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Final Exam Civil Procedure I -- Section LS Prof. Moscato Fall 2009
- You have three (3) hours to complete this exam.
- The exam consists of a single detailed fact pattern followed by a series of questions related to that fact pattern. Some of the questions have multiple sub- parts. In order to help you manage your time, I have indicated the amount of time I suggest you spend answering each part of the exam. In grading your exam, I will weight the questions in proportion to the time suggested. You will see that the total amount of time adds up to 2 hours and 30 minutes—which means that I have built in 30 minutes for you to read the fact pattern and organize your thoughts. Please keep careful track of your time!
- This is a closed book exam. However, I have provided for you copies of the relevant provisions of the U.S. Constitution, Federal Rules of Civil Procedure, United States Code, and California Code of Civil Procedure that we have covered over the course of the semester. These provisions begin at page 6 of this exam.
- This exam consists of thirteen (13) total pages , including this cover page and the statutory/constitutional provisions. Please make sure you have all 13 pages before you begin.
- If you are hand-writing your exam responses, please use the blue books provided, writing clearly, using only one side of each sheet of paper, and on every other line (to permit instructor comments). If you are using a word processor, please double-space.
- Write your exam number on your exam envelope. Put your correct class section and student exam number at the top of this page, each page of questions, and each blue book (if you are using them). Do not use your name, student ID number or Social Security Number on any exam materials.
- At the conclusion of the exam, return all test materials, including blue books, scratch paper, and this exam packet to the envelope and submit it to the proctor. Do not seal the envelope. Students who do not return all exam materials at the end of the exam may not be graded.
GOOD LUCK!
Civ Pro LS3 Moscato Fall 2009 Final
FACT PATTERN:
Peter Packard is a 28-year old computer software consultant. Packard grew up, went to college, and received his M.B.A. in Reno, Nevada (which, for federal court purposes, is in the District of Nevada). In 2005, after completing his M.B.A., Packard got a job with Davidson Consulting, Inc., a large business and technology consulting firm with several offices throughout the country. Packard picked Davidson in part because it would give him the opportunity to explore the country and find a place to eventually settle.
Davidson Consulting, Inc. was incorporated in Delaware (District of Delaware) and has its corporate headquarters in Las Vegas, Nevada (District of Nevada). The corporate headquarters consists of a small suite of offices where Davidson’s CEO has his office. The monthly directors’ meetings also are held at the Las Vegas headquarters, and Davidson’s corporate and financial records are maintained there. However, other than the CEO the Las Vegas headquarters consists only of a small administrative staff, and Davidson conducts none of its consulting business activities from that office. Davidson’s largest office is in Los Angeles, California (Central District of California), which has 75 consultants, and a total staff of 200 employees. Approximately 45% of Davidson’s gross revenue comes out of the Los Angeles office. The Los Angeles office also houses Davidson’s Human Resources Department, as well as its computer servers (and IT Department). All of Davidson’s employment records (personnel files, etc.) for all its offices are maintained and administered at the Los Angeles office. The next largest Davidson office is in Palo Alto, California (Northern District of California), which houses 25 consultants (60 employees in all) and earns 15% of Davidson’s gross revenues. Davidson’s other offices are in Phoenix, Arizona (District of Arizona), Chicago, Illinois (Northern District of Illinois), Atlanta, Georgia (Northern District of Georgia), St. Louis, Missouri (Eastern District of Missouri), and Stamford, Connecticut (District of Connecticut). Each of those offices houses 10-15 consultants and earns 5-10% of Davidson’s gross revenues.
When Packard was initially hired, he was assigned to the Palo Alto, California office. Shortly after getting the job and moving to Palo Alto, Packard bought a car, which has California license plates. Packard has a California driver’s license. Packard moved into an apartment in Palo Alto, which Davidson found for him and paid for during the time Packard worked for Davidson. The furniture in the apartment is Packard’s. Packard currently lives in that same apartment.
Packard’s job with Davidson involved visiting client worksites and going through their computer networks so that he could develop custom software applications based on the client’s needs. Over the years, Packard’s work assignments took him out of California for months at a time, but he always returned to the Palo Alto office (and to his Palo Alto apartment) after completion of those assignments. During these temporary work assignments, Packard would stay at hotels or in short-term housing Davidson provided. Packard has always spent all of his vacation time back in Reno with his ailing mother. When he was not away at a client worksite, Packard made the short trip to Reno most
Civ Pro LS3 Moscato Fall 2009 Final
Packard gave Cheney, and that Davidson’s retaliation against Packard after he told Cheney about the Alcaeyda files therefore violates public policy. No California or federal court has yet determined whether by passing the USA Patriot Employment Act, Congress intended to protect employees who blow the whistle on employers who may be violating the Act. Packard’s complaint seeks $50,000 in damages from Davidson, and seeks an injunction ordering Davidson to stop violating the USA Patriot Employment Act and ordering it to turn over the Alcaeyda files.
Packard’s complaint also alleges a claim against Cheney individually. Packard alleges that Cheney’s hostile conduct towards him in the weeks leading up to his termination constitutes unlawful harassment under the California Fair Employment & Housing Act. Because the USA Patriot Employment Act imposes a duty only on employers and not on individuals, Packard did not include any claim against Cheney individually for his role in trying to cover up the Alcaeyda files. Packard seeks $25, in pain and suffering damages from Cheney, specifically alleging that soon after he was terminated and returned to California, Packard began feeling the effects of Cheney’s hostile treatment of him and began seeing a therapist to treat his anxiety.
Davidson and Cheney have removed the action to the U.S. District Court for the Northern District of California. You should assume that all procedural technicalities for removal have been satisfied.
READ ALL PARTS OF THE QUESTION BEFORE ANSWERING:
You are the law clerk for the federal district court judge assigned to the action. The court is faced with a series of motions, outlined below. Please discuss how the court should rule on each motion.
Motion 1 : Packard moves to remand the case back to the Santa Clara County Superior Court, arguing that the federal court lacks subject-matter jurisdiction. (Recommended time you spend on Motion 1: 40 minutes)
Motion 2 : Assume the court denies the motion to remand. Cheney moves to dismiss Packard’s claim against him individually, on two grounds:
a) For lack of personal jurisdiction (25 minutes)
b) For lack of subject-matter jurisdiction (20 minutes)
Motion 3 : Assume the court denies Cheney’s motion to dismiss. Davidson and Cheney subsequently move as follows:
Civ Pro LS3 Moscato Fall 2009 Final
a) Motion to dismiss for improper venue (30 minutes)
b) In the alternative, motion to transfer the case to the U.S. District Court for the Northern District of Georgia (15 minutes)
c) Defendants’ motion to transfer the case to the Northern District of Georgia includes an additional argument, which you should discuss separately from your consideration of Motion 3(b) above. Assume that on Packard’s lengthy paperwork re- assigning him to the Atlanta office, hidden among a series of boilerplate language is a provision stating that any disputes arising out of Packard’s employment at Davidson’s Atlanta office would be resolved in the Northern District of Georgia. Assume that California courts have held that boilerplate forum selection clauses that are not separately signed or otherwise specifically acknowledged by the employee are unconscionable and unenforceable. Assume that the general practice in federal court, on the other hand, is to construe forum selection clauses liberally in favor of enforcing them, and that under that standard, the forum selection clause in Packard’s contract would be enforced. Which law should the court apply in deciding whether it should grant the defendants’ motion to transfer the case to the Northern District of Georgia? (20 minutes)
-- END OF QUESTIONS --
Civ Pro LS3 Moscato Fall 2009 Final
