CIVIL PROCEDURE: Final Exam

Brooklyn Law School

Prof. Jayne S. Ressler
Fall 2015
Wednesday, December 16, 1:00 p.m.

EXAM NUMBER: ______

General instructions

• This exam has 50 multiple choice questions and two long essay questions. Do not look at
the questions until you are told to do so. Once you are told that you may begin, make sure
that you have all the questions.

• You will have four hours (240 minutes) to complete the exam. You may allocate your time
however you wish. However, I have provided “suggested time” guidelines in each section.

• You may bring in and use your rule book (or an equivalent) and an outline to which you have
substantially contributed. Nothing else is allowed to be consulted during the exam. There
are no exceptions.

• You must hand in this test packet and the Scantron multiple choice answer sheet when
you are finished. Write your exam number on the test packet and Scantron multiple choice
answer sheet. DO THIS NOW.

• For all questions, unless stated or suggested otherwise, assume (1) that you are in a
jurisdiction in which the applicable rules of procedure are the current 1 Federal Rules of Civil
Procedure; (2) that the jurisdiction follows the majority approach (under the Federal Rules
of Civil Procedure) on any relevant issue; (3) that pleadings are filed and served (or that
service is waived) in a timely manner; (4) that people are U.S. citizens; and (5) that state
long-arm statutes extend as much as permitted under the U.S. Constitution.

• For all questions, do not consider the effect of any rules or statutes that were neither assigned
nor discussed in class.

Instructions for multiple choice questions

• On your Scantron answer sheet, fill in the bubble for the answer of your choice. Choose the
“best answer.” Only one “best answer” will be scored as correct.

(continued on the next page)

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An answer, if correct under either the Federal Rules of Civil Procedure as amended December 1, 2015, or the
immediately preceding version of the Rules, will be considered proper.
• Pay careful attention to what the question asks; some questions may ask you to find the
“most” or “least” likely result. If you feel that a question is somewhat ambiguous, resolve
the ambiguity by using common sense in light of what you have learned.

• If you think a question is unanswerable because of serious ambiguity or a lack of necessary

information, you can appeal the question. (You can appeal up to eight questions). Note your
appeal on the form on the last page of the exam (after the second essay question) and go
ahead and answer the question as best you can. If your answer is correct, your appeal
becomes moot. If not, I will read your appeal and decide whether to give you credit for the
question. If I decide to give a student credit, I will give that particular student credit—not
necessarily the whole class. Therefore, it is conceivable that two students will appeal the
same question, but because one student’s appeal is convincing and the other is not, I will give
credit to only one student.

• Your score on the multiple choice section is based on the number of questions answered
correctly; there is no penalty for guessing. However, on the essay questions I am interested
in quality. Therefore, you may be penalized for including information that is clearly
irrelevant to the question.

Instructions for essay questions

• If you chose to answer the essay by hand, write your exam number on your bluebook(s). DO
THIS NOW. If you use multiple bluebooks, label them sequentially in the following format:
“1 of 3,” “2 of 3,” etc.

• On any question, if you think you need more facts, explain how additional facts would affect
your answer. If you think a question is ambiguous in any other way, address the ambiguity
and explain how its resolution would affect your answer. If your answer in any part depends
on substantive law, as opposed to procedural law, simply explain that in your answer.

Grading the exam

• I will assign a point total to each exam, giving the multiple choice section 40% weight and
the essay section 60% weight. The law school’s standard grading curve will guide my
translation of the point totals into letter grades. After grades are posted, I will have sample
answers available in my office. After reviewing those materials (which must stay in my
office), please feel free to make an appointment to discuss the exam with me. I will not,
however, re-grade any part of your paper. Of course, if I have made a clerical error, I will
correct it.
 CIVIL PROCEDURE: Final Exam

Brooklyn Law School

Prof. Jayne S. Ressler
Fall 2015
Wednesday, December 16, 1:00 p.m.

DO NOT TURN THE PAGE UNTIL YOU ARE TOLD TO DO SO.

