Final Exam (Both Sections)

Exam Instructions. Sec. A Assignments. Sec. B Assignments.

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Good luck.

FInal Exam Assignments--Section A

After the Jump.

Final Exam Assignments--Section B

After the jump.

Final Exam Instructions

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Civil Procedure

Professor Howard Wasserman

FIU College of Law

Spring 2025

Final Examination

Format:

 

This is a take-home final examination. It consists of sixteen (16) questions. You will answer three (3).

   • One question requires a short answer (it should take you fewer than 45 words) and is worth twenty (20) points. Everyone will answer this question. It is clearly identified.

   • One question requires an essay of a maximum of 1000 words. It will involve forum selection. It is worth fifty (50) points. It will be randomly assigned,

   • On question requires an essay of a maximum of 1000 words (although you may need fewer words). It  will involve some other issue from the class material. It is worth fifty (50) points.

 

Assignments will be posted on the FIU Civ Pro Blog (www.fiucivpro.blogspot.com) at 9 p.m. Sunday, April 27, 2025.

 

The exam will be available for download from the FIU Civ Pro Blog (www.fiucivpro.blogspot.com) at 9 a.m. Monday, April 28, 2024; papers are due outside my office by 1 p.m. on Tuesday, April 29, 2024. You have 28 hours to work on this exam, which is more than you will need. You cannot work for 28 hours; don’t try.

Study Break

The original blog posts for the class included this video from two prior FIU students (this was their creative project) and this video from a former student at Indiana University. I said they would make no sense in January. But I promised that you would understand everything by the end of the class.

And so you do.

Final Creative Projects (Section B)

Links to the two projects we were unable to present today. My apologies for the tech glitches.

Sarah and Francis 

Zach and Garrett

Essays ## 9 and 10

Available outside my office after 10 a.m. Wednesday.

Sec. A:

Essay # 9: Mean: 17.93; Median: 17

Essay # 10: Mean: 19.64; Median: 19

Sec. B:

Essay # 9: Mean: 17.85; Median: 19

Essay # 10: Mean: 19.43; Median: 20 

Final Classes

Section B, Section A.

Sec. B Q&A begins at 10 a.m. Friday in RDB 2006. Sec. A Q&A begins at 1 p.m. Friday in RDB 2008. You may attend the session for both sections, although the first 30 minutes-or-so will be devoted to creative projects.

Send me recorded and other online projects. If you did something visual and non-interactive, please print it out to display in the room. Make sure the name of all participants is on it.

The exam will post here at 9 a.m. Monday. It is due outside my office by 1 p.m. Tuesday.

Claims and Defenses

Cunningham v. Cornell University (decided last week) offers a different angle on the differences between claim elements and affirmative defenses and the pleading consequences of each.

The case shows a piece we did not discuss in class--the role of statutory interpretation in figuring out which is which. Where § 1 of a statute prohibits some conduct and § 2 provides exemptions from § 1, the best reading is that § 1 lays out the elements the plaintiff must plead and § 2 is an affirmative defense.

The case also discusses the role of FRCP 7(a)(7) and replies to answers as a mechanism to control weak cases. A court can order a plaintiff to file a Reply to an Answer without a request, allowing a 12(c) motion to resolve the affirmative defense early in the case.

For Final Class on Monday

Part II of Section B audio glitched out; here is Part I. Section A--Part I, Part II. Both classes cover the same material, so everyone can use the Section A audio for both parts.

Essays ## 9 and 10 due at the start of the Monday make-up classes (11 a.m. Section B, 4 p.m. Section A). Essay # 8 outside my office.

Quick clarification on # 4: The prevailing view rests with the plaintiff--Rules 12 and 56 occupy the field and leave no room for the state law motion.

For preparation:

    • Return to Puzzle # 1. What is the argument that the state disclosure law should apply? Consider the (likely) purposes behind that law--what is the legislature trying to achieve by requiring disclosure of funders?

    • What is the argument for the invalidity of FRCP 15(c)(1)(B) and (C)?

Finally, here is the additional problem; this presents a question about the source of judicial analysis that matters to the § 1652 question.

Doe v. X (SD Fla).

    A sues X for sexual battery. A wishes to proceed pseudonymously as "Doe," rather than including her real name in the caption of the complaint. (Her identity would be disclosed to the court and the parties--it just would not appear in the complaint). State law provides that victims of sexual torts can sue under a pseudonym; federal courts apply a multi-factor balancing test, balancing the plaintiff's reasonable fear of harm from litigating under her own name against the presumptively open nature of judicial proceedings.

