Professor Henry H. Perritt, Jr.Exam No. ______

Civil Procedure (Three Hours)

Fall 2016

Time: 1800-2100, 8 Dec 2014

IIT Chicago-Kent College of Law

Final Examination in Civil Procedure

Instructions

  1. This examination consists of 6pages. Please check to make certain you have the complete examination, including the appendices.
  1. Read these instructions carefully, read each question, and read the appendices carefully. As you answer each question, make use of any materials in the appendices that are pertinent. Think each problem through before you write and treat every appropriate issue in each question.Be direct and concise.
  1. Answers will be graded upon the reasons given as well as the conclusions drawn.If more than one reason is pertinent to an answer, state every reason.
  1. While you have been permitted to bring materials into the examination room, answering the questions appropriately will put time pressure on you. You should not do extensive research during the examination. Credit will be weighted according to the time allocations shown. Manage your time accordingly.
  1. You may decide, in answering one or more questions, that a complete answer would require legal research. If this is so, you should identify the specific issue that you would research. If you have a mastery of the basic concepts, you will be able to frame research issues very narrowly and precisely.
  1. It also may be that more factual information is required to answer a question.If this is the case, you should say what factual information is required and why you need it.A mastery of the underlying concepts will permit you to frame any factual inquiries very narrowly and link them precisely to the legal issue involved.
  1. Organization and clarity are very important.A shorter answer that is well organized and evidences a clear understanding of basic concepts and their interrelationships is better than a long answer with disconnected fragments of information.
  1. Do not write outside the margins of your bluebook pages, but write clearly. If it’s not legible, it will not get credit.
  1. Write your examination number on your bluebook(s) and on each page of this examination. Do not use your name.
  1. When you have finished the examination, place it inside your bluebook(s) and deposit them in the appropriate box in the examination room.

MATERIALS WHICH MAY BE TAKEN INTO THE EXAMINATION ROOM

Any material including any outlines whether commercially prepared or not, whether accessible by computer or not. No communication by e-mail, blog or Facebook posting, cell phone, voice-over-IP, or any form of instant- or text-messaging is permitted during the exam.

GOOD LUCK!

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QUESTION I

Yancey Bowen took his EKJ Phoenix drone to south Florida. He bought the Phoenix on Amazon.com‬‬‬, where he has an account. The Phoenix is a quadcopter with four electrically powered rotors. Its battery has enough capacity to allow the drone to stay in the air for about 30 minutes. Its GPS navigational system is designed to keep track of its launching point and to return there when the operator commands it, when the battery is getting low, when it loses its GPS signal, or when the radio control link is interrupted. This is known as the “return-to-home” function. Although the Federal Aviation Regulations require that drones like the Phoenix be registered and display an FAA registration number on their sides, Yancey has not done this.

Yancey launches his Phoenix to take still photographs and make a video of the Lost Key Golf Club on Perdido Key, Florida. Yancey was flying his Phoenix over the golf course when some sort of malfunction in the software caused the drone to escape his control and fly away, no matter what he did on the control console. The last time he saw it, the Phoenix had turned westward, was climbing, and flying away from the golf course. He searched and searched through the neighborhoods where he thought the drone might have landed but was unsuccessful. He assumed it fell into the water, so he returned home to Birmingham, Alabama and filed an insurance claim.

Unfortunately, the drone had become confused and thought its launching point was the dining table in Alabamacre. Alabamacre is a $10 million mansion built on Ono Island, which is in Alabama, on the west side of Perdido Bay, just across from Perdido Key, which is on the Florida side of the bay. Alabamacre is owned by Semantha Williams. When the drone battery charge was down to 20% the return to home feature was triggered, the drone descended, accelerated to 80 miles an hour, crashed through a large plate glass window in Alabamacre, and smashed a chandelier before landing on the dining table. Semantha’s elderly and considerably overweight cat was sleeping on the table when the drone entered. It was traumatized by the experience and now attacks any human being or dog within its reach. Semantha is determined to file a lawsuit, but she doesn't know who owns the drone.

She comes to you and asks you to represent her.

  1. (25 minutes) She would prefer to sue in Alabama, because Florida has a new statute that immunizes drone operators. Can the Alabama courts decide the case in a way that will be enforceable against Yancey? Why or why not?
  1. (20 minutes) You hope you will be able to identify the owner of the drone. Assume that the Alabama discovery rules are essentially the same as the discovery sections of the Federal Rules of Civil Procedure and that the Alabama courts have interpreted them to be the same as the federal rules. What can you do to discover that Yancey owns the drone?
  1. (25 minutes) Semantha files a lawsuit in the Circuit Court for Baldwin County Alabama, the state court of general jurisdiction. Yancey wants to remove it to federal court. What procedural steps must he take to remove it and to keep it in federal court? Is he likely to be able to keep it in federal court? Why or why not? What is Yancey’s best legal theory for litigating this case in United States District Court for the Southern District of Alabama?
  1. (20 minutes) Assume the case stays in federal court. Yancey intends to defend the lawsuit on the grounds that it wasn't his fault: that the accident was caused by defective software in the Phoenix navigation system. What are his options for getting EKJ in the federal lawsuit? What are the most important difficulties he will encounter in trying to do this?
  1. (20 minutes) Suppose, for purposes of this sub question only, that the case stays in state court. Assume Alabama has fact pleading rules that require a plaintiff to plead, “facts showing that the plaintiff is entitled to recover on each cause of action asserted.”

