Civil Procedure
LAW 5301 (4 credits)
Professor Pedro A. Malavet
The University of Florida
Fredric G. Levin College of Law
Civil Procedure
Spring 2009
Professor Pedro A. Malavet
Final Examination
INSTRUCTIONS
Before the exam starts, you may read the instructions, AND COUNT TO MAKE SURE THAT YOU HAVE ALL SIXTEEN (16) PAGES, AND YOU SHOULD WRITE YOUR EXAM NUMBER ON EVERY PAGE. OTHERWISE, DO NOT GO BEYOND PAGE THREE (THE END OF THE INSTRUCTIONS) OR READ ANY OTHER PART OF THE EXAM BEFORE YOU ARE INSTRUCTED TO START.
Open Rules. "Open-Rules" means that you may have with you during the examination your required West's Federal Rules of Civil Procedure—2008-2009 Educational Edition, Amendments Received to May 13, 2008 (with the maroon cover). No substitutions will be allowed. Your supplements may be annotated with handwritten notes, but shall not have any attachments other than tabs to mark the location of specific material (the tabs may have on them numbers and the short titles of the referenced material and nothing more). Only handwriting may cover the blank spaces and the original printing on the supplements. The use of stick-on labels or paper, white-out or any other method to eliminate any of the original printing is prohibited. Other than the addition of handwritten notes and tabs, the supplements shall be in their original condition, no material may be added nor may any material be removed in any way. The supplements must be in their original bound form at the start of the examination. You may, however, tear them up during the examination if you find that makes them easier to use.
Honor/Conduct Code. Violations of the Student Conduct Code, the College of Law Honor Code or of the exam rules that I have set forth, should be reported to me or to pertinent authorities preferably before or during the examination. Serious violations of these rules shall result in a failing grade and in my referring the matter to the Honor Committee or to pertinent college or university conduct authorities. Less serious violations may result in a reduction in your final grade.
Leaving the Exam Room. You may leave the examination room at your discretion and without asking for permission to leave.
You may not use electronic devices. You may use a laptop computer to answer the essay examination with the Examsoft system. If you must be "on call" during the examination for family or emergency reasons, you may leave your cellphone or pager on "vibrate only" mode and answer calls outside the examination room. Otherwise, use of electronic devices of any kind is prohibited, this includes, but is not limited to, iPods or similar sound-producing devices and headsets, earphones or headphones of any kind.
Be considerate to your classmates. You must be reasonably quiet during the examination, especially when leaving or returning to the examination room.
Read the Entire Exam. PLEASE READ THE ENTIRE EXAM BEFORE YOU BEGIN TO ANSWER ANY QUESTIONS. The exam consists of ten (10) multiple-choice questions (Part I), for forty percent (40%) of the exam grade; and one (1) essay question (Part II), for sixty percent (60%) of the exam grade. Please take these weights into account when you design your answer schedule.
Do Not Un-staple Pages. You MAY NOT TAKE THE EXAM APART FOR ANY REASON. The answer packet for the essay may be unstapled only if you are using a typewriter; you must re-staple all pages.
Limited Space. You must answer the multiple-choice questions on the exam itself. You may not use pencils, erasable ink, or felt-tip markers to answer any part of the exam (penalty of 5% of the score for violations). The essay may be answered in handwriting or by typing using the answer packet that I will provide. The essay portion may also be answered using the electronic template described below.
Scratch Paper. You may use blank scratch paper to outline your answers and take notes during the examination.
Handwriting. I will provide you an answer packet. Put your exam number on each page of the answer packet, even those that you do not use. You may only write on one side of the page (the one with lines for handwriting). Do not use bluebooks. While I encourage you to outline the answers before you start to write, do not include scratch paper or any additional material with your completed exam. If you wish me to ignore any part of your answer, simply cross it out and I will ignore it. If you should run out of space because of cross-outs, you may use an equivalent amount of space on the back of the page.
