Legal Process
Professor Rhonda Wasserman
Exam from Fall 2008
YOU MUST RETURN THIS EXAMINATION AND ALL USED SCRAP PAPER TO THE PROCTOR WITH YOUR SCANTRON ANSWER SHEET AND YOUR ESSAYS
INSTRUCTIONS
This is an open-book exam. The exam consists of ten (10) multiple choice questions and one (1) essay question with two (2) sub-parts. Suggested time limits, which reflect the relative weight of each subpart (or group of questions, in the case of the multiple choice questions), are indicated at the beginning of each sub-part or group of questions. Although the exam is three and one half hours long, the suggested time limits total three hours. You should use the remaining half hour to read through the essay portion of the exam before you start writing. You should apportion your time carefully.
This exam has fourteen (14) pages. If you do not have all fourteen pages, please inform the proctor immediately.
Please write your exam number in the space provided in the upper right-hand corner of each page of the exam and be sure to return the exam, together with any scrap paper used, to the proctor at the conclusion of the exam. Please be sure to include your exam number in the appropriate space on the Scantron answer sheet for the multiple choice questions and on the cover of each blue book that you use to answer the essay questions. Do not include your name. If you use more than one blue book, please number your blue books (e.g., "1 of 3," "2 of 3," and "3 of 3"). When answering the essay questions, please write legibly and on every other line and on only one side of each page.
When answering the multiple choice questions on the Scantron answer sheet, please use a No. 2 pencil to facilitate the machine-grading of your answers. Each of the multiple choice questions will be weighted equally. Except where otherwise expressly provided, the facts of each multiple choice question stand on their own. Choose the best answer.
When answering the essay question, please raise, discuss, and decide all issues presented, whether or not they are dispositive, and whether or not your resolution of one issue in a problem makes discussion of other issues in the same problem technically unnecessary. If you need to assume additional facts, please state what those facts are and how they affect your analysis.
If a rule of procedure, statute, or constitutional provision is relevant, you should refer to it specifically. You are encouraged to refer to other relevant authority, including cases. You should explain fully the relevance of all authority cited. Unless otherwise indicated in the exam question, all references to a "Rule" or the "Rules" are to the Federal Rules of Civil Procedure.
Best of luck, and enjoy the holidays!
MULTIPLE CHOICE QUESTIONS
Suggested Time: 60 minutes (6 minutes per question)
[the multiple choice questions have been omitted from the web]
ESSAY QUESTIONS
Harold and Maude, both citizens of Pennsylvania, usually travel to New Jersey for Thanksgiving to celebrate the holiday with Maude' s family. But this year, they decided to do something completely different: they traveled with their three wonderful teenage sons -- Eric, Scott and Benny -- to Marco Island, Florida for the week of Thanksgiving. Harold and Maude had begun to plan the vacation the preceding spring. They went to the local American Automobile Association ("AAA")* office to get a guide book for southwestern Florida and to learn more about the area. They took copious notes on the many activities that they might want to engage in while in Florida, such as touring the Everglades to see alligators, manatees** and other wildlife; visiting the Edison and Ford Estates in Fort Myers; and windowshopping in Naples' trendy shops. An advertisement in the AAA guide book for Gary's Everglades Tours ("Gary's") caught Harold's attention and he folded down the page on which it appeared and noted the web address listed in the ad. Later, Harold and Maude perused Gary's web site to read about the various Everglades tours offered. Since Maude is susceptible to seasickness, Harold sent an email inquiry to Gary (by clicking on a hyperlink on the web page) to ask about the size of the boat, the duration of the tour, and the likelihood of seasickness. Gary responded fully to Harold's email within hours. Gary's web page allows one to make a reservation for an Everglades tour, but it does not accept electronic payments. (One either has to mail in a check or call Gary's office with a credit card number.) Prospective visitors to Florida make approximately 100 reservations for Everglades tours each month on Gary's web page; approximately ten reservations are made each month by Pennsylvanians. Harold, however, declined to make an on-line reservation, choosing to wait until their arrival in Florida before finalizing the family's plans.
More months of anticipation and planning passed, and finally it was time for the trip! Harold convinced the family that it would be fun to take the Amtrak auto-train to Florida (an "interesting" enough leg of the trip to support an entire exam question of its own . . . but we'll leave that for another year). The family arrived in Marco Island and was welcomed by warm sun, gently swaying palm trees, and salty ocean surf. They spent the first several days enjoying the beach and collecting beautiful sea shells. They spent the evenings playing cards and Scrabble, reading and watching television. But after several days of quiet, the boys were growing antsy, so Harold and Maude decided to take them on an adventure: an Everglades boat trip to see alligators and manatees. Having brought the AAA guide book with him, Harold opened it to the page on which the advertisement for Gary's Everglades Tours appeared and called to reserve the family's tour.
