Civil Procedure Prof.

Leubsdorf

Discussion of 2015 Civil Procedure Exam Essay Questions

This is a discussion of the issues presented by the questions, not a model answer. No one could
be expected to cover everything said here when taking the exam.

QUESTION I
(60 minutes)

Several prisoners in the State Penitentiary (represented by a competent lawyer) seek to

bring a class action in federal court against the Warden who is in charge of the prison on behalf
of all three hundred prison inmates. They allege that they are being subjected to seriously
inhumane conditions in violation of the Cruel and Unusual Punishment clause of the Eighth
Amendment. In particular, they allege in sufficient detail that some inmates are being denied
even basic medical treatment for serious illnesses, that some are being held in solitary
confinement in unsanitary and unheated cells, and that some are confined with up to four other
inmates in cells that cannot properly hold more than two. You should assume that, if true, these
are valid Constitutional claims. As relief, the plaintiffs ask the court to issue a comprehensive
injunction ordering the defendant to devise and implement a plan to remedy all these violations.

(a)Assume that, as a rehabilitative and administrative measure, the Warden asks inmates
to enter contracts in which they agree to participate in various activities in return for certain
privileges. Most of the inmates have signed such contracts, which contain a provision that any
disputes between the inmate and the prison administration having anything to do with prison
conditions will be resolved by arbitration and not in court. The Warden, relying on this
provision, asks the court to exclude from any class action all inmates who signed the contracts.
The plaintiffs oppose this motion, relying on a decision of the state’s Supreme Court that prison
inmates may not enter any binding contracts except those required for the support of their
families. The Warden replies that the Federal Arbitration Act overrides the law set forth in this
state precedent. Please discuss what the court should do.

As valid federal legislation, the Federal Arbitration Act (FAA) overrides conflicting state
statutes and precedents. But the FAA itself preserves “such grounds as exist at law or in equity
for the revocation of any contract.” One such ground is incapacity to contract: minors and
persons who have been adjudicated to be mentally incompetent cannot enter valid contracts (with
certain exceptions). The state Supreme Court decision in the problem extends this incompetence
to prisoners, either to protect them (to the extent that denying the validity of contracts is
protection) or as punishment. (I won’t go into possible challenges to such a rule.) So the
plaintiffs can argue that the FAA does not override a rule of state law denying prisoners the right
to make not just arbitration contracts but (virtually) all contracts.

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 The Warden’s counter-argument will rely on AT&T v. Concepcion, in which the Supreme
Court held inconsistent with the FAA a California rule that contracts waiving class proceedings
are unconscionable when they are in consumer contracts of adhesion, when disputes predictably
involve small sums not worth suing about individually, and when it is claimed that the party with
superior bargaining power has deliberately cheated many consumers out of small sums. Just as
the California rule relied on a doctrine (unconscionability) applicable to all contracts and applied
it not just to arbitrations but to all enforcement proceedings, the precedent in our problem relies
on a doctrine (incapacity to contract) applicable to all contracts and applies it not just to
arbitration agreements but to all prisoner contracts (with exceptions). Moreover, the claim here
is not that certain arbitration agreements cannot exclude class arbitration, but that all prisoner
arbitration provisions are invalid. The Warden can therefore argue that Concepcion does not
allow a state to apply its incapacity-to-contract rule to arbitration agreements.

I think Concepcion is distinguishable. Although the California rule was not limited to
arbitration agreements but applied also to contracts waiving class actions in court, its main focus
was surely arbitration agreements, which is not the case here. In other words, the state precedent
here does not look like an attempt to exempt consumer claims from individual arbitration, but
more like a rule that is concerned with all prisoner contracts. Nor is the state precedent here
based on what the Concepcion court considered an attempt to strip arbitration of its defining
attributes of speed, economy and informality. (One might also try to limit Concepcion to
arbitration agreements containing all the consumer-friendly provisions found in that case; but
this is unlikely to persuade the Court.)

Many answers sought to challenge the arbitration agreement as unconscionable, on what

seem to me flimsy grounds. It is true that this was an adhesion contract obtained by a party with
superior bargaining power—but as Justice Scalia said in Concepcion, “the times in which
consumer contracts were anything other than adhesive are long past.” Clearly, the Court will not
let a state declare unconscionable all adhesion arbitration agreements obtained by parties with
superior bargaining power. And in our problem, it looks as though some of the prisoners opted
not accept the arbitration agreement and the privileges that went with it, so there was some
genuine possibility of choice.

