SOUTH
TEXAS COLLEGE OF LAW
CHERIE O. TAYLOR, PROFESSOR
1990 FALL SEMESTER
SATURDAY, DECEMBER 8, 1990
PROCEDURE I
QUESTION I -- (1 HOUR AND 45 MINUTES)
A. Xtron corporation (X Corp.) is a conglomerate incorporated in Delaware with its principal place of business in New York. The company currently does its manufacturing and almost all of its sales east of the Mississippi. X Corp. has major distributors for its tire products in Pennsylvania, Delaware and New York. X Corp. has limited sales west of the Mississippi through two distributors. John Nelson, president of X Corp. has appeared at your office seeking advice on the following problems:
FIRST, Nelson is concerned about the X Corp.'s foray into the world of professional bike racing. Last year X Corp. launched a big promotional effort for its products by sponsoring two cross country bike racing teams. Now it appears that problems have arisen with both teams. Anthony Allen, the lead racer on the A team left the team prior to a maj or race. Several weeks before his departure Allen announced to the press that the reason for his lack luster performance recently is the poor quality of X Corp.'s tires. Allen has filed suit against X Corps for failure to maintain proper work conditions (lack of support staff and qualified mechanics) in state court in Colorado. Colorado is Allen's state of domicile and the site of his training camp.
Nelson wants to know whether X Corp. is subject to suit in Colorado, particularly since he believes the contract Allen signed with X Corp. has a forum selection clause which indicates any litigation concerning the contract ($100,000 per year for 3 years) is to be in federal court in Manhattan (S. Dist. N.Y.). The contract was negotiated in Colorado, with performance to be throughout the U.S. at bike races. When Allen dealt with X Corp. concerning the contract it was either in Colorado or New York.
Nelson wants the case in New York and wants X Corp. to sue Allen for breach of contract (for abandoning the circuit) and for the libelous statements about X Corp.'s tires.
SECOND, Nelson also tells you about a major accident with the B team. Barney Blyth, the lead racer on the B team suffered a crash in the most recent race in Pennsylvania and was hospitalized for two broken legs and spinal trauma. Even if he can walk again, Blyth may never ride again causing him to lose out on a contract identical in its terms to that breached by Allen. Blyth has remained in his state of domicile, Pennsylvania, and plans to file suit in state court against X Corp. for faulty design and manufacture of its bike tires which he claims led to his accident.
Advise Nelson about whether X Corp. is subject to personal jurisdiction in the state courts of Colorado and Pennsylvania. (Assume that service was proper in Colorado). Pennsylvania has a long arm statute that allows jurisdiction over a nonresident defendant for tortious acts committed within the state. (Again, do not discuss service). Discuss the prospects of getting the cases to federal court in New York. If New York is not a possibility, explain where venue will lie. Also discuss X Corp.'s potential claims against Allen and whether they can be raised in his lawsuit against X Corp. If these claims are not made in the Allen law suit, can they be raised later in a case brought by X Corp. against Allen?
B. Nelson has also come for your advice about a bridge project with which X Corp. construction division, Cavalier Construction (CC Co.) has been involved. CC Co. is a South Carolina Corporation with its principal place of business there. CC Co. was the primary contractor on a bridge connecting St. Simon's Island, Georgia to the mainland city of Brunswick. CC Co. subcontracted out the metal supply and metal work to David Co., a Georgia corporation with its principal place of business in that state. Just after the construction of the bridge it became obvious that the bridge was buckling and warping and would not support traffic.
The Brunswick Development Corp. (BD Corp.), a Georgia corporation (principal place of business Ga.) which ordered the bridge, has brought suit in federal court (Southern District of Georgia) against CC Co. for breach of contract. CC Co. wants advice on how it can get David Co. into the lawsuit. CC Co.'s contract with David specified that if any problem with the bridge arose due to metal work, David was to indemnify CC Co. CC Co. contends that the metal work is responsible for the bridge defects either the wrong type of steel was used or the metal work was faulty. CC Co. has been contacted by Emory Brothers, the architects on the project who claim that their reputation is suffering due to the bridge failure. It appears that part of the defense by David may be to claim that any metal problems were created by the design specifications of the architects, Emory Brothers. Emory Brothers is also a Georgia corporation with its principal place of business in that state.
