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The School of Law's Honor Code applies to this examination and all work done in this course. The Honor Code prohibits plagiarism (regardless of intent to deceive, misrepresent, or gain unfair advantage) and violation of oral or written instructions concerning this examination in order to gain an unfair advantage over other students or under circumstances which a reasonable law student would know were likely to result in unfair advantage.

UNIVERSITY OF MISSOURI-COLUMBIA SCHOOL OF LAW

CIVIL PROCEDURE II -- SECTION 2 DEAN DESSEM

May 4, 2007

INSTRUCTIONS

  1. This is the first part of your two-hour final examination. Please be sure that you have both pages of this portion of the examination.
  2. You will have one hour to take this portion of the final examination. During this examination, you are permitted to have with you any written or printed materials. However, you are not to look at materials brought by others, speak with anyone concerning the examination during the examination period, consult materials outside the exam room, or bring materials into the exam room once the examination has begun.

3. Take sufficient time to think through and organize your answers before beginning to write.

  1. Explain your answers and, if any assumptions of law or fact are necessary for any answer, set forth such assumptions.
  2. Don't belabor the obvious in your answers, but focus on the more difficult aspects of the question.
  3. This entire examination consists of the following essay question and a series of multiple choice questions. The essay question will count for approximately one-half of your grade, as will the set of multiple choice questions. The subparts of the essay questions will not necessarily be worth an equal number of points. After one-hour, you are to turn in your examination booklet and answer to this portion of the examination in order to receive the multiple choice questions.
  4. Your examination number should be placed on your bluebook, as well as on your examination booklet (which must be handed in at the end of the first-portion of the exam along with your bluebook). Please write legibly and only on one side of each page.

Dandy Defendant urges Midwesterners to “invest in ethanol–the fuel of the future!” After 100s of Iowa and Nebraska citizens do just that, the profitability of ethanol drops precipitously because of overbuilding of ethanol plants and a steep rise in corn prices. Eileen Iowa, an Iowa citizen, sues Dandy, a citizen of Nebraska, in Iowa state court seeking recovery for the $100,000 she lost due to her investment in his company “Ethanol R Us.” Dandy files a motion to dismiss, and the Iowa state court dismisses this action on the grounds that (1) it does not have personal jurisdiction over Dandy and (2) the Iowa state court in which Eileen has filed her lawsuit does not have subject matter jurisdiction for claims for more than $50,000 and therefore cannot hear this lawsuit.

After the dismissal of her state action, Eileen files the same basic claim against Dandy in Nebraska state court. Dandy seeks to depose Eileen, “to learn why she and her lawyer have filed this lawsuit.” Eileen does not attend the deposition on the day it was set by Dandy, and the Nebraska state court therefore dismisses Eileen’s lawsuit. Eileen then appeals to the Nebraska Supreme Court.

While Eileen’s appeal to the Nebraska Supreme Court is pending, Eileen’s attorney–newly graduated from the University of Hawaii Law School–files the same claim against Dandy in the federal district court for the District of Iowa. She brings this action “on behalf of all Iowa and Nebraska citizens who were defrauded by Dandy Defendant’s ethanol scheme.” Although she is the only named plaintiff in the lawsuit, her complaint alleges that “whether the 100s of citizens of Iowa and Nebraska lost $100,000 (as I did) or $100 (as many others did), we all are entitled to monetary relief.” The court denies Eileen’s motion to certify her action as a class action.

Eileen’s individual claim therefore proceeds to a jury trial. Eileen testifies about her investment in Dandy’s company and then rests her case. Dandy then testifies and also attempts to call an expert on ethanol and its financing. Eileen’s attorney objects that “we have never heard of this person,” and the judge refuses to permit the expert to testify. At the conclusion of all the evidence, Dandy moves for judgment as a matter of law. The trial judge states, “I am going to grant this motion because Dandy is a much move believable witness than Eileen.”

For the purposes of the following questions, presume that the state procedural rules and statutes in Iowa and Nebraska are identical to those of the federal courts. Then please answer the following questions:

  1. Could Dandy have used the Iowa state court judgment to assert either claim or issue preclusion in the final Iowa federal lawsuit?
  2. Could Dandy have used the Nebraska state court judgment to assert claim or issue preclusion in the final Iowa federal lawsuit?

3) Assuming that there was federal subject matter jurisdiction to hear the case, should the Iowa federal court have certified a class action in the final lawsuit?

4) Was the Iowa federal judge correct in refusing to permit the expert to testify at trial?

5) Should the Iowa federal judge have granted the motion for judgment a matter of law?