    What are the arguments and analysis in both directions--in favor of state law applying and against state law applying? Again, consider why the rules exist and what they seek to achieve.

For Friday (Double Session)

Thursday audio--Section A, Section B.

With the analytical framework presented in class Thursday (derived from §§ 1652 and 2072, Erie, and Hanna and as elaborated upon in the Glannon reading), work through these cases. You can also work through the problems in Glannon to help, as they show much of the same analysis.

Each case involves a state law claim in federal court on diversity jurisdiction (the necessary predicate to ever having to do an RDA/REA/Erie/Hanna analysis). Each case introduces a state-law provision; the question is whether the federal court must apply that provision.

In prepping, consider how each issue arises procedurally--what parties do to trigger consideration of choice of law and what law will apply. Unless indicated otherwise, it is on you to figure out what federal laws or FRCP provisions are in play based on your knowledge of the rules (hint: Some discuss rules we have learned, others require you to identify and interpret new rules in the FRCP--you are familiar enough with the rules as a whole). You must consider (even if speculating) the underlying purpose of both the federal law (whether FRCP, statute, or judge-made rule) and the underlying purpose of the competing state law--what are the various rules designed to achieve. To the extent you see two possible answers to a problem (including competing paths through the analysis or competing conclusions), be ready to argue both.

Be ready to walk through the analysis beyond the broad outline from the board--use the precise language from the rules, statutes, and cases.

For Thursday

Wednesday audio--Section A, Section B. Essay ## 9 and 10 due in class on Monday, April 21.

Couple points of clarification on Venue:

    1) § 1391(b)(3) says "if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action." That does not mean you apply (b)(3) if (b)(1) and (b)(2) are not satisfied as to the current district. You turn to (b)(3) in the chosen district only if no other federal district satisfies (b)(1) or (b)(2). If another district satisfies either--even if it is not the district in which the plaintiff seeks to bring the action--then the first part of (b)(3) is not satisfied and cannot be used to establish venue in the current district.

    2) Here is Fla. Code § 1.061, which codifies Forum Non Conveniens in Florida.

    3) Here is § 1.060, which covers transfer between trial courts of Florida. Because it is within the same sovereign, it is transfer rather than FNC dismissal.

    4) Review FN 6 from Atlantic Marine here. Your "rule" for transfer and FNC is both this and the language from Glannon (citing Gilbert).

We move to Erie, which I confess is my favorite part of the class. It also provides a nice way to review everything that we have covered this semester.

For tomorrow, prep Introduction and History, which will cover Erie itself, then Modern Approach, which will be all about Hanna and the analytical framework that comes from that case. The Glannon reading and problems (pp. 193-211 and 213-32) will be really helpful in preparing and understanding this. Read § 1652 and §§ 2072 and 2074 very carefully and understand what they are about, as well as the assigned constitutional provisions. Consider:

    • What does the Rules of Decision Act say and mean?

    • What was the issue in Erie and what were the different answers in federal court and state court under Swift? Who wins in Erie, given resolution of the choice-of-law issue?

    • Erie overrules Swift in four steps--what are they? What is forum shopping and why is it problematic? What is the difference between "horizontal" forum shopping and "vertical" forum shopping? 

    • If a federal court must predict how the state supreme court would resolve an issue, what can it look to in deciding that?

    • Under Hanna, what is the connection between the RDA and the Rules Enabling Act? 

    • What are the "twin aims of Erie?"

    • What is procedure? What is substance? What are the 3 types of rules we might have under Hanna?

I hope to go through the two cases and the framework in tomorrow's extended class. Then we will spend Friday's double session and Monday's class working through a series of puzzles that show how this all works.

Essays ## 9 & 10 (Sec. B)

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Essays ## 9 & 10 (Sec. A) (Updated)

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A technical glitch caused Section B's essay to post twice. This is the proper essay for Section A. Given the time gap, you have until 4 p.m. next Monday, April 21 (the start of our make-up class) to turn this in.

Final points on personal jurisdiction

Now that we have completed PJ, I want to flag some things beyond our in-class conversation but that might be helpful.

• See Glannon pp. 149-51 for an example of a permissible Quasi-in-Rem II action after Shaffer (where the property must relate to the claim).

• Here is FN 19 in Daimler:

We do not foreclose the possibility that in an exceptional case, see, e.g., Perkins, described supra, at 10–12, and n. 8, a corporation’s operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in that State. But this case presents no occasion to explore that question, because Daimler’s activities in California plainly do not approach that level. It is one thing to hold a corporation answerable for operations in the forum State, see infra, at 23, quite another to expose it to suit on claims having no connection whatever to the forum State. 