Write Legibly. If I am unable to read your answer, it is as if you had written nothing. The exam must be written in permanent, dark-color ink. You may not use pencils, erasable ink, or felt-tip markers in any part of the exam answer, upon penalty of 5% of your score.
Typing. If you using a typewriter, you must use the answer packet for handwriting or typewriting. You must stay within the given margins and you may only write one line per line of space given to you.
Electronic Exam Taking. Only the essay section may be answered electronically. For the other sections, you must note your answer on the exam itself. You may take the examination electronically, using specialized software that ensures that you can only use your laptop to write your essay answer. Answer space shall be limited to 1800 characters for each blank page in the examination. That is enough for 24 lines of double-spaced text in courier type, size 11 for each page. Since I provide 12 blank pages in the answer packet, the character limit is: 1800 x 12 = 21,600 characters. It is your responsibility to monitor the length of your exam answer.
Uploading Answers. Make sure that you upload your answer as instructed by the software. You should receive a confirmation that your answer was properly uploaded (submitted). In the past, this has taken up to twelve hours after the examination because of heavy traffic on the system. If you do not receive a confirmation by the morning after the exam, please check with the office of student affairs. At worst, an upload failure means that you have to bring in your laptop so that the technicians can extract the copy of the exam that is automatically backed up on your computer; this copy is encrypted, but we have the means to extract it when needed.
Review. I will be available to discuss examination results during the Fall semester, beginning after Thursday, September 17, 2009. I will not discuss examination results or any other grade-related matter before that date, nor will I reply to communications related thereto sent before that date.
You must stop work four (4) hours after THE SIGNAL TO START. Completed examinations must be turned in to The office of student services.
General Instructions For Part I
Select the best answer to the question presented. In this section, do not look for "perfect" answers, just the most correct one among the alternatives available to you, in light of the question or statement presented. No explanations are required or allowed. Your answer will either be correct or incorrect, there will be no partial credit for incorrect answers. Circle the appropriate letter that you select as your response.
Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, "missing facts" suggest three possibilities: (1) you need to read the question again, i.e., "it's in there somewhere," (2) the fact is not necessary to the resolution of the question, or (3) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question).
Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked, with the best possible response among the alternatives given.
Applicable Rules. Assume that the applicable rules are the Redacted Federal Rules of Civil Procedure and pertinent constitutional and statutory provisions, taken together with all the accompanying doctrines and caselaw as we discussed them in class.
Residence, Domicile and Personal Jurisdiction. Residence and domicile are synonymous. Unless otherwise expressly indicated, assume that individuals are subject to general personal jurisdiction in their place of residence and specific personal jurisdiction where they can be alleged to have been involved in a tort. Corporations are subject to general personal jurisdiction in their place of incorporation and in their principal place of business, additionally insurance companies are also subject to specific personal jurisdiction in any state in which the insured would be subject to personal jurisdiction.
Well-pleaded/Amount in Controversy. Assume that all claims are well-pleaded and that claimed amounts are exclusive of interest and costs.
Part I: Multiple-Choice (40%)
1. A traffic accident involving three vehicles occurs at the intersection of University Avenue and 34th Street in Gainesville, Florida. The driver of one car, Michelle Jeffreys, joined by her four passengers, all citizens of Florida who reside in Gainesville, Florida, file suit in the United States District Court for the Northern District of Florida against the driver of one of the other vehicles, Jason Richards, a citizen of Georgia. The complaint states that the subject-matter jurisdiction of the court is based on diversity. Each of the five plaintiffs claims damages resulting from the accident in the amount of $85,000.00; Ms. Jeffreys additionally claims damage to her car as a result of the accident in the amount of $3,500.00. Does the court have subject-matter jurisdiction over this action?
a. Yes, because there is diversity and supplemental subject-matter jurisdiction over plaintiffs' claims.
b. No, because the claims fail to reach the jurisdictional amount.
c. Yes, because there is diversity subject-matter jurisdiction over plaintiffs' claims.
d. No, because all the drivers may not be joined in the same suit.
