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Comments on Civil Procedure Exam, December 2002

Professor Corr

Question I had two parts. The first part revolved heavily around the issue of Anna's domicile, and there were lots of facts pointing, variously, to Florida, Massachusetts, and Maryland as her domicile. Students generally handled these facts well. The significance of domicile here, of course, was the need to establish diversity jurisdiction as the basis for removal. Students generally saw the need to note Exxon' s citizenship, and the possibility of a lack of diversity between Anna (maybe a Floridian, maybe not) and Exxon (definitely a citizen of Delaware and Florida). If she is a Floridian, of course, there is not only a failure of diversity. It would also mean she was being sued in her home state court and would therefore be ineligible for removal on that ground as well. A tidy answer might also note that the removal was to the proper federal district court.

The second part was more challenging. Most students, after some lengthy tours through irrelevant material on personal jurisdiction, venue, fixed on the Erie problem. And most recognized that it required a Byrd analysis. The state interest, of course, was in a jury trial -for the individual plaintiff, NOT for the angry homeowners of North Florida, who are not even parties to the suit. Indeed, to the extent that the anger within the jury pool played a role, it might have affected a fair trial and to that extent undermined the state's interest in a jury trial. The federal interest was in efficiency, and most students handled that well. The biggest stumbling block in this part of the question was in the use of forum shopping and potential outcome determination. Most students did okay in expressing the concepts, but a surprising number did not recognize that plaintiff has chosen the federal forum, which was less likely to provide a jury trial than a state court -and that therefore the choice of the federal forum was not forum shopping of the kind that Erie is intended to discourage.

Question II was a fairly straightforward personal/quasi in rem jurisdiction matter. Most students did pretty well in explaining the weighing analysis. Few did as well in pointing out that maybe, just maybe, the contact by Billy in Virginia was not a contact of the trucking company at all. If the truck had truly been taken without permission, maybe the defendant trucking company had no control over what happened. A few students made good analogies to Kulko and Hanson v. Denckla, but most missed this point. Of course, it might still have been possible to obtain personal jurisdiction over a "nationwide" trucking company through its unrelated activity -if such activity involved a presence in Virginia. But that was more problematic, given that the facts did not do more than suggest the possibility.

On quasi in rem jurisdiction, the class did well in identifying and developing the elements. The single exception was giving short shrift to a "fairness" argument for the trucking company. If it was true ("IF") that Billy had stolen the truck, would the truck's presence in Virginia be a "fair" basis for quasi in rem jurisdiction over the company that was the victim of the theft? Maybe so, maybe not. Either way it was a point that could have been made.