CLS–Practice Exam

Studocu is not sponsored or endorsed by any college or university Civ Pro 1 Salamanca Fall2023 Practice Exam civil procedure (Columbia University in the City of New York) Studocu is not sponsored or endorsed by any college or university Civ Pro 1 Salamanca Fall2023 Practice Exam civil procedure (Columbia University in the City of New York) Downloaded by Jacqueline Cruz (v5kcm9m7jv@privaterelay.appleid.com) lOMoARcPSD|35157622

Civil Procedure I — Fall 2023 — Professor Salamanca Exam No. __________ Practice exam: one hour (1:00) Please read the following instructions before you begin: 1. You are on your honor. 2. Please put your books and notes away. I will provide a supplement containing provisions of law that you may find useful in taking this exam. 3. Please write your number above , on your supplement , and on your blue book(s) , if any. 4. Please write your number on the back of your bubble sheet , in the boxes and circles for “student number.” Please put your number at the right end of these boxes and circles. 5. The exam consists of about [*] points . Allocations of time and points are approximate. 6. The exam includes 9 multiple-choice questions of equal weight. If you allocate 21 minutes to them, you will have two minutes and twenty seconds (2:20) per question. 7. Please indicate your answers to the multiple-choice questions on the bubble sheet. 8. In your essays, please be sure to state any assumptions you make. If you are writing, you may use as many blue books as you like, but please remember to write all your essays in your blue books. You may write on both sides of the paper. Please write legibly! 9. Please assume that “Cineplex,” “Briar,” “Macy,” and “Bloomingdale” are states and that a citation to a “Rule,” unless specified otherwise, is to a Federal Rule of Civil Procedure. 10. Relatedly, if the facts of any question include a date that includes a year , followed by another date that does not include a year , please assume the year has not changed . 11. Please return your exam , bubble sheet , supplement and any blue books you may have to me when you finish. It is very important that you return your copy of the exam , because otherwise I cannot confirm which version you have. Thank you and good luck! Multiple Choice — approximately 21 minutes — 9 questions (approximately two minutes and twenty seconds (2:20) per question) On your bubble sheet , please indicate the best answer to each of the following questions. There is no penalty for wrong answers. No credit will be given for explanations. Downloaded by Jacqueline Cruz (v5kcm9m7jv@privaterelay.appleid.com) lOMoARcPSD|35157622

3. Mosk lives in Atlanta, Georgia, where he works as CEO of Alpha Corp., a large company whose stock is traded on the New York Stock Exchange (“NYSE”). As of June 1, 2021, Alpha has 3.1 billion shares outstanding, 20% of which Mosk owns, 10% of which belong to Delia Corp., the rest belonging to millions of people. Both Alpha and Delia are incorporated in Delaware. Alpha’s headquarters are in Atlanta. Delia’s are in New York. That day, Mosk tweets “Sales sky-high! Buy now!” Amy lives in New York City. Taking Mosk at his word, she buys 100 shares of Alpha at $100 a share. To her delight, it goes up right away to $110 a share. On June 15, Mosk agrees to buy all the stock of Gamma, Inc., another large, publicly traded company. To fund this purchase, he sells half his Alpha stock, which makes Alpha plummet. On July 1, after it sinks to $75 a share, Amy sues Mosk under the Securities Exchange Act of 1934, a federal law that regulates stock transactions. In her complaint, she sues on behalf of a class of “people who bought shares in Alpha Corp. between June 1 and July 1, 2022, because of Mosk’s tweet.” These people live all over the country. She brings her action in the United States District Court for the Southern District of New York, where she lives, where NYSE is, and where Delia’s headquarters is. On August 1, Mosk moves for transfer to the Northern District of Georgia, which includes Atlanta. The court: A. Must deny the motion, because the plaintiff is master of the complaint, and Amy chose the Southern District of New York. B. Must deny the motion, because Amy could not have sued Mosk in the Northern District of Georgia even if she had wanted to. C. May grant the motion, if Mosk can show the Northern District of Georgia would be a better venue for the case because of the location of witnesses and the convenience of the parties. D. May grant the motion, but only if Amy gives her consent. 4. Henry wants to sue Pierre in the United States District Court for the District of Cineplex. In order to serve Pierre properly, Henry must: A. Serve Pierre strictly in the manner set forth in Fed. R. Civ. P. 4(e)(2). B. Serve Pierre strictly in the manner that would be required if he sued Pierre in a court of general jurisdiction of Cineplex. C. Serve Pierre either in the manner set forth in Fed. R. Civ. P. 4(e)(2) or in the manner that would be required if he sued Pierre in a court of general jurisdiction of Cineplex. D. Serve Pierre in the manner Pierre specifies. Downloaded by Jacqueline Cruz (v5kcm9m7jv@privaterelay.appleid.com) lOMoARcPSD|35157622

