that he represents himself and all persons that DEL employs in Rhode Island as package delivery drivers who were or are improperly classified by DEL as "independent contractors." Peter alleges that approximately 330 persons comprise the class of plaintiffs.

In his complaint, Peter alleges that DEL fails to follow Rhode Island's minimum wage and maximum hour law. That law requires that employees be paid a minimum wage of $9.00 per hour, plus time and a half for all hours in excess of 40 hours per week. Peter goes on to allege that DEL wrongfully classifies its drivers as "independent contractors" and thus pays them a "contract rate" of 50 cents per packaged delivered. For Peter that "contract rate" averages an income of about $5.00 per hour, and other drivers receive average incomes of from $4.00 to $6.00 per hour. Peter seeks as back-pay the difference between what he was paid at the "contract rate" as opposed to what he would have been paid at $9.00 per hour, plus time and a half for hours worked in excess of 40 hours per week. There is a three-year statute of limitations, so Peter claims individual damages in the amount of $7,000.

DEL timely files a Notice of Removal of Peter's proposed class action to federal district court citing 28 U.S.C. § 1332(d) as the basis for subject matter jurisdiction. In its Removal Notice, DEL alleges that 45% of the delivery drivers in the proposed class are citizens of either Massachusetts or Connecticut. DEL also alleges that the number of plaintiffs is not sufficiently numerous to be certified as a class and that the requirements of diversity jurisdiction are met. Although he does not challenge the allegations in DEL's Notice of Removal concerning where 45% of the other drivers are domiciled, Peter timely files a Motion to Remand the lawsuit to state court.


  1. How should the federal court rule on Peter's Motion to Remand? Explain.


  1. If the federal court grants the Motion to Remand, can DEL bring an interlocutory appeal to challenge the Order to Remand? Explain.



Question Two (35 minutes): In February the police arrived at the home of Pauline Perry only to discover her dead in her upstairs bedroom. At the time of her death Perry was a citizen of Illinois. The county coroner filed a report that Pauline had died of carbon monoxide poisoning. The report of the police department stated that the furnace was on in the home. The furnace was manufactured by Trane Corporation. Pauline's son, Pepper Perry, a citizen of Iowa, is appointed administrator of his mother's estate. Trane is a Delaware corporation with its principal place of business in Pittsburg, Pennsylvania.

As administrator, Pepper Perry files a claim for the wrongful death of his mother against Trane Corporation in the U.S. District Court for the Western District of Pennsylvania. He seeks damages in the amount of one million dollars. The complaint alleges a defect in the manufacture or operation of the Trane furnace resulting in the death of his mother.

At trial Pepper introduces the testimony of an expert witness. The expert had read copies of the coroner's report and that of the police department. He had also inspected the home, including the Trane furnace. The expert states that in his opinion the furnace was defective causing carbon monoxide to permeate the home causing the death of Pauline Perry. Trane timely objected to the expert's testimony claiming it was "junk science" under various U.S. Supreme Court precedents. The trial court overruled the objection.

At the close of all the evidence counsel for Trane moves for judgment as a matter of law. The trial court denies the motion and submits the case to the jury. The jury returns a verdict of $400,000 for plaintiff. The jury is discharged, and the trial court promptly enters a judgment on the verdict for $400,000. Counsel for Trane timely moves for a new trial. The motion is promptly denied. Anticipating an appeal, counsel for Pepper timely moves for a conditional new trial. That motion is also promptly denied. Trane then timely files its notice of appeal.

The Third Circuit Court of Appeals holds that plaintiff's evidence through his expert is indeed "junk science" under applicable U.S. Supreme Court case law. Therefore the opinion was unreliable and it was serious error to have denied Trane's objection to admission of the expert's testimony. The appeals court also observes that without the testimony of the so-called expert, Plaintiff failed to have sufficient evidence such that reasonable people could differ over whether the furnace was defective resulting in the death of Pauline.


  1. Did it make sense that having won the verdict, counsel for Pepper made a motion for a conditional new trial before the trial court? Explain.


  1. Did counsel for Trane make the right motions at the right time before the trail court such that Trane's appeal was proper? Explain.

  1. What should the Circuit Court of Appeals do now, if anything? 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.