Consider the above in answering the following questions.
1. Why did the BD Corp bring suit only against CC Co.?
2. What joinder devices and subject matter jurisdiction concepts might be employed to bring David and Emory into the litigation?
QUESTION II -- (45 MINUTES)
The Ferguson, Garrett and Innocenti families and their quests were enjoying a barbecue in their expensive culdesac neighborhood in Anaheim, California when it turned into a disaster area. A lowflying Federal Aviation Administration (FAA) plane was over their neighborhood when it suddenly plunged into the Ferguson home. To avoid running into the FAA plane as it came down, a truck driven by an employee of Toxico, a toxic waste disposal company swerved into the Garrett driveway causing the car of their inlaws, the Innocentis, to explode into flames. The truck then went on to plough into the Garrett dwelling and spilled toxic waste throughout the house. The Ferguson house exploded after the crash and the congregated neighbors watched in horror as the city was unable to put the house fire out because the neighborhood hydrants were dry.
The Fergusons, Garretts, and Innocentis have appeared at your office and explained that they wish to bring the following lawsuits:
1. Ferguson v. FAA
The Fergusons are citizens of California. Federal Tort Claims Act case for destruction of their house Ferguson v. City of Anaheim for negligent maintenance of city services.
2. Garrett v. FAA and Toxico
The Garretts are in the process of moving to Nevada. They will soon relocate to a new home there. They want to bring the action for the destruction of their home. Toxico is a Delaware corporation with its principal place of business in Nevada.
3. Innocenti v. Toxico
The Innocentis are Italians. The Innocentis seek to recover for the destruction of their subcompact car and the only copy of the manuscript of Mr. Innocenti's latest volume of poetry. Innocenti claims that the manuscript should be worth more than $40,000. However, no other Innocenti manuscript has ever garnered more than $25,000 in advances and royalties.
The Fergusons, Garretts and Innocentis want your advice about whether they can bring all of these suits' together in one action in federal court. Considering the principles of federal subject matter jurisdiction, answer their question and explain your answer. If all of these actions can not be brought together, explain which ones belong in federal court and which do not. (Note: FTCA claims can only be heard in federal court.]
QUESTION III -- (30 MINUTES)
A. Compare the following discovery methods Interrogatories (Fed. Rule 33) and Oral Depositions (Fed. Rule 30). Discuss how they operate and what purpose they serve in trial preparation.
B. Explain what law (both substantive and procedural) in applied by a federal court sitting in diversity and why.
C. Compare the 12 (b) (6) motion to dismiss for failure to state a claim with summary judgement (Fed. Rule 56) motions.
D. Explain the wellpleaded complaint rule.
E. Discuss the operation of Rule 11 the responsibility it imposes on lawyers and the consequences of its violation.
THE END
SOUTH
TEXAS COLLEGE OF LAW
CHERIE O. TAYLOR, PROFESSOR
1991 SPRING SEMESTER
SATURDAY, MAY 4, 1991
PROCEDURE I
I.(One Hour and FortyFive minutes)
You have just been hired as a new staff attorney for the World Wildlife Defense Fund, Inc. ("WWDF") in Washington, D.C., (state of incorporation and principal place of business). You have been assigned two matters upon which you are to study and provide a written report to the Board of Directors which supervise all WWDF litigation.
