Personal Jurisdiction over Doctor & Valvco in State B: Analysis of Contacts & Fairness, Exercises of Criminal Law

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California

Bar

Examination

Essay Questions

and

Selected Answers

July 2015

The State Bar Of California Committee of Bar Examiners/Office of Admissions

180 Howard Street • San Francisco, CA 94105-1639 • (415) 538- 845 S. Figueroa Street • Los Angeles, CA 90017-2515 • (213) 765-

ESSAY QUESTIONS AND SELECTED ANSWERS

JULY 2015

CALIFORNIA BAR EXAMINATION

This publication contains the six essay questions from the July 2015 California Bar Examination and two selected answers for each question.

The answers were assigned high grades and were written by applicants who passed the examination after one read. The answers were produced as submitted by the applicant, except that minor corrections in spelling and punctuation were made for ease in reading. They are reproduced here with the consent of the authors.

Question Number Subject

1. Civil Procedure
2. Real Property
3. Criminal Law and Procedure
4. Community Property
5. Business Associations/ Professional Responsibility
6. Constitutional Law/Real Property

QUESTION 1

Doctor implanted a valve in Patient’s heart in State A, where both Doctor and Patient lived. The valve was designed in State B by Valvco. Valvco was incorporated in State C, but had its headquarters in State D.

Patient was visiting State B when he collapsed due to his heart problems. Patient decided to remain in State B for the indefinite future for medical treatment.

Patient sued Doctor and Valvco in state court in State B for $100,000, alleging that Valvco defectively designed the valve and Doctor negligently implanted it. Another patient had recently sued Valvco alleging that it defectively designed the valve, and had obtained a final judgment in her favor after trial on that issue.

Doctor and Valvco each moved the state court to dismiss the case on the ground of lack of personal jurisdiction. The state court granted Doctor’s motion and denied Valvco’s.

Valvco then filed a notice in federal court in State B to remove the case. Patient immediately filed a motion in federal court to remand the case to state court. The federal court denied Patient’s motion.

Relying solely on the judgment in the other patient’s action, Patient then filed a motion in federal court for summary adjudication of the issue that Valvco defectively designed the valve. The federal court granted the motion.

1. Did the state court properly grant Doctor’s motion to dismiss? Discuss.
2. Did the state court properly deny Valvco’s motion to dismiss? Discuss.
3. Did the federal court properly deny Patient’s motion for remand? Discuss.
4. Did the federal court properly grant Patient’s motion for summary adjudication? Discuss.

QUESTION 1: SELECTED ANSWER A

Did the State Court Properly Grant Doctor's Motion to Dismiss?

Doctor filed a motion to dismiss based on lack of personal jurisdiction. A motion to

dismiss on jurisdictional issues is proper when, viewing the facts in the most favorable

light to the defendant, the plaintiff has failed to satisfy the elements of personal

jurisdiction. Failure to object to personal jurisdiction before answering or in a party's first

12(b)(6) motion waives the issue. There is no indication that waiver occurred here.

Thus, the issue is whether the court in State B had personal jurisdiction over the Doctor.

Traditional Basis for Jurisdiction

Personal jurisdiction refers to the power of a court to adjudicate claims involving a

particular party. Traditionally, personal jurisdiction is based on three concepts:

consent, presence, and domicile. Here, there is nothing in the facts indicating that

the doctor consented to personal jurisdiction. Moreover, there is nothing in the facts

indicating that he was served while he was in State B or that he is a resident of state B.

The facts indicate Doctor is a resident of state A. Thus, the traditional bases for

jurisdiction are not met.

Long-Arm Jurisdiction/Constitutional Limits of Jurisdiction

Many states have adopted long-arm statutes to obtain personal jurisdiction over non-

residents. While long-arm statutes can differ by state, jurisdiction under a long-arm

statute must satisfy the constitutional requirements for the exercise of jurisdiction. Many

states, like California, have adopted long-arm statutes which extend personal

jurisdiction to the constitutional limits. In order to satisfy the constitutional requirements

for personal jurisdiction, the defendant must have such minimum contacts with the

forum state as to not offend traditional notions of fair play and substantial

justice. In determining whether such minimum contacts are present, courts look to

Relatedness of Contacts

General Jurisdiction

The court looks to see whether defendant's contacts with the forum state are so

extensive, as to find that the defendant is essentially at home in the forum state. If so,

the court has general jurisdiction over the defendant and the defendant is amenable to a

wider range of lawsuits in the state. Here, as stated above, Doctor did not have

sufficient contacts with the state to show minimum contacts. Thus, he is not at home in

state B.

