Civil Procedure Two Prof. SlomansonFinal Examination Spring 2011 Exam# _______

TABLE OF CONTENTS PageMemorandum ............................................................................................................. 2

FILEComplaint ………………………………................................................................... 3Exhibit “A”…..……………………………………..……………………………….. 4Answer ....................................................................................................................... 5 Jury Verdict ……….…………………….……………………………………….…. 6Initial Disclosures …….…...………………………………………………….…….. 7Deposition Transcript …………..…………………………………………………... 8

LIBRARYCONSTITUTION …………………………………………………………………...…. 9JUDICIAL CODE ……….…………………………………………………………...... 9FRCP ………..………………………………………………………………….……. 9-10

MemorandumDewey, Cheatem, Bilkem & Howe

110 Laurel AvenueSan Diego, CA 92101

May 9, 2011To: Job Applicant Fm: Managing PartnerRe: Instructions

We assess the ability of our job applicants to bridge the gap between law school and the practicing bar, by having them do what lawyers do—read instructions, process documents, and produce a reasoned analysis of a legal problem. Note that this exercise has ten (10) pages total.

After reading this instructional Memo, examine the FILE. It contains the facts and issues for this exercise. Please advise me on Issues #1 through #8 in the enclosed FILE. (A mere “yes” or “no” answer is not exactly what we are looking for from potential associates.)

The enclosed LIBRARY contains resources that may impact your analysis. These resources are not necessarily the only legal rules which may be applicable. Do not assume that every scrap of information in this FILE and LIBRARY is relevant to some issue.

If there are two sides to an issue, you should address the respective arguments. But do give me your reasoned conclusion on each issue. Use whatever format you wish to provide your response.

Good luck, Stern TaskmasterManaging Partner

FILE

Pamela Hickman, Plaintiff ) v. ) Taylor Tours, Inc., Defendant ) )

United States District CourtSouthern District of California Civil Action No. 654321-SOB

COMPLAINTWrongful Death

Wrongful Death

1. Pamela Hickman, hereinafter “plaintiff,” resides in San Diego, California. Taylor Tours, Inc., hereinafter “defendant,” is a company doing business in Crystal Bay, Nevada. 2. Pamela and her husband Paul Hickman visited defendant’s website, then paid to go on a subsequent day-long cruise on July 4, 2009 on Lake Tahoe [see Exhibit “A,” exam Page 4]. The boat on which they were passengers was named the Secure Horizons. It was owned, operated, and controlled by defendant.

3. Several hours into their journey, the Secure Horizons’ motor ignited, causing it to catch fire and sink near Cave Rock, Nevada. The Secure Horizons was over-crowded because of the holiday. It did not have enough life vests for each passenger. Paul, who could not swim, did not get a life vest. He then drowned in this accident.

4. Pamela, his wife and sole surviving heir, brings this wrongful death action to recover for the resulting loss of care, comfort, and companionship caused by defendant’s negligence.

5. WHEREFORE, plaintiff seeks $80,000 in damages for her wrongful death claim, plus any further damages, to which she is entitled based on her proof at the trial of this action.

Signed: Jumpin’ Jack Flash Dewey, Cheatem, Bilkem & Howe

Attorneys for Plaintiff

Exhibit “A” (to Plaintiff’s Complaint)

͏ http://www.TaylorTours.com

Taylor Tours, Inc.1155 Island Drive

Crystal Bay, Nevada 89402(775) 123-7654

Welcome to our homepage! Thank you for visiting us here on our website. We hope you will visit us on Lake Tahoe as well.

We offer the best sight-seeing experience you will ever experience on Lake Tahoe.

We invite you to click on the link below, to get details about our Crystal Bay Boat Cruises.

Pamela Hickman, Plaintiff ) v. ) Taylor Tours, Inc., Defendant ) )

United States District CourtCivil Action No. 654321-SOB

ANSWERWrongful Death

ANSWER 1. Defendant Taylor Tours hereby appears in the above-captioned action. 2. Defendant denies the plaintiff’s complaint in its entirety.

AFFIRMATIVE DEFENSES 3. The court does not have in personam jurisdiction over this defendant.