5. Bailey, Inc., makes cribs. It has a Delaware charter and an HQ in Baltimore, Maryland. On May 1, 2020, it forms a contract with Atwood, Inc., an importer with a California charter and an HQ in Long Beach, California. In the contract, Atwood agrees to obtain for Bailey all the wood it needs from Indonesia, and Bailey agrees to pay Atwood ten cents a “board-foot,” which is how wood is measured. Bailey specifies the wood must have a moisture content of 12% or less. On June 1, Atwood sends Bailey 500,000 board feet with a moisture content of 11%. Bailey is delighted, but pays Atwood only $25,000 because cash is short. On June 1, 2021, it sends Bailey 500,000 more board feet, this time with a moisture content of 14%. Because the wood is bad, Bailey believes it will miss the 2021 holiday season. On July 1, it sues Atwood for breach in the United States District Court for the District of Maryland, seeking $2.5 million for lost sales, which it argues Atwood reasonably should have anticipated. On July 15, Atwood answers and asserts a counterclaim for underpayment on the first shipment. Bailey moves to dismiss the counterclaim. The court will: A. Deny the motion, because Atwood had no choice but to make the counterclaim. B. Grant the motion, because the counterclaim lacks an independent basis for federal jurisdiction. C. Deny the motion, because Bailey and Atwood are diverse. D. Grant the motion, because Atwood’s counterclaim lacks a valid basis for federal jurisdiction. 6. Roland is a developer. On October 15, 2023, she retains Alex to build a parking garage for her. On November 15, Alex retains Bienvenue as a subcontractor to pour concrete on the project. All three individuals live in Macy. The project is complete November 1, 2024. On January 15, 2025, however, Roland discovers cracks in the concrete. On February 15, she sues Alex for breach of contract in Macy state court. On March 1, Alex impleads Bienvenue for indemnification. In the same complaint, Alex also sues Bienvenue for conversion, arguing that Bienvenue wrongfully took one of Alex’s ladders to Bienvenue’s own shop. On March 10, Bienvenue moves to dismiss Alex’s claim for conversion. If the courts of Macy follow the Federal Rules of Civil Procedure, the court will: A. Deny the motion, because Alex had already stated a proper claim against Bienvenue. B. Deny the motion, because Alex’s claim for conversion is compulsory. C. Grant the motion, because the two claims do not arise from a common nucleus of operative fact. D. Grant the motion, because Alex and Bienvenue are not diverse. Downloaded by Jacqueline Cruz (v5kcm9m7jv@privaterelay.appleid.com) lOMoARcPSD|35157622

9. On January 15, 2023, Asterisk and Obelisk form a contract. Asterisk is from Cineplex, but he owns a farm in Briar. Obelisk is from Briar. Under the contract, Obelisk will build a barn on Asterisk’s farm in Briar and Asterisk will pay $125,000 up front and $125,000 at completion. Asterisk makes the first payment that day. Obelisk completes the project October 15, whereupon Asterisk conducts an inspection. Deeming the work substandard, Asterisk refuses to pay Obelisk the balance. On November 1, Obelisk sues Asterisk in the United States District Court for the District of Briar for breach of contract, seeking $125,000 damages. On November 10, Asterisk moves to dismiss under Rule 12(b)(2). On January 5, 2024, the court denies the motion and notifies Asterisk of its decision. On January 25, Asterisk answers, denying the principal allegations of Obelisk’s complaint. On February 5, Obelisk moves under Rule 55(a). The court will: A. Deny the motion, because Asterisk’s answer was timely. B. Deny the motion, because the parties are diverse and $125,000 is at stake. C. Grant the motion, assuming the work was in fact adequate. D. Grant the motion, because Asterisk’s answer was untimely. The essay is on the next page. Downloaded by Jacqueline Cruz (v5kcm9m7jv@privaterelay.appleid.com) lOMoARcPSD|35157622

