[Civil Procedure]
1F. Petra, a State W resident, recently patented a new design for a tamper-free bottle cap for soft drinks. She contracted with Dave, who lives in State X, to design a manufacturing process to mass-produce the newly patented bottle caps. Under the contract, Dave was required to relocate to State W, where Petra had leased research and development facilities, and to keep confidential all design and production information concerning the bottle cap.
Dave promptly found someone to rent his home in State X. He moved all his belongings to State W. After working for six months in State W, Dave had perfected the manufacturing process, but when Petra denied Dave’s request for additional compensation he quit his job and disclosed the bottle cap manufacturing process to Kola, Inc. (“Kola”).
Kola is a regional soft drink bottler incorporated in State Y, with its principal place of business in State W. Kola flooded the market with bottled soft drinks capped with Kola’s version of Petra’s bottle cap months before Petra could begin production. When Petra discovered what had happened, she filed suit against Dave and Kola in state court in State W for violation of State W’s patent infringement law. Petra’s complaint sought damages of $50,000 from Dave and $70,000 from Kola. Unknown to Petra’s lawyer, a federal patent law enacted shortly before Petra filed suit encompasses the type of claim pleaded by Petra and expressly preempts all state laws on the subject.
Six weeks after being served with the complaint, Kola removed the entire action to the federal district court in State W. Petra immediately filed a motion to remand the case to state court in State W. The district court denied Petra’s motion.
Petra immediately filed an appeal of the court’s ruling denying Petra’s motion to remand with the appropriate federal court of appeals.
1. Did the federal district court rule correctly on Petra’s motion to remand the case to state court in State W? Discuss.
2. Should the federal court of appeals entertain Petra’s appeal? Discuss.
[Real Property] [Wills]
Olga, a widow, owned Blackacre, a lakeside lot and cottage. On her seventieth birthday she had a pleasant reunion with her niece, Nan, and decided to give Blackacre to Nan. Olga had a valid will leaving “to my three children in equal shares all the property I own at my death.” She did not want her children to know of the gift to Nan while she was alive, nor did she want to change her will. Olga asked Bruce, a friend, for help in the matter.
Bruce furnished Olga with a deed form that by its terms would effect a present conveyance. Olga completed the form, naming herself as grantor and Nan as grantee, designating Blackacre as the property conveyed, and including an accurate description of Blackacre. Olga signed the deed and Bruce, a notary, acknowledged her signature. Olga then handed the deed to Bruce, and told him, “Hold this deed and record it if Nan survives me.” Nan knew nothing of this transaction.
As time passed Olga saw little of Nan and lost interest in her. One day she called Bruce on the telephone and told him to destroy the deed. However, Bruce did not destroy the deed. A week later Olga died.
Nan learned of the transaction when Bruce sent her the deed, which he had by then recorded. Nan was delighted with the gift and is planning to move to Blackacre.
Olga never changed her will and it was in effect on the day of her death.
Who owns Blackacre? Discuss.
[Criminal Law] [Criminal Procedure]
Don was a passenger in Vic’s car. While driving in a desolate mountain area, Vic stopped and offered Don an hallucinogenic drug. Don refused, but Vic said if Don wished to stay in the car, he would have to join Vic in using the drug. Fearing that he would be abandoned in freezing temperatures many miles from the nearest town, Don ingested the drug.
While under the influence of the drug, Don killed Vic, left the body beside the road, and drove Vic’s car to town. Later he was arrested by police officers who had discovered Vic’s body. Don has no recall of the events between the time he ingested the drug and his arrest.
After Don was arraigned on a charge of first-degree murder, the police learned that Wes had witnessed the killing. Aware that Don had been arraigned and was scheduled for a preliminary hearing at the courthouse on that day, police officers took Wes to the courthouse for the express purpose of having him attempt to identify the killer from photographs of several suspects. As Wes walked into the courthouse with one of the officers, he encountered Don and his lawyer. Without any request by the officer, Wes told the officer he recognized Don as the killer. Don’s attorney was advised of Wes’s statement to the officer, of the circumstances in which it was made, and of the officer’s expected testimony at trial that Wes had identified Don in this manner.