A. Rain Forest Concert Litigation
WWDF has been sponsoring a series of rock/folk concerts throughout the U.S. on college campuses. The purpose of these concerts is to raise money for WWDF's campaign to save the Amazon Rain Forest. The litigation arises out of a concert which was never held. WWDF entered into contracts ($55,000 per performance) with Sinead O'Connor, a citizen of Ireland, and Jackson Browne, a U.S. citizen, domiciled in California, to headline a concert at the Georgia Tech Stadium in Atlanta, Georgia. Georgia Tech had agreed to forego the traditional playing of the national anthem prior to the concert since O'Connor will not perform at concerts where the anthem is played. On concert day, a group comprised largely of Tech alumni, Engineers for America, Inc., (a Florida corporation with its principal place of business in that state) , decided to create a disturbance and to stop O'Connor's performance. The Engineers had already given an interview to the Atlanta Constitution in which they declared that O'Connor was an Irish Republican Army sympathizer or a communist or both and should not be allowed to perform. The engineers picketed, threw eggs at and jostled O'Connor as she was attempting to enter the stadium to rehearse. O'Connor left the stadium area and Atlanta.
O'Connor met in the Atlanta office of WWDF to negotiate the contract with WWDF, Inc. for the Tech concert. WWDF served O'Connor for a lawsuit in federal court for breach of contract for her failure to perform at the concert. She was served several months later while standing at the Delta ticket counter at the Atlanta airport while in transit from New Orleans to Dublin, Ireland.
The other performer, Browne, has a different history. Browne negotiated his contract in California, with performance to be in Atlanta. The only dealings Browne has had with the WWDF Atlanta office included several phone calls and letters regarding concert details and preconcert publicity. Browne also mailed his signed contract to the WWDF Atlanta office. On the day of the concert Browne was in route to Atlanta from California when he received a air phone call telling him about O'Connor's treatment. Browne then remained at the Atlanta airport upon arrival and took the next plane back to California. Browne was served with notice of the lawsuit for breach by the Georgia long arm statute. [Assume that the long arm by its terms properly reaches Browne].
PAGE MISSING
II. (FortyFive Minutes)
You are a staff attorney for the Texas Legislative Counsel's Office. As part of your job you are asked to provide analysis for the legislature on the legal issues raised by proposed legislation. You have been asked to provide an analysis of the Erie issues raised by the following legislative proposal. Texas wants to require that a medical malpractice plaintiff not be allowed to have his claim heard on the merits by a Texas court until after the completion of arbitration proceedings (run by a state system of arbitration panels for health care). The arbitration will act as a condition precedent to entry into the state judicial system. But it will not replace the right to trial by jury which is still available to malpractice litigants after completion of the arbitration. Your office has received a report conducted by Pennsylvania public interest groups which monitored that state's medical arbitration system. One thing that study pointed out is that a substantial portion (over 50%) of the litigants settle their cases before going to trial because the arbitration proceedings have gone on for long time periods without ever reaching the final arbitration hearing required before one can go to court. These facts have lead some to conclude that although such legislation is not meant to preclude the opportunity to go to court, in effect, that is what often happens.
You are asked to advise the legislature on whether a federal court could entertain a Texas medical malpractice claim in a diversity case statute without having to submit the case to arbitration. Would the federal courts feel compelled to dismiss the action until after an arbitration?
How would your analysis differ if Texas passed along with the legislation a statement in the legislative history which read as follows:
The purpose of this act is to make professional liability insurance available at a reasonable cost and to obtain relief for the state courts from the congestion caused by medical malpractice suits.
[Do not worry about the state constitutional issues regarding the right to jury trial. Another attorney is writing on this issue].
III. (Thirty Minutes)
1. Explain the difference between claim and issue preclusion.
2 . What role does the doctrine of forum non conveniens play in federal courts and how is the doctrine applied?
3. Explain the operation of Fed. Rule of Civ. Procedure 12(b) and (h)?
4. The federal rules contain three different provisions relating to sanctions for improper submissions and/or conduct. What are they and how do they operate?
SOUTH
TEXAS COLLEGE OF LAW
CHERIE TAYLOR, PROFESSOR
1991 FALL SEMESTER
TUESDAY, DECEMBER 10, 1991
CIVIL PROCEDURE
QUESTION I --(1 Hour and 15 Minutes)
Your law firm has just taken on as a client Familyland Amusement Park, a Texas corporation with its principal place of business in Texas. The Chief Legal Officer of Familyland wants advice or several lawsuits which have just commenced.