This leaves open the possibility that a court might exercise general jurisdiction outside where a defendant is "essentially at home." But it would have to be a case analogous to Perkins--a company that relocates its office when its home country is invaded during a World Are; that seems unlikely. No court since Daimler has found an exceptional case. Courts generally do not even consider the prospect in the analysis.

• Here is FN 20 in Daimler:

To clarify in light of Justice Sotomayor’s opinion concurring in the judgment, the general jurisdiction inquiry does not “focu[s] solely on the magnitude of the defendant’s in-state contacts.” Post, at 8. General jurisdiction instead calls for an appraisal of a corporation’s activities in their entirety, nationwide and worldwide. A corporation that operates in many places can scarcely be deemed at home in all of them. Otherwise, “at home” would be synonymous with “doing business” tests framed before specific jurisdiction evolved in the United States. See von Mehren & Trautman 1142–1144. Nothing in International Shoe and its progeny suggests that “a particular quantum of local activity” should give a State authority over a “far larger quantum of . . . activity” having no connection to any in-state activity. Feder, supra, at 694.Justice Sotomayor would reach the same result, but for a different reason. Rather than concluding that Daimler is not at home in Cali- fornia, Justice Sotomayor would hold that the exercise of general jurisdiction over Daimler would be unreasonable “in the unique circumstances of this case.” Post, at 1. In other words, she favors a resolution fit for this day and case only. True, a multipronged reasonableness check was articulated in Asahi, 480 U. S., at 113–114, but not as a free-floating test. Instead, the check was to be essayed when specific jurisdiction is at issue. See also Burger King Corp. v. Rudzewicz, 471 U. S. 462, 476–478 (1985). First, a court is to determine whether the connection between the forum and the episode-in-suit could justify the exercise of specific jurisdiction. Then, in a second step, the court is to consider several additional factors to assess the reasonableness of entertaining the case. When a corporation is genuinely at home in the forum State, however, any second-step inquiry would be superfluous.Justice Sotomayor fears that our holding will “lead to greater unpredictability by radically expanding the scope of jurisdictional dis- covery.” Post, at 14. But it is hard to see why much in the way of discovery would be needed to determine where a corporation is at home. Justice Sotomayor’s proposal to import Asahi’s “reasonableness” check into the general jurisdiction determination, on the other hand, would indeed compound the jurisdictional inquiry. The reasonableness factors identified in Asahi include “the burden on the defendant,” “the interests of the forum State,” “the plaintiff’s interest in obtaining relief,” “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,” “the shared interest of the several States in furthering fundamental substantive social policies,” and, in the international context, “the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction.” 480 U. S., at 113–115 (some internal quotation marks omitted). Imposing such a checklist in cases of general jurisdiction would hardly promote the efficient disposition of an issue that should be resolved expeditiously at the outset of litigation. 

So two things to take away from this: 1) The FN accepts the two-step Shoe analysis--minimum contacts followed by a reasonableness analysis (it skips the give rise prong, but it's implicitly there). In other words, the "squishy balancing" is part of the analysis, contra the hesitancy in McIntrye and Ford. 2) There is an open question whether a court must do the traditional notions balancing even when defendant is at home; Ginsburg's answer is that this would be superfluous--if the defendant is at home, of course it is not unreasonable because there can be no burden.

• Finally: This is a bit dated (from 2006) given the run of recent cases, but it is amazing:

For Wednesday

Friday audio: Section B I; Section B II; Section A. Essay # 8 due Wednesday. Essays # 9 and 10 will post on Monday; due on Monday, April 21. (Please make sure you do the correct essay for your section). 

Thank you for your patience and effort the past two days. It was a lot to get through and I am glad we got through it.

Prep all of Venue, Change of Venue, Forum Non Conveniens--note the several statutory provisions to really parse and arrange to see how they fit together; work through the venue analysis for yourself. Here is FN 6 in Atlantic Marine (the note is attached to the end of the first sentence of Part III.A); compare this with Glannon pp. 182-85:

Factors relating to the parties’ private interests include “relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Piper Aircraft Co. v. Reyno, (internal quotation marks omitted). Public-interest factors may include “the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; [and] the interest in having the trial of a diversity case in a forum that is at home with the law.” Ibid. (internal quotation marks omitted). The Court must also give some weight to the plaintiffs’ choice of forum. See Norwood v. Kirkpatrick.

    • What is the difference between improper venue and change of venue--in terms of how they are raised, what they argue, and the appropriate remedy?