LONG ESSAYS

1. (suggested time: ~ 60 minutes)

Just Say No (“JSN”), Inc., is an Arizona corporation with headquarters in Tucson, Arizona.
JSN manufactures and distributes drug testing kits for use by employers. JSN’s website touts its
products as being able to detect all kinds of illegal drugs including marijuana, cocaine, and ecstasy,
with a 98% accuracy rate. The website also provides employers with a list of the benefits of
implementing drug testing, including: increased employee productivity, decreased sick days by
employees, decreased work-place injuries, and positive image in the community as a drug-free
workplace. The website has a secure ordering system so that orders can be placed over the web.
After an order is placed on the web, drug testing kits are shipped to the employer. Employers then
collect employees’ urine to be analyzed, and send the samples back to one of JSN’s laboratories,
located in Arizona, Florida, New York, and California. The lab results are then sent to the employer.
The kits sell for $80 each, which includes the laboratory processing fees. In addition to the website,
JSN markets its products through small advertisements in nationally circulated magazines, such as
Forbes and Fortune. JSN also has a small sales force of seven full-time employees, based in
Arizona, who make sales trips all over the United States.

Born This Way, Inc., a retail supplier of baby products, clothing and furniture, is a Delaware
corporation with headquarters in New York. It has retail locations throughout the eastern United
States.

Born This Way has used drug testing since 2000, both upon hiring new employees and
randomly on current employees. Until recently, Born This Way always used drug test kits
manufactured by Kite Corp. However, after a visit by a sales representative from JSN to Born This
Way’s offices in New York, Born This Way began using JSN kits in September 2014. The main
reason for the switch was that JSN convinced Born This Way that the JSN tests were more accurate
than the Kite tests, plus the JSN kits are less expensive. Born This Way has each individual store
purchase its kits directly from JSN. JSN then ships the kits directly to the different stores.

Stefani Germanotta had been employed by Born This Way as a cashier in its Paramus, New
Jersey store beginning in 2009. While she found the urine test she was required to take when she
was hired annoying and obnoxious, she really needed a job. Stefani was hoping to be a famous
singer, but things weren’t working out. She was drawn to Born This Way because of its emphasis
on products that make babies go “gaga.” Stefani was also so desperate for a job that she signed
whatever forms she needed to on her first day of work at Born This Way, including a form that said
she had “read and understood” the 50-page employee manual, including the “terms of employment
contained therein.” Those terms included a provision that “any and all litigation between employee
and Born This Way, Inc., shall be litigated, if at all, in and before a Court located in the State of
New York, U.S.A., to the exclusion of the Courts of any other state or country.”

In her nearly six years at the Paramus, New Jersey Born This Way, Stefani had been
selected for random drug testing twice, and both times her tests came back negative. Both of these
tests were done using Kite kits. In January, 2015, Stefani moved from Paramus, New Jersey to
Brooklyn, New York, mostly because her boyfriend moved there to attend Brooklyn Law School.
Fortunately, the Born This Way store in Brooklyn needed a cashier, so Stefani was able to stay with
Born This Way. In June, 2015, she was selected again for random testing. This time, however, her
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drug test, a JSN test processed by the JSN lab in Arizona, came back positive for marijuana. As a
result of Born This Way’s zero tolerance policy, Stefani was fired immediately. Stefani and her
boyfriend had recently broken up (he was spending too much time studying civil procedure) and so,
devastated and broke, Stefani moved back to New Jersey to live with her parents in Paramus where
she had grown up.

After reading a story about how various drug tests used by employers can be inaccurate,
Stefani contacted Dwayne Washington, a plaintiffs' attorney specializing in employment issues. Mr.
Washington contacted both Born This Way and JSN on Stefani's behalf, attempting to get Stefani
her job back as well as payment for lost wages. Born This Way reiterated its zero tolerance policy
and refused to offer any kind of position to Stefani or to consider giving her back pay. For its part,
JSN stood by its product, asserting that for marijuana “positives” its kits had been proven through
clinical tests to be 99% accurate.

The JSN attorney told Mr. Washington that JSN has shipped 40 kits into New Jersey, from
two different orders placed over the website, one order (for 10 kits) from Office Max in Short Hills,
New Jersey, and one order (for 30 kits) from Security Systems, Inc., in Camden, New Jersey. JSN's
web server logs show that approximately 400 “hits” to the web site have come from Internet
addresses located in New Jersey. JSN sales representatives have visited New Jersey on four
occasions, each time for less than a week with no sales yet resulting from those visits. Additionally,
the Paramus, New Jersey Born This Way has ordered only 8 kits from JSN.

Because his conversation with company representatives were getting him nowhere, Mr.
Washington decided to show how serious he was. He prepared a complaint to be filed in New
Jersey state court, alleging negligence on the part of both Born This Way and JSN and seeking
$24,000 in compensatory damages (which includes $22,000 for lost income since the firing and
$2,000 in moving expenses to move back to New Jersey from Brooklyn), $1 million in punitive
damages, and an injunction prohibiting Born This Way from using JSN’s drug testing kits. The
complaint demanded a jury trial of all issues.

