Download Bryce Ski Corp's Motion to Dismiss: Jurisdictional Limits Case Study and more Exams Civil procedure in PDF only on Docsity!
UNIVERSITY OF MARYLAND
SCHOOL OF LAW
LEGAL METHOD-PROCEDURE
(3 Hours)
Day Division (§ G) Friday, December 23, 1988 Professor Condlin 9:10 a.m. - 12:10 p.m. No.____ Signature:____________________________
Printed Name:_______________________________
INSTRUCTIONS:
Sign and print your name in the blanks above. Put the number found above on the outside cover of each of your blue books and on the envelope. Answer each question in a separate blue book and number the blue books by question. Do not put your name on the blue books or on the envelope at any place. Upon completion of the examination, put your answers to the examination in the envelope, fasten the flap with the clasp, and hand in the envelope to the exam administrator. Be sure to enclose all of your answers -- you will be graded only on what is inside the envelope. Do not put the exam questions in the envelope. Hand in the questions separately to the exam administrator. Do not put your name anywhere on your answers. Both the envelope and your answers should contain your course name, and the instructor.
There are three questions and they are weighted differently. Question III, in my view, is the most difficult, and will count for fifty percent of the grade. Each of the other questions will count for twenty-five percent. Allocate your time accordingly. It might be best to answer question III first. It will be less familiar to you, and it has the largest number of issues. The risk in answering the questions in order is that you will know (and write) a lot about each of the first two, only to find that you have used up a disproportionate amount of time and do not have enough left to do an adequate job on the question that counts the most. This has proved to be a problem in the past.
Relax, solve the problems, and do not leave anything relevant in your head. Good luck.
Question I (forty-five minutes)
Sandi Elan Allbrick, a Baltimore County resident, suffered severe and permanent injuries in February, 1985, when she fell while skiing at Bryce Mountain, a ski resort owned and operated by the Bryce Ski Corporation (Bryce), and located in the Pocono
Mountains of Pennsylvania. In October of 1985, Allbrick along with her husband Pierce, sued Bryce in tort and contract in the Circuit Court for Baltimore County, claiming damages for Bryce's alleged negligence in the design, construction, maintenance, and grooming of one of its ski slopes, and for its failure to correct, or give adequate warning of, an unreasonably dangerous condition on its land. (Allbrick struck an exposed tree root and fell thirty feet into a hidden crevice. It took four hours to get her out.) Bryce filed a motion to dismiss for lack of personal jurisdiction, and that motion is before the Circuit court for decision at this time.
Bryce is a Pennsylvania corporation with no charter or license to do business in Maryland, and no agent for service of process in the state. It sells no products in Maryland, maintains no bank accounts and owns no property there, and pays no Maryland state tax. Its total income is derived from the operation of its ski resort located approximately 150 miles from the Maryland - Pennsylvania border. Bryce's principle connection with Maryland is a toll free telephone number which Maryland residents may use to call the resort to inquire about reservations, ski conditions and the like. Bryce did not intend to provide toll free service to Maryland, but the number was a non-excludable part of a toll-free service package purchased from AT&T to advertise in the Pennsylvania, New York, and New Jersey markets. Bryce includes the Maryland number, along with those of the other three states, on its promotional brochures (which, ironically, emphasize the safety and superb condition of its slopes), but does not distribute these brochures in Maryland; and while it sends brochures to all ski shops requesting them, it receives only about five or six requests a year from Maryland. Bryce's only other direct contact with Maryland occurred in January 1985, when a Bryce sales representative spent one week calling on Maryland travel agencies and military installations, in an effort to stimulate mid-week business at the resort, but this effort was unsuccessful and was not repeated.
Bryce is also part of a ski industry trade association, made up of resorts in the northeastern United States, which promotes ski vacations generally. The association distributes promotional literature to chambers of commerce, tourism departments of state governments, travel agencies, travel sections of newspapers and magazines, and major hotel and motel chains, in all of the eastern seaboard states, including Maryland, and sponsors television spots in major east coast metropolitan markets, including Baltimore, all extolling the virtues of skiing. Approximately two hundred individual resort members of the association, including Bryce, pay a small yearly fee to help support the association's two person staff, and in return are listed by name (in the credits) in the association's promotional literature and television spots. The ads and brochures themselves, however, are paid for with money provided by ski equipment manufacturers, and promote skiing generally, not individual ski resorts.
Bryce, along with all other ski resorts in the vicinity, is also publicized widely in the Baltimore metropolitan area by individual entrepreneurs (e.g., ski shops, ski magazines,) interested in their own economic purposes. Radio and television stations, as well as local newspapers who pick up the information from wire services, routinely carry information about the snow conditions on its slopes, and every now and then a
Andy Varipapa (plaintiff), an Ohio resident, was injured in Blandburg, Ohio, on April 17, 1983, when a Brunswick bowling ball he was using exploded during a tournament. Ohio has a two year statute of limitations for "injury wrongfully done to the person," which begins to run at the time the injury occurs. On April 10, 1985, seven days prior to the running of the statute of limitations, plaintiff commenced an action against The Brunswick Corporation (Brunswick), the New Jersey based manufacturer of the bowling ball that exploded on him, by filing a summons and complaint in the Court of Common Pleas for Clearfield County (where Blandburg is located), Ohio. Under Ohio law, this filing tolled the statute of limitations, but only for a period of two years. If at the end of two years plaintiff had not served defendant, plaintiff's cause of action would cease to exist because it was filed outside the limitations period.
