Just a note for those not in my class who are looking for civ pro exam questions. They are all available here. (Warning for those in my class: not all of these are suitable for you - some cover material we will not do this semester.)
For this year's civpro class: Here are many essay and multiple choice questions and answers that are on material that we have covered up to this point. Note: recent SCt cases, such as Daimler may not be taken into account in the model answer. Many of these overlap with the ones I posted on 11/9, but this is a more comprehensive set.
Just posted a new paper on SSRN. I argue for the following limit on states' power to regulate the procedure of federal courts: Their power cannot be vertical. They cannot direct their law solely to federal courts within their borders. This may not seem that significant, but it is surprising how often law professors and federal judges have assumed that vertical power exists. They're wrong.
The following is the long essay question from the midterm, plus the key I used for grading it:
Essay Question. (42 points)
D1 was born and raised in Madison, Wisconsin (in the Western District of Wisconsin). She also attended university in Madison, where she earned a chemistry degree. In 2000, she decided to work for the D2 Corp., which at the time had a laboratory in Madison. After the lab closed in 2010, the D2 Corp. removed all of its employees from the United States (except for a plant in Oregon). D1 became a chemist on-call for the D Corp., living out of a suitcase and moving from lab to lab on a temporary basis as needed. As a result, she sold her house in Madison and since 2010 hadn’t visited Wisconsin once. Since January of 2013, she has been working at a D2 Corp. plant in the United Kingdom, staying in a hotel. But she was promised in March of 2013 that she would be set up permanently in a new lab in Portugal when it was completed in 2014. When she visited the construction of the lab in April of 2013, she decided she liked Portugal and concluded that she wanted to make the place her home.
The D2 Corp. is a high-quality lubricant manufacturer incorporated in, and with its headquarters in, the United Kingdom. It has laboratories and plants all over the world. Its only presence in the United States is the plant in Oregon. The D2 Corp. sells its products to a single worldwide distributor—Lubricants, Inc.—a Canadian corporation, with its principal place of business in Canada. Lubricants, Inc. sells D2 Corp. lubricants, as well as many other lubricants, to many manufacturers all over the world.
The only U.S. manufacturer that Lubricants, Inc. sells its products to is Bikes Corp., which is incorporated in and has all its employees, officers and directors in California. Bikes Corp. ships its products all over the United States. 5% of its sales are in Wisconsin. But D2 Corp. lubricants also get into hundreds of other products that are sold in the United States by foreign manufacturers who have bought the lubricant from Lubricants, Inc. The value of the D2 Corp. lubricants in products in Wisconsin is about $30,000—around .09 % (that is, 9/10,000) of the D2 Corp.’s total sales.
While she was working at a D2 Corp. lab in Brazil in June, 2012, D1 invented a new compound for lubricating bearings, Chemical X. The D2 Corp. considered Chemical X an important new product and began production at the Oregon plant in December of 2012, after getting the necessary regulatory approvals from various governments, including the United States. Unfortunately Chemical X was defective and in fact resulted in the bearings being worn down prematurely. Production was stopped in May 2013, but some Chemical X had already been sold to Lubricants Inc., which sold it to Bikes Corp. Bikes Corp. put it in around 200 bikes.
One of those bikes was sold by Bikes Corp. to a bike store in Milwaukee, Wisconsin (in the Eastern District of Wisconsin). P, a citizen of Wisconsin, bought the bike, whose front wheel promptly fell off only a few blocks from the store, while P was riding it home. The accident was due to the effect of Chemical X. P suffered serious harm: she broke her arm and leg and now has permanent back pain. P filed suit under Wisconsin negligence and product liability law against D1 and the D2 Corp. in August 2013 in the Federal District Court for the Eastern District of Wisconsin. Service on the D2 Corp. was on the Chief Legal Officer of the D2 Corp. while he was in Milwaukee, Wisconsin, to inspect the bicycle that caused the accident. D1 was served in hand at her lab in the United Kingdom.
When deposed in his office in London, the CEO of the D2 Corp. admitted that he was aware that D2 Corp. lubricants were in products throughout the United States.
Is there subject matter jurisdiction for P v. D1 & the D2 Corp.? (10 points) Is there personal jurisdiction over the defendants? (30 points) Is there venue? (2 points)
Here is the short essay question from the midterm with a model answer:
Short Essay Question
1. Congress is considering passing a statute to protect abortion rights by allowing for the removal to federal district court of any civil case in state court the outcome of which would ride upon abortion rights derivable from the due process clause of the 14th Amendment. In one paragraph, is the statute constitutional and why or why not? [8 points]
Here is the answer key for the two multiple choice questions that were on the minterm:
1. Which of the following cases is least likely to have federal subject matter jurisdiction if brought in federal court? Assume that any relevant amount in controversy requirement is satisfied.
a. P (a German national admitted for permanent residency in the United States and domiciled in New York) sues D (a U.S. national domiciled in New York) for violation of federal securities law.
Wrong. This has federal question SMJ under 28 USC 1331.
b. P (a German national admitted for permanent residency in the United States and domiciled in California) sues D (a U.S. national domiciled in New York) for violation of German law.