Essay (approximately 39 minutes, approximately 39 points) Stacy lives in Chillicothe, Ohio. On April 1, 2020, she brings suit in federal court against Mountain Acceptance Corp., a Delaware corporation with its principal place of business in Raleigh, North Carolina. In her complaint, Stacy alleges Mountain has violated the Telephone Consumer Protection Act, a federal law. Specifically, she alleges: (1) Mountain “has repeatedly called her cell phone with an automated dialing system and a pre-recorded voice”; (2) she “knew the calls were automated because no caller was on the line until, after a delay, she was connected to Mountain’s representatives or the call ended”; (3), “shortly after the calls began, [she] told Mountain to stop calling [her]”; (4) “Mountain acknowledged [her] instruction but continued the calls”; (5) “Mountain knew or should have known it did not have [her] express consent and that any consent it thought it had was revoked”; and (6) “the calls were not for emergency purposes.” On April 15, Mountain files an answer denying the principal allegations of the complaint. In the same paper, Mountain also asserts a counterclaim for breach of contract, arguing Stacy has failed to make timely payments on a car she bought with money Mountain lent her. According to Mountain, Stacy is “in arrears $10,500 on her loan from Mountain.” On May 1, Stacy moves to dismiss the counterclaim under Rule 12(b)(1). You are the federal judge presiding over Stacy v. Mountain Acceptance Corp. How will you resolve Stacy’s motion? What arguments would you expect the parties to make in support of, or in opposition to, that motion? Why? In formulating your answer, please note the following. First, the TCPA forbids a “covered person” (which includes Mountain): to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . . Second, the contract between Stacy and Mountain includes the following provision: 6. Servicing and Collection Contacts. You agree that we may try to contact you in writing, by e-mail, or using prerecorded/artificial voice messages, text messages, and automatic telephone dialing systems, as the law allows. You also agree that we may try to contact you in these and other ways at any address or telephone number you provide us, even if the telephone number is a cell phone number or the contact results in a charge to you. End of exam. Downloaded by Jacqueline Cruz (v5kcm9m7jv@privaterelay.appleid.com) lOMoARcPSD|35157622

3 C 28 U.S.C. § 1404(a) provides that, “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” As per that language, the court could, in its discretion, transfer Amy’s case to the Northern District of Georgia, for the reasons stated. A is incorrect, because, although Amy’s choice is important, it is not dispositive. B is incorrect because Amy could easily have sued Mosk in the Northern District of Georgia. He lives there, so venue would be appropriate under 28 U.S.C. § 1391(b)(1), and “a substantial part of the events . . . giving rise to [her] claim occurred there,” so venue would be appropriate under 28 U.S.C. § 1391(b)(2). D is incorrect because a court need not obtain plaintiff’s consent before ordering transfer under 28 U.S.C. § 1404(a). In fact, you can be fairly certain that both A and D are incorrect because they are essentially the same answer, and they cannot both be correct. 4 C Under Rule 4(e), “an individual . . . may be served in a judicial district of the United States by either “(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or complying with Rule 4(e)(2). Answers A and B assume that only one method will do. Answer D is not the rule. If it were, defendants might not be suable at all! Downloaded by Jacqueline Cruz (v5kcm9m7jv@privaterelay.appleid.com) lOMoARcPSD|35157622