Pursuant to plaintiff's instructions, the Clearfield County Sheriffs Office served Brunswick on April 17, 1985, by giving it a copy of the plaintiff's summons and complaint. Unbeknownst to the Sheriff, however, plaintiff had failed to identify defendant Brunswick by its correct corporate name, The Brunswick Bowling Ball Corporation, in both its pleadings and documents of service. Under Ohio law, failure to name a defendant correctly in service of process makes service ineffective. Unaware of this problem, and distracted by personal matters, plaintiff took no action on the case until April 11, 1987, when he contacted Brunswick to discover why an answer had not been filed. Upon learning that Brunswick had not been properly identified in the original service of process, plaintiff promptly called upon the Clearfield County Sheriff to serve Brunswick again, this time with process using Brunswick's correct corporate name.
After this second attempt at service, in late April, 1987, Brunswick filed a petition to remove the case, pursuant to the provisions of 28 U.S.C. § 1441, to the United States District Court for the Eastern District of Ohio. Once in district court, Brunswick moved to dismiss the action on the grounds that the action had not been commenced within the period of time permitted by the applicable Ohio statute of limitations. Plaintiff opposed this motion, first by moving to amend its original pleadings and documents of service, pursuant to Rules 4(h) and 15 of the Federal Rules of Civil Procedure (FRCP), (if allowed, the amendment would have changed the name of the defendant in the original pleadings and service documents from The Brunswick Corporation to The Brunswick Bowling Ball Corporation), and then by arguing that these amendments should relate back to April, 1985, when the documents were first filed and served, and thus bring plaintiff's action within the applicable statute of limitations. (In effect, plaintiff's motion asked the court to treat his original pleadings and service papers as if they had named the defendant correctly.)
The district court denied Brunswick's motion to dismiss and granted plaintiff's motion to amend, stating:
....we believe that under these facts, where the defendant actually received the summons and complaint within the statutory period and is not prejudiced by the delay, and where the plaintiff, when first notified of the defects in its service,
immediately moved to perfect under FRCP 4(h), fairness dictates that the motion to amend be granted. The amendments having been granted, plaintiffs service was proper, and defendant's motion to dismiss must therefore be denied.
On appeal to the Fifth Circuit, the district court decision was overruled. Relying on the Ohio state case of Yefko v. Ochs, which contained almost identical facts, the Circuit Court held that:
...plaintiff had until April 10, 1987, to secure proper service of the summons and complaint, and did not do so. Actual notice within this time period does not erase the need for proper service. Having failed to secure timely service, plaintiff's action was barred by the Ohio statute of limitations.
The Fifth Circuit agreed with the district court that FRCP 4(h) and 15 entitled plaintiff to amend his original pleadings and service documents to correct errors in identifying the defendant, and that these amendments, if they did not prejudice defendant's efforts to prepare its defense, as they did not here, would relate back to the time of the original filing of the case. But the Court also concluded that the effect of such amendments would be to nullify the Ohio statute of limitations, and that this was something a federal court was not permitted to do. In the court's words:
Had plaintiff's action remained in state court, it would have been jurisprudentially dead. Removal to federal court cannot breathe new life into it.
The case is now on certiorari to the United States Supreme Court. Should that court affirm or reverse the decision of the Fifth Circuit? Why?
In answering, assume that the Ohio statute of limitations is based on the same policies and has the same purposes as statutes of limitations generally. FRCP 4, on the other hand, is a rule for correcting formal errors appearing on the face of papers associated with the service of process. According to a principle commentator on the FRCP, "the most common occasion for use of Rule 4 is when a plaintiff has made a simple mistake or a technical error that results in a failure to identify a defendant properly, such as when a corporation is not denominated by its registered name or a defendant's name is misspelled. When the error goes to form rather that substance, and the proper defendant receives the original process, realizes it is directed at him, and thus is put on notice of the commencement of the action, there is no reason why a federal court should refuse to permit amendment, and no reason why the amendment should not relate back to the time of the original filing."
Question III (ninety minutes)
Norma Hickey (Norma), a citizen of Indiana, is the parent of a child who has received welfare benefits from the Illinois Department of Public Aid (IDPA), under the federal statutory program of Aid to Families With Dependent Children (AFDC). She
of 28 U.S.C. § 1441(c), but the court granted only part of her motion, remanding the claim based on the Illinois Dissolution of Marriage Act, while retaining jurisdiction over the AFDC claim.
Subsequent to the remand, but before any further action was taken in either state circuit or federal district court, the Illinois family court, after receiving briefs from the parties (Norma, Julian and IDPA) but without hearing oral argument, denied IDPA's request for a modification of Norma's support order. In an unpublished, one paragraph opinion, the court held that orders for retroactive support were barred under both Illinois and federal law, adopting verbatim Norma's interpretations of both the Dissolution of Marriage and AFDC Acts. Norma then moved for summary judgment in both of her pending civil actions, the Dissolution of Marriage Act claim in state circuit court, and the AFDC Act claim in federal district court, arguing that the family court decision, based as it was on an interpretation of the two statutes, precluded any further litigation of those claims
Please answer each of the following questions:
a) Was the case properly removed to federal court? If yes, on which ground(s)?
b) Was the decision to remand correct? If not, can it be salvaged? How? c) Should the motion for summary judgment be granted?
In answering, please discuss every aspect of the fact situation which could in any way be relevant to the resolution of these questions.
HAPPY HOLIDAYS
