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UNIVERSITY OF MARYLAND
SCHOOL OF LAW
LEGAL METHOD-CIVIL PROCEDURE
(3 Hours)
Day Division Friday, December 10, 1999 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 course and instructor names, and your examination number, on the outside cover of each of your blue books, and on the envelope. Do not put your name on the blue books or envelope at any place. Answer each question in a separate blue book and number the blue books by question. After completing the examination put your answers in the envelope, fasten the flap, and hand in the envelope to the examination administrator. Be sure to enclose all of your answers -- you will be graded only on what is inside the envelope. Hand in the questions separately. Do not put them in the envelope.
There are three questions, weighted equally, and you should allocate your time accordingly. A superior answer to one question, produced by spending a disproportionate amount of time on it, will not compensate for a weak answer to another, caused by not having enough time to finish it. Please take this advice seriously. I repeat it each year, but two or three (sometimes more) people regularly fail to heed it. The exam is much shorter than in the past, so you should have no difficulty finishing it. The first question is principally about personal jurisdiction, the second principally about subject matter jurisdiction, and the third principally about the Erie/Hanna problem, but each may contain other issues as well and you should discuss all issues raised by the questions. Read the fact patterns carefully. Shorter questions mean more densely packed issues and you may need to go over the questions more than once to be sure you have seen everything. Answer only the questions asked at the end of the fact patterns, and discuss only those issues logically necessary to resolving those questions. Avoid long descriptive statements about law in the abstract. Analysis counts, recitation of law does not.
THIS EXAM IS OPEN BOOK. YOU MAY BRING ANY MATERIALS YOU LIKE INTO THE EXAM WITH YOU.
I.
Dan Mieczkowski and Marie Mieczkowski, as the Representatives of the Estate of Ryan Mieczkowski, Plaintiffs,
v.
Kessler Industries, et al., Defendants.
United States District Court for the Eastern District of Texas
This action arises out of the unfortunate death of Ryan Mieczkowski in 1996. The Rose Furniture Company (Rose), a North Carolina corporation with its principal place of business in Charlotte, North Carolina, is the exclusive marketer of a distinctive style of bunk bed popular with high school and college students. In 1992, it sold one such bed to Adrian and Ariel Cascio. The Cascios first saw the bed in a Washington, D.C. furniture store, ordered one by phone directly from Rose (it was cheaper by mail), and had it delivered to their Arlington, Virginia home. In 1993, the Cascios moved to Texarkana, Texas, and in July, 1994, they sold the bed to Dan and Marie Mieczkowski. The Mieczkowskis first learned of the bed from Rose=s Website while surfing the Web in their Texarkana home, and decided at that time to buy one. Fortuitously, the next day they saw an ad, placed by the Cascios, for a slightly used Rose bunk bed in a local Texarkana newspaper. They bought the Cascios=s bed the next day. In March, 1996, Ryan Mieczkowski was allowed to sleep on the top bunk of the bed for the first time. The next morning he was found dead from asphyxiation, apparently caused when he tried to climb down from the top bunk and got caught between the railings. Subsequently, the Mieczkowskis filed the present products liability lawsuit in Texas federal court, against the bed=s manufacturer, Rose, and the Cascios. Alone among the defendants, Rose moved to dismiss the lawsuit for lack of personal jurisdiction.
Rose has a number of contacts with the state of Texas. For example, it has a local registered agent and catalogue store in Austin, from which it markets furniture to five southwestern states, and it rents 5,000 square feet of Houston warehouse space to store furniture needed to fill such orders. It is licensed by the Texas Secretary of State to do business in Texas, and advertises extensively in magazines, newspapers, and on television stations throughout the state. All of this has paid off handsomely. Over the last six years, for example, Rose has sold and shipped over $5.7 million worth of furniture to Texas customers. In 1997 alone, the year the Mieczkowskis filed the present lawsuit, Rose concluded over 250 separate business transactions with Texas customers, accounting for approximately $717,000.00 in sales. The president of Rose testified, in an affidavit filed in conjunction with Rose=s motion to dismiss, that during the four years preceding the filing of the present lawsuit, sales to Texas customers accounted for 3.2% of Rose=s gross sales income. As a consequence, twice a year Rose sends a direct mailing to all Texas residents who have purchased products from it in the past, soliciting their continued patronage. It is fair to say that the Austin catalogue office is one of Rose=s most important branch offices, perhaps second in importance only to the Charlotte headquarters itself. Rose also purchases approximately 10% of its furniture inventory each year from Kessler Industries of El
Labor rejected the ALJ's recommendation, and remanded the case to the ALJ (as the Secretary is permitted to do under federal law), finding that Schaefer had been in contact with government agencies, some of which were federal, before he was fired. This administrative proceeding is pending at the present time.