On July 26, 2015, Mr. Washington faxed a copy of the fully prepared complaint to attorneys
for both companies. That same day he received a faxed response letter from an attorney for Born
This Way that stated simply, “received your fax, sorry to hear it has come to this.” In a phone call to
the attorney for JSN, placed the morning of July 29, 2015, Mr. Washington inquired whether the fax
had been received, to which the JSN attorney replied “get a life” and hung up.

On July 30, 2015, Mr. Washington filed the complaint in New Jersey state court in Paramus.
He then sent a fax to both attorneys saying, “The complaint that I faxed to you four days ago was
filed in New Jersey state court today. Will you accept service for your clients?” After receiving no
response to this fax, Mr. Washington had the complaint and summons served on corporate
representatives for Born This Way and JSN by hired process servers in New York and Arizona,
respectively. Both corporations were properly served on August 4, 2015.

On August 28, 2015, the defendants filed a joint notice of removal. The case was then
assigned to Federal District Judge Harry Cheng, whose chambers are in Paramus, New Jersey. On
August 31, 2015, Stefani filed a motion to remand.

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 (a) Without concerning yourself with venue issues for purposes of this question,
how should the court rule on Stefani’s motion and why?
On September 2, 2015, the District Court denied Stefani’s motion to remand (do NOT let
this ruling influence how you answer the first question). On September 15, 2015, JSN filed a
12(b)(2) motion to dismiss for lack of personal jurisdiction. On September 16, Born This Way also
filed a 12(b)(2) motion to dismiss for lack of personal jurisdiction. Born This Way argued in its
motion (assume that is procedurally proper to do so in the 12 (b)(2) motion – do not concern
yourself with Atlantic Marine Construction Co. v. United States District Court) that in addition to
lack of personal jurisdiction, the clause in the employment agreement that Stefani signed requires
that any suit be brought in New York, and that New York law must be applied.

(b) How should the court rule on these two motions and why?

On October 18, 2015, the District Court denied all of the motions and declared that the case
would stay in federal court in Paramus, New Jersey (again, do NOT let this influence your answers
above). Assume that Stefani properly demanded a jury trial in her Complaint, according to rule 38.
The defendants allege that Stefani is not entitled to a jury.

(c) Is she? Explain.

CONTINUE TO THE NEXT PAGE – THE ESSAY SECTION IS NOT OVER

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2. (suggested time: ~ 60 minutes)

Bassel Qabbani is Syrian student who came to the United States to study physics. He
arrived in New York and was here about a week when he decided to buy a Segway to better get
around town (a Segway is a personal transporter, as seen in this photo – no, it’s not the ship!):

Bassel was riding his Segway in Brooklyn one day when he collided with a car driven by
Donald Drump. After the accident, Drump got out of his car and cursed Bassel, who was lying in
the street. Bassel mumbled an apology (“asif”). Hearing that Bassel spoke in Arabic, Drump said,
“You stupid terrorist foreigner, why don’t you learn how to ride? Were you trying to hit me? I
can’t believe we let you on our streets. We need to build a wall to keep all of you people out!
(unless of course you are a woman who I might want to marry).” Drump leaned over Bassel,
pointed a finger in his face, and shouted, “You’d better get out of here before I kick your pathetic
butt back to the desert where it belongs! We need to make America great again!”

Drump’s car, body, and hair suffered no significant harm. Bassel appeared physically fine,
but he realized on the day of the accident that his Segway had suffered significant damage. In
addition, Bassel’s feelings were greatly hurt by Drump’s remarks, and he experienced several
sleepless nights after the incident, developing what his doctor determined to be painful “cluster”
headaches from the stress. Bassel incurred thousands of dollars of medical expenses, all within two
weeks of the accident.

Bassel has decided to sue Drump for negligently harming his Segway. Represented by an
attorney, he sues in federal court based on diversity jurisdiction and requests compensatory
damages for injury to his property. (Assume that he meets all requirements for jurisdiction,
including the amount in controversy). Under the governing state substantive law (do not concern
yourself with Erie issues for purposes of this problem), the statute of limitations for filing
negligence actions is one year, and the statute of limitations for filing actions based on intentional
torts is two years. (Each statute runs from the date of reasonable discovery of the claim. Neither
statute provides anything about relation back). Bassel files his negligence suit one year and three
weeks after the collision, beyond the limitations period; his complaint is served on Drump one
month later. (Service is proper and timely).

