HAMLINE UNIVERSITY SCHOOL OF LAW Date of Examination: May 8, 2002 Professor Pielemeier Spring Term 2002 FINAL EXAMINATION–CONFLICT OF LAWS

INSTRUCTIONS 1. This examination consists of seven (7) pages in addition to this cover page. Please ensure that you are not missing any pages.

2. The time allowed for this examination is three (3) hours.

3. Outside material permitted: Casebook only (may be annotated)

SPECIAL INSTRUCTIONS:

a. This examination consists of five questions (with Question I actually containing five multiple choice questions). There are suggested amounts of time for each question. These suggested times total 180 minutes, which is the total amount of time permitted for the exam.

b. Except for Question I, an answer containing only your conclusions will receive little credit. Taking into account the amount of suggested times, discuss all issues reasonably raised by each question, even though your resolution of one issue may seem to render the others moot.

c. Unless otherwise indicated, assume that a "state," or "F-1," etc. is one of the United States.

QUESTION I (25 minutes)

For each of the following five multiple choice questions, write, in your examination booklet, the letter of the single answer that you consider the most accurate answer, based on materials studied in this course. You may, but need not, write up to three sentences explaining your answer, which may warrant partial credit if your choice is incorrect.

1. A sued B in F-1 and obtained a judgment containing a permanent injunction restraining B from violating a provision in a contract between them providing that A would be the exclusive distributor, in a five state area (including F-1), of certain products manufactured by B. B did not appeal. When B appeared to be in negotiations with C (another distributor) for sale of some of the products in F-2 (a state in the same five state area), A brought an action against B in F-2 asking the court to recognize and enforce F-1's permanent injunction. The court in F-2 declined to do so, holding that the exclusivity provision in the contract violated federal anti-trust laws, and entering judgment for B. A did not appeal. B then began using C as distributor of some of B’s products in F-1, in apparent violation of F-1's injunction. A then asked the court in F-1 to impose sanctions on B for contempt of court for violating F-1's injunction. As a defense, B raised the binding effect of F-2's ruling.

A. The court in F-1 may sanction B for contempt because its injunction is still valid with respect to B’s activities in F-1.

B. The court in F-1 may not sanction B for contempt because of the last in time rule.

C. Courts are split on whether the last in time rule applies in this context.

D. The court in F-1 may not sanction B because F-2's judgment was based on federal law, and the Supremacy Clause of the U.S. Constitution provides that federal law is supreme.

2. California courts apply principles of “Comparative Impairment” to

A. Resolve all choice of law issues.

B. Resolve a choice of law issue if, after applying Interest Analysis, they determine that they are faced with an apparent true conflict.

C. Determine whether they are faced with a true conflict, false conflict, or an “unprovided for” case.

D. Resolve a choice of law issue if, after applying Interest Analysis, they determine that they are faced with an apparent “unprovided for” case.

3. Adams sued Baker for fraud in a Florida court. In 1991, judgment was entered in Adams’ favor in the amount of $180,000. Baker didn’t pay, but in 2002, Adams learned that Baker had substantial assets in Illinois, which Baker had kept secret from Adams. Adams then brought an action to enforce the Florida judgment in Illinois. In defense, Baker raised Illinois’ statute of limitations for actions on foreign judgments, which required that they be filed within ten years after entry of the foreign judgment. In response, Adams pointed to the facts that under the law of Florida, judgments were enforceable for twenty years after their entry. Adams argued that if the Illinois court refused to recognize the Florida judgment, that would require those who obtain judgments to know the statutes of limitations of all 50 states and place on them the burden of securing a judgment in every state in which the defendant may conceal assets. The Illinois court

A. Should enforce the judgment because Baker had kept his assets secret from Adams.

B. Should enforce the judgment because it was still an enforceable judgment under Florida law, and full faith and credit requires that courts in the United States should give other States’ judgments the same effect they would be given in the state where rendered.

C. Should enforce the judgment because of the burden not doing so would place on judgment creditors, as argued by Adams.

D. May, consistently with the U.S. Constitution, decline to enforce the judgment.

4. Plaintiff, who is not an American Indian, is hired by a federally recognized Indian tribe in Minnesota as a supervisor at its Casino, which is located on non-fee land on the tribe’s reservation. (It is not the Red Lake reservation.) Plaintiff eventually quits, claiming that certain tribal officers created a hostile working environment. She then sues the tribe and officers on a hostile working environment claim in a Minnesota state court. Upon a proper motion to dismiss, the court

A. Should not dismiss because tribal courts have no jurisdiction over non-Indians.

B. Should dismiss because only the tribal court has jurisdiction over disputes arising from events on non-fee land within an Indian reservation.