5 A Admittedly, this is a close call. I could actually see a court not seeing this counterclaim as compulsory. On the other hand, the specific provisions of the contract between Bailey and Atwood would play a role in both matters. Atwood would have to show delivery, and it would have to show that the wood had the specified moisture content. Under the logical relationship test and Moore v. New York Cotton Exchange , this is probably enough. B is incorrect because, if Atwood’s counterclaim is compulsory, it can come in under 28 U.S.C. § 1367(a) because of its close relationship to the anchor claim. Moreover, the counterclaim would not be kicked out of federal jurisdiction under 28 U.S.C. § 1367(b) because this would be a claim by defendant , not plaintiff. C is incorrect because, although the parties are diverse, only $25,000 is at stake on the counterclaim. Thus, 28 U.S.C. § 1332(a)(1) would not provide an independent basis for Atwood’s counterclaim, were it permissive (under Rule 13(b)) as opposed to compulsory (under Rule 13(a)(1)). D is incorrect because there is a valid basis for the court to hear the counterclaim, under 28 U.S.C. § 1367(a), as noted above. 6 A This problem depends on Rule 18(a). Once Alex has stated a proper impleader against Bienvenue, he can pile on additional claims against Bienvenue. Notably, one need not worry about subject-matter jurisdiction here, because we are in state court. For the most part, state courts are courts of general jurisdiction. B is incorrect. Alex’s claim for conversion is not compulsory. There is no such thing as compulsory joinder against a defendant under the federal rules. There are only compulsory counterclaims. C is beside the point. First, Rule 18(a) does not require that the joined claim arise from the same transaction or occurrence as the anchor claim. Second, as noted above, subject-matter jurisdiction is not usually a concern in state court. D is not correct because subject-matter jurisdiction in state court does not require diversity. Downloaded by Jacqueline Cruz (v5kcm9m7jv@privaterelay.appleid.com) lOMoARcPSD|35157622

9 D Asterisk waited twenty days until after he received notice that his motion was denied. This was too long. Under Rule 12(a)(4)(A), “if the court denies [a] motion [under Rule 12,] the responsive pleading must be served within 14 days after notice of the court’s action . . . .” Failure to defend within the prescribed period provides a basis for judgment by default. See Rule 55(a), “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” A is incorrect because the twenty-one-day period of Rule 12(a)(1)(A)(i) applies after service of the summons and complaint, not after denial of a motion under Rule 12. B is incorrect because the mere presence of subject-matter jurisdiction, all by itself, is not a grounds for judgment by default. C is incorrect because it goes to the merits. Downloaded by Jacqueline Cruz (v5kcm9m7jv@privaterelay.appleid.com) lOMoARcPSD|35157622

Civil Procedure I — Fall 2022 Stacy v. MAC Exam No: __________ 10 The c-c can come in by 1367(a) b/c the 2 claims involve interpreting the K. (The student emphasizes what the K appears to authorize M to do.) 8 One Q is if the c-c can come in by 1367(a) b/c the 2 claims involve interpreting the K. (See above.) 6 One Q is if the c-c can come in by 1367(a) b/c the 2 claims involve the K. (This d/n include references to br/K, the merits, or pleading, w/o more.) 4 One Q is if the c-c can come in by 1367(a) b/c the 2 claims are “so related.” 2 One Q is if M’s c-c can come in by 1367(a). 1 One Q is if M’s c-c can come in by 1367. 2 1367(b) is not a problem b/c the original basis for jur’n is 1331, not 1332. 2 1367(b) is not a problem b/c it does not refer to 13. 1 1367(b) is not a problem. 5 M’s c-c can’t come in by 1332 b/c, though the parties are diverse, only $10,500 is at stake. 4 M’s c-c can’t come in b/c, though the parties are diverse, only $10,500 is at stake. 1 One Q is if M’s c-c can come in by 1332. 8 M’s c-c is not compulsory b/c resolving S’s claim would not inevitably resolve the c-c. 4 One Q is if M’s c-c is compulsory b/c it involves the ST/O as S’s claim. 2 One Q is if M’s c-c is compulsory. 2 Rule 13 authorizes c-c’s. Downloaded by Jacqueline Cruz (v5kcm9m7jv@privaterelay.appleid.com) lOMoARcPSD|35157622