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 (a) What would you advise Drump about his immediate procedural options for defending
against Bassel’s claim and why?

Because of a heavy docket, the court is unable to address any aspect of this suit for more
than one year after Bassel filed his complaint. Eventually, two years and one month after the
accident, the court holds a hearing on Drump’s efforts to defend against Bassel’s claim. (I have
made the end of that sentence purposely vague in light of different ways you might have responded
to part (a)). At the hearing, Bassel senses that the court will likely throw out his claim.
Immediately after the hearing, before any ruling, he files and serves a motion for leave to file an
amended complaint adding a claim for intentional infliction of emotional distress (“IIED”), which is
an intentional tort. The amended complaint alleges that Drump’s intentional words and conduct
right after the accident caused Bassel’s headaches and emotional distress. (Bassel does not allege
that Drump intentionally caused the collision).

The court then issues a decision dismissing the original complaint because it was not filed
within the statute of limitations period for negligence actions. The court also announces that it will
not yet rule on whether Bassel has leave to file the amended complaint. Drump files and serves a
response to Bassel’s motion for leave to file an amended complaint, arguing that Drump should not
be allowed to amend his complaint to add the IIED claim because the IIED claim too is barred by
the applicable statute of limitations.

(b) Assess the likely arguments for and against Drump’s position, and explain how you think
the court should rule and why. Assume for part (b) that Drump has already filed and
served an answer to the original complaint. Is there something particular about the timing
of Bassel’s original negligence claim, as it relates to Bassel’s desire to amend his complaint
to add the IIED claim, that could work in favor of Drump’s argument against allowing
Bassel to amend his complaint?

Assume now that, rightly or wrongly, Bassel’s IIED claim survives the pleading stage.
Bassel hires a medical doctor, Kenneth Rose, who is an expert on cluster headaches. Bassel plans
to call Dr. Rose at the trial to testify that Bassel’s cluster headaches likely arose from emotional
distress caused by the incident with Drump. Drump hires a psychologist, Dr. Richard Jackson, who
purports to be one of the few world experts on whether remarks disparaging one’s nationality or
heritage cause emotional distress. After consulting with Dr. Jackson, Drump is chagrined to learn
that in Dr. Jackson’s opinion, it is highly likely that the insensitive nature of Drump’s remarks did
cause Bassel’s emotional distress. (Assume that no Rule 35 examination has been ordered).

(c) What disclosures, if any, must Bassel and Drump make (without being asked) about
the experts they hired? What are the likelihoods that Drump will be able to depose Dr.
Rose and that Bassel will be able to depose Dr. Jackson and why?

At trial, in front of a jury, Bassel introduces plenty of evidence supporting the elements of
the IIED claim other than causation. But his only evidence that his headaches and medical expenses
were caused by Drump’s post-accident intentional conduct rather than by Drump’s negligent
driving or some other factor is the following testimony by Dr. Rose: “Bassel’s headaches and
medical expenses were almost certainly caused by some aspect of the incident with Drump on the
day in question. Whether they were caused by Drump’s conduct after the accident or rather by the
accident itself is harder to say. Either one could have been the cause.”
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(d) At the close of Bassel’s case, what motion would you advise Drump to make and why?
Discuss whether the motion would likely succeed.

END OF EXAM!!! Happy and healthy holidays to all! Thanks for a terrific semester! It has been
my great privilege to work with you!

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 Multiple choice: Appeals

• If you think a question is unanswerable because of ambiguity or a lack of relevant information,

you can appeal the question. Note your appeal on this page in a sentence or two and go ahead
and answer the question as best you can. If your answer is the “correct” answer, your appeal
becomes moot. If not, I will read your appeal and decide whether to give you credit for the
question. If I decide to give a student credit, I will give that particular student credit—not
necessarily the whole class. Therefore, it is conceivable that two students will appeal the same
question, but that because one student’s appeal is convincing and the other is not, I will give
credit to only one student.

• You may appeal no more than eight questions. You should not be spending too much of your
time during the exam writing appeals.

• When appealing a question, keep in mind what the available choices are for answers.
Sometimes an ambiguity might make you wonder whether a different answer is the best answer,
but if that answer is not an alternative, then the ambiguity is irrelevant.

EXAM NUMBER: ______

question number reason for appeal

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