Exams and LEEWS

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kalvano
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Exams and LEEWS

Postby kalvano » Sun Aug 15, 2010 7:53 pm

I know there are a lot of arguments for and against LEEWS, but I have a basic question, more for 2 or 3 L's, I suppose.

I know LEEWS is a system for exam writing, but here is an example of a model LEEWS answer from their website:

Fact Pattern:

A. You are now an associate attorney in a law firm. Respond fully to the following memorandum from one of your employers. “I Quit” is not a recommended answer.

Memo
From: Partner
To: Associate
Re: First Commercial & Industrial Bank v. Isolde
Date: Dec. 11, 2006

[Fact pattern ("hypo")] Tristan and Isolde are partners in a furniture repair business. Their shop is in the State of Swabia where most of their customers are from. Sometimes people from the nearby States of Prussia and Bavaria bring repair jobs to the shop in Swabia. Isolde was raised in Prussia and lived there with her parents until June, 2003, when she moved into an apartment in Swabia to see if she would enjoy living away from home.

In July, 2003, a vice-president of First Commercial & Industrial Bank of Prussia [“First Commercial”] attended a lecture on furniture repair that Isolde gave in Prussia. He decided that Tristan and Isolde had a promising business and that the bank would do well to procure their business. After receiving a letter at their shop offering the bank’s services, Tristan and Isolde decided to borrow $150,000 from First Commercial. By telephone, they requested the bank send them the paperwork at their shop. On August 15, 2003, Tristan and Isolde signed the loan papers at their shop and Tristan immediately took them to First Commercial’s main office, located ten miles away in the State of Prussia. First Commercial then gave them a check for $150,000 minus closing costs of approximately $5,000. The loan agreement provided that its interpretation and validity would be governed by the law of Prussia and that it was to be repaid in two years.

Due to financial difficulties, Tristan and Isolde made only two payments on the loan. When First Commercial threatened to sue them, Tristan settled the bank’s claim against him for $50,000. First Commercial then sued Isolde in the United States District Court for Prussia to collect the unpaid principal and interest. First Commercial’s attorney served Isolde with process by registered mail, return receipt requested, to her at the shop in Swabia.

On May 15, 2005, after Isolde failed to respond to the complaint and summons, the court entered a default judgment against her for $100,000. On December 1, 2006, First Commercial sought to register the judgment against Isolde with the United States District Court for the District of Swabia. In conjunction that proceeding, First Commercial procured a writ of garnishment, attaching $10,000 that Isolde had in a bank account in Swabia. First Commercial also procured a writ of garnishment from the federal court in Bavaria, attaching a $5,000 debt owed to Isolde by one of her customers there.

[Question/instruction] We represent Isolde. Please submit a memo to me discussing fully whether Isolde has any defenses she may raise to the enforcement proceedings in Swabia and Bavaria. Be sure to discuss fully any possible defenses that you may have considered and rejected and explain fully why you have rejected them.


Answer -


Subject-matter jurisdiction. The federal courts are courts of limited jurisdiction; they can only hear certain types of claims as outlined in Article III of the US Constitution and as authorized by Congressional Statute. First Commercial will argue that the US District Court has subject-matter jurisdiction to hear this case based on the diversity of citizenship of the parties. First Commercial is a citizen of Prussia. Isolde has been living in Swabia for one month. She can argue that she is still domiciled in Prussia, where she lived her whole life up to June of 2003, because she only moved to Swabia temporarily, to see “if she would enjoy” life on her own. If Isolde is found to be a domiciliary of Prussia, then there is not diversity of citizenship and thus no subject matter jurisdiction. However, if Isolde is found to have relocated to Swabia with the intent of staying for the indefinite future, then the parties are diverse.

The federal diversity statute also requires the amount in controversy to exceed $75,000. The $100,000 judgment against Isolde satisfies this requirement. N.B. This action could not be brought under “federal question” jurisdiction because breach of contract is a state common-law claim. Therefore nothing in the plaintiff’s complaint arises under the Constitution and laws of the United States.

Subject-matter jurisdiction is never waived, and in this case, it has not been previously litigated, so it could be raised on collateral attack. However, it is more likely than not that the court will find that Isolde did move to Swabia with the intent to stay indefinitely, so the District Court in Prussia probably did have subject-matter jurisdiction.