    • How do venue rules relate to removal of an action from state court? 

    • What is the difference between § 1404 and forum non conveniens? How are they the same? What are the three steps in the analysis?

    • Look at VOA: Is venue proper in ND Cal and why?

  • Burger King is sued in the Southern District of Florida and the Middle District of Florida. How would the venue and PJ analyses differ in those two cases? 

For Friday

Thursday audio: Section B; Section A I; Section A II. 

Here is the Notice of Removal in Worldwide. Again, because of § 1446(c)(1) (enacted post-1980), this could not happen today.

Finish Modern Approach--Nicastro, Burger King and Walden. Then prep the remaining sections of Personal Jurisdiction.

    • Did Nicastro resolve which is required (hint: count the votes). Where can Nicastro sue, if not New Jersey? Does FRCP 4(k)(2) have anything to say on this?

    • How does a contract create minimum contacts? What is the test and what are the jurisdictional facts in BK?

    • What is the "effects test" for PJ? How does Walden distinguish Calder?

    • Why would there by jurisdiction over Roper (the Walmart driver) in Morgan?

    • What is the difference between general and specific jurisdiction? When is a defendant subject to general jurisdiction according to Daimler? How does the question of specific or general jurisdiction fit into the Shoe framework? What happens if there is no specific jurisdiction?

    • How do property-based actions (in rem and quasi in rem) fit in the Shoe framework? (Review the old Glannon pages on property-based jurisdiction, as well as the Preliminaries of Personal Jurisdiction). Is there jurisdiction over the following:

    • How is personal jurisdiction analyzed for a non-US citizen? What about for a US citizen sued in another country?

    • State law requires entities to register to do business in the state and provides that registration constitutes submission to the jurisdiction of the courts of the state for all purposes. Valid?

Analyze jurisdiction in the following case, walking through the full analysis we have on the board: Clemens v. McNamee:

Clemens (TX), a former MLB pitcher, sues McNamee (NY), his former personal trainer for defamation in Texas state court. McNamee removes and moves to dismiss for lack of personal jurisdiction.

McNamee made a series of statements about administering performance-enhancing drugs to Clemens. He made the statements to MLB investigators in New York and to a reporter from Sports Illustrated during an interview in New York. The statements described administering the drugs to Clemens in New York and Toronto while playing for teams in those cities.

McNamee and Clemens had a long-standing relationship. Over the years McNamee traveled to Texas more than 35 times to work with and train Clemens.

Texas has the same catch-all long-arm statute as California.

Essay # 8 (Both Sections)

Download Regular Type; Download Large Type; Read after the jump. Due in class on Wednesday, April 16.

For Wednesday

Friday audio--Section A, Section B.  Essay # 7 due on Wednesday. Essay # 8 will post on Wednesday, due on Wednesday, April 16.

Two quick words on removal with multiple defendants in § 1446(b)(2).

    • Section (b)(2)(A) imposes unanimity--all defendants must agree to remove. But note that this is limited to defendants who have been joined. If ∆1 is served on June 1, it can remove without ∆2's consent if ∆2 has not been served.

    • Section (b)(2)(B) gives each defendant 30 days from service to remove (to file or join a Notice of Removal). But what happens if the defendants are not served at the same time, often months apart--what if ∆1 is served on June 1 and ∆2 is served on August 15 (past the time that ∆1 could remove)? Congress enacted (b)(2)(C) in 2011 and adopted the "Last-Served Defendant" Rule: The last-served defendant has 30 days to remove; any earlier-served ∆ can consent to that removal, even if his own 30 days to remove have lapsed. So in the example above--∆2 has 30 days from August 15 to remove; ∆2 can consent to that removal, although it no longer can join.

Move to Personal Jurisdiction. Before doing anything, read Preliminaries of Personal Jurisdiction blog post for background. Then prep all of Shift to Minimum Contacts, including Glannon pp. 93-100Read and prep all of World Wide Volkswagen. Review FRCP 12(h)(1).

    • How can each party consent or submit to a court's jurisdiction? 

    • How does Shoe change the standard for personal jurisdiction? When can a court exercise personal jurisdiction over a defendant?

    • What is general personal jurisdiction, what is specific personal jurisdiction, and how do they differ? Look at Shoe and Daimler on this.

    • What is a "Long Arm Statute?" Why call it that?

    • How does the PJ analysis in federal court compare with the PJ analysis in state court? See FRCP 4(k).