There is another possible objection to the agreement, though I’m not sure whether it goes
to unconscionability. It is hard to see that there is a legitimate rationale for conditioning prison
privileges on acceptance of an arbitration agreement. It is not as though the agreement is limited
to disputes concerning the privileges, or as though there are legitimate penological grounds for
conditioning privileges on accepting arbitration—as there would be, for example, if the Warden
conditioned privileges on behaving well.

Some people tried to apply the Erie doctrine to this problem, to which I see two decisive
objections. First, the FAA is a valid and applicable federal statute—which means, according to
Hanna v. Plumer, that we need look no further. Second, the Supreme Court has ruled that the
FAA’s validation of arbitration clauses applies in state courts as well as in federal courts (see
casebook, pages 557, 558). So there is no possibility of different rules being applied in state and

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federal courts, and therefore no choice between federal and state rules, at least assuming that the
FAA applies.

One could argue that the FAA does not apply. The Supreme Court has not (yet) held that
one can enter into a binding agreement to arbitrate Constitutional claims, though it has upheld
agreements covering statutory claims. One could hence argue that the FAA must be read
together with civil rights statutes providing federal court remedies for Constitutional claims
against state officials so that the FAA does not apply to those claims. Alternatively, one could
argue that the treatment of state prisoners is not a transaction involving commerce and therefore
falls outside the FAA.

Even assuming the FAA does not apply, I’m not sure that there is much of an Erie issue
here. On that assumption, there is state law invalidating the prisoners’ contracts, but no contrary
federal precedent or policy upholding arbitration agreements not covered by the FAA. If we do
assume that the FAA doesn’t apply and treat this as an Erie issue, I would apply state law on the
grounds that: if arbitration clauses work in the federal courts but not in the state courts, litigants
will forum shop in favor of state courts; the capacity to enter a binding contract is a matter of
state substantive law, based on policies such as the protection of children etc.; and again, there is
no countervailing federal policy to balance against such state concerns.

A final point: some ingenious people remembered the federal statute requiring prisoners to
exhaust prison administrative remedies before filing federal suits challenging prison conditions,
as discussed in Jones v. Bock. That statute does not control this case. The remedies a prisoner
has to exhaust do not include binding arbitration. If the prisoner uses the administrative remedy
but does not get what he claims to be entitled to, he can then file a suit in court.

(b)The Warden files a timely motion to dismiss the action because the plaintiffs failed to
join as defendants the doctors providing the allegedly inadequate medical care. Please discuss
whether this motion should be granted.

This motion is doomed to defeat on one ground or another. The simplest is the Supreme
Court’s holding in Temple v. Synthes Corp. that being a joint tortfeasor does not make one a
party that must be joined if possible under Rule 19(a). The doctors here are not really joint
tortfeasors—this is a constitutional violation, not a tort, and the plaintiffs are not seeking
damages. One might generalize Synthes to say that it is not enough to require joinder that one is a
party against which relief might be sought for the same acts. However, it could be that more
than just that is involved in this case, so let’s look at Rule 19(a).

It’s not necessary to join the doctors to give the plaintiffs the injunctive relief they’re
claiming. The Warden can be ordered to provide any relief needed, and will use his control over
the prison (including the doctors) to implement it. (Indeed, the doctors may well be bound by
such an injunction under Rule 65(d)(2) as agents of the Warden.) If the plaintiffs also wanted
damages for past misconduct, they might not be able to get them from the Warden, so there
would be an argument that the doctors should be joined. But plaintiffs in institutional reform

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suits like this one never seem to seek damages, and these plaintiffs are no exception, so they
don’t need the doctors as defendants.

Could deciding the case in the doctors’ absence impair their ability to protect their
interests? They would not be bound as a matter of claim or issue preclusion, but Rule 19(a)
speaks of impairment “as a practical matter.” The court’s findings might injure the doctors’
reputation, and its injunction might affect their working conditions, or even require their
replacement. Whether this is so or not would depend on the circumstances of the case and the
relief the plaintiffs seek.

The last possibility that Rule 19(a) raises is that a judgment in the doctors’ absence might
expose the Warden to double or inconsistent liabilities. The only way in which I can think of
that happening would be if the court’s injunction forced the warden to violate any contract he
may have with the doctors—unlikely, but again the facts of the case might make it a realistic
possibility.

Assuming that the doctors should be joined if possible, there should be no problem joining
them. They are subject to personal jurisdiction: (a) because they can be served on the job; and
also (b) because any claims against them arise out of their acts within the state. There is federal
question jurisdiction over any Constitutional claim against them; and any state law claim (for
example, for medical malpractice) arising out of the same facts as the original case would fall
within supplemental jurisdiction because section 1367 allows a plaintiff to assert supplemental
jurisdiction claims against new parties when the original claim is covered by federal question
jurisdiction.

