Civ Pro Hypo w/ Q's

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sknight323
Posts: 82
Joined: Tue Sep 28, 2010 3:39 am

Civ Pro Hypo w/ Q's

Postby sknight323 » Wed Nov 30, 2011 3:21 am

P is domiciled in Fla. P goes on vacation in Texas. Walks near a restaurant, steps in something, foot gets swollen. Doc says it is probably because of Corexit (an oil dispersant) and crude oil, but could also be caused by seaweed.

Deepwater Horizon exploded off the coast. DWH is built by Hyundai (H). H sells to wholesalers. 5% of all its rigs are sold to wholesalers in Cali. 10% of those rigs are sold or leased to companies in the Gulf Coast coast, so .05% in total.

DWH was owned by Transocean (T) (I guess bought from wholesaler? doesn't say.) T is: Incorporated in Delaware. It keeps its equipment in FL; coordinates purchases and signs leases in TX, and its executives are in Alabama.

DWH was leased by T to BP. BP is incorporated in england with its top executives located in London. It owns refining facilities in Texas. It also has space in TX for its American executives.

Corexit is made in Cali -- all company activity is in Cali.


P hires your firm to represent him.

1)Partner in firm interviews a beach bum walking by the restaurant P was injured at who saw bags of Corexit being used by cleanup crews. He writes about it in a memo. Partner wants to protect the identity of the beach bum because he wants to use him as a surprise witness in court. Assuming case in Federal court, when, if ever, would the partner have to disclose the identity of the beach bum?




2) Is there Personal jurisdiction over H?


3) If case goes to federal court, it will be moved to Louisana due to multidistrict litigation. Texas rules of FRCP are identical except for no notice of jurisdiction (but D's will not move to dismiss for lack of PJ. H is not a defendant due to a hypo I didn't include b/c it doesn;'t really matter.) and "notice pleading." Partner is worried the complaint will be dealt with differently in Federal court. Answer the following (1) Can the case be removed (2) would complaint survive a challenge to the sufficiency of allegations in fed court and (3) assuming the case can be removed, can an argument be made to apply Texas law with respect to pleading?



Here is the complaint:

At all relevant times, Defendant Transocean, Inc. ("Transocean") owned, and Defendant
British Petroleum ("BP") operated, an offshore oil drilling rig known as "Deepwater
Horizon," which they used to engage in deep sea oil excavation.
2. On or about April 20, 2010, Deepwater Horizon exploded off of the coast of Louisiana,
resulting in a deep sea oil gusher.
3. At all relevant times, Defendant Oil Spills, Inc. ("Oil Spills") was, and continues to be, the
sole manufacturer of Corexit for use in oil spill clean-up.
4. Beginning on or around April 20, 2010 and continuing to the present, Corexit was used to
clean up the crude oil spilled by the explosion described in Paragraph 2.
5. On or about October 5, 2010, Plaintiff went to a restaurant in Port Arthur, Texas located on
the Gulf of Mexico and near the site of the explosion described in Paragraph 2.
6. While at the restaurant, Plaintiff suffered a foot injury consistent with exposure to a mixture
of Corexit and crude oil.
COUNT I
Abnormally Dangerous Activities
7. Plaintiff repeats and realleges as if set forth herein the allegations contained in paragraphs 1
through 6.
8. Based on the allegations above, Transocean, BP, and Oil Spills engaged in abnormally
dangerous activities.
9. The abnormally dangerous activities of Transocean, BP, and Oil Spills caused harm to
Professor's person, land, or chattels.
PRAYER FOR RELIEF
WHEREFORE Plaintiff seeks $1 million in compensatory damages, attorney's fees and costs,

sknight323
Posts: 82
Joined: Tue Sep 28, 2010 3:39 am

Re: Civ Pro Hypo w/ Q's

Postby sknight323 » Wed Nov 30, 2011 3:32 am

Looking for any good analysis and thoughts on this.

For 1, I thought it was too easy..pursuant to rule 26, you have to disclose the identity of anybody who may have discoverable info. I guess the prof was trying to trip us up with work product?

2) There is no PJ..but my analysis sucks. If anybody could provide a rough outline of some analysis, I would be forever grateful.


3) 1) case can be removed. It would have to be diversity b/c it is a state tort claim. Amt is over 75k. (party - domicile)

P - FL
T - Delaware and Alabama (maybe you could make an argument for Texas?)
BP - England and Texas
C - California

Complete diversity. So it can be removed, b/c it is going to Louisana and not Texas (can't remove where a D is domiciled in the same state as Fed Court)

2) No, pleadings won't hold up b/c the complaint is similar to Twombly in that it requires an inference to get to a factual conclusion (conspiracy=parallel conduct) where another valid is available...seaweed caused the injury. Because iqbal says elements of claims & conclusions are to be ignored, you don't look at paragraph 9 that says the activities caused the injuries. Facts don't make that allegation and requires an inference that oil washed up on on shore, P stepped on it, and then was injured. Not consistent with Twombly.


