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Civil Procedure I Final Exam
CIVIL PROCEDURE I
FALL 2011
Professor Josh Douglas
Final Examination
INSTRUCTIONS
- This is an open book examination, with a few exceptions. You may bring in to the exam any course materials I assigned or handed out and any notes or outlines you have prepared. You are prohibited from bringing in any commercial outlines or materials prepared solely by someone else.
- I have provided approximate time allocations for each of the questions, and they are weighted accordingly. You have three hours to complete the exam.
- Remember not to add facts to the problem. Apply the law we have learned to the facts I have provided. Make sure to present and analyze both sides’ argument for each issue.
- Relax. You are an excellent group. Do not lose your sense of humor or calm and you will do well. Read each question carefully (twice!). Then answer my questions, not yours! Keep your answer organized, using headers and paragraph breaks where appropriate. If you choose not to type your answer, please write clearly.
- Congratulations on completing your first semester of law school!
Civil Procedure I Final Exam
Question One [60 minutes/50 points]
Phil and Claire Dunfee live in Lexington, Kentucky. Phil is a real estate agent. Although the bulk of his business is in Lexington, he does a substantial amount of sales in Northern Kentucky, just outside of Cincinnati, Ohio. To that end, Phil advertises vigorously on Cincinnati television stations, urging viewers to contact him for “great deals just over the river.” Phil also travels to Cincinnati frequently, either to visit potential clients or go to a Cincinnati Reds baseball game. Claire, on the other hand, rarely visits Ohio.
Phil and Claire’s favorite holiday is Halloween. In fact, they love Halloween so much that every year they create the city’s best-known Haunted House for trick-or-treating. Each year they have a different theme, but the main characteristics are always the same: ghosts, ghouls, and goblins will jump out at trick-or-treaters as they ask for candy. The Dunfees delight in scaring children in the spirit of Halloween.
For the 2009 Halloween, the Dunfees decided to create their best Haunted House yet. After over a month of planning, they were ready. They used fog machines, strobe lights, and spooky decorations to set the mood. They also recruited other family members to dress up to scare the kids. In particular, Claire’s dad, Jay, and his Colombian wife, Gloria, wore costumes and yelled “boo” as trick-or-treaters walked by. Jay, who had fake blood splattered all over his face and body, carried a chainsaw and would sometimes run after the kids while screaming at them. Phil and Claire also asked Claire’s brother, Mitchell, and his boyfriend, Cam, to help, but they stayed inside as they argued about whether Cam should tell the rest of the family why Halloween depressed him. Jay, Gloria, Mitchell, and Cam all live in Ohio and came down to Lexington to help Phil and Claire on Halloween.
Phil and Claire also decided to enhance their Haunted House with a machine, called the Spook-O-Matic. Phil first saw the Spook-O-Matic at a Halloween store called “Halloween Fun!” in Cincinnati, Ohio that he visited when on business there. At the store he asked the clerk numerous questions about the product and took home a product brochure. He then took Claire to a Lexington branch of the same Halloween store, where they purchased the product. The Spook-O-Matic looks like a normal candy bowl, but when a kid puts his or her hand in the bowl to take some candy, the bowl vibrates, shakes, and has sparks fly out. It also talks to the child, with phrases in ominous sounding tones such as “I’m going to get you!” Phil and Claire tested the Spook-O-Matic on their own children, and although older daughters Haley and Alex were not very impressed, son Luke jumped back and yelled out a cry when the machine began sparking. Phil and Claire were thrilled at how much the Spook-O-Matic would help to create a scary mood for Halloween.
The first hour of trick-or-treating on Halloween on October 31, 2009, went exactly as planned. Kids came for trick-or-treating and were generally scared by the Dunfees’ Haunted House. They also squealed in both excitement and terror when the Spook-O- Matic sparked at them or spoke to them. The Dunfees knew that their Halloween Haunted House was bringing out the best in Halloween spirit.
Civil Procedure I Final Exam
On October 30, 2011, Lilly amends her complaint and properly serves all parties.
First, she adds a new count against Phil for intentional infliction of emotional distress, which has a two-year statute of limitations. This part of the complaint reads as follows:
- Defendant Phil Dunfee intended to cause the plaintiff emotional harm by creating a dangerous Halloween Haunted House. Specifically, Defendant sought to scare young children, such as the plaintiff.