2. Consider the same facts described in 9 [sic, it should have been 1, as clarified during the exam] above, except that each plaintiff alleges that their damages amount to $30,000.00, and Ms. Jeffrey's claims that her car was a total loss and was valued at $85,000.00 at the time of its loss. Does the court have subject-matter jurisdiction over this action?
a. Yes, because there is diversity and supplemental subject-matter jurisdiction over plaintiffs' claims.
b. No, because the claims fail to reach the jurisdictional amount.
c. Yes, because there is diversity subject-matter jurisdiction over plaintiffs' claims.
d. No, because all the drivers may not be joined in the same suit.
3. Dr. Frazier Crane, is a citizen of Washington state who resides in Seattle. His car was hit by a car negligently driven by Daphnee Smith, a citizen of the United Kingdom who resides in Seattle, works the University of Washington, and is admitted to the United States for permanent residence. Crane did not suffer any physical damages, but he lost his BMW, valued at $45,000.00 at the time of its loss, and his Ming vase, valued at $35,000.00 at the time it was destroyed. The accident occurred at the corner of Olive Way and Fourth Avenue in downtown Seattle. Crane only has state-law claims against Smith. May Crane sue Smith in the United States District Court for the Western District of Washington, at Seattle?
a. No, because you cannot sue aliens in U.S. courts.
b. No, because there is no subject-matter jurisdiction over this action.
c. Yes, because there is subject-matter jurisdiction, personal jurisdiction and venue over this case in the Western District of Washington.
d. Yes, because you can sue aliens in any district.
4. Amy Smith, a citizen of Louisiana, files a suit alleging diversity jurisdiction against Jonathan Jones, a citizen of Florida, who resides in Gainesville, in the United States District Court for the Northern District of Florida. She claims that defendant Jones owes her $50,000.00, on account an unpaid debt. She further claims that Jones owes her $10,000.00, for unpaid rent. She finally claims that Defendant Jones owes her $30,000.00, for damage caused to her car in an automobile accident. May these claims be pursued in a single federal case?
a. Yes, because these claims may properly be joined under Rule 18(a) and there is diversity subject-matter jurisdiction.
b. No, because each claim fails to meet the jurisdictional amount.
c. Yes, because these claims may properly be joined under rule 20(a) and there is diversity subject-matter jurisdiction.
d. No, because the claims fail to reach the jurisdictional amount.
5. Ally McBeal, a citizen of Massachusetts, kicks Oren Koolie, a citizen of New York, when he is visiting her law office in Boston. She mistook him for "Mr. Huggy," an imaginary dancing baby. Unfortunately, Mr. Koolie is a very real small person, who happens to be a lawyer. Naturally, Mr. Koolie sues Ms. McBeal in the U.S. District Court for the District of Massachusetts. Ms. McBeal is the only named defendant in the suit. In addition to Ms. McBeal and Mr. Koolie, there were two eyewitnesses to this incident, John Cage, a partner in the law offices Koolie was visiting, and Elaine Vassal, a secretary at that same firm. Lloyds of Cleveland Insurance Company provides insurance coverage to Ms. McBeal. Ms. McBeal called the company on the date of the occurrence and asked it to start preparing her defense to the reasonably anticipated litigation. Harry Smith, an agent for Lloyds, took statements from Mr. Cage and from Ms. Vassal. Mr. Smith wrote down what Ms. Vassal and Mr. Cage said and each of them, after reading their respective statement, signed the document. While Mr. Smith was taking down the statements, Mr. Koolie could be heard outside the door to the office that Smith was using screaming "I am going to sue you for every penny you've got, McBeal." The trial court rules that the statements were taken in anticipation of litigation and that Vassal and Cage are available for depositions, therefore, Koolie has no "substantial need" for the statements and can obtain their substantial equivalent by other means that in no way involve "undue hardship." Accordingly, should the court grant Mr. Koolie's request for copies of the statements by Vassal and Cage?
a. Yes, because the statements are not protected "work-product."
b. Yes, because Vassal and Cage are entitled to copies of their statements.
c. No, because Vassal and Cage are not parties to the case.
d. No, because the statements are protected "work-product."