4. The decedent’s contributory negligence was the proximate cause of his death.

5. This defendant was essentially exonerated from liability in the Nevada case of Nina Pelosi v. Evel McKnievel. The defendant in this action thus requests the court to take judicial notice of that prior Nevada verdict and judgment—Case Number: 2010–1640 (Civil) [see exam Page 6].

WHEREFORE, defendant prays that the plaintiff obtain no relief in this action, and that defendant be awarded costs of suit should this case go to trial and defendant prevail.

Signed: Nancy Grace Last, Hope & Chance Attorneys for Defendant

Nina Pelosi, Plaintiff )Clem Cadittlehopper, Plaintiff )Joe Plumber, Plaintiff )Tina Fey, Plaintiff ) v. ) Evel McKnievel, Defendant )

Superior Court of Reno County, NevadaCase Number: 2010–1640 (Civil)

JURY VERDICT

December 10, 2010

In the action filed by administrators for the estates of four of the individuals who drowned, when aboard the passenger boat (Secure Horizons) at the time of the collision with Evel McKnievel’s pleasure boat (Speed Demon) on July 4, 2009: We the jury find against all four plaintiff estate representatives, and in favor of the defendant Evel McKnievel, because these decedents failed to retain the life vests provided by the Secure Horizons crew. Signed: Angela Davis Jury -Foreperson

ISSUE #1: Taylor Tours moves to dismiss Pamela Hickman’s California case, on the basis that the court does not have in personam jurisdiction (IPJ) over defendant Taylor Tours. How should the court rule? (Do not discuss long-arm statutes.)

ISSUE #2: Assume the court finds that it has IPJ over Taylor Tours, and that its IPJ motion was frivolous. Can Taylor Tours now appeal the trial court’s IPJ ruling?

ISSUE #3: What impact, if any, does the prior Nevada case result have on this California case?

More Facts: The parties exchange the following core initial disclosures— Pamela Hickman, Plaintiff ) v. ) Taylor Tours, Inc., Defendant )

Initial Disclosures FRCP 26(a)(1) PLAINTIFF

1. Pamela Hickman submits the following: (a) Expenses related to the transfer of her husband’s body to San Diego, CA (assume all relevant details are stated): $10,000. (b) Damages for the predictable emotional distress that plaintiff encountered, as a result of her husband’s death in this accident: $70,000. 2. Occurrence Witnesses: Witness #1, Witness #2, Witness #3, and Witness #4 (assume all necessary names and contact information is provided). * * * Signed: Jumpin’ Jack Flash

Dewey, Cheatem, Bilkem & Howe Attorneys for Plaintiff

Pamela Hickman, Plaintiff ) v. ) Taylor Tours, Inc., Defendant )

Initial Disclosures FRCP 26(a)(1) DEFENDANT

1. Taylor Tours submits the following insurance coverage: $100,000 per individual, per accident. Total coverage: $5,000,000. 2. Occurrence Witnesses: Witness #1, Witness #2, Witness #3, and Witness #4 (assume all necessary names and contact information is provided—and that these are the same four witnesses disclosed above by the plaintiff). * * * Signed: Nancy Grace Last, Hope & Chance Attorneys for Defendant

ISSUE #4: Can Taylor Tours obtain an independent mental examination of Pamela?

ISSUE #5: Fast-forwarding for just this issue: Assume that at trial, defense counsel presents the captain of the Secure Horizons to testify about the large speedboat that Evel McKnievel crashed into the Secure Horizons. The captain was driving the Secure Horizons, on the date of the collision which resulted in all previously mentioned deaths (Pamela’s husband and the four deceased passengers described in the prior Nevada litigation). Can plaintiff’s counsel object to the captain’s testifying?