A.
Familyland wants to know whether it will be able to sustain a breach of contract suit it has brought against Strauss GMBH & Co. (a German corporation) in Louisiana federal district court. The lawsuit arises out of Familyland's acquisition of the Menagerie Ride ($500,000) for its theme park. The Menagerie consists of cars shaped like flying pigs, bears, elephants, geese and cows attached to long spokes coming out of a central drive mechanism.
In the purchase contract Strauss promised to deliver the Menagerie to New Orleans, prior to helping with final installation in Texas. Familyland contracted for the early delivery because it planned to exhibit the Menagerie as the "1991 Family Ride" at the upcoming convention of the International Association of Amusement Parks and Associations ("IAAPA"). The Menagerie was put on a ship traveling from Hamburg to New Orleans but never arrived because the cargo vessel broke down in Florida waters and ride was damaged.
Although the Menagerie did not arrive in New Orleans, Claus Berger, the German executive director of Strauss did. Strauss is also a member of the IAAPA. Hearing of Berger's arrival, Familyland hunted him down at the Marriott Hotel and served him with service of process for the suit against himself and Strauss. Strauss has many connections with Louisiana. Annually it sells several large amusement rides and attractions (worth $50,000 or more) to Louisiana theme parks. Strauss is also always represented at the two IAAPA shows in New Orleans each year where they have a display booth. This year Strauss was also a corporate underwriter of one of the leading Mardi Gras parades as a sign of U.S. German solidarity.
Familyland
has now received the initial motions filed by Berger and Strauss. Both are
claiming that they cannot be subjected to the personal jurisdiction of S. Dist.
of La. and the action should be dismissed. Write a memorandum for your partner
on how these motions should be contested. (Assume subject matter jurisdiction is
satisfied).
B.
Familyland is facing a lawsuit against it for an accident arising from its use of the Menagerie Ride. Shortly after a new Menagerie was installed and began running at Familyland, a serious malfunction occurred. One of the flying pigs broke off the Menagerie and sailed through the air until it collided with the nearby roller coaster. The jarring of the roller coaster caused the cars on that ride to split apart. In the lead car was a couple who were injured when that car, instead of being stopped by its emergency brakes, continued down the slope of the coaster until it crashed into the starting gate. Harry Hooper and Imelda Irons, both domiciled in Louisiana but visiting Texas on their first date, were in the lead roller coaster car. Both Harry and Imelda suffered physical injuries (between $20,000$40,000 each for medical costs) and also lost time from work to recover (lost wages approximately $10,000 apiece). In addition, each is claiming severe emotional problems requiring psychiatric counseling for their "near death" trauma (amount required for such services unclear).
Harry and Imelda have filed a tort suit in S.D. La., where they live, against both Familyland and Strauss. Both Familyland and Strauss both contested personal jurisdiction, but the District Court found them to be subject to jurisdiction (and that service was proper). Familyland has since filed its answer and now needs help on five issues:
1. Whether it can file an impleader action against Rollo Co., the manufacturer of the Roller Coaster cars (a Texas corporation with its principal place of business in Oklahoma) for making defective cars (lacking the appropriate braking functions).
2. Whether it can file an impleader or other claim against Strauss for making a defective Menagerie Ride.
3. Whether it can challenge Harry and Imelda's suit for lack of subject matter jurisdiction.
4. Whether it can challenge the case for improper venue and/or argue for a transfer of venue.
5.