6. Juan Gonzalez, a citizen of California, was severely beaten by four Los Angeles Police officers during the course of an illegal arrest. The actions of the police can be argued to have violated Mr. Gonzalez's rights under the Constitution of the United States. Such a claim would be both reasonable and substantial. The facts giving rise to this claim occurred in Los Angeles. All the officers involved reside in Ventura County, and are citizens of California. Gonz?lez then sues the officers and the City of Los Angeles in U.S. District court for the Central District of California, Western Division, using 42 U.S.C. sec. 1983 to pursue claims arising out of the beating and the illegal arrest. Mr. Gonzalez also includes claims arising under state tort law in his complaint. The state-law based claims are so related to the section 1983 claims that they form part of the same case or controversy under Article III of the United States Constitution. May this matter be heard in a single federal case?
a. Yes, because plaintiff can properly plead federal question subject-matter jurisdiction and the joinder of claims and parties is consistent with the rules.
b. No, because there is no diversity of citizenship among the parties.
c. No, because joinder of the parties is inconsistent with the rules.
d. Yes, because plaintiff can properly plead federal question and supplemental subject-matter jurisdiction over the case and the joinder of claims and parties is consistent with the rules.
7. Jason Bourne, a citizen and resident of Maryland, is involved in a traffic accident with Dr. Albert Hirsch, a citizen of South Africa who resides in Alexandria, Virginia, and is admitted to the United States on a work visa. Bourne files suit in the United States District Court for the Eastern District of Virginia and pleads only subject-matter jurisdiction pursuant to section 1332; his claims for damages exceed $75,000.00. May this case proceed as filed?
a. No, the case should be dismissed for lack of subject-matter jurisdiction because Mr. Bourne is an expatriate American.
b. Yes, because there is alienage jurisdiction and the amount in controversy exceeds $75,000.00.
c. No, because you cannot sue aliens in U.S. courts.
d. Yes, because there is supplemental jurisdiction over this case.
8. Jerry Seinfeld has sued Cosmo Cramer for the tort of assault and battery with weird hair. He claims over $750,000.00 in damages. He has filed the action in the U.S. District Court for the Southern District of New York, where all the relevant acts occurred. He claims diversity of citizenship because he is a citizen of New York, and Cosmo Cramer is a citizen of Florida. Mr. Cramer has moved the court to dismiss the action for failure to join a party under Rule 19. He argues that his hair dresser, one George "Scissors" Costanza, a citizen of Georgia, was not made a defendant to the complaint in violation of Rule 19. Mr. Seinfeld may properly plead tort claims against Costanza for a similar amount in damages as is claimed in his original complaint, but the only basis of subject-matter jurisdiction that he could plead would be diversity. Specific personal jurisdiction over both Mr. Cramer and Mr. Costanza may properly be based on the occurrence of the relevant acts in New York. The court rules that Mr. Costanza is a "necessary" party as defined in Rule 19(a). Therefore, the court should:
a. Grant leave to Mr. Cramer to sue Mr. Costanza under Rule 14(a), for contribution only.
b. Deny the motion to dismiss, refuse to order the joinder of Mr. Costanza, and proceed with the case as filed.
c. Order the joinder of Mr. Costanza and then proceed with the case.
d. Order the dismissal of the case pursuant to Rule 19(b), because the joinder is not feasible.