More Facts: Evel McKnievel accidentally drove his speedboat, named Speed Demon, into the Secure Horizons, on the date of the accident described in Pamela Hickman’s complaint. The relevant portion of his deposition testimony in the California case appears immediately below: Pamela Hickman, Plaintiff ) v. ) Taylor Tours, Inc., Defendant )

Deposition of Evel McKnievelDeposed by Defendant’s Counsel

Nancy GraceQ: How far was the Secure Horizons when you first saw it? A: Maybe 100 yards.Q: Did you keep your eyes on it, from then until the moment of the collision? A: No.Q: Why not? A: It was the 4th of July, and the lake was pretty crowded. I had to lookout for all boats in the area. Q: Isn’t it true that your boat, the Speed Demon, hit the Secure Horizons near its midpoint, at a 90 degree angle? A:Yes, but the Secure Horizons suddenly changed course and cut right in front of me.Q: Mr. McKnieval, weren’t you cited for drunken driving, when the Lake Tahoe police were on the scene to investigate the collision? A: Yes, I was.Q: Well then, I have no further questions. A: But Ms. Grace….Q: No further questions, Mr. McKnieval. I am the one who asks questions. I have no more. So this deposition is now over. Signed [later by]: Evel McKnievel ISSUE #6: The defense attorney then moves for summary judgment, attaching this portion of McKnieval’s deposition as her supporting affidavit. She therein asserts that Mr. McKnieval, rather than the Secure Horizons captain, caused the accident. The plaintiff’s attorney opposes the motion. He files an admissible copy of the Nevada jury verdict as plaintiff’s responding affidavit. How should the court rule?

ISSUE #7: Assume that the summary judgment motion is denied. Jumpin’ Jack (plaintiff’s attorney) retains Nelson Bridges, a well-known maritime expert. Bridges—who was twenty miles away, at the time of the collision—advises Jumpin’ Jack about the general conditions on the lake on the day of the above collision, position of the sun, speed limits, estimated number of boats underway near the accident scene, etc. Bridges is the only maritime consultant who works on Lake Tahoe. The next closest maritime consultant works in nearby Brockway, CA. Nancy Grace (defense counsel) schedules Bridges’ deposition. Can Jumpin’ Jack successfully object to Nancy Grace taking Bridge’s deposition?

ISSUE #8: Assume this case goes to trial, and McKnievel is allowed to testify. His trial testimony is identical to his deposition testimony. His testimony is the only significant testimony. (Pamela was too distraught to remember anything that happened that day―and the Secure Horizons captain was not allowed to testify.) The jury holds in favor of Pamela. Taylor Tours’ defense counsel moves for a new trial, based on insufficiency of the evidence and judicial

error. How should the court rule? [END OF FILE]

LIBRARYUS CONSTITUTION :

Amendment 5: Trial and Punishment, Compensation for Takings. No person shall *** be deprived of life, liberty, or property, without due process of law ***.

JUDICIAL CODE :28 USC § 1292. Interlocutory decisions (b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

FEDERAL RULES OF CIVIL PROCEDURE :Rule 8. General Rules of Pleading (c) Affirmative Defenses. (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: * * * • estoppel; [and] • res judicata ***.

Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing (b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19.

Rule 26. Duty to Disclose; General Provisions Governing Discovery (a) Required Disclosures. (1) Initial Disclosure. (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information ***. (ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses ***. (iii) a computation of each category of damages claimed by the disclosing party (iv) for inspection and copying as under Rule 34, any insurance agreement ***. (b) Discovery Scope and Limits. (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. ***

(3) Trial Preparation: Materials. *** (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.*** (e) Supplementing Disclosures and Responses. (1) In General. A party who has made a disclosure under Rule 26(a)―or who has responded to an interrogatory, request for production, or request for admission―must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court. Rule 35. Physical and Mental Examinations (a) Order for an Examination. (1) In General. The court where the action is pending may order a party whose mental or physical condition—including blood group—is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.

Rule 56. Summary Judgment (a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion. * * * (e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials―including the facts considered undisputed―how that the movant is entitled to it; or (4) issue any other appropriate order.

Rule 59. New Trial; Altering or Amending a Judgment (a) In General. (1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues―and to any party―as follows: (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court ***. [END OF LIBRARY]

ISSUE 1: IPJ* MCPARA (SCt yardstick) * claim not arise forum -> Cave Rock, NV * “A” likely both states* Active/passive web page scenario D -> * P came to NV, not vice versa * P unilaterally draw D into forum * webpage -> “we invite you to click webpage” * “then paid” suggests paid in CA P -> * D ± surprised, lake boundary b/t CA-NV * has to know-> many Cal residents @ Tahoe * webpage -> “we invite you” * webmap shows all L.T. (CA too)

