UNIVERSITY OF MISSOURI-COLUMBIA SCHOOL OF LAW

Civil Procedure I, 500L, Section 1

 

Professor Carl H. Esbeck  Fall Semester 2003

 

Directions to Part II - Essay

(1 hour and 30 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 write in the left-hand margin. 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 Question 1 first, then Question 2. If you want to skip over a question and come back to it later, leave a page or two blank and begin the next question.

Place your examination number in the upper right-hand corner of this examination. When finished, return both your bluebook and this examination.

Part II - Essay Questions

Question 1 (45 minutes):

Robin Robinson was undergoing open heart surgery on August 14, 2003, when the electricity went out. Power was not restored for two days. Robin died. The surgery was being performed at St. Joseph Hospital in Burlington, Vermont. Robin was a resident of New Hampshire. Robin's Estate sues the hospital for negligence and alleges damages in the amount of $800,000. The suit is filed in federal district court in Vermont. St. Joseph denies liability, but in turn impleads Champlain Power and Light, the local electrical utility, alleging liability because of the disruption of electrical power. Champlain P & L denies liability, but in turn impleads Mohawk Edison, located in Albany, New York. Mohawk generates electrical power of its own, and also operates an electrical grid in the states of New York, Pennsylvania, and Massachusetts. The grid connects to all electrical utilities in the surrounding states of Vermont, New Hampshire, Connecticut, Rhode Island, New Jersey, Delaware, Maryland, West Virginia, and Ohio. The nature of the grid is that Mohawk has an arrangement to sell or buy electricity, as needed, to or from utilities in all these surrounding states. Champlain P & L alleges that Mohawk overwhelmed it with a demand "spike" for electricity on August 14th.

First Energy Cooperative is an electrical utility with headquarters in Akron, Ohio. It has a sell/buy arrangement with Mohawk's grid. The power outage is thought to have been caused by the short-circuiting of three power lines owned and operated by First Energy in eastern Indiana. Due to heating the power lines sagged into trees that are thought to have not been properly trimmed. A computer monitoring system at First Energy did not detect the problem for over 30 minutes. This is believed to be due to improper software. When the third power line failed, electricity surged into eastern Indiana to meet the demand. First Energy's system operators failed to cut power into the Indiana area. Thus, the crisis spread, first to First Energy's Ohio service area and then farther to the East. By the time power was demanded from Mohawk and its tri-state grid, the crisis was acute and Mohawk could neither meet the demand nor react quickly enough to cut power to Ohio. Mohawk's attempts to draw power elsewhere from those having sell/buy arrangements with the grid were too sudden and too great. The blackout, which started in Indiana and spread to Ohio, shut down more that 263 power plants in the U.S. and Canada in less that 7 minutes.

Mohawk denies liability, but in turn impleads First Energy. First Energy denies liability, but in turn impleads Tree-Trim X-Perts, Inc. Tree-Trim is from Fort Wayne, Indiana. It had a contract with First Energy to trim the trees under the power lines that shorted out. Tree-Trim denies liability.

Vermont's long-arm statute permits tort claims whenever it is foreseeable that an injury could occur within the state.

(A) First Energy timely files a motion under Rule 12(b)(2). How should the court rule on motion and why?

(B) Tree-Trim timely files a motion under Rule 12(b)(2). How should the court rule on the motion and why?

(C) Rightly or wrongly, both Rule 12(b)(2) motions are denied. [Do not be concerned any longer with the correctness of those rulings.] Tree-Trim now counterclaims against First Energy for $50,000. This is the amount of Tree-Trim's unpaid bill for trimming trees in eastern Indiana under First Energy's power lines. First Energy denies liability arguing that it should not have to pay Tree-Trim when Tree-Trim is thought to have improperly trimmed the trees that started the blackout. However, First Energy in turn impleads Black & Root Engineers, P.C. on the counterclaim. Black & Root is a professional engineering firm located in Indianapolis, Indiana. Black & Root wrote the software used by First Energy's monitors that are believed to have failed to detect the overheating power lines. At this point, what motion or motions might Black & Root reasonably consider filing? Further, how should the court rule on the motion or motions and why?

 

Question 2 (40 minutes):

Facts Applicable to all Four Parts of this Question: Sally Ride, a resident of Clayton, Missouri, is a real estate agent at Gamma Reality Co. located in Granite City, Illinois. Roy Ball of Ladue, Missouri, is her immediate supervisor. Sally sues both Gamma Reality and Roy alleging sexual harassment in violation of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. Sally seeks damages in the amount of $25,000 and injunctive relief. She files her claim in an appropriate state court in Missouri.

(A) Gamma Reality timely gives notice of removal of the lawsuit to the U.S. District Court for the Eastern District of Missouri. Roy does not join in the removal. Sally timely moves to remand citing 28 U.S.C. §1447(c). How should the court rule and why?

(B) Assume Sally's motion to remand in Part (A) is, rightly or wrongly, granted. [Do not be concerned any longer with the correctness of that ruling.] Two years pass. Then Sally announces that she has settled her claim against Roy for $10,000, and the claim is dismissed. Ten days later Gamma Reality files a notice of removal of Sally's remaining claim to the U.S. District Court for the Eastern District of Missouri. Sally timely moves to remand. Both cite to 28 U.S.C. §1446(b). How should the court rule and why?

(C) Contrary to the facts as stated in Parts (A) and (B), assume the situation as stated in the first paragraph above. Roy Ball counterclaims against Sally Ride requesting payment in the amount of $150,000, on an overdue promissory note. The note reflects a loan from Roy to assist Sally in the purchase of her home in Clayton. Next, Gamma Reality and Roy timely give notice of removal of the entire lawsuit to the U.S. District Court for the Eastern District of Missouri. Sally timely moves to remand the counterclaim. Roy requests that the motion be denied. He cites to 28 U.S.C. §1441(c). How should the court rule and why?

(D) Assume Sally's motion to remand in Part (C) is, rightly or wrongly, denied. [Do not be concerned any longer with the correctness of that ruling.] Two years pass. Then Sally announces that she has settled her claims brought under the Civil Rights Act of 1964 against both defendants. Sally is paid $60,000 by the defendants and the civil rights claims are dismissed. One year passes. Next Sally requests that the court dismiss the counterclaim for lack of subject matter jurisdiction. How should the court rule and why?

 

Question 3 (5 minutes): What are the four aspects of every statute of limitations?

 

* * * End of Examination * * *

 

Turn in both your bluebook and Part II of the examination.