The day of the tour was glorious and the boat seemed comfortable and sturdy (at least compared with the tiny air boats that some of the competing tour companies used). Several other passengers came aboard, and with Gary at the helm and a "first mate" named Jim narrating, the boat left the marina. The boat motored along slowly, while Jim explained the differences between alligators and crocodiles; described the genetic relationship between manatees and elephants; and regaled the passengers with a story about a pirate named Juan Gomez who settled on Marco Island generations ago and lived to the age of 122. Along the way, the passengers were invited to observe several manatees and alligators; ospreys in their nests; and the peculiar exposed roots of the mangrove trees that hugged the coast. At one point, Gary beached the boat and the passengers were treated to a rare opportunity to explore an uninhabited island and to collect the unique pink shells that littered the shore. Afterwards, the boat motored back toward the marina. Harold gently leaned against the boat's rail to catch a last glimpse of a manatee when, suddenly, the rail gave way and, to the horror of the other passengers, Harold tumbled into the water, where an alligator grabbed a hold of his left leg and took a big bite. Aided by a huge surge of adrenalin, Maude dove into the water, distracted the alligator and rescued Harold, pulling him back into the boat. Putting the boat into high gear, Gary raced back to the marina where an ambulance was waiting for Harold (Gary having radioed ahead). Fortunately, the doctors were able to save Harold's limb. Harold had to undergo a painful surgery in Florida and is likely to need months (if not years) of physical therapy in Pittsburgh.
Gary's Everglades Tours is owned and operated by Gary, who, coincidentally, was born and raised in Pittsburgh. Gary has lived in southwestern Florida for the past twenty years. Since his parents no longer live in Pittsburgh, Gary has not visited Pennsylvania in several years. Gary still has a savings account in a Pittsburgh bank into which he deposits $200 on the first of every month. His business, Gary's Everglades Tours, is a small operation. Gary owns two motor boats and several kayaks, and takes passengers out on trips three times a day, seven days a week. Gary takes in about $8000 per month, but he has to pay for insurance, fuel, advertising, and other business expenses, including rent and utilities on a small store front. He also pays Jim a modest salary. Gary's net profit is approximately $45,000 per year. In addition to placing an advertisement in the AAA guide book, which is distributed nationally, Gary advertises in several newspapers in southwestern Florida. Gary's Everglades Tours also maintains a web page. Gary has contacted kayaking clubs throughout the country, asking that they include a link on their web pages to Gary's web page. Upon Gary's request, the Pittsburgh Kayaking Club included a hyperlink to Gary's web page from the page of its website entitled, "Kayaking Outside Pittsburgh."
Immediately upon his return to Pittsburgh, Harold filed suit against Gary (doing business as Gary's Everglades Tours) in the United States District Court for the Western District of Pennsylvania. In his complaint, Harold alleged that Gary's negligence in failing to secure the boat's rail was the proximate cause of his injuries. The complaint seeks compensatory damages in excess of $75,000 and punitive damages in an unspecified amount. Gary was served with a copy of the summons and complaint in Florida in accordance with the Federal Rules of Civil Procedure. For purposes of both subparts of the essay question, please assume that the district court has subject matter jurisdiction to adjudicate all claims presented and that venue is proper.
SUB-PART A
(60 minutes)
Assume that the Pennsylvania long-arm statute authorizes its courts to assert personal jurisdiction to the full extent permitted by the federal Constitution. Would the United States District Court for the Western District of Pennsylvania have authority to exercise personal jurisdiction over Gary? Why or why not? Please explain your answer fully.
SUB-PART B
(60 minutes)
For purposes of Sub-part B only, assume that the United States District Court for the Western District of Pennsylvania concludes that it has authority to exercise personal jurisdiction over Gary and that Florida state law (as opposed to Pennsylvania state law) governs the substance of Harold's claims. Further assume that Harold is seeking to discover Gary's financial records to determine Gary's ability to pay punitive damages. Gary seeks a protective order, claiming that the records are not discoverable under Florida law unless and until Harold proves that he is likely to prevail on his claim for punitive damages.
Assume that section 3295 of the Florida Judiciary Code states that "No pretrial discovery by the plaintiff shall be permitted with respect to the defendant's profits and financial condition unless the court enters an order permitting such discovery. Upon motion by the plaintiff supported by appropriate affidavits, the court may enter an order permitting such discovery only if the court finds that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim for punitive damages." The legislative history demonstrates that this section was intended to protect the privacy of the defendant in the absence of proof that the defendant acted with deliberate disregard for the rights or safety of others.
Further assume that Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that "Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. . . ."
In ruling on Gary's motion for a protective order, may the district court permit the discovery of Gary's financial records in the absence of proof that the plaintiff is likely to prevail on his claim for punitive damages? In other words, does section 3295 of the Florida Judiciary Code govern here? Why or why not? Please explain your answer fully.
*The AAA is an organization that produces and distributes maps and guide books and other travel-related products to its members.
**Manatees are large aquatic sea mammals, also known as sea cows.