If we assume that the doctors should be joined if possible (possible, though unlikely as
explained above) and that they cannot be joined (an incorrect assumption, as explained above)
we would then have to consider under Rule 19(b) if the action should be dismissed or should
proceed without them. I would proceed without them. The harms (if any) caused to the doctors
or the Warden by proceeding without them are not very significant, and might well be avoided
by shaping relief (for example, the court should not order the Warden to discharge the doctors in
breach of their contracts; and it could invite the doctors to intervene if they wish). If the court is
required to dismiss the action because the doctors cannot be joined, the same would be true of
any other action the prisoners might bring against their allegedly unconstitutional treatment, so
that they would be deprived of a remedy.

Many of you stated that, that if Warden really wants the doctors to be parties, he could
implead them. I don’t think this is true, because impleader is designed for damages claims,
which can be “passed on” to the impleaded party. I do not see how impleader would work in a
claim for injunctive relief only. It seems plausible that there should be some way in which the
Warden should be able to bring the doctors into the case in appropriate circumstances, but the
most promising method I’ve been able to think of is by asking the court to order the plaintiffs to
join them as defendants, which is basically what the Warden is trying to do by asking for the
case to be dismissed for want of indispensable parties.

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 (c)Please discuss whether the court should certify this action as a class action, focusing on
the greatest obstacle or obstacles to certification.

Because there are so many requirements in Rule 23, much could be said. I will discuss (as
the question suggested) only a few issues.

Although 300 inmates are more than enough to satisfy Rule 23(a)(1), if the arbitration
agreements are upheld there may not be enough left, depending on just how many signed
agreements. Some people pointed out that some of the inmates may not have suffered the
allegedly unconstitutional conditions challenged by the complaint. If this were a damages class
action, only those injured (or in asbestos cases exposed to asbestos and likely to suffer injury in
the future) would be included in the class. Arguably, in a class action seeking injunctive relief to
prevent future violations, prisoners likely to be exposed to the challenged conditions in the future
should be included in the class even though nothing has happened to them yet.

When it comes to whether there are questions of law or fact common to the class, we have
to confront the question of just how far the Walmart case goes. The problem is that this suit
challenges three different things: inadequate medical treatment; inadequate solitary confinement
cells; and overcrowded cells. Some prisoners may have been subjected to all three of these, but
others have been subjected to only two, or one, or (see the previous paragraph) none. Some
answers said that there is (allegedly) a common practice of unconstitutional treatment
encompassing all the violations and all the prisoners—but this is exactly the sort of claim that
Walmart rejected as insufficient in the absence of actual evidence of a common policy. Can one
distinguish that holding on the ground that this case involves a far smaller class found only in
one institution, not more than a million employees in 3400 stores? Although the Walmart
opinion certainly makes much of those facts in its introductory portion, the discussion of
common questions does not seem to turn on them. Alternatively, does it make a difference that
here only injunctive relief to prevent future violations is sought? After all, even a prisoner who
has not yet needed medical treatment or faced solitary confinement or been assigned to an
overcrowded cell might well be in one of those situations in the future. And since the goal is to
prevent future misconduct rather than to grant particularized relief for each past violation, the
details of each prisoner’s treatment may not be that important. I make these points in the form of
questions, because we do not yet have definitive answers. Walmart could be read as devastating
to both damages and injunctive class actions, but there are also possible narrower readings.

Assuming the plaintiffs can satisfy the requirements of Rule 23(a), their suit should qualify
as a 23(b)(2) class action. They seek only injunctive relief, so the second issue discussed in
Walmart doesn’t arise, and any injunction they obtain should be prison-wide and hence
applicable to the whole class. This could also be a 23(b)(1)(B) class action. Any injunction
would be classwide—one could hardly order the Warden to change the medical treatment
arrangements for some prisoners but not others—so as a practical matter it would affect the
interests of every prisoner.