C. Should not dismiss because Minnesota state courts have jurisdiction concurrent with tribal courts to adjudicate disputes arising from events within an Indian reservation (except for the Red Lake reservation) if they involve civil laws of general application.

D. Should dismiss because, even though the state court has concurrent jurisdiction, it should defer to the authority of the Tribal courts in cases of this sort.

5. Mars sued Ned in North Dakota to compel specific performance of a contract for the sale of land in South Dakota. North Dakota had personal jurisdiction over the parties. Mars won. Ned still refused to convey. Mars then brought an action against Ned in the county where the land was located in South Dakota, asking the court to recognize and enforce the North Dakota judgment.

A. The South Dakota court must recognize and enforce the judgment under full faith and credit principles.

B. The South Dakota court need not recognize or enforce the judgment because the North Dakota court had no jurisdiction over the land in South Dakota, and the North Dakota court may not hold Ned in contempt for failure to convey.

C. The South Dakota court need not recognize or enforce the judgment because North Dakota had no jurisdiction over the land in South Dakota, but the North Dakota court may hold Ned in contempt for failure to convey.

D. If the South Dakota court refuses to recognize and enforce the North Dakota judgment, the North Dakota court may issue Mars a deed to the South Dakota land, which will effectively transfer the land to Mars.

QUESTION II (15 minutes)

Discuss the difference between “procedural” statutes of limitation and “substantive” statutes of limitation. Note in your discussion your understanding of existing United States Supreme Court case law on the following issue: whether a state, whose only connection with a case is that it is the forum with personal jurisdiction over the defendant, may constitutionally apply its statute of limitations permitting the suit, if a “substantive” statute of limitations of another state, where all the events giving rise to the suit occurred, would bar the suit.

QUESTION III (20 minutes)

Ames, Bader, and Cake had a three car accident in Michigan. All were residents of Michigan. Ames was seriously injured. Because she determined that Bader was most clearly at fault, Ames’ attorney sued only Bader in a Michigan court. Ames received a judgment for $300,000.

Shortly after the judgment, however, Bader’s liability insurance company declared insolvency. As a result, Ames was able to recover only $100,000 of her judgment from the Michigan Insolvent Insurer’s Guaranty Fund. Bader has no significant personal assets, so it is unlikely that Ames will be able to collect the remainder of the judgment from him.

Reconsidering the evidence in the case, Ames’ attorney decided Ames might have a decent case against Cake, who had moved to Ohio after the accident. She decided to bring suit against Cake in Ohio, hoping to obtain a similar judgment against him and to recover the amount he had been unable to collect from Baker.

The Michigan Rules of Civil Procedure have a compulsory joinder rule that is broader than those of the vast majority of States. It requires plaintiffs to join, in any tort action, all defendants potentially subject to the court’s jurisdiction who in any way contributed to plaintiff’s injuries. The history of the rule reflects that it was adopted to effectuate (1) judicial efficiency and (2) fairness to the parties, assuring that all potentially responsible persons will be parties to any tort action so that their relative responsibilities can be more accurately determined.

The effect of the Rule in Michigan, after the judgment, would be that a suit against Cake there would be dismissed, because Ames had failed to join Cake as a defendant in his suit against Bader. Ohio has no similar rule, and nothing in Ohio’s law of res judicata would preclude Ames’ suit against Cake.

When Ames sued Cake in Ohio, Cake moved to dismiss, asserting that because Ames would not be able to sue him in Michigan, full faith and credit principles required that the Ohio suit be dismissed as well. Discuss how the motion should be resolved.

QUESTION IV (60 minutes)

State X and State Y are adjacent to each other. Mowdown, Inc. is incorporated and has its principal place of business in State Y. It manufactures lawnmowers, which it sells to dealers throughout the United States. In April, 1990, a dealer in State X sold one of Mowdown’s Mowemgood riding mowers to Paul Plaint, a homeowner who resided in State X. Paul used the riding mower on his lawn for many years with what he thought were good results. In May of 2000, however, while Paul was mowing his lawn, the riding mower tipped over and the blade came off, resulting in several severe cuts on Paul, particularly on his feet. As a result of the incident, one of Paul’s feet had to be amputated.

Inexplicably, Paul did not come to your office until June, 2001, more than one year after the accident. Thus, suit in State X was foreclosed by State X’s unusually short one year statute of limitations for actions for personal injury. Suit was still possible, however, in State Y, where the statute of limitations for personal injury was three years from the date of the injury.

You have learned that the dealer who sold the riding mower is now out of business, so the only viable defendant is Mowdown. You believe you have a good possibility of recovery on a “defective design” theory. You have filed suit against Mowdown in a court in State Y, but some potential barriers to recovery remain.