9. Jerry Seinfeld has sued Cosmo Cramer for the tort of assault and battery with weird hair. He claims over $750,000.00 in damages. He has filed the action in the U.S. District Court for the Southern District of New York, where all the relevant acts occurred. He claims only diversity jurisdiction because he is a citizen of New York, and Cosmo Cramer is a citizen of Florida who resides in Miami. Mr. Cramer moves to dismiss the case for lack of venue. How should the court rule on his motion:
a. Grant the motion due to plaintiff's failure to comply with the requirements of 28 U.S.C. sec. 1391(b)(1).
b. Deny the motion because venue is proper under 28 U.S.C. sec. 1391(b)(2).
c. Grant the motion due to plaintiff's failure to comply with the requirements of 28 U.S.C. sec. 1391(a)(1).
d. Deny the motion because venue is proper under 28 U.S.C. sec. 1391(a)(2).
10. Emeril Lagasse has filed a federal suit against Wolfgang Puck in the U.S. District Court for the Central District of California, Western Division. The complaint was filed on March 24, 2008, and Mr. Puck was served on March 25, 2008. On April 3, 2008, defendant Puck appeared in the case for the first time by filing his Answer to the complaint. He did not raise any Rule 12(b) defenses in the answer. On March 16, 2009, after the pleadings were closed and discovery had been completed in the case, Mr. Puck filed a motion to dismiss for failure to state a claim upon which relief can be granted. In support of his motion, Mr. Puck presents matters outside the pleadings, and the court does not exclude them. Consideration of the motion would in no way delay the trial, which is scheduled to take place on August 24, 2009. May the Court consider this motion?
a. No, because the time to file a 12(b)(6) motion has expired.
b. Yes, because the defense has not been waived, but the court must treat it as a Rule 56 motion for summary judgment.
c. Yes, because the defense has not been waived and the court can consider this a proper motion for judgment on the pleadings.
d. No, because matters outside the pleadings are raised, the motion is untimely.
PART II: Essay (60%)
General Instructions for Part II
Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, "missing facts" suggest three possibilities: (1) you need to read the question again, i.e., "it's in there somewhere," (2) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question), or (3) you need to indicate that you need to establish certain facts in order to provide a complete opinion. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.
Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked. Civil Procedure is a broad and complex course, I have crafted the questions narrowly, do not waste your time covering issues that the question does not require you to resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the question.
Applicable Rules. Assume that the applicable rules are the Redacted Federal Rules of Civil Procedure, and pertinent constitutional and statutory provisions, taken together with all the accompanying doctrines and caselaw as we discussed them in class.
Citations. Since this is an open-rule exam, citation should be made to the appropriate rule, especially the Federal Rules of Civil Procedure, statutory or Constitutional provision, etc. Case citations will be judged on a "close-enough" basis. Please keep in mind that my annotated versions of the rules are helpful shorthand references, provided that you account for redaction.
Limited Space. You must answer the essay question by hand or typewriter, using the answer packet that I shall provide or using the electronic template for this examination.
Instructed Result. Failure to reach the instructed result shall result in no score.
ESSAY QUESTION
EXHIBIT ICONS, LLC et al, Plaintiffs,
vs.
XP COMPANIES, LLC, et al, Defendants.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
KENNETH A. MARRA, United States District Judge.