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 QUESTION II
(60 minutes)

So far as long arm (specific) jurisdiction is concerned—that is, jurisdiction over a claim
arising out of the defendant’s purposeful availment of the opportunity to conduct business with
the forum state--both corporate and human defendants are subject to the same Constitutional
standard. But when a plaintiff seeks to assert general jurisdiction over a defendant—that is over
a claim not arising out of the defendant’s contacts with the state--it has been contended that it is
now easier to obtain Constitutionally permissible personal jurisdiction over a human defendant
than over a corporate defendant.
There are three possible responses to this contention. (1) One could argue that the
differences in treatment between human and corporate defendants are justified, for example by
the differences between people and corporations. Or one could argue that the differences are
unjustified, and that (2) human defendants should be subject to general personal jurisdiction
only in circumstances comparable to those under which corporations are now subject to general
personal jurisdiction; or that (3) corporations should be subject to general personal jurisdiction
under circumstances comparable to those in which human defendants are now subject to general
personal jurisdiction.
Please describe the circumstances under which, according to current Constitutional law,
people and corporations are subject to general personal jurisdiction. Then give the arguments
for and against one of the three responses described in the previous paragraph. You should
assume that current Constitutional law can be changed if there are good reasons to do so.

Current law. Although until recently it was widely accepted that a corporation is subject to
general jurisdiction in any state in which it has substantial and continuing contacts such as
maintaining a factory or office, the Daimler case (2014), building on Goodyear (2011), seems to
limit general jurisdiction with possible rare exceptions to the state in which the corporation is
incorporated and the state in which it has its principal place of business.

True, Daimler does leave open the possibility that a corporation could be “at home” in
other states. But it rejected the claims that: (a) having a subsidiary in subject to general
jurisdiction in the state would suffice; and (b) that there would be general jurisdiction even
assuming that the California contacts of Daimler’s subsidiary were attributable to Daimler.
Those contacts included the subsidiary’s having multiple California facilities including a
regional office, a vehicle preparation center and another center, its being the largest supplier of
luxury vehicles in California, and its California sales accounting for 2.4% of Daimler’s world-
wide sales. (The Court does not tell us this, but this means that in 2013 Daimler’s California

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sales must have been well over one billion dollars.) If that is not enough for general jurisdiction,
what would be? Conceivably there would be general jurisdiction over a corporation that,
although incorporated and headquartered elsewhere, did most of its business in a state, but even
this is not clear. In sum, with possible rare exceptions, corporations are subject to general
jurisdiction in at most two states.

One issue left open by Daimler—and not discussed in class—is the current status of the
old statutes that require a corporation doing business in a state to appoint an agent for service of
process there. Of course, a corporation could appoint such an agent if it wants to because
consent remains a ground for general jurisdiction. But it now seems doubtful that a state could
require the appointment if the agent’s authority extended beyond claims related to the state.

Turning to individual defendants, they are subject to general jurisdiction in their state of
domicile. This roughly corresponds to the “at home” test for corporations, though humans have
one domicile while corporations are “at home” in both their state of incorporation and their main
place of business. But humans, unlike corporations, can be sued wherever they can be served
with process. Burnham makes clear that this is still true even after International Shoe and
Shaffer v. Heitner, albeit with a few possible exceptions (involuntary or unknowing presence in
the state, presence procured by fraud, perhaps presence while passing through the state without
stopping). An individual defendant might therefore be subject to general jurisdiction in many
states if he travels a lot and plaintiffs are able to find and serve him.

Justification. My own view is that this has it exactly the wrong way around: corporations
should be easier to obtain general jurisdiction over than humans. The average corporate
defendant has more resources than the average human defendant and has profit-making activities
in more states, making it easier for it to defend in different places and fairer to require it to do so.
It is also more able to limit its exposure if it wishes through such means as limiting its business,
using subsidiaries or “contracting out” functions to other corporations (as in Nicastro), and
including forum selection clauses or arbitration agreements in its contracts.

I was surprised by the number of answers arguing that it should be harder to obtain general
jurisdiction over corporations than over humans. I would be interested to know whether this
results from increasing valuation of businesses among the Rutgers student body, or from a
tendency (acquired in law school) to find reasons justifying existing law. In any event, the main
reason proposed for this position was that, because corporate defendants often operate in many
states, if they were treated more like humans they would be exposed to being sued in many states
on claims unrelated to their activities in the forum state. For the reasons described in the previous
paragraph, this doesn’t bother me. But it does lead to a stronger argument: exposure to suit in
many states will allow plaintiffs to forum shop for the state with the most favorable procedures
and substantive law (to the extent that choice of law rules will allow the forum’s law to be
applied) and the one least convenient for the defendant. To some extent, that possibility exists
under any jurisdictional system that gives plaintiffs the choice of more than one forum, but it
becomes larger and more serious as the number of forums increases. There has been publicity
about “judicial hell-holes” that are reportedly extremely favorable to plaintiffs. So restricting the
number of jurisdictions where there is general jurisdiction over corporations does have

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something to be said for it: it reduces shopping by plaintiffs for forums with favorable law,
judges or juries.