ISSUE 5: Captain/Core Disclosures * Initial Core Disclosure gist * list occurrence wit’s, prove claim or defense * captain’s test would support defense (causation)* Must supplement core discovery wit IDs * captain ± expressly listed in D’s core disclosures * 1 of same 4 wits each party disclosed/claimed? * facts silent whether D supplemented wit list* D: How P surprised -> captain of D T.T.’s S.H. Conclusion: * litigation merits v. * 26(a)(1) technical violation * usually barred testifying at trial

ISSUE 2: Appeal* gen policy pro/con* IPJ collateral to merits * SCt stingy C.O. basis appeal * + judge said “frivolous” motion* 1292b gist * IPJ decisions comparatively routine * D -> time wasted going through trial * P -> ultimate reso ± advanced even if rev’d * no “joint” -> TC “frivolous” * Writ route? * gist (NARLy) * extraordinary situations * if TC says no, app unlikely writ banal IPJ issue

ISSUE 6: Summary JudgmentRule 56 -> * no genuine issue mat’l fact * mat’l issue: McKnieval cause collision?Affidavit rqmts * depo v. S1 verdict * conflict?D * McK ± looking at nearby S.H. w/i 100 yards *McK’s drinking citation likely cause & * Speed D. crashed 90-degree angle side S.H.P * S.H.’s “sudden change cse/cut rt in front of me” * NV verdict: McK exhonorated but ± S.H. captConclusion -> * Issue fact = causation/± enough vests * Tort cases generally ± disposed via SJ * S1 verdict McK ± fault * silent re TT role / * where 4 cmn wits?

ISSUE 3: Prior Suit* RJ -> ± split claim * nature respective claims * no, b/c diff Ps, so diff claim/Ds * CE -> * identical issue/actually litigated/nec to jmt * aff defense = prior jmt for McKnievel * TT assert all dec’s = cause own deaths * but ± assert v. stranger to S1

* Pamela ± party NV S1

* TT liab ± issue S1

* ± know if Paul wearing life vest/circ collis

ISSUE 7: Work Product* mat’l anticipation litigation * conditional WP b/c consultant * Bridges 20 miles away, so not occurrence wit* D obtain substantial equivalent elsewhere? * “only maritime consultant Tahoe” * next closest Brockway (“nearby”) * ± work on Lake, but loca near, so may be equiv * both consultants distant fm SDiego courtroom* Conclude -> another consultant ± Tahoe qual v. works nearby Broackway

ISSUE 4: Mental Exam* in contro & good cause * contro rqmt -> privacy based * gd cause -> special showing b/c intrusive nature * First look at pleadings * Labeled wrongful Death Claim * No indication Pam P.I./unusual emo distress * P ± plead distinct emo distress count (class car hypo)* P’s Damage Computation * “predictable emotional distress” * nature WD typically includes emo dist heirs * 70k emo distress segment P’s computation = c. 95‰ * w/o express Count 2 for NIED, privacy trumps

Issue #8: New trial -> * prejudicial error * discretion trial judge/ appellate deference * may weigh/”13th juror” * Suff evid? could jury give P jmt, based McK test? * depo/trial test all about McK/zero about Capt S.H. * insuff P evid re causation * why ± call any 4 mutually id’d wits? * possible error = McK allowed testify * ± listed any Initial Disclosure * Cap’t ± allowed testify, why McK? * fax silent re supplementation either driver [ “ ± ” = not & “ @ “ = complaint]

ID: 13650Exam Name: Civil_Procedure_II_Slomanson_Sp11_FinalInstructor: Professor SlomansonExam Date: May 9, 2011File Name: 13650-Civil_Procedure_II_Slomanson_Sp11_Final-110509.xmdExam Length: 178 minutes (Started @ 5/09 2:01 PM; Ended @ 5/09 5:00 PM)Downloaded: May 08, 2011 03:06 PMUploaded: May 09, 2011 05:04 PM

Total Number of Words in this Exam = 3,762Total Number of Characters in this Exam = 22,472Total Number of Characters in this Exam (No Spaces, No Returns) = 18,348

1)

