Civil Procedure Two Prof. Slomanson
Final Examination Fall 2015
(Two-hour P.T. essay) Exam# ______
TABLE OF CONTENTS Page
Instructions ...... 2
FILE
Complaint ………………………………...... 3
Plaintiff’s Core Disclosures ...... 4
Defendant’s Core Disclosures ...... 4
Motion to Compel Mental Examination (Q #3) ...... 4
Motion to Share Expert (Q #4) ...... 5
Deposition Transcript ...... 5
Motion for Judgment (Q #5) ...... 5
LIBRARY
Constitution ……….………………………………………………...... 6
Rules …………………………………………………………………….….…... 6
Statute ...... 6
Memorandum
December 15, 2015
To: Job Applicant
Fm: Managing Partner
Re: Instructions
You do not represent either side in this litigation. Regarding format, please use the “IRAC” method you likely used in law school. Your task is to provide the respective arguments for the issues presented below. You should also reason to a conclusion for each issue.
This exercise consists of six pages. There are five questions presented in the attached File. The Library does not contain all relevant legal resources. Not every scrap of information in the File and Library is necessarily relevant.
The dates in this exercise do not present any issue. Assume that all motions are in proper form, properly signed, and timely submitted.
Good luck,
MP
Managing Partner
FILE
)
v. )
)
David Doolittle, an individual )
/ United States District Court
Southern District of California
Civil Action No. 654321-AJB
COMPLAINT
Personal Injury
File Date: May 1, 2015
1. This is a case arising under 28 U.S.C. §1983 (excessive force) and the US Constitution’s Fourth Amendment (unreasonable seizure).
2. Officer David Doolittle pursued Pat Prat in a high speed chase on El Cajon Boulevard, in San Diego, California. Four miles after the chase began, Doolittle terminated the episode by employing a Precision Intervention Technique (PIT) maneuver, which is designed to cause the fleeing vehicle to spin to a stop. The PIT instead caused Prat to lose control of Prat’s vehicle. It abruptly left the street, rolled down an embankment, violently overturned, and then crashed into an occupied home.
3. Defendant Doolittle’s actions threatened the safety of all drivers in the vicinity of this incident, including plaintiff Prat. Doolittle’s use of excessive force, combined with his unreasonable method of seizure, thus resulted in Prat being rendered a quadriplegic.
4. Whereupon plaintiff seeks compensatory damages for his injuries, including severe pain and suffering, in the amount of $5,000,000.00, and such other damages as will be proven at trial.
Signed: Jumpin’ Jack Flash
Dewey, Cheatem, Bilkem & Howe
Attorneys for Plaintiff
Question #1: The defendant responds with an attack on the trial court’s subject matter
jurisdiction (SMJ). The judge, who considered the SMJ motion to be frivolous,
denies this motion. Can the defendant now appeal the trial judge’s SMJ decision?
More Facts: Assume the appeal is unsuccessful. The parties timely exchange the following documents. [The bracketed italicized inserts below indicate deleted material that is not in issue.]
)
v. )
)
David Doolittle, an individual )
/ United States District Court
Southern District of California
Civil Action No. 654321-AJB
PLAINTIFF’S INITIAL CORE DISCLOSURES
Date: August 3, 2015
Plaintiff submits the following initial core discovery:
Name: Pat Prat
Location: J.J. Flash, Offices of Dewey, Cheatem, Bilkem & Howe (plaintiff’s attorney)
Subject Matter: [proper description provided]
Name: David Doolittle
Location: Nancy Grace, Offices of Last, Hope & Chance (defendant’s attorney)
Subject Matter: [proper description provided]
Name: [Prat properly discloses all health care witness and related document
information]
Pat Prat, an individual )
)
v. )
)
David Doolittle, an individual )
/ United States District Court
Southern District of California
Civil Action No. 654321-AJB
DEFENDANT’S INITIAL CORE DISCLOSURES
Date: August 4, 2015
The defendant submits the following initial core discovery:
Name: David Doolittle
Location: Nancy Grace, Offices of Last, Hope & Chance (defendant’s attorney)
Subject Matter: [proper description provided]
Name: Pat Prat
Location: J.J. Flash, Offices of Dewey, Cheatem, Bilkem & Howe (plaintiff’s attorney)
Subject Matter: [proper description provided]
Question #2: What additional information should/could be included in these disclosures?