Whether it has any basis to appeal the personal jurisdiction decision of the
District Court. The court ruled that although Harry and Imelda were suing for a
tort which occurred outside Louisiana Familyland had enough contacts with the
state to satisfy general jurisdiction. Familyland's contacts with Louisiana
found by the court were: an advertising program for Familyland aimed
specifically at Louisiana, through national and local media; a ticket
consignment agreement with all Louisiana travel agencies; the appointment of a
sales representative with Louisiana as her area of responsibility; repeated
attendance at IAAPA conventions where Familyland had displays; and the fact that
10 percent of the Familyland patrons were from Louisiana, the third highest
state representative after Texas.
QUESTION II -- (45 Minutes)
Ellen Emory is a former employee of Puritex, a subsidiary of Fairon, Inc. (Both Puritex and Fairon are N.Y. corporations with their principal place of business in that state) . Ellen left Puritex fourteen months ago and has since been domiciled in Connecticut. Several months after Ellen left, the president Fairon was interviewed in a chemical trade magazine. Fairon, through its various subsidiaries, produces chemical products for many industry and scientific applications. Fairon's president stated in the publication that Fairon had let a top research scientist go for "personal immorality" reasons. Ellen is the only chemist to leave the Fairon group in the last year. Following the story's publication several Fairon and Puritex officials were loudly discussing the issue at the annual Chemical Manufacturer's Ball. One of the loudest was Jason Jarndyce, who claimed he, Puritex and Fairon had always known Ellen was guilty of misconduct concerning drugs and sexual promiscuity.
Claiming that the printed accusation can only refer to her and constitutes libel Ellen immediately sued Fairon. She also brought a slander claim in the same lawsuit against Puritex (for the slander of Jarndyce) in the Southern District of New York (Assume personal jurisdiction, venue and amount in controversy are satisfied). Fairon responded by filing with its answer a counter claim alleging that Ellen has been infringing its patent rights regarding a chemical solvent Ellen developed on while employed by Puritex. In addition, Fairon claims that Ellen has engaged in unfair competition based on the use of this patent in her new company House Cleaning Technology, Inc. The state law claim is only for $10,000 since Ellen has just began to take on clients and allegedly began selling this chemical solvent.
Fairon also filed an impleader action ($60,000) against Gotchent Investigations. Fairon claims that Gotchent is liable to Fairon because Fairon relied on Gotchent's report on Ellen that she was engaged in drug use and acts of moral turpitude in reaching the conclusion to terminate Ellen's employment. If as Ellen claims the accusations are false then Fairon argues that Gotchent is liable to them for passing on this false accusation. Gotchent is a Delaware corporation with its principal place of business in New York.
Ellen in response has filed a motion for leave to amend to substitute Fairon as the party to be sued for slander rather than Puritex. Her attorney discovered that Jarndyce was actually an employee of the Fairon, Inc. head office and not Puritex. (Puritex never answered the complaint). She has also filed 1) a motion to amend to assert a slander claim against Gotchent claiming $100,000 in damages and 2) a reply to Fairon's counterclaim asserting a claim of her own about Fairon's fraud. In the reply Ellen argues that Fairon supervisors fraudulently told her that the chemical solvent she had invented while at Puritex was unpatentable and then they obtained a patent for Fairon.
Fairon has responded that Ellen's new claim against it for slander is barred by the N.Y. statute of limitations (one year for slander claims) . Ellen argued in her motion this amendment to add Fairon should be allowed to relate back to the original pleading under Federal Rule 15 (c). The original complaint was filed and process was served on Fairon and Puritex within the one year period.
As
a judicial clerk you are assigned to write a memorandum discussing whether or
not the various claims and motions are proper within federal subject matter
jurisdiction and what law (federal or state) applies to each issue.
QUESTION III -- (30 Minutes)
A. Explain how Article IV, Sect. 1, Full Faith and Credit Clause of the Constitution applies to judicial proceedings.
B. Offer a definition of "Long Arm" statutes (federal and state) and what role they play in civil actions in federal court.
C. Explain why federal courts need both the Byrd/Guaranty and Hanna/Stewart tests in order to determine what law to apply in diversity actions.
D.
Explain how the Supreme Court has, to date, interpreted Rule 11.