Reducing general jurisdiction over individuals. Assuming now that making it easier to
assert general jurisdiction over humans than over corporations does not make sense, one solution
would be to equalize the standards by overruling Burnham. That case makes it possible to sue
defendants in places extremely inconvenient to them. A narrower standard can also be justified
by the consideration that probably underlies Daimler. That consideration is that--now that we
have long arm (specific) jurisdiction over claims arising out of the defendant’s contacts with a
state--there is less need for jurisdiction over unrelated claims. General jurisdiction can therefore
be limited to one or two states per defendant, serving as a backup forum for the comparatively
rare cases in which specific jurisdiction does not work.

One problem with relying almost entirely on long arm juridiction is that this is relatively
unpredictable and expensive. It is unpredictable because—as the cases we discussed in class
illustrate—the long arm standard involves several different factors whose applicability is often
subject to dispute. Indeed, many important issues remain open, for example, those discussed in
Nicastro and those involving the internet. Relying on long arm jurisdiction is also expensive
because litigating the availability of that jurisdiction can require exploration of various relevant
facts and argument of law, and because if the court rules against jurisdiction the plaintiff must
start again somewhere else.

In addition, the current standards for long arm jurisdiction leave gaps that general
jurisdiction might fill. Suppose, for example, that a New Jersey customer calls up the Georgia
headquarters of a business incorporated in Georgia and doing business throughout the country
and orders a product to be shipped from Georgia, which later causes damage in New Jersey.
There is no long arm jurisdiction in New Jersey even if it happens that the business has a major
office and factory (including the office of its General Counsel) in New Jersey because the
plaintiff dealt only with Georgia, and the Georgia headquarters did not reach out to him in New
Jersey. And under Daimler there is no general jurisdiction in New Jersey either because the
corporation is not incorporated in New Jersey and does not have its main place of business there.
Should the customer really have no option other than suing in Georgia?

Increasing general jurisdiction over corporations. If you accept the claim that corporations
should be at least as easy to sue as humans, and if you accept the argument suggested in the
previous paragraphs that long arm jurisdiction over large corporate defendants is not enough,
even together with general jurisdiction in one or two states, an expansion of general jurisdiction
over corporations is clearly in order.

Even so, it does not make much sense to expand corporate general jurisdiction on the
model of general individual jurisdiction over defendants served within the state. The historic
tradition of in-state service, relied on by the Court in Burnham, does not include corporate
defendants. As many of you pointed out, large corporations have many employees in many
places, often moving from state to state, with movements not always controlled by the
corporation. Traditionally and today, even when a corporation is subject to jurisdiction in a state,
service cannot be made on just any employee but is limited to a small group—for example, under

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Fed R Civ P 4(h)(1)(B), to officers, managing agents, and agents authorized to receive service.
And if in-state service were limited to such a group, the result would be that the corporation
would be subject to general jurisdiction in states entered by a group member even though the
corporation had no operations there, and would not be subject to general jurisdiction in a state
where it had huge operations which members of the group did not visit. Finally, to make the
service giving rise to jurisdiction would require actually finding and serving a person in the
group while he or she was in the state. (This is also, of course, a problem with in-state service on
human defendants, especially those trying to evade service.)

Some other possibilities. Although you were not asked to propose other solutions, some of
you did include them while discussing the proposals in the problem.

One remedy would be to return to what was thought to be the law before Goodyear and
Daimler: make corporations subject to general jurisdiction in states where they have substantial
operations such as a factory or office. One could if desired specify the size of these operations, as
was not done in traditional law. Likewise, in the case of human defendants, one could replace in-
state service as a basis for general jurisdiction with activities of a substantial kind. This might
include, for example, a secondary residence, or the state in which the defendant worked, or (in
the case of individuals who own businesses) a state in which the business has substantial
operations.

Another approach would be to establish different jurisdictional rules for different kinds of
claims. For example, in the European Union there is general jurisdiction at a human defendant’s
domicile or a corporate defendant’s “(a) statutory seat, or (b) central administration, or (c) principal place
of business.” (Note the resemblance to Daimler, whose author, Justice Ginsburg, knows of the
European standard and may have been influenced by them.) But there are then special provisions
for different kinds of claims, some of them broader than others. (A consumer can bring a suit on
a consumer contract at his or her domicile, regardless of where the defendant is located.) One
could also have different rules for different corporate defendants, based for example on their
size. In addition, the rules could follow the “jurisdiction by necessity” principle and recognize
general jurisdiction if there is no state in the whole nation in which long arm jurisdiction exists.
(This is more or less the approach of the Antcybersquatting Act and of Fed R Civ P 4(k)(2).)