1. IPJ

IPJ is a courts power over a person. Whether an out of state defendant is amenable to a suit in that state. Here, in California we jettison straight to the constitutional due process check. The question thus would become whether the defendant has sufficient ties to the forum. When evaluating the defendant's ties one looks to see if they had sufficient minimum contacts, did they purposefully avail themselves to the protection of the state and whether they should have reasonably anticipated being called into the forum. Here, the defendant will contend that the accident took place in Nevada, further they may argue that they dont have any physical contact with the state of California. They may also claim that they have no offices or agents in California. However, plaintiff will argue that defendant is conducting business over the internet which is available all over the world. That its servers being available in California that this is sufficient for minimum contacts. The defendant on exhibit "A" states that "We hope you will visit us on Lake Tahoe as well and in addition it states that "we offer the best sight-seeing experience you will ever experience on Lake Tahoe." Defendant states this without ever mentioning whether it is talking about Lake Tahoe, California or Lake Tahoe, Nevada. It is reasonable to infer that its cruises passes over to the California side and with this additional contacts can be established. Plaintiff will argue by doing business with California residence they are purposefully availing themselves to the protection of laws of the state of California. In addition, California has a strong interest in providing a forum and relief for its citizens. Plaintiff will also cite that fact that Nevada and California

are right next to each other and esp Lake Tahoe where its cut in half between California and Nevada and therefore, Taylor Tours should reasonably anticipate being hailed into that forum to defend a suit. There wouldnt be much undue hardship for defendant here to defend a suit right next door. Defendant however may argue that it could not have reasonably anticipate to be hailed into a forum in the Southern District of California. This argument will probably fail and because of the fact that defendant is doing business over the internet about a Lake that encompasses more of California than Nevada, and givent that it is so close to California being right next door the defendant would most likely be unable to show that it does not have sufficient ties with the forum.

2. Appellate Court SMJ

1291 triggers appellate court subject matter jurisidiction. It provides that

appellate courts have jurisdiction over all final decisions of the district court. To trigger

pre final judgment smj appellate jurisdicition a party has four basis including others that

will not be discussed here. The first question to determine is whether the decision is on

the merits or collateral to the merits. Here, the decision is based on IPJ which is

collateral to the merits because it has nothing to do with the substance of the case

which is a wrongful death action.

Multiple Parties Multiple Claim

Rule 54B states that dispostion on more than one but less than all the claims on the merits will become appealable if the district court judge expressly determines that there is no just reason for delay and makes the decision sufficiently final. District court judge must do this on a separate peice of paper and with his signature on it. However, since the decision is not on ther merits this route will not be viable. Even if it was not on the merits the district court judge being the gate keeper has stated that the IPJ motion was friviolous so it is unlikely that he would certify such an action.

Collateral Order doctrine

Collateral order is final decision on claims that are separate and collateral to the substantive claims asserted in the action. Here, a denial of an IPJ motion is collateral merits because it is procedural and does not involve the substance of the wrongful death action. However, courts have not been clear what decisions would constitute the granting of the collateral order doctrine. What they have been clear on is that they are very stingy and will for the most part not grant such actions. This is due to the automatic nature of the doctrine. Although, an IPJ decision is collateral to the merits it is not sufficiently collateral within the meaning of Cohen and in all likelihood will not be granted.

Interlocutory

Next, the defendant can go the interlocutory way. On this basis it does not matter whether the decision is on the merits or collateral to the merits. The trial court and the appellate court are the gate keepers. Interlocutory has three elements that the district court judge weighs when decideing whether or not to grant the order.

Controlling question of law

First the judge decides whether or not it is a controlling question of law. Controlling question is like a big element of the case. Here, IPJ is merely a procedural decision therefore not being a big element of the case. However, IPJ is nevertheless a big deal because it determines whether the defendant should even be in that particular court defending the merits of the case. As most of the basis for triggering pre final judgment appellate smj this element is also very murky. All in all it is not likely that IPJ is a controlling question of law because it is merely a procedural order.

