UNIVERSITY OF MISSOURI_COLUMBIA SCHOOL OF LAW

Civil Procedure I, 500L, Section 3

 

Professor Carl H. Esbeck Fall Semester 2002

 

Directions to Part II (1 hour and thirty minutes)

 

Write your answer in the bluebook provided.  Use a pen with blue or black ink. Write on only one side of each page.  Do not tear pages out of the bluebook.  Do not use the pages of the bluebook for scratch paper.  Do not insert your scratch paper in your bluebook.

 

Arrange your answers in the bluebook in sequential order; that is, put Part A first, then Part B, etc.

 

PART II

Essay Question (90 minutes)

Harry and Sally Ride are married and live in Cleveland, Ohio. While driving to Memphis, Tennessee, to visit their daughter and family for Christmas, they are involved in a serious automobile accident in New Albany, Indiana. The Ride's car, which is being driven by Harry, is struck from the rear by an automobile operated by Denny Donnell, a resident of Athens, Georgia. Denny is killed in the accident, whereas both Harry and Sally are injured. Both cars are totally destroyed.

Denny's blood alcohol content was just below the level at which he would be legally intoxicated in Indiana. The investigating police officer learns that 20 minutes before the accident Denny left the Green Door Road House located in Louisville, Kentucky, just across the Ohio River from New Albany. Kentucky, like most states, has a Dramshop Act. Kentucky's Dramshop Act imposes liability on the owner of a bar or restaurant that serves alcoholic beverages to a customer who, upon leaving the establishment, operates an automobile and causes an alcohol-related accident. Kentucky's law imposes strict liability on the owner of the bar or restaurant, meaning that any injured party need not show that the driver was negligent-only "that the driver was a customer of the bar or restaurant and was intoxicated at the time he left the establishment, unless indicating to the establishment that he would not be operating the automobile in which he would be riding upon departure." The Dramshop Act further provides that "an injured party may recover for pain and suffering, as well as special damages, but not punitive damages."

Part (A): Assume you are employed as legal counsel for Harry and Sally Ride to sue the Estate of Denny Donnell and the Green Door Road House. You would like to file the lawsuit in the federal district court in Cleveland, Ohio. Is that possible? Explain.

Part (B): For whatever reason, assume that the lawsuit in Part (A) is never filed. Rather, assume that Sally Ride files a tort claim against the Estate of Denny Donnell in the state court of general jurisdiction in New Albany, Indiana, alleging Denny's negligence in not keeping a proper lookout causing him to drive his car into the rear end of the Ride's car. Sally seeks $200,000 in compensatory damages for her personal injuries. The Estate of Denny denies the claim, but impleads both Harry (on the theory that Harry was driving 30 mph on a highway where the minimum speed was 40 mph) and the Green Door Road House (under the Dramshop Act). The Green Door timely petitions to remove the lawsuit to the U.S. District Court for the Southern District of Indiana. Harry timely files a motion to remand pursuant to 28 U.S.C. §1447(c), arguing that the lawsuit is not removable, and a motion pursuant to FRCP 21 for dismissal because of misjoinder as to him. How should the court rule on these two motions? Explain.

Part (C): Assume the facts as stated in Part (B). A few days after Harry files his motions, the Green Door files a motion pursuant to FRCP 12(b)(2) to dismiss the third-party claim against it. How should the court rule? Explain.

Part (D): Assume that the court denies the motions mentioned in Parts (B) and (C). [Do not be concerned any more with the correctness of these rulings.] After some investigation, counsel for the Estate of Denny believes that the air-bag on the passenger side of the Ride's car did not inflate, which, if true, greatly increased Sally's injuries. Must the Estate of Denny join Ford Motor Co., the manufacture of the Ride's car, raising the air-bag theory or risk losing the claim? Explain.

Part (E): For whatever reason, assume that the lawsuit in Part (B) is never filed. Rather, assume that Sally files a tort claim in the U.S. District Court for the Southern District of Indiana. Sally seeks damages in the amount of $200,000 for her personal injuries, and she seeks $30,000 for the loss in value of the Ride's automobile. Pursuant to FRCP 20, Sally sues the Estate of Denny (alleging Denny's negligence in not keeping a proper lookout causing him to drive his car into the rear-end of the Ride's car) and the Green Door Road House (under the Dramshop Act). The Estate of Denny denies the claim and timely cross-claims against the Green Door. The Green Door moves to dismiss the cross-claim for misjoinder. How should the court rule? Explain.

Part (F): Assume the facts as stated in Part (E). The Estate of Denny moves to dismiss the $30,000 claim pursuant to FRCP 12(b)(7), pointing out that Harry Ride is a joint owner of the car. Additionally, the Estate of Denny notes that Harry is a resident of Ohio, as is Sally, and thus Harry cannot be joined without destroying the diversity required by 28 U.S.C. §1332. Sally opposes the motion, but admits that Harry is a joint owner of the car and that he refuses to join in the lawsuit. How should the court rule on the motion? Explain.

Part (G): Assume the facts as stated in Part (E). During an investigation the Green Door obtains evidence suggesting that while Denny was a customer of the Green Door shortly before the accident, Denny was not intoxicated when he left the establishment and that he indicated to the bartender that he was not driving. Must the Green Door plead this evidence or be precluded from using it at trial? Explain.

Part (H): Assume the facts as stated in Part (E). At the trial Sally requests a jury instruction on punitive damages, routinely available under the common law of torts. The Green Door timely objects. Sally, while admitting that her complaint does not pray for punitive damages, refers the court to FRCP 54(c). How should the court rule? Explain.

* * * End of Part II * * *

Turn in both your examination and your bluebook.