The entirety of Semantha's complaint (after a proper caption) says:

COUNT ONE DANGEROUS DRONE FLYING

  1. Defendant owned the drone.
  2. Defendant was flying the drone on the date the damage occurred.
  3. The Phoenix drone flew into the plaintiff’s house and terrified her cat.
  4. The drone entered plaintiff’s house through the plate glass window and almost landed on her cat, striking the chandelier on the way.
  5. As a result of the defendant’s conduct, the plaintiff’s cat no longer provides suitable companionship for plaintiff, causing her to enter a period of deep depression and sadness.
  6. Wherefore plaintiff demands relief in the form of compensatory and punitive damages exceeding $80,000.

If you represent Yancey, what arguments would you make to get this complaint dismissed on the pleadings?

  1. (20 minutes) Yancey retains an expert on robotics, an engineering professor from the University of North Dakota. Yancey has purchased two more Phoenixes. He and the expert take the both new drones out to try to replicate the accident, with video cameras, including GoPros on both their heads and the camera in the first drone, all rolling and making video recordings. They launch the second drone to serve as a “chase aircraft,” to fly above the first Phoenix and to track on video it if it should fly away. That second drone also has a video camera.

On the first battery, with Yancey at the controls, the drone obeys every control and input. On the second battery, with the expert at the controls, the expert does something to the controls that Blake can't quite see. The drone immediately flies away, ignoring various commands by the expert.

“What did you do?” Yancey asks.

“I pressed the return-to-home button while I was commanding the drone to rotate with yaw inputs from moving the left stick sideways. Giving those two commands simultaneously confuses the control system and causes a flyaway. There's a prominent warning to that effect on the second page of the downloadable operator’s manual.

“Well, that certainly answers the question of what happened,” Yancey says.

“Do you need anything else, or shall I head back to Grand Forks?” the professor asks.

“I guess you can head back,” Yancey says. “I surely won't be asking you to testify. Send me your bill and I'll pay it promptly.”

Can Yancey successfully conceal his interaction with the expert and the recordings? Consider all legal theories under which Semantha and EKJ might claim he is obligated to disclose the information.

QUESTION II

Rebecca Spearman is a software engineer who is helping Tesla improve its autopilot system for its electric automobiles. She developed software routines primarily by buying off-the-shelf sensors from independent manufacturers and writing computer code that starts with sensor measurements such as speed, compass direction, photographic images, and sonar returns that suggest the presence of obstacles. Most of her competitors calculate speed by complicated evaluation of GPS satellite signals to determine position. She has an idea for calculating speed more simply. Under her preferred method, the code would execute much faster. She is a good programmer, but she has run aground on this task. She's tried one thing after another and can't get anything to work. Her frustration is increased by the discovery that one of the sonar sensors intermittently doubles the distance it measures. She files a complaint in federal court for breach of contract against the vendor, HearItNow. She claims $80,000 in damages. Her complaint does not plead any specific ground for the damages. She computed it based on the value of a significant follow-on contract with Tesla that she thinks she lost because of the defect in the sensor.

  1. (10 minutes) You represent the defendant HearItNow. What's the best way for you to find out the basis for the damage claim?
  1. (20 minutes) You still represent defendant HearItNow. Rebecca sends an interrogatory to your client reading:

“What lines of code in the computer programming language Python are necessary for measuring the Doppler shift in a radio signal received from a self-driving car?” This is the programming task that she has not been able to figure out.

Must your client provide the information requested? Why or why not?

  1. (20 minutes) Now you represent Rebecca. The forum selection clause in HearItNow’s standard contract provides, "The parties agree that any and all disputes under this contract or over its interpretation will be resolved through final and binding arbitration in the arbitration service known as 21Centarb, and they waive any rights they may have to litigate such claims in the regular courts. Any arbitration award from 21Centarb may, however, be filed in an appropriate court with jurisdiction over the losing party and that court may enforce it under the Federal Arbitration Act.

You go to the 21Centarb website and find a section for "filing a claim." The instructions provide that the claimant must pay a $1000 filing fee and complete a “type of case” filing form.

As you drill down, you encounter a screen labelled “Type of Case Filing Form” with check boxes that include:

 failure to deliver product

 product caught on fire

 product wouldn't interconnect with Linux.

There is no space for any other type of claim, and the system does not allow one to proceed without filling out this page. Only then will the system provide other forms allowing the claimant to provide details for the type of claim selected.

You know that if you file suit against HearItNow in court that HearItNow will respond with a motion to dismiss and compel arbitration. How should the judge decide the motion and why?

APPENDICES

Alabama Rules of Civil Procedure

Rule 4.2.
Process. Basis for and methods of out-of-state service.

(a) In-state service. All process may be served anywhere in this state and, when authorized by law or by these rules, may be served outside this state.

(b) Basis for out-of-state service. An appropriate basis exists for service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States; or, the person or entity is sued in the capacity of guardian of a ward, or executor, administrator, or other personal representative of an estate, for the acts or omissions of a decedent or ward, and the person or entity so sued does not otherwise have sufficient contacts with this state in that capacity, but the decedent or ward would have been deemed to have sufficient contacts with this state if the action could have been maintained against the decedent or ward.

Assume that Alabama has enacted the Uniform Apportionment of Tort Responsibility Act, section 7 of which says:

“SECTION 7. RIGHT OF CONTRIBUTION AND INDEMNITY; THIRD-PARTY ACTION.

(a) Except as otherwise provided in subsection (b), a party that is jointly and severally liable with one or more other parties under this [act] has a right of contribution from another party jointly liable for any amount the party pays in excess of the several amount for which the party is responsible. A party against which contribution is sought is not liable for more than the monetary amount of the party’s several share of responsibility determined pursuant to Section 5.

(b) A party that is adjudged liable for the act or omission of another party under Section 6(3) has a right of indemnification from the other party.“

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