Examination Number ________________

 

 

UNIVERSITY OF MISSOURI-COLUMBIA SCHOOL OF LAW

 

Professor Carl H. Esbeck Fall Semester 2006

 

 

 

 

Civil Procedure I, 5010L, Section 1

 

 

 

Directions to Part I - Essay

(1 hour and 30 minutes)

 

Place your examination number in the upper right-hand corner of this examination.

When finished, return your essay examination questions and submit your essay answers.

 

Answer only the question asked. Do not raise and answer questions not asked.

 

Arrange your answers in sequential order. That is, put your answer to Question 1 first, then your answer to Question 2, and etc. 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.

 

You may bring with you into the examination room your casebook, photocopied class handouts, your federal rules supplement, and your own classroom notes. You may also bring a course outline provided it is entirely your own work product. No other materials are permitted.

 

If you have elected to use your laptop computer, the instructions below concerning bluebooks do not apply.

 

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 submit your scratch paper with your bluebook.

 

* * * Part I begins on the Next Page * * *

 

 

 


PART I (1 hour and 30 minutes)

 

Question One (10 minutes): The case of Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987), appears on page 107 of your casebook. Was the case correctly decided? Explain why or why not.

 

 

 

Question Two (10 minutes): A motion under Rule 12(b)(2) can be waived, but a motion under Rule 12(b)(1) cannot be waived. Explain why.

 

 

 

Question Three (10 minutes): Assume a class action lawsuit filed in federal district court in Delaware. The number of plaintiffs in the class totals 151 people: one named party plus 150 additional members. The named party is domiciled in Illinois and her claim is for $100,000. Each of the additional members of the class has a claim for $500, and seventeen (17) of these individuals are domiciled in New York, eight (8) in Illinois, and four (4) in Delaware. The defendant is a Delaware corporation with its principal place of business in New York. Seven months into the lawsuit, but one week after the class is certified, the defendant moves to dismiss for lack of subject matter jurisdiction. How should the court rule on the motion? Explain.

 

 

 

Question Four (60 minutes): Southwest Iowa Swine Company [SISCo], is an Iowa corporation with its principal place of business on a farm near Brayton, Iowa. SISCo operates a hog breeding and feeder pig confinement operation. It has 250 brooder sows, with piglets or pigs in gestation. SISCo also has 4000 head of feeder pigs, which are corn fed and destined for market (upon reaching 220 pounds) and eventual human consumption. The venture capital for starting SISCo came from two sources: (i) a loan from Farmers & Merchants Bank of Nebraska secured by a security interest in swine buildings and fixtures; and (ii) four wealthy individuals who loaned $300,000 each to SISCo secured by a joint security interest in the livestock.

 

Farmers & Merchants Bank of Nebraska [Bank], is a Nebraska corporation with its principal place of business and only offices in Omaha, Nebraska. Bank is holder of a $3 million promissory note payable by SISCo, secured by a security interest in SISCo's swine buildings and fixtures at the farm near Brayton, Iowa.

 

The price of corn has just shot up to $4.35 a bushel because more and more corn is being used to produce ethanol for gasoline automobiles. As a result, the cost of SISCo's operations has sharply increased (while the demand for pork remains unchanged) and the company is in serious danger of going broke. SISCo has already missed two $13,340.00 monthly installment payments on the note.

 

On January 10, 2006, Bank declares the promissory note in arrears, and also invokes the acceleration clause thus making all principal and interest due immediately. On January 20, 2006, Bank files a diversity claim against SISCo in federal district court in Nebraska. The claim is a collection action on the promissory note and prays for damages in the amount of $ 3,056,000.

 

The Complaint of January 20, 2006, recites Bank's security interest in the buildings and fixtures at the hog confinement operation near Brayton, Iowa. However, the Complaint goes on to allege that the value of the buildings and fixtures has shrunk considerably because interest in farm pork production has plummeted. Accordingly, the Complaint requests a writ of attachment to seize 300 feeder pigs that SISCo as just shipped to the Omaha Stockyards awaiting sale. The market value of these feeder pigs is alleged to be $68,000. The writ of attachment is requested by Bank because SISCo is thought to be rapidly sliding toward bankruptcy and Bank fears any judgment it obtains following a trial several months from now will be uncollectible. Thus the attachment is requested so that Bank has possession of the 300 feeder pigs as security to help satisfy an eventual judgment.

 

The writ of attachment is issued by the court on the afternoon of January 20, 2006, and served the next day on the Omaha Stockyards.

 

The State of Nebraska permits a writ of attachment. Nebraska also permits a lawsuit to be brought in its courts with respect to a person or entity doing systematic and continuous business within the state.

 

Subpart (A): On February 1, 2006, SISCo files an Answer with general denials and, as its "first defense," that the court lacks personal jurisdiction. On February 10, 2006, SISCo files a Motion to Dismiss pursuant to Rule 12(b)(7), stating that four individual creditors of SISCo hold a joint security interest in the 300 feeder pigs presently held at the Omaha Stockyards that Bank has attached. The Motion further argues that the court cannot obtain jurisdiction over the four individual creditors. The Motion is accompanied by affidavits from the four creditors confirming their security interests and noting that they are domiciled respectively in Minnesota, Illinois, South Dakota, and Nebraska. How should the court rule on the Motion? Explain.

 

Subpart (B): As a result of the motion in the prior subpart, the four individual creditors are joined as involuntary defendants (don't be further concerned with the correctness of that ruling). On February 15, 2006, SISCo files a Motion to Dismiss arguing that the court lacks personal jurisdiction over SISCo. How should the court rule on the Motion? Explain.

 

Subpart (C): Rightly or wrongly the motion in the prior subpart is denied (don't be further concerned with the correctness of that ruling). On February 18, 2006, SISCo files an amended Answer. The purpose of the amendment is to add a request for trial by jury and to add as its "second defense" that the court lacks proper venue. On February 19, 2006, Bank files a Motion to Strike the amended Answer because it was filed without leave of court. How should the court rule on the Motion, on the request for a jury trial, and on the "second defense" of improper venue? Explain.

 

Subpart (D): Rightly or wrongly the motion in the prior subpart is denied (don't be further concerned with the correctness of that ruling). On March 15, 2006, the four individual creditors file a Motion to set aside the writ of attachment. On March 18, 2006, the trial court holds a hearing on the Motion. At the hearing, legal counsel for the four individual creditors points out that the State of Iowa has abolished the writ of attachment with respect to farm livestock, and that when it comes to the lawful possession of livestock Nebraska follows the rule of the jurisdiction of the owner. Legal counsel for Bank counters by arguing that it is the general practice of the federal courts to grant any remedy known at law or equity (such as attachment) to which a party is entitled, and which produces a just, speedy, and inexpensive determination of the lawsuit. Bank's counsel also points the court to Rules 1 and 54(c). How should the court rule on the Motion? Explain.

 

 

* * * END OF PART I * * *

 

 

Return these essay examination questions and submit your essay answers.

After a short break, your class will together begin Part II of the examination.