Examination Number ________________





Civil Procedure I, 500L, Section 1



Professor Carl H. Esbeck                                                                                 Fall Semester 2004




Directions to Part II - Essay

(1 hour and 40 minutes)



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.


Arrange your answers in sequential order.  That is, put Question A first, then Question B, 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.


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

When finished, return both your bluebook and these examination questions.



* * * Part II Begins on the Next Page * * *













PART II (1hr. and 40 min.)


George R. Priest was born and raised on Long Island, New York, which is located in the United States District Court for the Eastern District of New York.  When George was a high school sophomore, his hockey coach began telling him that there was more to life than just the Long Island Expressway and its nearby housing developments and shopping malls.  George, however, continued to believe that all New York State was the same, largely because he had never been to Manhattan, let alone Ithaca.  Hoping at last to experience the outside world, George set his sights on attending college in some other state.  He thought briefly about New Jersey until a classmate, Polly Poindexter (who had a huge crush on George), advised him that the New Jersey Turnpike was even worse than the Long Island Expressway.


Polly had an ulterior motive for dissuading George from attending college in New Jersey B she hoped he would stay in New York and marry her after their graduation from high school.  When George heard that New Jersey was even more congested than New York, he was in a quandary and did not know what to do.  Finally, he decided to forsake suburban life altogether and accept a scholarship to attend Bowdoin College in the wilds of Maine.  Four years later, as George was about to graduate from Bowdoin with honors in economics and environmental studies, he seriously considered pursuing advanced study in biotech.  Shortly before graduation, however, he decided that he could best help the environment by applying his college education in California.  When he landed a position with an environmental consulting firm near San Francisco, he was ecstatic.  For her part, Polly (who had just graduated from a Connecticut college with honors herself) was quite upset because she still wanted to be with George but could not conceive of ever living in a state that has Arnold Schwarzenegger as governor.


At dinner a week after their respective college graduations, Polly told George that she would be attending law school in San Francisco.  George was so impressed by Polly=s apparent willingness to move to the West Coast that he immediately agreed to marry her.  The couple eloped the next week and set out for California in a new Skylonda van.


As George drove the van across the Nevada desert, he was so excited about his impending arrival in California that he failed to notice small signs along the highway, placed by the United States Army, ordering all travelers to stop.  The highway had been closed because of a nuclear accident at a nearby atomic missile site.  An invisible cloud of radioactive material was hanging in the air over the highway.



One hundred miles later, George was still daydreaming about California.  He was even pondering what clothes he would wear when having his picture taken for his California driver=s license.  Polly was thinking about how long it would take George to come to his senses and realize that California was not Nirvana, so that she could convince him to return to home-sweet-Long Island.  Several hundred yards before the van reached the California border with George still driving, George noticed that Polly was ill.  Indeed, Polly suddenly became extremely nauseous.  George was distracted and became momentarily disoriented.  Then he too was struck with extreme nausea.  Suddenly, George noticed that a truck was coming at him.  He thought the truck was being driven in the wrong lane and that a head-on collision was about to occur.


 There was violent collision.  The initial impact occurred on the Nevada side of the border (within the District of Nevada), but the van and truck each spun around.  The van came to rest on the California side of the border (within the Central District of California), and the truck came to rest on the Nevada side of the border.  George was in a coma.  While Polly was seriously injured, she did not lose consciousness.  Myron Driver, the truck driver, who was a citizen of California, was seriously injured but remained conscious throughout.  Vincent Lawless, a Nevada state trooper, arrived at the collision scene within minutes.  Officer Lawless put in his report that Myron said: AWhere am I?  New Jersey?@  When told by the officer that he was in Nevada, Myron replied: AMy boss, Ronald Thump, is going to kill me.  I wasn=t supposed to get caught driving in Nevada.  Nevada prohibits on its highways the toxic waste I have on board.@


The truck, which was worth $60,000 before the collision, was totally destroyed.  It was owned by Dump Co., a California corporation.  Dump Co.=s business consists of transporting products between San Francisco and Buffalo, New York.  All the company=s trucks are serviced and warehoused in San Francisco; all billings and orders are placed and processed through an office in San Francisco.  The drivers all live in the San Francisco area.  The company=s president is Ronald Thump, a wealthy real estate magnate who oversees the company=s operations from his penthouse in Thump Plaza on Central Park South in New York City.  Thump determines the routes the drivers are to take, and he decides what type of products will be transported.  Thump also owns a castle on the New Jersey shore in which he spends weekends and holidays.  Thump believes that a man=s home is his castle, and vice versa.  Accordingly, he pays New Jersey State income taxes rather than New York State income taxes.  Four times a year he orders all Dump Co. employees to come to Thump Plaza for inspirational talks and instruction on how to perform their jobs perfectly.