Specific Jurisdiction

If general jurisdiction does not exist, the court looks to see whether the defendant's

particular contacts with the state relate to or give rise to the particular cause of action. If

so, the court has specific jurisdiction over the defendant. Here, the cause of action

arises out of doctor's negligence in implanting the valve. This took place in State A.

There is nothing to indicate that doctor's negligence extended to state B, except that B

collapsed there. Thus, there is no specific jurisdiction over Doctor in State B.

Fairness

To determine whether jurisdiction is fair, courts look to a variety of public and private

factors. Courts look to several factors, including the Plaintiff's interest in the chosen

forum, a state's interest in providing redress for its citizens or for harms that occur in its

state, and whether the exercise of jurisdiction would be so unfair as to offend traditional

notions of fair play and substantial justice. Here, the forum state does have an interest

in providing redress for its citizens. Patient is currently domiciled in state B. Domicile is

determined by someone's physical location combined with an intent to stay. Here, the

facts state that Patient is physical in state B and wishes to remain there or the indefinite

future. Thus, Patient is a domicile of State B. However, he was a citizen of state A

when the negligence occurred. While some of the witnesses concerning the design of

the valve may be in State B, the action against the doctor is for negligence. Thus, most

of the evidence and witnesses, such as medical records, surgery staff, and nurses

would be in State A. Thus, on the balance it is not fair to exercise jurisdiction in State

B.

Conclusion

Based on the above analysis, since Doctor does not have any basis for traditional

jurisdiction and since Doctor does not have such minimum contacts with the forum, as

to make the exercise of jurisdiction not offend traditional notions of fair play and

substantial justice, jurisdiction over D was not proper. Thus, the court properly granted

his motion to dismiss.

Did the State Court Properly Deny Valvco's Motion to Dismiss?

Valvco filed a motion to dismiss based on lack of personal jurisdiction. A motion to

dismiss on jurisdictional issues is proper when, viewing the facts in the most favorable

light to the defendant, the plaintiff has failed to satisfy the elements of personal

jurisdiction. Failure to object to personal jurisdiction before answering or in a party's first

12(b)(6) motion waives the issue. There is no indication that waiver occurred here.

Thus, the issue is whether the court in State B had personal jurisdiction over Valvco.

Traditional Basis for Jurisdiction

As stated above, personal jurisdiction refers to the power of a court to adjudicate claims

involving a particular party. Traditionally, personal jurisdiction is based on three

concepts: consent, presence, and domicile. Here, there is nothing in the facts

indicating that Valvco consented to personal jurisdiction. Moreover, there is nothing in

the facts indicating that it was served while he was in State B. For jurisdiction purposes,

Relatedness of Contacts

General Jurisdiction

The court then looks to see whether defendant's contacts with the forum state are so

extensive, as to find that the defendant is essentially at home in the forum state. If so,

the court has general jurisdiction over the defendant and the defendant is amenable to a

wider range of lawsuits in the state. Here, Valvco's only activity in state B from the facts

was designing the valve. This is likely not continuous or systematic activity which rises

to the level of Valvco being "at home" in the forum state. Thus, general jurisdiction does

not exist.

Specific Jurisdiction

If general jurisdiction does not exist, the court looks to see whether the defendant's

particular contacts with the state relate to or give rise to the particular cause of action. If

so, the court has specific jurisdiction over the defendant. Here, the cause of action

arises out of Valvco's negligent design of the valve. The design took place in State B.

Thus, there is specific jurisdiction over Valvco.

Fairness

To determine whether jurisdiction is fair, courts look to a variety of public and private

factors. Courts look to several factors including Plaintiff's interest in the chosen forum, a

state's interest in providing redress for its citizens or for harms that occur in its state,

whether the exercise of jurisdiction would be so unfair as to offend traditional notions of

fair play and substantial justice. Here, the forum state does have an interest in

providing redress for its citizens. As discussed above, Patient is currently domiciled in

state B. Domicile is determined by someone's physical location combined with an intent

to stay. Here, the facts state that Patient is physically in state B and wishes to remain

there or the indefinite future. Thus, Patient is a domicile of State B. Moreover,

witnesses concerning the design of the valve are likely in State B. State B also has an

interest in ensuring products developed in its state are not defective to protect its

residents and other foreseeable plaintiffs. Thus, on the balance it is fair to exercise

jurisdiction in State B.

