FEDERAL CIVIL PROCEDURE ONE

PROBLEM TWO

...... [Case Facts]….…………………………………….
Pete lives in California. After vacationing in Arizona, he is returning on Interstate 8. At the last gas station in Arizona before reaching the California state line, he stops for gas and notices that his tire is leaking. Pete asks Don, the gas station operator, to fix Pete’s tire after Pete buys gas and a new battery. Don recommends that Pete buy a new tire, but Pete says that he cannot afford to do so. Don thus patches up the leaking tire at no charge. Pete proceeds into California where later that day the tire explodes. Pete is severely injured.
Pete sues Don in a California federal court. Pete’s lawyer hires a process server who is unable to find Don. Don’s gas station has been taken over by the parent company. The process server notices that Don has left behind some valuable tire repair tools, which the process server takes back to Pete’s attorney in California. The plaintiff’s attorney later learns that Don bought a home in California after the law suit was filed—and that Don has aCalifornia bank account. As Don’s whereabouts are unknown, Pete’s attorney attaches Don’s tools and his bank account.
Don then hires a lawyer.Don’s lawyer decides to answer the complaint. After raising some substantive law defenses on the merits, Don further alleges in the answer that the court does not have jurisdiction.
Question: What territorial jurisdiction issues are presented and how should they be
resolved? See case File lawLibrarybelow.

FILE

Pete Plaintiff )
... v. )
Don Defendant ) / ...... Federal Southern District of California
...... Number: 654321-EBG
....COMPLAINT FOR NEGLIGENCE
...... 28 U.S.C. Sec 1332(a)(1)
.....1. Jurisdiction is founded on diversity of citizenship and amount. Pete is a citizen of California and Don is a citizen of Arizona. Pete seeks money damages in excess of $75,000.00
.....2. [Charging allegations deleted—see facts above. On the midterm and final exam, after we’ve studied the pleadings portion of the course, most facts would be in this document some would be in an instructional memo, advising you of the task to be performed. Not necessary at this time, but you could see my prior exams (online)for examples.]
.....3. Defendant owes plaintiff the amount of $100,000,000.00.
Jumpin’ Jack Flash
Dewey, Cheatem & Howe
Attorneys for Plaintiff

LIBRARY

California Motor Vehicle Code
Section 17492376665.01. A nonresident may be sued in California state courts, if he or she has operated a vehicle or caused a vehicle to be operated in this state, resulting in an accident which produces physical harm.
California Code of Civil Procedure
Section 17492376665.02. The courts of this state may exercise jurisdiction on any basis not inconsistent with the United States Constitution.

What follows is the prior version of this problem. Its format was altered to more closely
approximate what lawyers actually do in practice. I saved an earlier version of this problem (below), so that you could compare what you would see on the traditional narrative essay exam, as opposed to a form of testingthat provides you with documents to work through. There is no need to read what follows, otherthan to get your first insight into my style of testing—which you will have many opportunities to observe during the course of this course.

Pete lives in California. After vacationing in Arizona, he is returning on Interstate 8. At the last gas station in Arizona before reaching the California state line, he stops for gas and notices that his tire is leaking. Pete asks Don, the gas station operator, to fix Pete's tire after Pete buys gas and a new battery. Don recommends that Pete buy a new tire, but Pete says that he cannot afford to do so. Don thus patches up the leaking tire at no charge. Pete proceeds into California where later that day the tire explodes. Pete is severely injured.
Pete sues Don in a California federal court. Under the state Motor Vehicle Code, a nonresident may be sued in California state courts if he or she has "operated a vehicle or caused a vehicle to be operated in this state resulting in an accident which produces physical harm." Another state statute permits the courts to exercise jurisdiction on any basis not inconsistent with the Constitution.
Pete's lawyer hires a process server who is unable to find Don. Don's gas station has been taken over by the parent company. The process server notices that Don has left behind some valuable tire repair tools, which the process server takes back to Pete's attorney. Attorney learns that Don moved to California after the law suit was filed. There is a California bank account in Don's name. As Don's whereabouts are unknown, Attorney attaches Don's tools and his bank account.
Ultimately, Don receives actual notice of this lawsuit via service on his former roommate with whom Don lived temporarily when he first came to California. A copy of the summons and complaint is mailed to Don at the same address, requesting that he waive service of process. Don thus hires a lawyer to represent his interests in this case.
Don's lawyer decides to answer the complaint. After raising the substantive issues on the merits that Pete assumed the risk and was contributorily negligent, Don further alleges in the answer that the court does not have jurisdiction. Pete's lawyer replies that state law requires a defendant to make a special appearance for the purpose of attacking jurisdiction prior to filing an answer to the complaint.
Question: What issues are presented and how should they be resolved?