This cause is before the Court upon Defendant XP Companies, LLC, XP Entertainment, LLC and William Wall III's Motion to Dismiss the Amended Complaint or, in the Alternative, Transfer of Venue (Docket Entry 19, hereinafter "DE #"); Plaintiffs Exhibit Icons and Russell Etling Company's Motion for Leave to File a Brief Surreply to Defendants' Reply Memorandum (DE 88); Plaintiffs Exhibit Icons and Russell Etling Company's Request for Oral Argument on Defendants' Motion to Dismiss for Lack of Jurisdiction (DE 92); Defendant XP Companies, LLC, XP Entertainment, LLC and William Wall III's Motion to Dismiss Second Amended Complaint for Lack of Personal Jurisdiction, or, in the Alternative, Change of Venue (DE 99); Plaintiffs Exhibit Icons and Russell Etling Company's Request for Oral Argument on Defendants' XP Companies, LLC, XP Entertainment, LLC and William Wall III's Motion to Dismiss Verified Second Amended Complaint (DE 112); Defendant XP Apparel, LLC's Motion, and Joinder in the Defendants' Motion, to Dismiss Second Amended Complaint for Lack of Personal Jurisdiction or, in the Alternative, Change of Venue (DE 115); Plaintiffs Exhibit Icons and Russell Etling Company's Request for a Hearing on Defendant XP Apparel, LLC's Motion to Dismiss for Lack of Jurisdiction (DE 119); Plaintiffs Exhibit Icons and Russell Etling Company's Motion to Strike Affirmative Defenses and Portions of Defendants' Answer (DE 126) and Plaintiffs Exhibit Icons and Russell Etling Company's Motion to Strike Affirmative Defenses and Portions of Defendants' Answer (DE 132).
I. Background
According to the Second Amended Complaint ("SAC"), Plaintiff Exhibit Icons ("EI") is a Florida limited liability company and Plaintiff Russell Etling Company ("Etling") is a Florida corporation. (SAC pp. 2-3.) Defendants XP Companies, LLC ("XP Companies"), XP Entertainment, LLC ("XP Entertainment") and XP Apparel, LLC ("XP Apparel") are Colorado limited liability companies. Defendant William Wall resides in Colorado. (SAC pp. 4-7.) The SAC alleges as to XP Companies: (1) breach of contract against XP Companies, XP Entertainment and Wall (count one); (2) breach of the duty of good faith and fair dealing against XP Companies, XP Entertainment and Wall (count two). The subject-matter jurisdiction of the court is properly pleaded under diversity.
In 2003, Etling entered into a long-term licensing agreement to produce a traveling exhibition of the Napoleon Collection, a collection of personal items and memorabilia associated with Napolean Bonaparte. (SAC pp. 12-13.) Etling's responsibilities included providing supporting work to the Collection, including design, development and marketing work to be performed in Florida. (SAC p. 14.) In March of 2006, Etling and EI entered into an agreement in Florida whereby EI was hired as Etling's agent to promote and arrange the tour of the Collection. (SAC p. 17.)
Thereafter, EI entered into an agreement with XP Companies for XP Companies to be the exclusive tour operator of the Napoleon Tour, beginning June 1, 2007 and ending April 30, 2012. During the first year of the agreement, XP Companies was to pay EI one million dollars. XP Companies was referred to in the agreement as XP Exhibits and Mr. Wall signed the agreement on behalf of XP Exhibits. (Sept. 8, 2006 Contract, attached to DE 1.) The contract is governed by Florida law. (Sept. 8, 2006 Contract, attached to DE 1, providing that: "This contract shall be governed and construed in accordance with the laws of the State of Florida") Plaintiffs allege that Defendants XP Companies, XP Entertainment and Mr. Wall breached their contractual obligations as Napoleon tour operator and failed to pay amounts due under the contract (SAC pp. 50-73.) The contract stipulates that all payments were to be received in Florida. In addition, Plaintiffs allege that XP Apparel and Mr. Wall represented to Plaintiffs that XP Apparel and the other corporate defendants were one and the same entity in order to induce them to enter into the aforementioned contract. (SAC pp. 84-97.)
Defendants XP Companies, XP Entertainment and Wall moved to dismiss the first amended complaint for lack of personal jurisdiction on December 4, 2007 (DE 19). On March 3, 2008, the Court granted Plaintiffs' motion for leave to take jurisdictional discovery and permitted the parties to file amended responses/replies to Defendants' motion to dismiss (DE 40). Defendants XP Companies, XP Entertainment, Wall and XP Apparel now argue that Plaintiffs cannot establish either specific or general jurisdiction over them.