After the ALJ's recommendation of dismissal and before remand by the Secretary of Labor, Schaefer filed the present civil action in Maryland state court. He asserted state law claims against Toastmasters, based on both his firing and Toastmasters= subsequent negative comments about him to prospective future employers, for wrongful discharge, invasion of privacy, defamation, and interference with contractual relationships, and asked for monetary and injunctive relief (i.e., back pay totaling $500,000, and reinstatement to his position of general counsel). His wrongful discharge claim was based on the so-called ASabine Pilot@ doctrine (after a case of the same name), a Maryland state common law rule establishing a right of employees to sue for wrongful discharge when fired for refusing to perform an Aillegal act.@ Schaefer alleges that he was fired because he refused to help Toastmasters falsify pollutant level information in reports to the Maryland Department of Environmental Affairs (MDEA). Maryland law requires all persons engaged in waste disposal in the state to submit copies of pollutant information reports required by federal law to be submitted to the EPA, to the MDEA as well. Failure to submit copies of such reports is a misdemeanor under Maryland law, punishable by a fine of up to $5,000, one year in jail, or both. In its answer Toastmasters denied that it asked Schaefer to falsify information in the pollutant reports, but also argued in the alternative that even if it had, it would have made no difference because the information in question was not required by federal law to be included in the EPA reports. Toastmasters removed the case to the United States District Court for the District of Maryland, and Schaefer moved to remand it to Maryland state court. The federal court denied the motion to remand, granted Toastmasters= motion to dismiss the wrongful discharge claim for failure to state a claim, and dismissed the remaining pendent state law claims under the authority of United Mine Workers v. Gibbs. Schaefer has taken the present appeal.
Should the Court of Appeals affirm or reverse the district court = s denial of Schaefer = s motion to remand, and why? If you need more information to answer this question, say what else you would need to know.
[Assume that there are no technical defects in Schaefer=s complaint, that he has successfully pleaded a prima facie case in each of his legal theories, including the wrongful discharge theory, and that the only issue before the court is whether any of his theories, or any other feature of the case, provides a basis for federal court removal jurisdiction. Discuss all possibilities for keeping the case in federal court, even if you think your resolution of some issues eliminates the need to talk about others.]
III.
Yvonne Gil-Rebollo Plaintiff-Appellant,
v.
The Miami Heat Associations, Inc., Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
Yvonne Gil-Rebollo attended an exhibition basketball game between the Miami Heat and the Atlanta Hawks at Roberto Clemente Coliseum in Santurce, Puerto Rico. She was seated in the front row as part of a group that had received complementary tickets to the game. During a time-out, Wes Lockard, who portrays ABurnie,@ the mascot of the Heat, approached Gil-Rebollo and grabbed her hand. He had selected her at random to participate in a routine he planned to perform as entertainment during the time-out. When he attempted to pull her onto the floor, Gil- Rebollo resisted and loudly told him that she did not want to participate. Lockard persisted, however, grabbing her left arm with both hands and pulling, because in his experience people often are reluctant to participate at first, but later change their minds. Unbeknownst to either party, Gil-Rebollo=s purse strap had fallen over the back of her seat and was providing additional resistance to Lockard=s efforts. He pulled her with such force, however, that the purse strap broke and as a result she surged forward, falling to the floor. Lockard took her sudden movement as a sign that she had changed her mind about participating and dragged her by the arm to the center of the court. When he saw that she still did not want to participate, he did not force her any further. She stood up, composed herself, and walked off the court, while he completed the routine alone.
Gil-Rebollo was extremely upset by the incident and left the game prior to its conclusion. She felt as if she had been humiliated in front of the entire crowd. Subsequently, she suffered both physically and emotionally as a result of the incident. She has been diagnosed with post- traumatic tendinitis in her left shoulder, takes pain medication for it on a regular basis, and has had to modify her behavior in order to avoid tasks and activities which exacerbate the pain. She also now avoids large gatherings, feeling that they are a threat to her privacy and dignity, and takes anti-anxiety medications on a regular basis. She brought the present diversity action (Gil- Rebollo is a citizen of Puerto Rico and the Heat is a Florida corporation), seeking $1,000,000 in compensatory and punitive damages, in Puerto Rico federal district court, against both Lockard and the Heat, claiming that Lockard willfully injured her in violation of Puerto Rico law, and that the Heat, as Lockard=s employer, also was responsible for the injury.
During the course of the litigation the defendants made a written offer of settlement to Gil-Rebollo under Federal Rule of Civil Procedure 68, to have judgment entered against them in the amount of $100,000. Gil-Rebollo rejected the offer, demanding $180,000 instead. The case was then tried to a jury, which returned a verdict of $50,000 in favor of the plaintiff, $50,000 less than the defendants= offer of judgment. In accordance with the provisions of Rule 68, the district court awarded the defendants $8,271.71 (to be paid by Gil-Rebollo) for the costs incurred after their offer of judgment was rejected, but declined to award them any money for their attorney=s fees. (It also awarded Gil-Rebollo costs in the amount of $7,894.84, as a prevailing party under Federal Rule of Civil Procedure 54.) Defendants now argue on appeal that the district court should have awarded them attorney=s fees as well, under the provisions of Puerto Rico Rule of
