CIVIL PROCEDURE: Final Exam

Brooklyn Law School

Prof. Jayne S. Ressler
Fall 2016
Monday, December 19, 1:00 p.m.

EXAM NUMBER: ______

General instructions

• This exam has 50 multiple choice questions and one long essay question. Do not look at the
questions until you are told to do so. Once you are told that you may begin, make sure that
you have all the questions.

• You will have four hours (240 minutes) to complete the exam. You may allocate your time
however you wish. However, I have provided “suggested time” guidelines in each section.

• You may bring in and use your rule book (or an equivalent) and an outline to which you have
substantially contributed. Nothing else is allowed to be consulted during the exam. There
are no exceptions.

• You must hand in this test packet and the Scantron multiple choice answer sheet when
you are finished. Write your exam number on the test packet and Scantron multiple choice
answer sheet. DO THIS NOW.

• For all questions, unless stated or suggested otherwise, assume (1) that you are in a
jurisdiction in which the applicable rules of procedure are the current Federal Rules of Civil
Procedure; (2) that the jurisdiction follows the majority approach (under the Federal Rules
of Civil Procedure) on any relevant issue; (3) that pleadings are filed and served (or that
service is waived) in a timely manner; (4) that people are U.S. citizens; and (5) that state
long-arm statutes extend as much as permitted under the U.S. Constitution.

• For all questions, do not consider the effect of any rules or statutes that were neither assigned
nor discussed in class.

Instructions for multiple choice questions

• On your Scantron answer sheet, fill in the bubble for the answer of your choice. Choose the
“best answer.” Only one “best answer” will be scored as correct.

(continued on the next page)

• Pay careful attention to what the question asks; some questions may ask you to find the
“most” or “least” likely result. If you feel that a question is somewhat ambiguous, resolve
the ambiguity by using common sense in light of what you have learned.

• If you think a question is unanswerable because of serious ambiguity or a lack of necessary

information, you can appeal the question. (You can appeal up to eight questions). Note your
appeal at the end of your essay section – detailing the reason why you think that the question
is unanswerable – and go ahead and answer the question as best you can. If your answer is
correct, your appeal becomes moot. If not, I will read your appeal and decide whether to
give you credit for the question. If I decide to give a student credit, I will give that particular
student credit—not necessarily the whole class. Therefore, it is conceivable that two students
will appeal the same question, but because one student’s appeal is convincing and the other is
not, I will give credit to only one student.

• Your score on the multiple choice section is based on the number of questions answered
correctly; there is no penalty for guessing. However, on the essay question I am interested in
quality. Therefore, you may be penalized for including information that is clearly irrelevant
to the question.

Instructions for essay question

• If you chose to answer the essay by hand, write your exam number on your bluebook(s). DO
THIS NOW. If you use multiple bluebooks, label them sequentially in the following format:
“1 of 3,” “2 of 3,” etc.

• On any question, if you think you need more facts, explain how additional facts would affect
your answer. If you think a question is ambiguous in any other way, address the ambiguity
and explain how its resolution would affect your answer. If your answer in any part depends
on substantive law, as opposed to procedural law, simply explain that in your answer.

Grading the exam

• I will assign a point total to each exam, giving the multiple choice section 40% weight and
the essay section 60% weight. The law school’s standard grading curve will guide my
translation of the point totals into letter grades. After grades are posted, I will have sample
answers available in my office. You may review those sample answers, as well as your own
exam (all materials must stay in my office), by making an appointment with me. I will not,
however, re-grade any part of your paper. Of course, if I have made a clerical error, I will
correct it.
 CIVIL PROCEDURE: Final Exam

Brooklyn Law School

Prof. Jayne S. Ressler
Fall 2016
Monday, December 19, 1:00 p.m.

DO NOT TURN THE PAGE UNTIL YOU ARE TOLD TO DO SO.

Multiple choice (suggested time: no more than 120 minutes)

Multiple Choice Questions Removed

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Essay

*Please note that the time allocations I listed below total 100 minutes. If you used 120 minutes
for the multiple choice section you have 120 minutes left for the essay. I have factored in 20
minutes for reading and reviewing the fact pattern.

Malia Slater grew up in Maui, Hawaii, and has surfed all of her life. Although there are
many stores in Hawaii that make and sell surfboards, Malia has always wanted a surfboard made by
Crazy Ken, a one-man handmade surfboard manufacturer in Laguna Beach, California. In
February, 2014, Malia attended the annual Maui surfboard exposition, which is sponsored by the
Pacific Surfboarders Association (“PSA”). The PSA is a regional organization of individual
surfboard makers. Owners of surfboards built by PSA members are encouraged to have their
surfboards maintained and repaired by other PSA members if the owner cannot bring the surfboard
to the original manufacturer. The PSA was founded in Maui, Hawaii, and derives its largest
membership from Hawaiian businesses. However, PSA members are also in California, Oregon,
Alaska, Texas, Washington, Virginia, and Florida. Crazy Ken is one of the founding members of
the PSA. At the exposition Malia saw a Crazy Ken surfboard model called “Dart,” and decided that
she would save enough money to buy one.

Crazy Ken does not sell only surfboards. In fact, Crazy Ken sells surfing-themed shirts –
and lots of them. He uses his name recognition from his surfboard business as a marketing tool for
his shirts. Every summer Crazy Ken travels from California to Hawaii to gather lava from volcanic
overflow, and he uses that lava as ink in his shirts.