The Court has examined the evidence garnered by the parties with respect to the motion to dismiss for lack of personal jurisdiction. It has found the relevant facts to be as follows.
In early 2006, Gary Stern, the president of EI, had a business discussion with Zvi Harpaz, the operator of a marketing and placement services in Boca Raton, Florida, about the Napoleon Collection. (Harpaz Affidavit p. 2; Stern Affidavit p. 2, attached to DE 30 and 31.) Mr. Harpaz then discussed the Napoleon Collection with Jeremy Fey, who worked for XP Apparel, and Jeremy Fey told Mr. Harpaz that he thought his company would be interested in obtaining the touring rights and that he would discuss it with Mr. Wall, the president of "XP." (The Stern affidavit does not identify to which company "XP" refers.) Subsequently, Jeremy Fey telephoned Mr. Harpaz and said that "they had a strong interest" in obtaining the touring rights and a contract was signed by Mr. Wall on behalf of XP Apparel to secure Mr. Harpaz's commission. Jeremy Fey instructed Mr. Harpaz to have Mr. Stern call Mr. Wall. (Harpaz Affidavit pp. 4-8; Stern Affidavit p. 3.)
Mr. Stern then called Mr. Wall and was told to call Jeremy Fey who was his "point man" with respect to the Napoleon Collection. (Stern Affidavit p. 4.) When Mr. Stern called Jeremy Fey, he stated that Mr. Wall and XP were very interested in purchasing the rights to market the Napoleon Collection. On April 12, 2006, Jeremy Fey emailed Mr. Stern that Mr. Wall wanted Mr. Stern to make the offer. (Stern Affidavit p. 5.)
Mr. Stern and Jeremy Fey had "hundreds of follow-up telephone conversations" and communicated nearly every day by telephone, email and facsimile regarding the terms for "defendants" (The Court assumes "defendants" include XP Companies, XP Entertainment and Mr. Wall.) At the time this affidavit was created, XP Apparel was not a defendant in the case. To obtain the tour rights to the Napoleon Collection. Jeremy Fey called Mr. Stern in Florida at least 188 times from April 13, 2006 through June 28, 2006. (Stern Affidavit p. 6.) During all of the telephone calls with Jeremy Fey, Jeremy Fey stated that "defendants" had a keen interest in obtaining the tour rights to the Napoleon Collection. (Stern Affidavit p. 7.) In addition, Jeremy Fey spoke to Mr. Stern about his famous father, promoter Barry Fey, "who has a world-wide reputation for working with such groups as The Who, the Rolling Stones," and emphasized that Barry Fey was a resource that could be used in marketing the exhibit. (SAC pp. 24, 27.)
In late March or early April of 2006, Mr. Stern received a draft contract from Jeremy Fey, sent to him in Florida via email. In June and August of 2006, Mr. Stern met with Jeremy Fey and Mr. Wall in Colorado and then again with Jeremy Fey in Georgia. Final contract terms were agreed to in principle. (Stern Affidavit p. 7.)
In September of 2006, EI entered into the contract with XP Companies, LLC, which was referred to in the contract as "XP Exhibits" and "XP Sports and Entertainment." The contract provided that XP Companies would pay EI $ 75,000.00. (September 8, 2006 Contract, DE 1.) According to the SAC, XP Apparel and Wall induced EI to enter into the contract with these entities by representing these entities as divisions of a large conglomerate that were legally one and the same. (SAC p. 1.) XP Apparel and Wall sought to shift liability to XP Companies, LLC, a non-operational and defunct entity, in order to shield XP Apparel from liability under the contract. (SAC pp. 2, 75.)