- Plaintiff Lilly visited the Defendant’s Haunted House on October 31, 2009, for the purpose of trick-or-treating and became scared at both the decorations and people trying to startle her.
- As a result of Defendant’s inappropriate Haunted House, Plaintiff suffered severe emotional injuries that required psychological treatment.
- Plaintiff seeks damages in the amount of $50,000 for her emotional injuries.
Second, Lilly amends her complaint to substitute Jay for Mitchell as a Defendant. She explains in her motion that she originally believed Mitchell was the person who ran at her with a chainsaw, but she recently learned that it was actually Jay. Recall that Lilly had sued Mitchell for negligence, which in Ohio has a one-year statute of limitations, and sought damages of $200,000.
Third, Lilly’s motion to amend seeks to add Dylan as a plaintiff. Dylan wishes to assert his own claim against Phil for negligent infliction of emotional distress in the amount of $100,000. This claim has a two-year statute of limitations.
Finally, Lilly seeks to add Spook-O-Matic, Inc. as a defendant and assert a claim against it for negligent design, which has a four-year statute of limitations. She seeks $100, in damages.
Spook-O-Matic, Inc. is incorporated in Delaware, but its main factory, and most of its employees, are in Texas. However, its three top executives all work out of a small office in Florida. From Florida, they manage the company, overseeing its finances. They delegate to the Texas regional manager all advertising and logistics for product delivery. Spook-O-Matic, Inc.’s only product is the Spook-O-Matic machine such as the one the Dunfees purchased. They sell the product exclusively through a company called “Halloween Fun!”, which has stores in the South and Midwest. Spook-O-Matic’s contract with “Halloweeen Fun!” states that “Halloween Fun!” will carry the Spook-O- Matic in all of its stores. The executives at Spook-O-Matic, Inc. were aware when they entered the contract that “Halloween Fun!” currently has stores only in Florida, Texas, Oklahoma, Missouri, Kentucky, Indiana, and Ohio, but that “Halloween Fun!” plans to expand nationwide. In addition, “Halloween Fun!” put up advertising billboards in all of the states in which it currently has stores, and, with Spook-O-Matic, Inc.’s consent, each
Civil Procedure I Final Exam
billboard stated “We now carry the new and improved Spook-O-Matic to make your Halloween decorations truly scary!” Sales from Ohio and Kentucky combined comprise over 60% of Spook-O-Matic, Inc.’s total revenue.
Phil then files his own claim, within the same lawsuit, against Spook-O-Matic, Inc. He alleges both that Spook-O-Matic, Inc. should be liable for any damages he must pay to any of the plaintiffs, and also that Spook-O-Matic, Inc. is liable to the Dunfees for damage to their property based on the incident when the machine shorted their electricity. He seeks $25,000 for the electrical damage to the Dunfees’ home. Phil also files a claim against Dylan for $100,000 for fraudulently stealing Phil’s business idea for a special head massager and seeks an injunction to prevent Dylan from creating and selling a similar product.
Phil, Jay, Spook-O-Matic, Inc., and Dylan all timely file appropriate responses, making any relevant objection to the claims against each of them. You are a law clerk for the Judge assigned to this case. She has asked you to sort out all of the relevant issues and write a memo detailing how she should rule. She reminds you that although she wants a recommendation on how to rule, she also needs to understand each party’s arguments on each issue. Write the memo.
Question Three [30 minutes/25 points]
[This question builds on the facts from the previous two questions.]
Assume that, in addition to the other claims, Phil’s lawsuit against Dylan moves forward. Haley files a motion to intervene in the case. She claims that she and her Dad, Phil, came up with the idea for the special head massager together, and that therefore Dylan stole the idea from her as well. She says that she will suffer financially if Phil loses the case and Dylan is allowed to sell his product. She therefore wishes to enter the case to protect her business idea.
In her motion, Haley includes the following statement: “Dylan is a no-good, lying, cheater. He cheated on me with another woman in Ohio. This proves his terrible moral character, which demonstrates that he is the type of person who would steal a great business idea like the head massager my Dad and I created.”
You represent Dylan. He tells you that he never cheated on Haley, but that he broke up with her because he planned to move to Wyoming and live on a ranch. He surmises that she is upset at him for breaking up with her and is taking this action in court to retaliate against him.
How will you respond to Haley’s motion to intervene?