More Facts: The defense commences its post-core discovery. It seeks plaintiff’s physical and mental examinations by qualified doctors. Plaintiff objects to a mental examination. The defense files a motion seeking a mental examination of Pat Prat.
Question #3: How should the court rule on the defense Motion to Compel Mental Examination?
More Facts: Nancy Grace (defense attorney) retains the services of Mr. Edward Expert. Edward is the San Diego engineer who designed the Precision Intervention Technique (PIT) and its associated device—used by Officer Doolittle to stop Prat’s fleeing vehicle (as described in the complaint). Expert, who is the best PIT expert in the country, will be assisting Ms. Grace with the defense of this case.
Plaintiff’s lawyer (Jumpin’ Jack Flash) contacts Edward Expert, seeking to recruit Expert to assist with plaintiff’s case. Expert advises Flash that Expert cannot help the plaintiff. Expert recommends that Flash hire the only other qualified PIT device engineer. That is Elaine Feng, who lives in San Francisco, CA.
Flash instead files a motion with the court, seeking an order which would allow both law firms to use Edward Expert at this early stage of the case.
Question #4: How should the court rule on plaintiff’s motion to share Edward’s expertise?
More Facts: Assume the court denies plaintiff’s motion to share Edward Expert’s services. Ms. Grace subsequently designates Edward Expert as her trial expert. Jack Flash takes Edward Expert’s deposition. A portion of the deposition transcript appears immediately below:
Pat Prat, an individual ))
v. )
)
David Doolittle, an individual )
/ United States District Court
Southern District of California
Civil Action No. 654321-AJB
DEPOSITION TRANSCRIPT
of DEFENDANT’S EXPERT
Edward Expert, B.S., Ph.D
Date: October 1, 2015
* * *
Q: Did Officer Doolittle properly apply the Precision Intervention Technique (PIT), as
you designed it?
A: Yes. He used the PIT, and executed the associated maneuver, exactly as it was
designed to be done.
Q: So his application of the PIT was flawless? No mistakes with how he undertook the
procedure?
A: Correct—there were no mistakes. Doolittle applied the PIT process in textbook fashion. No one could have done it better than Doolittle, when he applied it during the incident which is the subject of Prat’s complaint.
More Facts: The case proceeds to trial, with no stipulations about liability or damages. Plaintiff Prat’s trial evidence is limited to the physical injuries resulting in his becoming a quadriplegic. The only defense evidence is Edward Expert’s testimony—which is exactly as Expert stated it in his deposition (Officer Doolittle’s perfect execution of the PIT maneuver on Prat’s vehicle). The jury holds for the plaintiff. The defense makes a post-verdict Motion for Judgment.
Question #5: How should the judge rule on the defendant’s post-trial Motion for Judgment?
[End of File]
LIBRARY
Constitution
Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ***.
Federal Rules of Civil Procedure
Rule 26(a) Required Disclosures.
(1) Initial Disclosure.
(A) In General. *** a party must, without awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses ***;
(iii) a computation of each category of damages ***; and
(iv) *** any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action ***.
Rule 35(a) Order for an Examination.
(1) In General. The court where the action is pending may order a party whose mental or physical condition—including blood group—is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.
Rule 26(b) Discovery Scope and Limits.
(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional ***.
Rule 50 Judgment as a Matter of Law in a Jury Trial.
(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense. ***
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial.
In ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
Statute
42 U.S.C. §1983 Civil Action for Deprivation of Rights.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State *** subjects *** any citizen of the United States *** to the deprivation of any rights *** secured by the Constitution and laws, shall be liable to the party injured in an action at law.***
[End of Library]
Slomanson CP II Issue Outline Note: “@” = complaint / “±” = not
#1: Appellate Jurisdiction• SMJ decision = C.O.