Don moved to exclude evidence of the courthouse identification by Wes on grounds that the identification procedure violated Don’s federal constitutional rights to counsel and due process of law and that the officer’s testimony about the identification would be inadmissible hearsay. The court denied the motion.
At trial, Don testified about the events preceding Vic’s death and his total lack of recall of the killing.
1. Did the court err in denying Don’s motion? Discuss.
2. If the jury believes Don’s testimony, can it properly convict Don of:
(a) First degree murder? Discuss.
(b) Second degree murder? Discuss.
[Professional Responsibility]
In 1995, Lawyer was hired by the City (“City”) as a Deputy City Attorney to handle litigation, bond issues, and zoning matters. In 1998, she was assigned by the City Attorney to perform the preliminary research on the feasibility of a new land-use ordinance. Subsequently, the City Attorney retained outside counsel to draft the ordinance, which established new zoning districts and created a wetlands preservation zone restricting development in designated areas.
In 2000, Lawyer resigned from the City Attorney’s office and became employed as an associate attorney in W & Z, a private law firm. In 2002, W & Z was retained by Developer to represent it in connection with a condominium project in City, and Lawyer was assigned to the matter. Developer’s project was within the wetlands preservation zone, and City had denied Developer a permit for construction of the project on the basis that the newly enacted ordinance would not allow it to be built as planned. Developer requested that Lawyer file a lawsuit challenging the validity of the wetlands provision of the ordinance as applied to its project.
Association, an organization of City landowners, independently approached Lawyer and requested that she file a lawsuit on its behalf challenging the validity of the wetlands provision of the ordinance. Developer encouraged Lawyer to represent Association, since a lawsuit by Association would put pressure on City to reach a compromise concerning Developer’s project. Developer told Lawyer it would pay half of Association’s legal fees.
What ethical issues confront Lawyer and W & Z? Discuss.
[Constitutional Law]
Paul, a student at Rural State University (“Rural”), wishes to sue Rural, a public school, for violation of his rights under the U.S. Constitution because Rural refused to select him for its cheerleading squad solely on the basis that he is a male. Paul is indigent, however, and cannot afford to pay the costs of suit, including filing and service of process fees.
State law permits court commissioners to grant a prospective state court litigant permission to proceed in forma pauperis, which exempts the litigant from any requirement to pay filing and service of process fees. Paul applied for permission to proceed in forma pauperis. At a hearing, the state court commissioner conceded that Rural’s refusal to select Paul was constitutionally discriminatory, but nevertheless denied Paul’s application on the ground that Paul’s prospective lawsuit “involves merely cheerleading.”
What arguments could Paul reasonably make that the denial of his in forma pauperis application violated his rights under the U.S. Constitution, and what is the likely outcome? Discuss.
[Community Property]
Henry and Wanda married in 1980 when both were students at State X University. State X is a non-community property state. Shortly after the marriage, Henry graduated and obtained employment with a State X engineering firm. Wanda gave birth to the couple’s only child, and Henry and Wanda agreed that Wanda would quit her job and remain home to care for the child. They bought a house in State X using their savings for the down payment and obtained a loan secured by a twenty-year mortgage for the balance of the purchase price. Mortgage payments were subsequently paid from Henry’s earnings. The title to the State X house was in Henry’s name alone.
In 1990, Henry accepted a job offer from a California engineering firm. The couple moved to California with their child and rented out the State X house.
In 1992, Wanda’s uncle died and left her an oil painting with an appraised value of $5,000 and a small cabin located on a lake in California. Wanda took the painting to the cabin and hung it over the fireplace.
In 1993, after reading a book entitled “How to Avoid Probate,” Henry persuaded Wanda to execute and record a deed conveying the lake cabin to “Henry and Wanda, as joint tenants with right of survivorship.” Wanda did so, believing that the only effect of the conveyance would be to avoid probate.
In 1995, after three years of study paid for out of Henry’s earnings, Wanda obtained a degree in podiatry and opened her own podiatry practice. Her practice became quite successful because of her enthusiasm, skill, and willingness to work long hours. Henry continued to work for the engineering firm.
In 2002, Henry and Wanda separated and filed for dissolution of marriage. Wanda had the painting reappraised. The artist, now deceased, has become immensely popular, and the painting is now worth $50,000.