    • Consider two cases. For both, review the removal statutes and piece together the removal process to understand how it will work in the case:

        1) A (TX) sues X (NY) for defamation Texas state court; the amount in controversy exceeds $ 75,000. You are X's attorney. You do not believe X is subject to personal jurisdiction in Texas. Your forum preferences, in order, are: 1) anywhere other than Texas; 2) federal court in Texas (if stuck in Texas); 3) state court in Texas (where he now is). As X's lawyer, what is your procedural strategy to obtain the most preferable forum?

        2) World Wide:

            Robinson (NY) sued Audi (a German company), Volkswagen of America (the US subsidiary, a NJ corporation with PPB in NJ), World-Wide Volkswagen (the regional distributor, a NY corporation), and Seaway (local dealer, a NY corporation). Robinson sued in Oklahoma state court. Audi and VWA are subject to PJ in Oklahoma, but prefer federal court. How can they make that happen?

            Also, Robinson and his family were driving through Oklahoma as part of a permanent move from NY to Arizona; Robinson had a new job and the family planned to stay in Arizona permanently. Why is Robinson a NY citizen?

    • How does World Wide adjust the two pieces of the Shoe standard and how do the two connect? How does a defendant establish "certain minimum contacts?" How can a defendant "purposefully avail?" In what way(s) did WW and Seaway, perhaps, purposefully avail?

Personal Jurisdiction Preliminaries

On Wednesday, we jump into into Personal Jurisdiction with International Shoe in 1945. But there is some background and about 70 years of stuff before Shoe. For purposes of time, this post provides basic background on civil litigation and personal jurisdiction prior to Shoe. Before reading the material assigned for Wednesday, read this post in conjunction with Glannon pp. 69-71 and these pages from Glannon's prior edition (he removed this material from the current edition, but has given permission to share the old pages).

For Thursday

Wednesday audio--Section A, Section B. Essay # 7 has posted. Essay # 8 will post on Thursday.

Review Supplemental Jurisdiction.

    • If VOA is also from Massachusetts, there is no supplemental jurisdiction over the hypothetical old contract claim. But what about the actual state claims over the 2012 BSO season?

    • Ford (p.457) says § 1367(a) reaches the limits of Article III. What does that mean?

     • What is the connection between § 1367(a)'s standard and the standard for joinder in FRCP 13(a), (b), and (g); 14(a), and 20? There are 3 logical possibilities--what are they and which does Jones adopt? What does that mean for the counterclaim in Jones? What about the counterclaim in Kinsmann ((review our discussion of that from Responsive Pleadings).

    • Does § 1367(b) apply in Godin? What are the "jurisdictional requirements" of § 1332?

    • § 1367(b) identifies 3 categories of cases in which there is no supplemental jurisdiction. What do they have in common? Does § 1367(b) limit supplemental jurisdictional in the following (assume joinder is proper in all):

        • Metta wants to file a crossclaim against Nicely.

        • A (IA) v. X (NE). X (NE) impleads M (IA). A wants to file a claim against M.

        • A (FL) v. X (NY) and Y (FL) 

        • A (NJ) & B (DE) v. Walmart (DE/AR).

                (See also the discussion in Glannon (p.270) on this problem, especially as to the amount in controversy)

Then move to Removal. Read the assigned statutes (§§ 1441, 1446, and 1447) and map out the process for removal--when and how it functions and what the parties must do. What is the effect of filing a notice of removal? What is not required for a defendant to remove? What happens then? What is the timing for removal?

    • What is the logic of the "Forum Defendant Rule" of § 1441(b)(2)? 

    • A, Inc. (IL/IL) sues X, Inc. (PA/PA) in state court in Pennsylvania. The day after filing, X removes to federal court. Under § 1441(b)(2), is removal proper?

Essay # 7 (Sec. A)

Download Regular Type; Download Large Type; and after the jump. Due next Wednesday, April 9.

Two things in handling this case:

1) Math is required, as you must calculate time periods and number of dayss. You may use this site, which allows you to calculate the number of days between two dates.

2) You have pieces of deposition testimony and pieces of Affidavits. The Affidavit paragraphs are numbered. Each question and corresponding answer in the Dep is number (Q1 + A1; Q2 + A2; etc.). Be specific in what you cite to.

Pay attention to the role you are told to play.

Essay # 7 (Sec. B)

Download Regular Type; Download Large Type; Read after the jump. Due in class next Wednesday, April 9.

You have excerpts of an Affiadvit; the paragraphs are numbered. You have excerpts of a Deposition; the questions and corresponding answers are numbered (Q1 + A1; Q2 + A2; etc.). Please cite to evidence and be specific.

Pay attention to the role you are told to play.