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LAW 501 Civil Procedure

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McCook, a Texas inventor, brings an action against Heartfelt Company claiming, “outrageous conduct in manufacturing heart replacement valves.” He filed the suit in the federal court sitting in Houston, but because he wanted to save some money, he filed the lawsuit pro se (self-represented). Heartfelt, unable to fully understand the legal claim, moves for a more definite statement under FRCP 12(e). The judge grants the motion and McCook now hires a lawyer who files an amended complaint alleging that Heartfelt infringed on a product McCook invented and patented with the federal office. Assume McCook, having no real legal experience, did not realize this additional cause of action was available to him when he filed the original complaint. Heartfelt responds to the amended complaint by filing a motion to dismiss under FRCP 12(b) (3) arguing that under 28 U.S.C. § 1400, a special venue provision for patent cases, venue is improper I the federal court sitting in Houston. Assume the matter is set for hearing, how should the court rule?

Suggested Answer: 

The court should grant the Rule 12(b) (3) motion to dismiss if, after reviewing all the evidence, it considers that the venue is improper in the federal judicial district chose by McCook. Generally, one could argue that under Rule 12(g), Heartfelt waived the right to raise this 12(b) (3) motion to dismiss since it failed to raise it when it filed the Rule 12(e) motion. However, Rule 12(g) bars a second motion only when the defense was available to the party and omitted from its earlier motion. Heartfelt can argue that the venue challenge was not available to him when he raised the Rule 12(e) motion, but became a viable challenge when McCook amended his complaint to add the patent infringement claim.

In addition to the FRCP, practice in federal courts is strictly governed by the procedures enacted by the presiding judges. A well-prepared lawyer must carefully read and know the procedures of judges to whom their cases have been assigned. Question 1 is designed to familiarize you with these rules.

Q1. Patricia, a domicile of Arizona, files a civil action for breach of contract against Daniel, in federal court for the District of Arizona. The contract was entered in France, and allegedly required Daniel to perform advertising services in Paris. Daniel, a citizen of France, makes a timely 1) motion to dismiss the lawsuit for improper venue, and 2) an alternative motion to transfer the lawsuit to the Southern District of New York where Daniel’s summer home and local counsel are located, and 3) an alternative motion to dismiss on the grounds of forum non convienens. Patricia responds to the motion by asserting that she filed the lawsuit in a proper and convenient forum, and that Arizona law would be much more favorable to her than the law of France. How should the court resolve each of the three motions?

Q2. Penelope drove from her home in Minneapolis to visit her brother, Ilia, an attorney living in Chicago, Illinois. On the way, Penelope stopped to get her brakes tightened at Don’s Tune-Ups Inc., which is a Delaware corporation with its principal place of business and only shop in Eastern Wisconsin. After Don’s Tune-Ups Inc., finished its work on her car, Penelope continued driving toward Chicago. After she passed into Northern Illinois, however, Penelope was seriously injured in a crash resulting from the failure of her brakes. Penelope files a tort claim in the Northern District of Illinois against Don’s Tune Ups Inc. The defendant files the following motions: 1) motion to dismiss for lack of subject matter jurisdiction; 2) a motion to dismiss for lack of personal jurisdiction; 3) motion to dismiss for improper venue; 4) an alternative motion to transfer for the Eastern District of Wisconsin. How should the court rule on each of these four motions?

Q3. Paulie sued Damascus Corporation under Title VII of the Civil Rights Act of 1964 for discrimination. Paulie worked as a carpenter for Damascus Construction Company for the last three years. A position for a shift-manager opened up, and Pablo applied for the promotion; he was not given the job. In his complaint, Pablo asserted that the only reason he was not given the job was because he was too attractive. Pablo stated that he was the most qualified applicant, and that he had been with the company the longest of all applicants.

i) Damascus denied all the allegations in the complaint and filed the motion to dismiss for failure to state a claim upon which relief can be granted. Following the grant of the motion, Damascus filed a motion seeking sanctions under Rule 11(b). Can the court rule on this motion?
ii) Assume for this question only, that the judge granted Damascus’ motion, and his order, included an offer for show cause as to why sanctions should not be imposed for a violation under Rule 11(b)(2). Assume there is no legal claim under Title VII for discrimination for being too good looking. Has the court followed the proper procedures under Rule 11(c)(3)?

Q4. On Match 30, 2017, Attari, a cement truck driver, was electrocuted when his truck’s boom contacted an overhead power line while transferring concrete from his truck to a pumper truck. Attari, a resident of Houston, Texas, died at the site of the accident. His wife, Janice Attari, filed a wrongful death action against Amigo Energy Company, a Tennessee corporation, alleging negligent maintenance and operation of the power line that caused Attari’s death. The lawsuit claiming $2.5 million in damages was filed in the U.S. District Court for the Southern District of Texas. Amigo Energy filed an answer to the complaint and immediately impleaded Tasco Equipment Company, incorporated in New Mexico, alleging that Tasco, the company that built the power line pillars was negligent in the erection of the pillars, as a result of which Attari was killed. After Amigo Energy impleaded Tasco, Janice Attari amended her complaint to assert a claim against Tasco for $1 million dollars.

i) Will Janice Attari’s claim against Tasco prevail?
ii) How would your answer differ if Tasco was incorporated in Texas, and not New Mexico? Please explain fully.

Q5. Mona Lisa Vito, a resident of New York, enrolled in Nationwide Vocational School’s (NVS) automotive service technician program in August 2017 and was the program’s only female member. Vito alleged that Johnny Gambino, one of the school’s instructors, began a campaign of sexual and gender-based harassment, threatening behavior, unwanted touching, and verbal abuse against her. Vito made repeated complaints to the school’s director, Rosalie Moretti, but the situation did not improve, instead, it worsened. Vito hired a well-known lawyer, Rusty Hardin, to represent her, and decided to sue Gambino and the vocational school in a Houston district court. She chose to sue in Texas because NVS is incorporated there, and it seemed convenient since she was doing her 18-month program at the school. Gambino, a permanent resident of New Jersey, was brought to the Houston location on a temporary basis because of his expertise as an electric systems technician. Vito claimed $175,000 in damages from each defendant. Both defendants were served, ad NVS immediately filed a Notice of Removal to the U.S. Southern District Court, which was properly joined by Gambino. Vito filed a Motion to Remand to the Texas district court. How should the court rule?

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