After much scrimping and saving, Malia traveled to California on June, 20, 2014, to buy a
Dart surfboard from Crazy Ken. The surfboard cost $70,000. Malia paid $50,000 using a certified
check, and signed an agreement to pay the remaining $20,000 balance within 6 months. Before
leaving the Crazy Ken store and heading back to Maui, Malia struck up a conversation with Crazy
Ken. Crazy Ken told Malia about a little-known surf spot in Hawaii, on the island of Kauai. Crazy
Ken drew a map of the exact location for Malia, and told her that she would “catch the best waves
of her life” there.

Malia was ecstatic. She took her new Dart surfboard back home to Hawaii, and headed
straight for the surfing spot on Kauai that Crazy Ken drew on the map. Malia enjoyed several
amazing waves on her new Dart surfboard, but then suddenly she felt the surfboard hit something.
It was a shark! In fact, there were lots of sharks in the area – so many that Malia barely made it out
of the water alive. The Dart was not so lucky. The sharks tore it to shreds. A passerby saw Malia
stumbling out of the water and called an ambulance, which promptly brought Malia to the hospital.

Malia fully recovered, but she was heartbroken. She hired a lawyer, who, after reading
Hawaii’s Long-arm statute (it is attached as the last page of the exam) sued Crazy Ken in state court
in Hawaii for negligence (a state law claim) in the manufacture of the Dart, claiming that the
surfboard should not have been so easily destroyed by sharks. Malia sought a refund of the $50,000
she paid for the surfboard, as well as compensation for her travel expenses, medical bills from the
hospital in Kauai where she was treated for her injuries, and pain and suffering as a result of her
encounter with the sharks. She also sought an injunction against Crazy Ken to prevent him from
selling more Dart surfboards. Malia filed her suit on June 6, 2016, two weeks before the applicable

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statute of limitations expired. Crazy Ken was properly served personally in California that same
day.

(a) Crazy Ken filed a notice of removal on June 15, 2016, and the case was promptly
removed to federal court in Hawaii. On July 10, 2016, Malia moved to have the
case remanded back to state court. Do you think that Malia’s remand motion will
be successful? Explain fully. (approximately 20 minutes)

***Assume for purposes of the remaining questions in this essay that Malia brought her original
claim on June 6, 2016, in federal court in Hawaii***

(b) Crazy Ken filed a timely 12(b)(2) motion to dismiss the lawsuit. Do you think that
Crazy Ken’s motion to dismiss will be successful? Explain fully. (approximately 35
minutes)

Assume for purposes of this question only that Crazy Ken’s 12(b)(2) motion was denied on
August 4, 2016. Crazy Ken then properly filed a motion to transfer the case to the Middle District
of California, where Laguna Beach is located. Malia opposed the motion.

(c) Do you think that Crazy Ken’s transfer motion will be successful? Explain fully.
(approximately 4 minutes)

Assume for purposes of this question only that Crazy Ken’s transfer motion is granted, and
the case is transferred to the Middle District of California.

(d) Which state’s law will apply in California after the case is transferred? Explain
fully. (approximately 8 minutes)

Assume for purposes of this question only that after Malia filed her complaint on June 6,
2016, Crazy Ken did not make any motions but instead filed and properly served an answer in
which he included a counterclaim against Malia for breach of contract for the $20,000 balance
Malia did not pay to him for the Dart (assume that this counterclaim is timely).

(e) Malia moved to dismiss Crazy Ken’s counterclaim on the grounds that it may not
be heard in federal court. Do you think that Malia’s motion to dismiss will be
successful? Explain fully. (approximately 8 minutes)

Assume for purposes of this question only that after Malia filed her complaint on June 6,
2016, Crazy Ken did not make any motions but instead filed and properly served an answer. On
December 7, 2016, Malia moved to amend her original complaint to add another state law claim
against Crazy Ken for negligence as a result of his map directing Malia to shark-infested waters.
Crazy Ken objected on the grounds that (i) the inclusion of Malia’s new claim is impermissible
under the Federal Rules of Civil Procedure, and (ii) Malia’s new claim is untimely due to the
expiration of the statute of limitations for negligence on June 20, 2016.

(f) Do you think that Malia’s motion to amend her complaint will be successful?
Explain fully, but limit your response to the two objections by Crazy Ken as stated
above. (approximately 15 minutes)
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 Assume for purposes of this question only that Malia’s motion to amend her complaint is
successful and the case proceeds forward with both of Malia’s claims against Crazy Ken for
negligence. Crazy Ken thinks that the reason he gave Malia bad information about the surf spot on
Kauai is because his friend Kelly gave Crazy Ken bad information about the surf spot.

(g) What would you advise Crazy Ken to do? Explain fully. (approximately 10
minutes)

END OF EXAM!!! Happy and healthy holidays to all! Thanks for a terrific semester! It has been
my great privilege to work with you! Mahalo!

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 Hawaii Long-arm Statute

§10.20 Acts subjecting person to jurisdiction of courts of state

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent
does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or
she is a natural person, his or her personal representative to the jurisdiction of the courts of this state
for any cause of action arising from the doing of any of the following acts:

(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or
having an office or agency in this state.

(b) Committing a tortious act within this state.

(c) Causing injury to persons or property within this state arising out of an act or omission by the
defendant outside this state, if, at or about the time of the injury, either:

1. The defendant was engaged in solicitation or service activities within this state; or

2. Products, materials, or things processed, serviced, or manufactured by the defendant

anywhere were used or consumed within this state in the ordinary course of commerce, trade, or
use.

(d) Breaching a contract in this state by failing to perform acts required by the contract to be
performed in this state.

(2) A defendant who is engaged in substantial and not isolated activity within this state, whether
such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts
of this state, whether or not the claim arises from that activity.

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