Wrong. This has federal SMJ under 28 USC 1332(a)(2). It is a suit between “citizens of a State and citizens or subjects of a foreign state.” P’s being admitted for permanent residency is irrelevant.
c. P1 (a German national domiciled in Germany) and P2 (a U.S. national domiciled in New York) sue D1 (a U.S. national domiciled in California) and D2 (a German national domiciled in Germany) for violations of New York law.
Wrong. This has federal SMJ under 28 USC 1332(a)(3). It is a suit between "citizens of different States and in which citizens or subjects of a foreign state are additional parties."
d. P1 (a German national domiciled in Germany) and P2 (a U.S. national domiciled in New York) sue D (a French national domiciled in France) for violations of New York law.
Correct. This does not have federal SMJ. In particular, it does not fall under 28 USC 1332(a)(3) because it is not a suit between "citizens of different States and in which citizens or subjects of a foreign state are additional parties" (citizens of US states are not on each side) and it is not is a suit between "citizens of a State and citizens or subjects of a foreign state" (because citizens or subjects of foreign states are on each side). This scenario was discussed in class.
e. P (a German national illegally in the United States but domiciled in New York) sues D (a U.S. national domiciled in New York) for violation of New York law.
Wrong. It has SMJ under 1332(a)(2), which speaks of SMJ for suits between “citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State.” P is not admitted for permanent residence (he is here illegally). So he is a German for the purposes of 1332 and this is a suit between "citizens of a State and citizens or subjects of a foreign state under 1332(a)(2).
2. P is considering bringing suit in federal court against two co-defendants: the D1 Corp. (incorporated in Massachusetts) and D2 (an individual). P’s suit is for damages that she received from a defective toaster. The D1 Corp. owns a chain of large hardware stores, with 30 stores in Massachusetts, 10 in the Albany, New York area (in the Northern District of New York), and 10 in the New York City area (in the Southern District of New York). The D1 Corp’s headquarters is in Massachusetts. The D1 Corp advertises and has employees or property only in areas where it has hardware stores. D2 lives in Connecticut but works in New York City (in the Southern District of New York). While visiting Albany, New York, D2 bought a toaster from a D1 Corp hardware store. D2 took it with him to Idaho, as a gift to P, who lives in Idaho. When P used the toaster, it malfunctioned, severely injuring P. Which is the most accurate list of federal districts that have venue for the case of P v. D1 and D2?
a. District of Massachusetts, District of Connecticut, Northern District of New York, Southern District of New York, District of Idaho.
b. District of Massachusetts, District of Connecticut, Northern District of New York, Southern District of New York.
c. Northern District of New York, Southern District of New York, District of Idaho.
d. Northern District of New York, Southern District of New York.
e. Northern District of New York, District of Idaho.
This involves a simple application of the venue statute, 28 USC 1391. There are two main ways to get venue in a district under 1391(b). The first, in 1391(b)(1), requires that all the defendants reside in the same state. That’s not true here. D2 clearly resides (that is, is domiciled) in the District of Connecticut. (As an individual, it does not matter for D2’s residence that it would be subject to PJ in New York.) And the D1 Corp clearly does not reside in the District of Connecticut. As a corporation it has residence in any district where it would be subject to PJ. And it clearly is not subject to PJ in Connecticut, since it has no stores or any other contact there.
So we need to use the second method, in 1391(b)(2), which says that venue exists in the districts “in which a substantial part of the events or omissions giving rise to the claim occurred.” That includes the Northern District of New York (where the toaster was bought) and the District of Idaho (where it caused harm). So e was the right answer.
I'm not getting as many wonky questions by email these days (midterms...?) so I thought I would post some more highlights from past years' questions. Here is one from two years ago:
Whenever a student prefaces a question with “This may be a simple question but…”, I know it’s not going to be a simple question. This is what a student asked: “This may be a super simple question, but if D is tagged on a Federal reservation in a state, is that enough for D to be subject to in personam jurisdiction in that state?” My gut said yes, but my gut also said that the answer would be easy to find. Not so.
The problem is that the question tends to get muddled together with other questions, like the power of a state to extend its laws to the enclave, or the power of state officials to exercise arrests within the enclave. The question here is simpler. Can tagging of a defendant in the enclave give a state court in personam jurisdiction over the defendant (especially for a non-federal cause of action)?
After considerable searching, I got my answer. See the discussion in Richard T. Altieri, Federal Enclaves: The Impact of Exclusive Legislative Jurisdiction Upon Civil Litigation, 72 MIL. L. REV. 55, 71-78 (1976). There is in personam jurisdiction due to such service (under the 14th Amendment). This makes sense. Any relinquishment of state sovereignty due to the creation of the federal enclave does not have to extend to the state's adjudicative power over defendants within its borders. By the way, this conclusion extends beyond “tagging” jurisdiction to general in personam jurisdiction over corporations. The corporation’s contacts with the federal enclave can support personal jurisdiction over the corporation in state court.
Yet another civpro question I had never thought of before.
Magic Flute Charming version done by Ingmar Bergman (in Swedish) for Swedish TV
Wim Wenders, Himmel über Berlin I'm a sucker for this movie, mostly because it reminds me of Berlin in the late 80s. The Peter Falk stuff can get tiresome. At 11:50, you can see the Cinema Paris on the Ku'damm, which is where I first saw the movie. I remember at the time that it was an odd experience to see in a movie the very place where I was watching the movie. One of my favorite scenes is at 1:33:00