3) I am pretty sure the answer is that you can't apply Texas state law. But I am not sure exactly why..I know FRCP is consistent with REA, and the pleadings decisions are interpreting FRCP Rule 8?

sknight323
Posts: 82
Joined: Tue Sep 28, 2010 3:39 am

Re: Civ Pro Hypo w/ Q's

Postby sknight323 » Wed Nov 30, 2011 7:11 pm

Can somebody PLEASE look at question 1 for me? I'm convinced that I am missing something.

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jessuf
Posts: 12578
Joined: Tue Mar 22, 2011 8:27 pm

Re: Civ Pro Hypo w/ Q's

Postby jessuf » Thu Dec 01, 2011 12:58 am

I think you're right about the professor trying to confuse you. You have to disclose the identity of anyone, witness, expert witness, etc., whom you intend to have testify at trial. The memo is protected work product but not the beach bum's identity.

sknight323
Posts: 82
Joined: Tue Sep 28, 2010 3:39 am

Re: Civ Pro Hypo w/ Q's

Postby sknight323 » Thu Dec 01, 2011 3:29 am

Thanks. Any input on that Erie question?

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jessuf
Posts: 12578
Joined: Tue Mar 22, 2011 8:27 pm

Re: Civ Pro Hypo w/ Q's

Postby jessuf » Thu Dec 01, 2011 2:39 pm

sknight323 wrote:P is domiciled in Fla. P goes on vacation in Texas. Walks near a restaurant, steps in something, foot gets swollen. Doc says it is probably because of Corexit (an oil dispersant) and crude oil, but could also be caused by seaweed.

Deepwater Horizon exploded off the coast. DWH is built by Hyundai (H). H sells to wholesalers. 5% of all its rigs are sold to wholesalers in Cali. 10% of those rigs are sold or leased to companies in the Gulf Coast coast, so .05% in total.

DWH was owned by Transocean (T) (I guess bought from wholesaler? doesn't say.) T is: Incorporated in Delaware. It keeps its equipment in FL; coordinates purchases and signs leases in TX, and its executives are in Alabama.

DWH was leased by T to BP. BP is incorporated in england with its top executives located in London. It owns refining facilities in Texas. It also has space in TX for its American executives.

Corexit is made in Cali -- all company activity is in Cali.


P hires your firm to represent him.

1)Partner in firm interviews a beach bum walking by the restaurant P was injured at who saw bags of Corexit being used by cleanup crews. He writes about it in a memo. Partner wants to protect the identity of the beach bum because he wants to use him as a surprise witness in court. Assuming case in Federal court, when, if ever, would the partner have to disclose the identity of the beach bum?




2) Is there Personal jurisdiction over H?


3) If case goes to federal court, it will be moved to Louisana due to multidistrict litigation. Texas rules of FRCP are identical except for no notice of jurisdiction (but D's will not move to dismiss for lack of PJ. H is not a defendant due to a hypo I didn't include b/c it doesn;'t really matter.) and "notice pleading." Partner is worried the complaint will be dealt with differently in Federal court. Answer the following (1) Can the case be removed (2) would complaint survive a challenge to the sufficiency of allegations in fed court and (3) assuming the case can be removed, can an argument be made to apply Texas law with respect to pleading?



Here is the complaint:

At all relevant times, Defendant Transocean, Inc. ("Transocean") owned, and Defendant
British Petroleum ("BP") operated, an offshore oil drilling rig known as "Deepwater
Horizon," which they used to engage in deep sea oil excavation.
2. On or about April 20, 2010, Deepwater Horizon exploded off of the coast of Louisiana,
resulting in a deep sea oil gusher.
3. At all relevant times, Defendant Oil Spills, Inc. ("Oil Spills") was, and continues to be, the
sole manufacturer of Corexit for use in oil spill clean-up.
4. Beginning on or around April 20, 2010 and continuing to the present, Corexit was used to
clean up the crude oil spilled by the explosion described in Paragraph 2.
5. On or about October 5, 2010, Plaintiff went to a restaurant in Port Arthur, Texas located on
the Gulf of Mexico and near the site of the explosion described in Paragraph 2.
6. While at the restaurant, Plaintiff suffered a foot injury consistent with exposure to a mixture
of Corexit and crude oil.
COUNT I
Abnormally Dangerous Activities
7. Plaintiff repeats and realleges as if set forth herein the allegations contained in paragraphs 1
through 6.
8. Based on the allegations above, Transocean, BP, and Oil Spills engaged in abnormally
dangerous activities.
9. The abnormally dangerous activities of Transocean, BP, and Oil Spills caused harm to
Professor's person, land, or chattels.
PRAYER FOR RELIEF
WHEREFORE Plaintiff seeks $1 million in compensatory damages, attorney's fees and costs,


The only time state procedural law may be used is (per the Hanna test) when both federal procedural law and state law do not conflict AND, based on the outcome determinative test, using federal procedural law would be unfair based on forum shopping or inequitable administration of the laws. Rule 8(a) requires notice pleading. Rule 9(b) requires heightened pleading for fraud or mistake. I'd say that because of that, there does not appear to be a law that conflicts with the Texas law. However, I'm in Florida, so I'm not familiar with the exact Texas rule. Because there doesn't appear to be conflict, I'd then go to the outcome determinative test. I don't see how this would be unfair and lead to forum shopping and/or inequitable administration of the laws. So I'd say that Rule 8 would be applied here and not the Texas procedural law.




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