One such potential barrier is the fact that State Y has a statute of repose that on its face appears to bar the action. The statute reads:

No claim for injury resulting from a product may be brought against any party, nor may any party be impleaded, later than ten years after delivery of the product to its first purchaser or lessee who was not engaged in the business of selling or leasing the product.

The courts of State Y have characterized this statute of repose as “substantive.” Since Paul purchased the mower in April 1990, the statute would bar the suit if it is applicable.

State X, on the other hand, has no statutes of repose. Under its law, the age of the product, standing alone, is not a defense to the suit.

In addition to the statute of repose issue, the laws of State X and Y differ on another point as well. Under the law of State X, damages for “non-economic harm” (generally pain and suffering) are limited to $200,000. On the other hand, there is no limitation on damages for “non- economic harm” under the law of state Y.

Paul was retired at the time of the accident, so the bulk of his “economic harm” will be his medical expenses and costs of rehabilitation. You believe, however, that if you got this case to a jury, you could persuade them to award damages for pain and suffering significantly above $200,000.

State Y’s courts have adopted Interest Analysis as its methodology for resolving choice of law issues. State Y’s Supreme Court has stated that it will consider arguments based on principles applied and precedent from other states that have adopted interest analysis, including New York. It has also stated, however, that it is not inclined to include Comparative Impairment in its methodology, so you need not go into that in your analysis of this question.

Taking into account and noting arguments you think Mowdown’s attorneys might reasonably make to the contrary, discuss how you would try to persuade state Y’s courts to apply State X law on the issue of whether the age of the riding mower bars the suit, and State Y law on the issue of limitations on the amount of damages for non-economic harm. After discussing these issues, give a brief evaluation of your likelihood of success.

QUESTION V (Two parts–total time 60 minutes)

States X and Y are adjacent to each other. The Bloomburg School District operates the public schools in Bloomburg, a town in State Y. The Ames Theater is a small theater in State X, approximately ten miles from Bloomburg.

Jones, who resided in State Y, was a drama teacher at Bloomburg High School. In the fall of 2001, with the knowledge and approval of the Bloomburg School District and on its behalf, he rented the Ames Theater for the production of a school play. The School District also agreed to pay the costs of the rental.

The rental contract provided that the School District could use the theater for a period of one week for final rehearsal, to be culminated with a public performance on the last evening of the rental. The rental contract provided that the Bloomburg School District would indemnify the Theater for any losses for which the theater might be deemed responsible. The rental contract had no provisions requiring either party to obtain liability insurance. Nor did the rental contract have a choice of law provision.

Molly Shoe was a sixteen year old student at Bloomburg High School who resided in Bloomburg. She was looking forward to being in the school play. However, during the week of rehearsal at the Theater, which was being supervised by Jones, she fell through an open unguarded trap door on the stage. She struck the cement floor below, causing injuries resulting in extensive permanent paralysis.

Molly and her parents have come to your office and wish to sue. You have learned that the Ames Theater is mortgaged to the hilt and that its only likely collectable asset will be from its $100,000 liability insurance policy, required by the law of State X. You have also learned that Jones has minimal assets. Molly’s medical expenses alone will easily exceed $200,000. Thus, you deem it very important to recover a substantial amount from the Bloomburg School District.

Your legal research has determined, however, that a statute of State Y limits the tort liability of School Districts to $200,000 per incident. You have also learned that the Bloomburg School District’s liability insurance coverage is limited to that amount. (Although that fact would not prevent you from seeking to enforce a judgment against other assets of the School District.)

You are convinced that if you brought suit in State Y, its courts would apply its damage limitation. You have also determined, however, that one year before the accident occurred, state X amended its statute limiting the liability of school districts (previously limiting tort liability to $250,000), increasing the amount of tort liability to amounts up to $1,000,000 per incident. You are hopeful that if you bring the case in the courts of State X, they will permit liability to be imposed on the Bloomburg School District up to this amount.

To resolve choice of law issues, State X’s courts apply Professor Leflar’s Choice Influencing Considerations.

Please address the following two matters.

First (recommended time not more than thirty, including time spent reading to here), discuss whether it would be constitutionally permissible for State X to apply its law on the issue in question.

Second, assume the answer to the first question above is that it would be constitutionally permissible. Taking into account how cases studied in this course have applied Professor Leflar’s Considerations, discuss what arguments you would make to State X’s courts for application of its $1,000,000 liability limit for school districts. In doing so, note any counter arguments you think the attorneys for the School District would reasonably make. Then, give a rough evaluation of your likelihood of success, stating your reasons. (Assume that statutory limitations on School Districts’ tort liability vary widely within the United States.)