Personal jurisdiction. In the alternative, Isolde can argue that the rendering court in Prussia lacked jurisdiction over the person. Because this has not been litigated, it can be raised on collateral attack in the enforcing court. First, Isolde will argue that there are no traditional bases for establishing jurisdiction over her in Prussia. N.B. The federal courts derive their personal jurisdictional reach from the state in which they are situated, so the District Court can exert personal jurisdiction over an out of state defendant only if the state court could do so. Isolde was not served with process with Prussia, so transitory jurisdiction does not attach. Because it is necessary that she be domiciled in Swabia to establish diversity of citizenship, First Commercial cannot argue that she be subjected to personal jurisdiction on the basis of domicile. Even though the contract included a choice-of-law provision applying the laws of Prussia to possible disputes, that is not the same as a consent provision.

Statutory basis. First Commercial will argue that the long-arm statute conferred specific jurisdiction over Isolde on the basis of the first of the enumerated acts: “a) transacting any business within the State.” The claim for relief, the $100,000 breach of contract, arises from the defendant’s act of entering into the loan contract, which First Commercial will argue was executed on Tristan’s delivery of the loan documents to the Bank’s main office in Prussia. Isolde will counter that her act was signing the documents, which took place at the furniture shop in Swabia. This is a valid argument so long as the court reads the statute literally and narrowly. However, if a court interpreted the statute broadly (See Gray v. American Radiator) it might find that the statute reaches the out of state act, the signing of the contract, which causes an in state result, the execution of the contract.

Constitutional Standard. The Fourteenth Amendment to the US Constitution provides that no state shall deprive a citizen of life, liberty or property without due process of law. The U.S. Supreme Court defined the due process standard as it relates to imposing personal jurisdiction on an out of state defendant in International Shoe: jurisdiction is constitutional only if the cause of action arises from the defendant’s minimum contacts with the forum, such that the assertion of jurisdiction would not offend traditional notions of fair play and substantial justice. Assuming, arguendo, that the long-arm statute is sufficient to provide a statutory basis of jurisdiction over Isolde, would such jurisdiction be constitutional under the Shoe standard? Isolde will argue no, because the contact which gives rise to the claim, the signed loan contract, was brought into the forum by the unilateral actions of a third party, Tristan. Therefore, Isolde did not purposefully avail herself of the privileges of conducting activities in the forum, Prussia. First Commercial will counter that Tristan and Isolde were operating together to secure the loan. They reached into the forum when they called First Commercial. Isolde knew that Tristan was taking the documents to Prussia, [run-on sentence, a sin committed by many students in these essays] therefore it was imminently [eminently] foreseeable that the contract would be executed there, and she could reasonably anticipate being haled into court in Prussia over any disputes to the contract. (See Denckla, Worldwide VW).

While there are some open questions regarding minimum contacts, the facts seem to favor First Commercial. In the alternative, [In addition?] can Isolde raise any of the fairness factors, defining “fair play and substantial justice,” articulated in the US Supreme Court’s Burger King decision? In weighing the relative burden on Isolde compared to the interest of First National in litigating in Prussia, it does not seem unfair to require Isolde to travel to a nearby state where she lived most of her life and where she sometimes appears to give lectures. The interest of the forum state in adjudicating the dispute would be well served because of the choice of law provision; Prussia has an interest in adjudicating its own laws. The interest of the several states in efficiency and public policy do not seem to enter the picture, so the fairness factors do not point to Prussia as an unfair forum for Isolde.

Conclusion. Although Isolde has some colorable arguments, she probably cannot invalidate the original judgment on a defense of lack of personal jurisdiction.






My question is, based on exam experience, is this a good answer, an "A" answer? I mean, for all I know, this could be a worthless answer. Is that what professors are generally looking for on an exam?

User avatar
BendAndSnap
Posts: 35
Joined: Fri Dec 05, 2008 3:53 am

Re: Exams and LEEWS

Postby BendAndSnap » Sat Sep 18, 2010 1:38 am

2L here, top of class at MVP. This is a great answer, and similar to many of the ones that I wrote last year.




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