Difference of Opinion

Next question to consider in deciding whether interlocutory order should be granted is whether there is a difference of opinion in the sister courts of that district or around the country. Interlocutory orders are usually granted when a judge decides that the decision is a novel issue or one that court have gone different ways on. Courts have not been very clear on what constitute sufficient contacts in order to make a out of

state defendant amenable to suit. Certain court have ruled that one contact is enough to bring a defendant under the courts jurisdiction and others have stated that putting a product in the stream of commerce is not enough. IPJ seems to be very subjective and a case by case analysis to determine it. However, here the facts tend to lend themselves to the idea it is very clear that California would have IPJ over the defendant. As a result it is not likely that other courts would find that this particular defendant did not have sufficient ties.

Determines the Ultimate Dispostion of Case

Next question to consider is whether in granting the order it would advance the termination of the case. Here, if the order was granted and the appellate court affirmed the trial courts determination the case would simply go on. However, if the appellate court reverses, the plaintiff would then have to go to Nevada and bring suit there. This is not a case where the granting or reversal would determine the case right away. As such it would not advance the termination of the case.

Gate Keepers

Both the appellate court and district court are gate keepers for interlocutory orders. The district court has already decided that the IPJ motion was friviolous and as a result would not certify the order. Therefore the defendant would then have to go to his last resort, "the write route."

Writ Route

Defendant can then try the writ route to trigger appellate smj. The writ route is in equity and reserved only where no adequate remedy at law is availabe. The writ route will not be granted unless it is an exceptional circumstance. A dissenting judge gave an example of when writ route could be granted. The judge state when an appellate court would lose jurisdiction of a case because of a transfer to another district. The appellate court is the gate keeper in the write route. Here, in all likelihood the defendant has no other adequate remedy at law because the above basis would all be denied. However, this is not an exceptional circumstances-merely being a procedural order not granting

IPJ. Although defendant may argue that due process is an excepetional circumstance. If the writ route was granted it would allow all defendants to appeal IPJ orders. It is unlikely that the appellate court would allow that so the defendant although he has no adequate remedy at law he does not provide sufficient exceptional circumstances to use the writ route.

3. Collateral Estoppel and Res Judicata

Res Judicata

Res Judicata prevents claims from being retried. "Thou shall not split thy claim." You look to the defendants wrong and not the plaintiffs right. In addition, in res judicata situations there has to be the same plaintiff and same defendant in original suit and the subsequent suit. Pam Hickman has her own claims against defendant distinct from the others in the previous suit. Therefore, defendant cannot bar Pam Hickman from bringing this particular suit.

Collateral Estoppel

The next way a prior suit can effect a subsequent suit is through issue preclusion. Collateral estoppel prevents a previous issue from being relitigated again. A person cant take two bites at the same apple. Such a reasoning is applicable to both res judicata and collateral estoppel. Collateral estoppel is more stingy than Res Judicata just for the fact that it has many more elements. There are 3 elements to decide here.

Identical IssueThe first question to consider is whether there was an identical issue in the first

suit as there is with the second suit. Here, the issue in the first suit was whether the individuals who drowned were the cause of their own death because they failed to retain life vests provided by the Secure Horizons crew. So, in the first suit the plaintiffs were found negligent for not retaining the life vests that were provided by the Secure Horizon crew. In the second suit the issue is whether the defendants, Secure Horizon were

negligent in not having enough life vests for each passenger. The question still remains is whether or not the Secure Horizons provided Paul Hickmen with a life vest. The pleadings merely state that Secure Horizon did not have enough life vests for each passenger and Paul did not get one. The issue here is not identical because in the first action the issue was whether Secure Horizons provided life vests to those particular plaintiffs and here it is whether Secure Horizons provided Paul Hickman with a life vests and whether he failed to put it on himself.

Actually Litigate

Next qusetion to consider is the issue whether Secure Horizon was negligent with respect to Paul Hickman was actually litigated. As discussed above what was litigated in the prior suit was the issue of whether Secure Horizon provided life vests to those particular individuals and their contributory negligence in not put it on. The issue to whether they were negligent to Paul Hickman was not actually litigated.

Necessarily Decided

Next question to consider is whether the issue in this suit was necessary to the decision of the prior suit. Whether Paul was provided with a life jacket was not litigated in the prior suit. All that was necessary in that previous suit was whether those particular plaintiffs were negligent in deciding not to where the life vests provided by Secure Horizons. We dont know whether Paul Hickman was given a life vest, wheter there was a life vest available for him or not. As a result the issue in this suit was not necessary to the decision of the prior suit.