THE END
SOUTH
TEXAS COLLEGE OF LAW
CHERIE O. TAYLOR, PROFESSOR
1992 SPRING SEMESTER
TUESDAY, MAY 5, 1992
CIVIL PROCEDURE
QUESTION 1 (90 Minutes)
You are the legal counsel to the ShortLived Phenomenon Report (SLPR), a publication aimed at keeping industry, government, and the general nervous public informed about natural disasters. The SLPR, a New York corporation with its principal place of business in New York, sends out reporters (those with both journalist and scientific credentials) to cover issues like earthquakes, volcanic eruptions, typhoons, hurricanes, and large oil/chemical spills. The recent activities and exploits of two SLPR reporters have led to some interesting legal issues.
(A) Jesse Jefferson was the star reporter and meteorologist who broke the story that the National Hurricane Center (NHC) was under funded, understaffed, and under equipped. As Jesse and the SLPR reported in its January 31, 1 992 issue, "The National Hurricane Center would be highly accurate if it were forecasting for 1954." The hurricane story was so important that it was picked up and run by the national news media (NBC, CBS, ABC & CNN).
On the strength of this success, Jesse persuaded the SLPR to set up its own "hurricane prediction" list and to offer its readers, including the NHC, a "better researched and substantial report" than that available from the NHC.
Unfortunately for Jesse, the SLPR, and the NHC, it turned out to be a heavy hurricane season and the NHC and SLPR's forecasting was drastically wrong on one storm. Instead of Hurricane Percival hitting the Outer Banks in North Carolina, it hit the Maryland coast and did substantial damage to the Chesapeake Bay fishing industry.
The Chesapeake Bay Fishers (CBF) have now brought an action under the Federal Tort Claims Act in federal court in Maryland against the NHC. CBF argued that NHC failed in its duty to provide adequate warning assistance to states and their citizens. The NHC has filed an impleader action against Jesse Jefferson and the SLPR arguing that it relied on the SLPR report. NHC also wants to sue the SLPR for slander and libel.
Assess whether or not the impleader claim is proper (including a discussion of subject matter jurisdiction). In addition, analyze whether or not NHC can add the slander and libel claim to the lawsuit as it stands. Explain whether or not CBF can bring a claim against SLPR for its inaccurate reporting. Explain whether venue is proper and whether the NHC can transfer the case to Washington, D.C.
(B) The second legal matter involves Tommy Torrance, the SLPR reporter/seismologist assigned to the "earthquake beat." Torrance was driving around California recently surveying the damage from the Southern California quake (6.5 on the Richter scale) and doing some investigations on the seismographic readings he was getting on the disturbances in the geologic plates surrounding the San Andreas Fault in Northern California. Torrance rented a car in Palm Springs and started driving north.
Unfortunately, just as Torrance arrived north in Eureka, he crashed into an oncoming truck. He was seriously injured. In the course of his transport to the Dice Hospital and his admission there, an earthquake, 6.9 on the Richter scale, occurred. During the quake, Torrance's stretcher was dropped and he sustained additional surface and internal injuries. In the course of being treated, Torrance was then given blood of the wrong type. Torrance suffered seizures from the transfusion. Although recovering, he still seems to be suffering sideeffects from the transfusion.
Advise SLPR, who will fund the Torrance litigation, on whether Torrance can bring in one action in federal court an action against the truck driver and his employers (ZZ Trucking) for negligence; against the ambulance service (AmbulanceRUs, a private contractor working for the county health commission) for negligence; and Dice Hospital for malpractice. Discuss both personal jurisdiction and subject matter jurisdiction. Explain whether your analysis changes if Torrance wants to bring suit in Nevada, where he lives. Discuss the time frame and substance of any initial motions the defendants may choose to bring. In answering the Torrance/SLPR complaint, how will defendants deal with the issue of contributory negligence, a California damages limitation in medical malpractice cases, and any special damages claimed by Torrance.