Conclusion

Based on the above analysis, since Valvco has such minimum contacts with the forum,

as to make the exercise of jurisdiction not offend traditional notions of fair play and

substantial justice, jurisdiction over Valvco is proper. Thus, the court properly denied its

motion to dismiss.

Did the Federal Court Properly Deny Patient's Motion for Remand

Removal refers to a defendant's ability to remove a case brought initially in state court to

federal court for adjudication. In order to remove a case, the case must have been one

that could have originally been brought in federal court. Removal is proper to the

federal district encompassing the location where the original action was filed in state

court. Moreover, removal has to be timely--it has to be within 30 days of the last

pleading giving rise to a removal action and cannot in any cases be more than a year

since the filing of the lawsuit. Removal is not proper when a defendant is a resident of

the state in which the action is brought and all defendants must join in the removal for it

to be proper. If removal is not proper, then the plaintiff can file a motion to remand the

case back to state court. A motion to remand must be filed within 30 days of the notice

of removal.

Was Timing of Removal Proper

First, as a preliminary matter, removal has to be timely--it has to be within 30 days of

the last pleading giving rise to a removal action and cannot in any cases be more than a

Federal Question Jurisdiction

Federal question jurisdiction refers to claims that are brought to enforce or decide a

federal right. Here, the case brought was a defective design case against Valvco and a

negligence claim against Doctor. These are both state law tort claims and do not invoke

federal question jurisdiction. Thus, the case could not have been brought in federal

court on the basis of federal question jurisdiction.

Diversity Jurisdiction

For diversity jurisdiction to exist, there must be diversity between plaintiffs and

defendants and the amount in controversy must exceed $75,000.

Diversity of Citizenship

Complete diversity between all parties is not required for diversity jurisdiction. However,

there must be completed diversity between all Plaintiffs and all Defendants -- that is all

Plaintiffs must be of diverse citizenship of all Defendants. Citizenship is determined at

the time of filing of the action. For individuals, an individual can only have one

citizenship--his or her domicile. Domicile is where a person is physically present with

intent to permanently remain.

Here, the facts indicate that Doctor lives in State A. Thus, since no facts indicate he

does not intend to remain there indefinitely, he is a citizen of State A.

Patient was a citizen of state A when the surgery occurred, but after he was injured he

remained in state B with intent to stay there indefinitely. Thus, Patient became a citizen

of state B. Plaintiff was a citizen of State B upon the filing of the lawsuit.

Corporations are considered domiciled where they have their principal place of business

and where they are incorporated. The corporation's principal place of business is where

his headquarters are or where his officers are located. Here, Valvco is incorporated in

State C and has its headquarters in state D. Thus, it is domiciled in State C and D.

Looking at the parties, the case is Patient (B) v. Doctor (A) and Valvco (C and D). Thus,

diversity exists for federal jurisdictional purposes because the Plaintiff is of diverse

citizenship from all defendants.

Amount in Controversy

The amount in controversy for diversity jurisdiction requirements looks at the amount

from Plaintiff's well-pleaded complaint, irrespective of costs and fees. Here, the facts

indicate that Patient sued Doctor and Valvco in state court for $100,000. Aggregation of

amounts in controversy against more than one defendant is proper if each defendant is

jointly and severally liable for the full amount. Thus, if Patient's case seeks joint and

several liability from Doctor and Valvco, jurisdiction is proper. However, if Patient was

seeking $50,000 from Doctor and $50,000 from Valvco individually, the amount in

controversy would not be satisfied for jurisdiction. There are not enough facts to

determine how the damages may be allocated.

Conclusion

Since there is diversity of citizenship and the amount in controversy requirement is met,

assuming joint and several liability, this is a case that could initially be brought in federal

court under diversity jurisdiction.

Ultimate Conclusion

Since this is a case that could have originally been brought in federal court, Defendant

is not a resident of the state in which the action was filed, and all defendants at the time

joined in the removal, removal is proper. Thus, the motion to remand was properly

denied. However, based on the timing of the notice of removal, if it occurred after 30

Issue Preclusion

The second issue is whether summary judgment can be granted based on issue

preclusion.

Issue preclusion prevents an issue that was already fully litigated on the merits from

being re-litigated. The requirements for issue preclusion are 1) the same issue, 2)

actually litigated and decided, 3) a final judgment on the merits, 4) the issue was

essential to the judgment and 5) in the cases of non-mutual issue preclusion, fairness.

Same Issue

Here, the facts indicate that another patient recently sued Valvco alleging defective

design of the valve and obtained a final judgment on the merits. With respect to Valvco,

assuming it was the same valve, this is the same issue that is at issue in the present

case. Thus, the identity of issues was met.