Defensive Collateral Estoppel

Secure Horizon will be trying to use the judgment in the prior suit defensively to say that they were not negligent and their negligence had already been decided upon in the previous suit. Although defensive collateral estoppel is allowed a party may not assert it against a stranger to the first suit. Here, Pam Hickman was a stranger to the first suit and for that reason Secure Horizon will not be able to estop her from litigating

liability of Secure Horizons. However, because CE and RJ are judge made laws, judges have discretion to rule a certain way for example when they believe a plaintiff was a wait and see plaintiff. Here, Pam Hickman is not a wait and see plaintiff because the cause of action in the first suit was against Evel McKneievel and her cause of action is against Secure Horizon.

All in all it is unlikely that Defendant would be able to use Collateral estoppel from precluiding Pam Hickman to bring suit.

4. Mental Examination: Whether Taylor Tours can obtain an independent mental exam of Pam.

When requesting for mental examination the requesting party has to show more than the other discovery devices. They must show that the mental examination of the other party is in controversy and its for good cause. The court in Schlegenhauff stated that these elements are not mere formalitites. In addition the responding party must be a party to the action. Here, Pam is a party to the action as she is the plaintiff. The moving party must give a proper time, place, expert. The facts are silent as to whether the procedural part was met so we can go straight into whether or not Pam Hickman's mental examinations are in controversy.

In Controversy

One must look to the pleadings to see if the party put their mental state in to controversy. A plaintiff by pleading a distinct cause of action takes the purse instead of privacy. Here, Pam Hickman is claiming emotional distress as a result of husbands death for 70,000. However, Pam Hickman has not specifically pled emotional distress, she is merely asserting general damages that reasonably flow from a loved ones death. Therefore, it is not enough that she is claiming damages she must plead a distinct cause of action such as Intentional infliction of emotional distress in order to put her mental state in controversy.

Good Cause

Next question to consider is whether the defendants have good cause for the mental examination. Good cause can be defined as the intrusive nature of the exam and the value of the information needed. Here, defendants are asking for plaintiffs mental examination. They are requesting this because the plainitff is alleging 70,000 in emotional distress as a result of her husbands death. A mental exam is more intrusive than a physical exam and in addition the defendant would not be able to state that there is good cause because it is obvious that anyone who has lost a loved one would suffer some emotional distress. It is reasonable that such distress could reasonably flow from losing a significant other. Because the mental exam is very intrusive and the plaintiff has not claimed E.D as a distinct cause of action her mental estate is not in controversy and there is no good cause.

5. Whether Plaintiffs Counsell can object to the Captains testifying:

If a party is designating someone to testify at trial the party must disclose to the other party within a seasonable time before trial. Here, the facts do not indicate whether defendant disclosed to plainitff the fact that the captain would be testifying at trial. The defendant had a duty to supplement his initial disclosure if he did not in his initial disclosure disclose the name of the captain. The court can sanction the defendant. Sanctions vary from mere slap on the wrist, attorney fees to termination meaning striking an answer or throwing a plaintiffs case out. Here, if the defenant failed to disclose to the other party that the captain was testifying at trial the court can preclude his testimony. This seems like the most reasonable thing to do. Therefore, the plaintiff can object to the captain testifying and sanctions can be had against the defendant for failure to disclose.

