Professor Carl H. Esbeck Fall Semester 2007





Civil Procedure I, 5010L, Section 1



Directions to Part I - Essay

(1 hour and 30 minutes)


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

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


Answer only the question asked. Do not raise and 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 bring with you into the examination room your casebook, photocopied class handouts, your federal rules supplement, and your own classroom notes. You may also bring a course outline provided it is entirely your own work product. No other materials are permitted.


If you have elected to use your laptop computer, the instructions below concerning bluebooks do not apply.


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. Do not submit your scratch paper with your bluebook.


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





PART I (1 hour and 30 minutes)


Question One (15 minutes): It is October 21, 2006. Consolidated Electrical Co. of St. Louis, Missouri, has filed a lawsuit in state court in St. Louis against Marilyn Schuerman of San Diego, California. The claim alleges the breach of an oral agreement made over the telephone to sell to Consolidated Electrical four St. Louis Cardinals World Series baseball tickets. Consolidated Electrical invokes the court's equitable jurisdiction and asks for specific performance. Schuerman lived in St. Louis, Missouri, from her birth in 1933 until she retired and move to California in 1998. She has long been a season ticket holder at Bush Stadium, and she kept the choice seats even after she move out West. However, Schuerman has not been back to Missouri since her retirement. Rather, she either gives away her tickets to family and friends, or sells them to "make a quick buck" to supplement her social security.

Legal counsel for Marilyn Schuerman timely challenges the court's personal jurisdiction. How should the court rule and why?



Question Two (20 minutes): Dr. Michael Nelson is a resident of Overland Park, Kansas, and a pulmonary physician. His office and clinic is in Leasburg, Kansas, just over the Missouri state line. Mr. Robert Lindley, a resident of Liberty, Missouri, has on three occasions this year been treated by Dr. Nelson at the clinic in Leasburg.


Mr. Lindley has just filed a medical malpractice lawsuit against Dr. Nelson in the U.S. District Court for the Western District of Missouri. Mr. Lindley alleges that Dr. Nelson was negligent in monitoring medications prescribed for Mr. Lindley's emphysema. While at his home in Liberty, Mr. Lindley alleges that he had a severe allergic reaction to certain medications when combine with alcoholic beverages resulting in severe and permanent damage to his liver. The medications were purchased by Mr. Lindley from a pharmacy in Leasburg. Personal checks in payment of Dr. Nelson's bills were mailed by Mr. Lindley from his home in Liberty to the Leasburg Clinic. Dr. Nelson is licensed to practice medicine in both Kansas and Missouri, but he has not practiced in Missouri since he was a resident physician at the University of Missouri-Columbia Medical School back in 1998-2002.


Legal counsel for Dr. Nelson timely challenges the court's jurisdiction. How should the court rule and why?



Question Three (5 minutes): Rule 2 of the FRCPs says that effective 1938 and going forward there shall be just one form of action call a "civil action." Is that really true? Explain.



Question Four (10 minutes): Pauline sues David in federal district court and serves him on October 1, 2007. On October 15, 2007, David files his answer denying liability, and also files a motion for a judgment on the pleadings pursuant to Rule 12(c) of the FRCPs. On November 1, 2007, David files an amended answer again denying liability, and also stating a defense based on the court's lack of personal jurisdiction. On November 25, 2007, Pauline files a motion to strike from the amended answer the defense based on lack of personal jurisdiction arguing that the court has jurisdiction by waiver. How should the court rule and why?



Question Five (40 minutes): Alex was involved in an automobile accident on December 20, 2006, while on his way home from Yale University for the semester break. As he was driving through Cuyahoga County, Ohio, his car hit some ice and spun out of control, coming to rest against the two-lane highway's concrete center divider. Moments later, as Alex was getting out of his car, it was sideswiped by a Baxter Freight Lines, Inc., truck which police estimate was traveling at over 60 miles per hour. Alex was seriously hurt and his car was destroyed.


Alex, whose home is in Indiana, filed a negligence action in Ohio federal district court against Baxter Freight, a Delaware corporation with warehouses in Pennsylvania and Indiana, and its executive offices in Ohio, seeking $500,000 for personal injuries and medical expenses and $16,000 for damages to his car. In the same lawsuit, Alex filed a claim against Cuyahoga County, alleging that the County failed to install proper reflector lights to mark the boundary between the highway's traffic lane and the center safety zone. In this claim against the County, Alex again requests $500,000 for personal injuries and $16,000 for loss of his car.


In its answer to Alex's complaint, Baxter Freight denies liability. It also brings a claim against the County for contribution on the theory that the County was negligent in its failure to install proper reflector lights. Baxter Freight files a second claim for $38,000 against the County for damages to Baxter Freight's truck and cargo sustained in the accident with Alex's car, on the same theory that the County was negligent. Baxter Freight files a third claim against the County seeking a refund of a $230 fine that the County had improperly levied against Baxter Freight for using its highways with an overweight truck. Finally, Baxter Freight files a fourth claim for $12,000 against Dan's Repair Service of Greensburg, Indiana. This claim alleges that Dan's Repair overcharged Baxter Freight for truck repairs following the accident with Alex.


In its answer to Alex's complaint, the County denies liability. The County also filed a claim against Alex for the $8,000 it cost to repair the highway's center divider, alleging that Alex's negligence caused him to hit and damage the divider. Alex's reply to the County's claim denies liability, and also asserts a claim for indemnity against Ed's Towing Co., a business located in Zanesville, Ohio. Alex alleges that the center divider was not damaged by his car, but that the divider was damaged by Ed's Towing when towing Alex's car from the accident scene.


(A)    Baxter Freight and County object to Alex's complaint on the basis of lack of subject matter jurisdiction. How should the court rule and why?


(B)     County objects to the three claims against it by Baxter Freight on the basis of misjoinder and lack of subject matter jurisdiction. How should the court rule and why?


(C)    Dan's Repair Service objects to the claim against it by Baxter Freight on the basis of misjoinder and lack of subject matter jurisdiction. How should the court rule and why?


(D)    Alex objects to the claim against him by County on the basis of misjoinder and lack of subject matter jurisdiction. How should the court rule and why?


(E)     Ed's Towing objects to the claim against it by Alex on the basis of misjoinder and lack of subject matter jurisdiction. How should the court rule and why?



* * * END OF PART I * * *



Return these essay examination questions and submit your essay answers.

After a short break, the class will begin together Part II of the examination.