Upon dissolution, what are Henry’s and Wanda’s respective rights in:
1. The lake cabin? Discuss.
2. The painting? Discuss.
3. The State X house? Discuss.
4. Wanda’s professional education and podiatry practice? Discuss.
Answer according to California law.
[Business Associations] [Professional Responsibility]
Corp is a publicly held corporation whose stock is registered under Section 12 of the Securities Exchange Act of 1934. The following sequence of events occurred in 2003:
January 2: Corp publicly announced that it expected a 25% revenue increase this year.
March 1: A Corp director (“Director”) sold 1,000 Corp shares for $25 each.
June 15: Corp learned that, because of unforeseen expenses, its revenues would decrease by 50% this year, contrary to its January 2 announcement.
June 16: A Corp officer (“Officer”) consulted his lawyer (“Lawyer”) for personal tax advice. Officer mentioned, among other things, the probable devaluation of his Corp stock.
June 17: Lawyer telephoned his stockbroker and bought a put option for $1,000 from OptionCo. The put option entitled Lawyer to require OptionCo to buy 1,000 Corp shares from Lawyer for $20 per share.
June 18: Corp publicly announced that its revenues would decrease by 50% this year. Its stock price fell from $30 to $5 per share.
June 19: Lawyer bought 1,000 Corp shares at $5 per share and required OptionCo to buy the shares for $20,000 pursuant to the put option.
July 1: Director bought 1,000 Corp shares for $5 per share.
1. In each of the foregoing events, which of the actions by Director, Officer, and Lawyer constituted a violation of federal securities laws and which did not? Discuss.
2. Did Lawyer violate any rules of professional responsibility? Discuss.
[Remedies]
In 1993, Polly and Donald orally agreed to jointly purchase a house on Willow Avenue. They each contributed $20,000 toward the down payment and jointly borrowed the balance of the purchase price from a bank, which took a first deed of trust on the property as security for the loan. Polly paid her $20,000 share of the down payment in cash. Donald paid his $20,000 with money he embezzled from his employer, Acme Co (Acme).
Polly and Donald orally agreed that the house would be put in Donald’s name alone. Polly had creditors seeking to enforce debt judgments against her, and she did not want them to levy on her interest in the house. Polly and Donald further orally agreed that Donald alone would occupy the property and that, in lieu of rent, he would make the monthly loan payments and take care of minor maintenance. They also orally agreed that if and when Donald vacated the property, they would sell it and divide the net proceeds equally.
Donald lived in the house, made the monthly loan payments, and performed routine maintenance.
In 1997, Acme discovered Donald’s embezzlement and fired him.
In 1998, Donald vacated the house and rented it to tenants for three years, using the rental payments to cover the loan payments and the maintenance costs.
In 2003, Donald sold the house, paid the bank loan in full, and realized $100,000 in net proceeds. Donald has offered to repay Polly only her $20,000 down payment, but Polly claims she is entitled to $50,000.
Having made no prior effort to pursue Donald for his embezzlement, Acme now claims it is entitled to recover an amount up to the $100,000 net proceeds from the sale of the property, but, in any case, at least the $20,000 Donald embezzled. Donald has no assets apart from the house sale proceeds.
What remedies, based on trust theories, might Polly and Acme seek against Donald as to the house sale proceeds, what defenses might Donald reasonably assert against Polly and Acme, and what is the likely result as to each remedy? Discuss.
[Evidence]
Dan was charged with aggravated assault on Paul, an off-duty police officer, in a tavern. The prosecutor called Paul as the first witness at the criminal trial. Paul testified that he and Dan were at the tavern and that the incident arose when Dan became irate over their discussion about Dan’s ex-girlfriend. Then the following questions were asked and answers given:
17. What happened then?
[1] A: I went over to Dan and said to him, “Your ex-girlfriend Gina is living with me now.”
Q: Did Dan say anything?
[2] A: He said, “Yeah, and my buddies tell me you’re treating her like dirt.”
[3] Q: Is that when he pulled the club out of his pocket?
A: He sure did. Then he just sat there tapping it against the bar.
[4] Q: Tell the jury everything that happened after that.