• SCt stingy re C.O. ± w/i Cohen
• routine motion/no big deal
• 1292(b) joint discretion appeal
• TC: mo “frivolous”
• SMJ ± controlling Q
• ± likely diff opinion
• reversal likely delay ultim dispo
• writ route (NARLy)
• no other (appellate) remedy
• must extraordinary order
SMJ • not inherently extraordinary
• obvious FQ b/c excess force/seiz claim / #4 Motion to Share Expert
• WP gist/prep for trial
• Ed Exp = “early stage” consultant
• conditional WP
• pierce if substantial need
• con: conflict of interest
• pro: local expert cheaper
• but if grant, share cost
• Edward = “best”
• always a best
• another in-state qualified expert
• only two qual PIT experts in country
• Elaine = San Fran
• ± know if she’s available
• if not, grant motion to share Edward
• distance = econ hardship?
• San Fran close enough?
#2: Disclosure Completeness
• gist initial required disclosures
Wit identities:
• parties
• “drivers in vicinity”
• home occupant(s)?
Relev docs/things • police report (chase/citations)
• PIT manual
• one/both vehivles
• P no computa damages
• 5M demand/“such other damages”
• D no insur cover
/ #5 Motion for Judgment
Gist:
• insuff evidence (50b)
• no reasonable jury non-moving (P)
• inferences favor non-moving (P)
Waiver:
• must have been in-trial 50a motion
• facts silent
Evidence:
• P “limited...quadraplegic” (dam only)
• no stip re liab
• no liab evidence excess force
• no liab evidence unreas seizure
• D evid ± help P -> just PIT execution
• P burden prove causation (Denman)
• absence force/seiz liab evid = must grant 50b
#3: Mental Examination
• in controversy & good cause
• mental more invasive than physical
• severe pain & suffering (@ ¶4)
• typical allegation general damages
• no Schlagenhauf trigger; e.g., IIED
• ± mental just b/c running fm police
• grant = viol rt privacy
Sample Student Answer
Question 1
Appellate Review
There are several avenues to obtain an immmediate appellate review. An immediate appellate review may be granted if the issue is too important for denial of an immediate apellate review or if there's no adequate remedy at law. First, issue for which appellate review is sought must be on the merits or collateral to them. The courts are hesitant to grant appellate review because it doesn't want a financial able plaintiff to wage war on two fronts.
Here, Defendant Doolittle (D), is seeking appellate review of the trial court's decision of D's response attacking SMJ of the court. SMJ would not be considered an issue on the merits, but collateral to them.
Thus, the issue of SMJ is collateral.
Collateral Order
An order which is collateral to the merits is automatically appealable. The issue being appealled must be the standard set forth in the Cohen court. There's no clear cut definition established under Cohen, the issue may not be appealable, even if it's collateral. Under the Cohen court, it's hard to get appellate review because of its stringent requirement.
Here, D is seeking appeal of trial court's decision against him for attacking SMJ. Under the Cohen test, which limits which issues are appealable, even if the issue is collateral, the courts may be reluctant to grant appellate review because they don't want other appeals of SMJ to possibly flood the courts..
Thus, the court is not likley to grant appellate review and D would have to look at other avenues to acheieve appellate review.
Interlocutory Decision
Under interlocutory decision, the trial judge and appellate judge both have to ceritfy and grant review of the issue.
Controlling Question of Law
Under the controlling question of law requirement, the issue should be at the heart of the case or important to it.
Here, the issue being appealed the SMJ, but the issue at the heart of the case is whether or not D used excessive force unreasonable seizure of P, which led to P being personally injured and becoming a quadriplegic when D used the PIT manuever to stop P in a high speed chase. The issue the party is seeking to appeal is not the decision at the heart of the czse
Thus, D would be unable to establish tere is a controlling question of law.
Difference in Opinions
The difference in opinions is based on whethere there is a jurisdicaiton split on opinions.