6. Whether the court should grant the defense attorney's motion for summary judgment:

In a motion for summary judgment the moving party here defendant is stating

that although there was enough issue in regards to a material fact to make it past pleadings due to some important material that came up during discovery there is no longer a genuine issue. First we must look to see what the genuine issue is. Here, the genuine issue is who caused the accident. We look to see if the affidavits are conflicting. The affidavit submitted by the defendant states that McKnieval was drunk while operating the boat and he did not keep his eyes on Secure Horizons. The affidavit submitted by the plaintiff states that Evel McKnievel was not the cause of the decedents deaths because those decedents failed to retain life vests. The affidavits are not conflicting because the defendants affidavit is stating who caused the accident and the plainitffs is stating that Mcknievel did not cause the deaths of decedents. IF the affidavits conflict summary judgment should not be granted. However, if the affidavits are not conflicting we look to the undisputed facts and see if the facts resolve the undisputed issue. Ultimately meaning that because the affidavit forecolse the issue no reasonable jury would find for the non moving party with all reasonable inference favoring him. Here, the facts state McKnieval was cited for drunk driving when the police got to the scene. In addition it was stated that Mckneival did not keep his eyes on the boat at all times. However, as he stated there were other boats that he had to keep track off. In addition, he stated that the Secure Horizons boat suddenly changed course and cut right in front of me. Just because Mckneival was drunk will driving the boat does not foreclose the possibility that the Secure Horizon captain was also negligent. Proximate causation is still at issue. A reasonable jury could still find that the captain of the Secure Horizions was at fault. In addition, it is tougher to grant summary jmt for tort cases then contracts cases because contracts cases are cut and dry where torts cases there is alot of mystery that has to be resolved. As such there is still a genuine issue of material fact and that judge should deny summary judgment.

7. Whether defendant counsel can retain plaintiffs expert.

A party is entitled to all unpriviliged, relevant, admissible or reasonably calculated to lead to admissibility at trial. Materials prepared in anticipation of litigation are priviliged. There is two types of privilige there is the absolute kind-mental impressions of a lawyer and there are qualified priviliege anyone else such as experts. Here, an expert is at issue. In order to depo the expert the defendant must show that he has a

substantial need for the expert, he cannot get the substantial equivalent without undue hardship. Here, the facts indicate that defendant would have a substantial need for such a maritime expert of lake tahoe because it is essential to him proving that he was not negligent. THe defendant may argue that he cannot get a substantial equivalent because the other maritime consultant in Brockway, Ca. is not familiar with lake tahoe to the extent that Nelson Bridges is. Nelson Bridges is the "only maritime consultant who works on Lake Tahoe". Plaintiff may argue that there is no undue hardship on the defendant to retain another maritime expert because that expert is close by in Brockway. He may further argue that just because Nelson Bridges is a "well known maritime expert" does not mean that the consultant in Brockway Ca. is not Bridges' substantial equivalent. In conclusion it is unlikely that defendant would be able to get Nelson Bridges because there is a substantial equivalent in a nearby city and defendant can retain him without undue hardship. However, defendant may state that Nelson Bridges was a fact witness because at the time of the collission she was 20 miles away. However, it is unlikely that someone 20 miles away from the scene of the accident could be called a fact witness. If Nelson Bridges is a fact witness the defendant would be limited to asking her question only of her 5 senses and no opinion questions. What Nelson Bridges advised Plaintiffs counsel could very well go to the five sense and if she is classified as a fact witness she may have to answer those questions.

8. How should the judge rule on defendants motion for new trial.

A party is entitled to a trial free of prejudicial error but not entitled to a trial free of error. Here, the defendant is claiming error because there was insufficiency of evidence for the verdict. A trial court judge is given alot of latitutde when deciding on whether to rule on a new trial. He is given such discretion because he was there during trial and he had the opportunity to assess everything. He is not limited to a reasonable jury inference instead he acts like a 13th juror. Further the judge is able to weigh the evidence to decided whether or not he should grant a new trial. During trial the plaintiff has the burden of proving every element of his cause of action. The evidence is void here, a conclusory statement in the complaint is all that is made and the deposition of McKnievel is the only evidence relied upon. The McKnievel testimony merely stated that Secure Horizons captain "suddenly changed course" and cut right in front of me.

The deposition also revealed that Mcknievel was drunk during the time of the accident. A judge has the power to weigh the evidence and he might make a credibility determination of McKnievel being that drunk it would be pretty hard to remember what happened. In addition, the question still remains whether the defendant caused the death of the decedent. Did the defendant provide enough life jackets on board and was it the decedent who failed to wear the life jacket. The plaintiff did not meet its burden by showing that the captain was negligent and his negligence caused the death of the decedent. At most the testimony of Evel McKnievel may have done was give light to whether the captain was negligent by cutting him off. However, the plaintiff did not show that the negligence was the proximate cause of decedents death. As such there was insufficient evidence for the verdict and as a result the defendant was prejudiced because the mere testimony of one person which did not disclose of the issue of proximate causation.

--------------------------------------------------Question #1 Final Word Count = 37622)