Examination Number ________________





Professor Carl H. Esbeck Fall Semester 2009





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 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 2009 federal rules supplement, and your own classroom notes (not borrowed notes). You may also bring a course summary or 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 (1 hour and 30 minutes)


Question One (25 minutes): Paulsen is a citizen of Iowa. Dirkovich is a citizen of Kansas. Paulsen sues Dirkovich in an Iowa state court of general jurisdiction seeking damages in the amount of $100,000 resulting from an auto accident. Dirkovich is served with summons and complaint on July 1, 2009. On July 3, 2009, Dirkovich moves to dismiss for failure to state a claim on which relief can be granted. The motion points to the allegations in the complaint being mere conclusions. A week later the court denies the motion stating, "Iowa is a notice pleading jurisdiction and such factual details are to be learned during discovery." On July 18, 2009, Dirkovich removes the case to federal district court pursuant to 28 U.S.C. § 1441. On August 4, 2009, Dirkovich moves to dismiss for failure to state a claim on which relief can be granted citing Ashcroft v. Iqbal.

How should the district court rule on the motion? Explain.



Question Two (25 minutes): Wanda, an MU undergraduate journalism student, purchases a used car from Dan's Auto Sales, Inc., in Columbia, Missouri. Dan's Auto is a Missouri corporation. Wanda puts down $1,000, and finances the balance due of $19,000. Three weeks later, while driving the car on Interstate 70 near Boonville, Missouri, on her way home for the weekend to visit her parents in Overland Park, Kansas, the car stalls. Wanda tries to get her car over to the shoulder of the road but is soon hit from behind by another car. She suffers personal injuries and the car is a total loss. Investigators determine the car's alternator failed, causing a drain on the battery, which in turn caused Wanda's car to stall. Six weeks later Wanda sues Dan's Auto Sales for negligence and breach of warranty in the U.S. District Court for the Western District of Missouri, requesting damages in the amount of $500,000. Dan's Auto timely files an Answer denying liability, as well as counterclaiming against Wanda for the unpaid balance plus interest due ($19,400) that she owes on the purchase price of the car. Dan's Auto also sues Chicago National Bank. Dan's Auto had sold the loan agreement between Wanda and Dan's Auto to the Bank. The Bank is now demanding Dan's Auto take back the loan agreement under the loan paper holder's right of recourse clause, and to pay the Bank the amount still due, plus interest and fees, all totaling $20,800. This claim against the Bank is not for indemnity or contribution. Rather, Dan's Auto asks that the court enter a preliminary injunction against the Bank enjoining it from pursuing its demands until the underlying claims between Wanda and Dan's Auto are resolved. The Bank moves pursuant to FRCP Rule 21 to dismiss for misjoinder. The Bank is a Delaware corporation with its principal place of business in Chicago, Illinois.

How should the district court rule on the Bank's motion? Explain.



Question Three (40 minutes): The Hotel on the Strand ("HOTS") is a Brazilian corporation whose only place of business is the operation of a hotel in Rio de Janeiro. Robert Peterson is Vice President of Toy Land, Ltd., a Delaware corporation with its principal place of business in Newark, New Jersey. Toy Land distributes its products around the world, including in Brazil, where the toys are made, and in New Jersey. Toy Land employees often visit Rio de Janeiro to work on toy design, quality, and safety. Five years ago, Peterson flew to Rio de Janeiro and negotiated an agreement with HOTS whereby Toy Land employees and immediate family could stay at the hotel at a substantial discount. The arrangement was confirmed by written agreement, signed copies of which are in company headquarters in both Rio de Janeiro and Newark. Both before and following the signing of the agreement there were a number of e-mail and telephone exchanges between the parties. The agreement provides that the law of New Jersey shall apply to any dispute. The e-mail and telephone calls after the agreement involved Toy Land employees securing room reservations at discount, as well as adjustments in the agreement setting out further discounts for meals and use of the hotel spa. HOTS had no other relationship to New Jersey other than an occasional guest from the U.S. would be a resident of New Jersey. Further, HOTS placed advertisements in travel magazines distributed in the U.S., and some of those magazines did make their way into New Jersey.

Last year Robert Peterson planned a business trip to Rio de Janeiro and made reservations for him and his wife to stay at HOTS using the company discount. The reservation was made by Peterson's secretary via e-mail between Newark and Rio de Janeiro. Through the negligence of HOTS's employees, Peterson's wife, Sally, drowned in the hotel swimming pool.

Robert Peterson, as administrator of his wife's estate, has now sued HOTS in federal district court in New Jersey seeking damages in the amount of $3,000,000. HOTS's attorney timely files a motion pursuant to FRCP Rules 12(b)(2) and 12(b)(3). How should the district court rule on the motions? 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.