Question 2 (55 Minutes)
One year ago, Gulfco purchased 1 500 steel pipe joints and lengths of pipe from Hercules Pipe Inc., and purchased an oil monitoring system from Ito Oilworks Inc. Gulfco is a Texas corporation, with its principal place of business in Houston, Texas. Hercules is a Greek corporation, with all of its offices and facilities in Greece. Ito is a Japanese corporation, with all of its offices and facilities in Japan.
The transaction between Gulfco and Hercules was initiated when Gulfco sent a telex to Hercules in Athens, Greece. All followup negotiations between Gulfco and Hercules were by telex. Under the contract, Hercules warranted that the pipes were manufactured in accordance with the standards of the American Petroleum Institute (API). Hercules also warranted that the pipes were of the type which could be monitored by the Ito "flowmonitoring" system.
The contract further provided that Hercules was to deliver the pipe and pipe joints to an ocean carrier in Greece. Once delivery to the carrier occurred, Hercules' obligations under the contract were complete. At that point, Gulfco became the owner of the pipes and pipe joints, and all of the risk of loss fell on it. The pipes and joints were manufactured in Greece and Gulfco paid for them with a check drawn on a Greek bank.
The pipes were shipped to Houston, Texas. Along with the Ito monitoring system, Gulfco then incorporated them in a pipeline running from Houston to Louisiana. While the pipeline was operating, the equipment failed and the pipeline ruptured. Subsequent metallurgical analysis seems to suggest that the pipes manufactured by Hercules did not meet API specifications. The investigation report, however, also indicates that the Ito system had malfunctioned in not warning about the flow problems earlier.
The negotiations concerning the purchase of the Ito monitoring system were held in Tokyo and Houston. The GulfcoIto contract was signed in Houston. Ito promised to deliver the system to Houston and to install and test it there.
Gulfco brought suit in Texas state court against Hercules and Ito. Hercules and Ito both filed motions to dismiss for lack of personal jurisdiction.
In discovery allowed by the court to rule on the motions, the following undisputed facts were disclosed: Between 1979 and 1988, Hercules made fifteen (15) separate sales of APIstandard pipes and joints to customers in Texas. The sales were for a total amount of $30 million. All of the sales were made on the same terms as the sale to Gulfco. Ito has never made a sale before to the United States. Neither Hercules nor Ito is registered to do business in Texas or elsewhere in the United States. Neither Hercules nor Ito maintains an office, agent, or assets in the United States. Hercules is licensed by the API, which is a Dallas organization. The API license allows Hercules to represent that its pipes and pipe joints comply with API standards.
(A) You are working as the judicial clerk for the state court judge. How should the court rule on the motions to dismiss for lack of personal jurisdiction by Hercules and Ito. (You can assume that the Texas longarm statute reaches both defendants.)
(B) You are the judicial clerk for a federal judge in the Southern District of Texas, which includes Houston. Assume that the abovementioned case has been removed from state court to your court.
(1) Is removal proper? Explain.
(2) Hercules has made a motion for a forum nonconveniens dismissal. Hercules contends that the case against it should be heard in Athens. In the GulfcoHercules contract, there is a dispute settlement provision which that the party seeking dispute settlement shall do so in the courts of the other party. Should the court grant Hercules' motion for a forum nonconveniens dismissal?
(3) Assume that both defendants remain in the action and that the action remains in the Southern District of Texas. Can Ito bring a claim against Hercules for that company's failure to manufacture its pipes and joints to work with Ito's equipment? Can the claim be brought in this action?
Question 3 (35 Minutes)
(A) The Supreme Court's decisions in Erie and its progeny may be viewed as involving a question of statutory interpretation, a basic question of federalstate relations, and/or a philosophical question about how judges are to determine what the law is in a given case. Comment on each of these views.
(B) The use and potential misuse of Rule 11 has become a major controversy in the last three years. Discuss the basic elements of Rule 11, the recent United States Supreme Court interpretations, and whether you believe the rule should be altered.
END OF EXAMINATION