Shortly after the collision, George and Polly were transferred to a hospital in Los Angeles, which is in the Southern District of California.  Within a short period of time, Polly recovered from her injuries and was discharged from the hospital.  George=s condition slowly began to improve B he emerged from the coma and babbled something about the collision, but he was not fully aware of his surroundings.  Indeed, he had delusions that he was still on a rustic campus in Maine.  His attending physician was Dr. Dane Dellamorte, who lives in Hollywood and owns an expensive ranch outside Las Vegas, Nevada, where he manages to spend several weeks each year.



Dr. Dellamorte wanted to prescribe an experimental drug, Uncoma, provisionally approved by the federal Food and Drug Administration for experimentation on humans.  Dellamorte told Polly about the drug and its potential for helping George.  Fearing that George might be used as a guinea pig, Polly asked whether the drug was safe. The doctor assured her that Athe drug is completely safe and has been fully approved by the FDA.@  Noticing that Polly was still somewhat distraught, Dellamorte also told her: AIf you want to see George healthy again, this drug is your best shot.@


After hearing this advice, the still-apprehensive Polly agreed that George should be given the drug.  Dr. Dellamorte administered the drug the same day.  Not only did George=s condition fail to improve, but the doctors soon determined that George had lapsed into an irreversible coma.  He was kept at the hospital for a short time, and then was transferred to a New York hospital on Long Island.


The manufacturer of Uncoma is Terminex Co., a New Jersey corporation with its principal place of business in Newark, N.J.  Terminex is registered to do business in, and sends its sales representatives to, hospitals in California, Illinois, New York, Florida, and New Jersey.  Terminex has applied to the Nevada Secretary of State to register to do business in that state, but the application has not been approved and Terminex has never sent any of its agents or employees to Nevada to solicit business.




You are a young lawyer in the prestigious firm of Nelson & Riskin.  The senior partner, Gwen Nelson, is one of New York City=s most eminent trial lawyers.  Ms. Nelson has just left a breakfast meeting with Polly when she summons you to the firm=s spacious conference room.  After recounting the facts set forth above, she tells you that Polly and George, as plaintiffs, have just filed a negligence action in the U.S. District Court for the Central District of California against five defendants B Dr. Dellamorte, Terminex, Myron Driver, Ronald Thump, and Dump Co.  George=s claim is for ten million dollars, while Polly=s claim is for $40,000.  Ms. Nelson tells you that her initial legal research has revealed the following statutes, which might prove relevant during the litigation:


1)                  The Federal Tort Claims Act [FTCA], a congressional statute, allows any person injured by the negligent acts of any employee or official of the United States Government to sue for damages in a U. S. District Court.  Any such claim is to be treated by the federal court the same as the court would treat any ordinary tort claim that arose in the state where the employee or official was negligent.


2)                  A Nevada statute has abolished all jury trials in civil actions.  California grants a right to a jury if requested by the time of pretrial conference.


3)                  A California statute provides: AA court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of the United States.@


Toward the end of your conversation with Ms. Nelson, the senior partner tells you that she will rely on your research and writing talents to answer the major questions that arise in the Central District of California action brought by Polly and George.



Question (A) (60 minutes): All five defendants timely move to dismiss under FRCP 12(b)(1), (2), and (3). 


(1) How should the court rule on the Rule 12(b)(1) motions and why?


(2) How should the court rule on the Rule 12(b)(2) motions and why?


(3) How should the court rule on the Rule 12(b)(3) motions and why?


Question (B) (30 minutes): In the action brought by Polly and George, Myron Driver asserts a counterclaim for $55,000 against George for Myron=s personal injuries.  Further, in the action brought by Polly and George, Dump Co. asserts a counterclaim against George for property damage to the truck in the amount of $60,000.  In both counterclaims George [actually George=s Guardian] denies his negligence.  However, as to Myron=s counterclaim George also impleads the U.S. Army under the Federal Tort Claims Act.  George=s theory is that the U.S. Army was a joint tortfeasor in that George became ill while driving because of exposure to radioactive material.  With respect to this FTCA claim, George fails to demand a jury trial until one month after receiving the Army=s answer denying liability.  Concerning the FTCA claim, what law applies to whether the FTCA claim will be heard by a jury: the FRCPs, Nevada law, California law, or something else?  Explain.


Question (C) (10 minutes): Assume that Dump Co. fired Myron Driver shortly after the collision with George and Polly.  It seems that Myron had a history of wandering off course and destroying company trucks.  When George and Polly find out that Myron has no money and is unemployed, they drop him from the lawsuit.  In the action brought by Polly and George, can Dump Co. now join a negligence claim against Myron Driver for damages to the company=s truck?  Explain.





Return both your bluebook and these examination questions.