Actually Litigated and Decided

The facts indicate that there was a judgment in her favor after trial, so issue was

actually litigated and decided.

Final Judgment on the Merits

The facts indicate that there was a judgment in her favor after trial, and it wasn't based

on a lack of jurisdiction or other decisions not on the merits, so there is a final judgment

on the merits. Federal courts do not require all appeals be exhausted before applying

issue preclusion.

Essential to the Judgment

It appears the decision was essential to the judgment, as the other patient brought a

defective design case and won. There are no other facts indicating there were separate

or alternative grounds for the other patient's success in the suit. Thus, a finding of

negligent design is essential to the judgment.

Fairness/Non-Mutual Issue Preclusion

Traditionally, issue preclusion required the same parties to the prior lawsuit assert issue

preclusion or at least parties in privity with each other. If that was the case, then issue

preclusion could not be used here for the reasons explained above with claim

preclusion.

However, many courts now allow non-mutual issue preclusion to be used if it is fair.

Here, Patient is trying to use non-mutual offensive issue preclusion--that is, a Plaintiff is

using it as a sword against a Defendant in a later action. Courts typically allow this if

Valvco had the same or similar motivations to defend the prior suit and if it would not be

unfair or unjust. Here, both actions were for defective design. Thus, Valvco had a

similar motive to defend this prior lawsuit. Therefore, it is not inequitable for Patient to

use issue preclusion.

Since there is issue preclusion and Valvco is precluded from claiming it is not negligent,

there is no issue of material fact with respect to Valvco's negligent design. Thus,

summary judgment should be granted for Patient. The court was proper in granting the

motion.

specific limitations beyond those prescribed by the Due Process clause. Here, we are

not told of State B's long-arm statute; we are similarly not told of any restrictions the

state has regarding PJ. Thus, it is likely (and will be assumed) that the state simply

applies the constitutional analysis.

Constitutional Requirements

The Supreme Court has held that, for a state to have PJ over a defendant, the

defendant must have sufficient minimum contacts with the state, such that traditional

notions of fair play and justice are not offended by the use of jurisdiction over him. The

Court has established a three-factor test to determine whether minimum contacts exist:

1. contact; 2) relatedness; 3) fairness.

Contact

Under the contact factor, courts ask whether the defendant purposely availed

himself of the benefit and protections of the state's laws, and based on that availment,

was a law suit foreseeable. Here, D has not purposely availed himself of the

protections of State B's laws. He has not practiced medicine in State B, and there are

no facts showing that he has even stepped foot in State B, other than for purposes of

this lawsuit. As a result, a lawsuit against him in State B was not foreseeable. PJ

would likely fail due to this factor.

Conclusion: Thus, the state court properly granted D's motion to dismiss

for lack of personal jurisdiction.

2) State court Properly deny Valvco's ("V") motion to dismiss?

The issue here is whether the State B court had PJ over V.

Similarly to D, the traditional bases (domicile, consent, and personal

service) of PJ will not work to acquire jurisdiction over V. A corporation's domicile

includes both all of the states where it is incorporated as well as the location of its

principal place of business--the place where the corporate's headquarters, officers, and

main employees that operate the whole company are located. Here, V is incorporated

in State C and its headquarters, which would likely comprise its principal place of

business, is in State D. Thus, it is not domiciled in State B, it was not served in State B

(based on the facts), and it clearly has not consented to PJ. None of the traditional

bases works.

Additionally, the long-arm statute likely will apply the constitutional

analysis. Thus, the three-factor test will be used here as well to determine if V had

minimum contacts with State B to establish personal jurisdiction.

Contact

As mentioned above, under the contact factor, courts ask whether the defendant

purposely availed himself of the benefit and protections of the state's laws, and based

on that availment, was a lawsuit foreseeable in the state. Here, although the facts are

somewhat unclear, it is likely that V has purposely availed itself of the benefits and

protections of State B's laws. V designed the valve that purportedly injured Patient ("P”)

in State B. It likely has employees permanently located and working in the state. If so,

it has purposely availed itself of the state's laws, and it was entirely likely that it could be

sued in the state.

Relatedness

The relatedness factor identifies if one of two forms of jurisdiction exist--specific

and general jurisdiction. Specific jurisdiction exists when the actions that the defendant

took in the state are related/caused the cause of action to arise. Specific jurisdiction

grants the court the PJ to hear only that case against the defendant. In contrast,