[5] A: I said that he was a fine one to be talking. I told him I’d read several police reports where Gina had called the police after he’d beaten her.
Q: Do you believe the substance of those reports?
[6] A: You bet I do. I know Gina to be a truthful person.
Q: How did Dan react to this statement about the police reports?
A: He hit me on the head with the club.
Q: What happened next?
[7] A: I heard somebody yell, “Watch out- he’s gonna hit you again!” I ducked, but the club hit me on the top of my head. The last thing I remember, I saw a foot kicking at my face.
Q: What happened then?
[8] A: Dan must have kicked and hit me more after I passed out, because when I came to in the hospital, I had bruises all over my body.
At each of the eight points indicated by numbers, on what grounds could an objection or a motion to strike have properly been made, and how should the trial judge have ruled on each? Discuss.
[Torts]
Paula is the president and Stan is the secretary of a labor union that was involved in a bitter and highly-publicized labor dispute with City and Mayor. An unknown person surreptitiously recorded a conversation between Paula and Stan, which took place in the corner booth of a coffee shop during a break in the contract negotiations with City. During the conversation, Paula whispered to Stan, “Mayor is a crook who voted against allowing us to build our new union headquarters because we wouldn’t pay him off.”
The unknown person anonymously sent the recorded conversation to KXYZ radio station in City. Knowing that the conversation had been surreptitiously recorded, KXYZ broadcast the conversation immediately after it received the tape.
After the broadcast, Paula sued KXYZ for invasion of privacy in publishing her conversation with Stan. Mayor sued Paula and KXYZ for defamation.
1. Is Paula likely to succeed in her suit against KXYZ? Discuss.
2. Is Mayor likely to succeed in his suit against Paula and KXYZ? Discuss.
[Professional Responsibility]
Lawyer is an in-house attorney employed by ChemCorp, a corporation that manufactures chemicals.
Smith is a mid-level employee whose job is to ensure that ChemCorp’s activities comply with applicable governmental safety regulations. Smith asked to meet with Lawyer on a “confidential basis.” At their meeting, Smith said to Lawyer:
“I think ChemCorp might have a serious problem. Last year I inspected a ChemCorp facility and discovered evidence of dumping of potentially toxic chemicals in violation of ChemCorp’s internal policies and applicable governmental regulations. I told my supervisor about it, and he told me he would take care of the problem. My supervisor asked me to say nothing about the situation so they could avoid any legal hassles. I did not disclose the matter in my inspection report, despite internal policies and governmental regulations that require disclosure. I have discovered that the dumping is continuing, and I am very concerned about possible health threats because the dump site is located near several private residences and a river used for drinking water.”
1. What ethical issues arise at the point at which Smith first asked to meet with Lawyer and later during their conversation? Discuss.
2. May Lawyer independently disclose the problem relating to the dumping of potentially toxic chemicals to governmental authorities? Discuss.
[Wills]
In 1998, Tom executed a valid will. The dispositive provisions of the will provided:
“1. $100,000 to my friend, Al.
1 My residence on Elm St. to my sister Beth.
2 My OmegaCorp stock to my brother Carl.
3 The residue of my estate to State University (SU).” In 1999, Tom had a falling out with Al and executed a valid codicil that expressly revoked paragraph 1 of the will but made no other changes.
In 2000, Tom reconciled with Al and told several people, “Al doesn’t need to worry; I’ve provided for him.”
In 2001, Beth died intestate, survived only by one child, Norm, and two grandchildren, Deb and Eve, who were children of a predeceased child of Beth. Also in 2001, Tom sold his OmegaCorp stock and reinvested the proceeds by purchasing AlphaCorp stock.
Tom died in 2002. The will and codicil were found in his safe deposit box. The will was unmarred, but the codicil had the words “Null and Void” written across the text of the codicil in Tom’s handwriting, followed by Tom’s signature.
Tom was survived by Al, Carl, Norm, Deb, and Eve. At the time of Tom’s death, his estate consisted of $100,000 in cash, the residence on Elm St., and the AlphaCorp stock.
What rights, if any, do Al, Carl, Norm, Deb, Eve, and SU have in Tom’s estate? Discuss.
Answer according to California law.