In March 2007, Mr. Stern met with Jeremy Fey and Mr. Wall in Denver. They had decided to pursue promotion of the Napoleon Collection in exhibit space rented in Florida. Mr. Stern was asked to suggest sites and Plaintiffs then explored sites in Miami, Fort Lauderdale and West Palm Beach. On March 20, 2007, Jeremy Fey sent Russell Etling, Etling's President, an email with a budget and numerous questions about the Miami venue. (Stern Affidavit p. 11.) Jeremy Fey told Mr. Stern that "defendants" would lease three storefronts in West Palm Beach and sent him a copy of an email he sent to a representative of CityPlace in West Palm Beach. Jeremy Fey also sent Plaintiffs a schedule which contemplated him living in Florida for at least 30 consecutive weeks while he was managing the exhibit. (Stern Affidavit p. 12.) Jeremy Fey also told Mr. Stern that Mr. Wall was his "best friend" and that Mr. Wall would be traveling to Florida to confer about this transaction.(Stern Affidavit p. 13.)
William Wall, the president of XP Companies and XP Entertainment, states that neither XP Companies nor XP Entertainment have any offices, real property or bank accounts in the state of Florida. No representative of XP Companies or XP Entertainment has traveled to Florida for any business dealings with EI. Mr. Wall first met Mr. Stern in Colorado and the Agreement between EI and XP Companies was signed there. (DE 8-2.) Jeremy Fey first met Mr. Stern and Mr. Etling in South Carolina to view the Napoleon exhibit. Jeremy Fey next met Mr. Stern in Georgia at a USA volleyball event where XP Companies was present for the purpose of apparel sales. Mr. Stern traveled there to see how XP Companies conducted its events. Jeremy Fey never traveled to Florida to meet with Plaintiff or Plaintiffs' representatives. Nor have any other XP Companies representatives traveled to Florida to meet with Plaintiffs. Jeremy Fey's communications with Plaintiffs were by telephone and email. According to Jeremy Fey, XP Companies did not solicit or approach Plaintiffs to enter into any agreement to exhibit or display the Napoleon exhibit (DE 8-3.) Mr. Wall has never been to Florida on business. (Wall Deposition 153.)
II. Legal Standard
The plaintiff's burden in alleging personal jurisdiction requires that the plaintiff establish a prima facie case of personal jurisdiction over a nonresident defendant. A prima facie case is established if the plaintiff presents enough evidence to withstand a motion for directed verdict. The district court must accept the facts alleged in the complaint as true, to the extent they are uncontroverted by the defendant's affidavits. If by defendant's affidavits or other competent evidence, defendant sustains the burden of challenging plaintiff's allegations, the plaintiff must substantiate the jurisdictional allegations in the complaint by affidavits, testimony or documents. However, where the evidence conflicts, the district court must construe all reasonable inferences in favor of the plaintiff. See Future Tech. Today, Inc., v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000); Robinson, 74 F.3d 253, 255 (11th Cir. 1996) citing Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).
Under applicable Florida substantive law, count one of the Second Amended Complaint sounds in contract, and count two in tort.
The applicable Florida Long Arm statute is Fla. Stat. 48.193(1) which provides:
(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, and if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from doing of any of the following acts:
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(b) Committing a tortious act within this state.
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(g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.
III. Instructions
A usual, the facts are taken verbatim from an actual opinion, in this case issued by Judge Marra, with some modifications. Upon graduating from the University of Florida Fredric G. Levin College of Law, you were hired by Judge Marra to be one of his law clerks. Judge Marra has assigned you to prepare a memorandum addressing how he should craft the opinion ruling only upon defendant XP Companies' motion to dismiss for lack of personal jurisdiction, given his factual conclusions and other pertinent information detailed above. He intends to rule that there is specific personal jurisdiction over defendant XP Companies because (1) the exercise of personal jurisdiction over defendant XP Companies is proper under the applicable long-arm statute on both the contract and tort claims; (2) the exercise of specific personal jurisdiction over this defendant on those claims also complies with the limitations imposed by the Constitution of the United States. In explaining and supporting the court's conclusions, you shall display your command of the applicable rules, statutes, constitutional provisions and caselaw as you learned them in your Spring 2009 civil procedure course.