Hypo: Batman’s Brazil 1

INSTRUCTIONS

• Hypo Tips:  Take 5 min or more to review, as needed.
• The Law:  Take 10 min or more to review, as needed.
• The Facts:  Take 10 min or more to review, as needed.
  • On a real exam and future hypos, The Facts will be part of your overall exam time limit.  But I want you to read the facts closely.  If you need more time, take it.
• The Question:  You have 20 min to read and answer the hypo.
• Debriefs:  Spend 10 minutes or more with these materials!
  • Debrief: Issue Checklist helps you assess your issue spotting ability.
  • Feedback: Rank helps you assess your writing skills by forcing you to compare and rank your answers to other real answers and articulating why you ranked the answers as you did .
  • Feedback: Video provides a video analysis that helps you assess your issue-spotting and writing skills, and helps you understand how hypos are constructed.
  • Feedback: Reflect helps you improve your “meta-cognition” by forcing you to think about what you learned by doing the hypo and reviewing the feedback materials
  • This is the most important section.  You are working on deliberate practice.  It helps to practice.  It helps more to practice, get feedback, learn to assess your own skills (“meta-cognition”).

TIPS

Don’t be intimidated by the question that will follow.

Normally, on an issue spotting exam, you would just get the facts and a prompt that says “Discuss.”  Or “Discuss the liability of the parties, if any.”

Here, I’ve broken down the prompt into a series of questions, to make life easier.

You’ll learn, with more practice exams, how to break up questions.

The questions below will let you write a decent answer that, ultimately, will look much like the answer you would write to the short, scary question, “Discuss.”

TIP: Grapple with ambiguity; don’t avoid it.  As to many questions, an easy and confident conclusion (“Bertha has obviously committed murder”) will betray lazy legal thinking.

Many facts — especially on issue-spotter exams — are uncertain and in many instances purposefully ambiguous. You must deal with ambiguous facts as best you can — many of the facts are purposefully ambiguous, as would be true in real life.  “Slam dunk” cases are rare.

TIP: Do not make up facts or ignore facts as they are given.  Do, however, make intelligent inferences based on the facts as given.  Just be super, super clear about the factual inferences or assumptions that you do make.  Actually, be super, super clear about everything that you’re doing and thinking in analyzing the law :). LAW

Standard for Personal Jurisdiction

Personal Jurisdiction – A non-resident defendant may only be required to defend a case in a particular state’s court if permitted by both (1) the state long-arm statute and (2) the Due Process Clause of the U.S. Constitution.

1. State long-arm analysis – So called “long arm” statutes (“the long arm of the law”) vary from state to state.  Each state may set out its own criteria for the exercise of personal jurisdiction, so long as it does not exceed what is permitted by Due Process Clause.

• Note 1:  Many states will have long arm statutes that contains language stating that that state authorizes jurisdiction to the full extent permitted by the Due Process Clause.  This means that you can simply skip to the Due Process analysis and do that (but do explicitly say that you are doing this.).

2.  Due Process Analysis.  Under the Due Process clause of the 14^th Amendment, a forum court may exercise jurisdiction over a non-resident defendant who has minimum contacts with the forum state such maintenance of the action does not offend traditional notions of “fair play and substantial justice.”   International Shoe.

a.  Minimum contacts.  For a court to assert personal jurisdiction over a defendant, a defendant’s contacts must be purposeful and substantial such that the defendant should reasonably anticipate being called into court there.

1. Specific Jurisdiction – When a cause of action arises out of a non-resident defendant’s specific conduct with the forum state, even if that conduct is the defendant’s only contact with the forum state.

Example:  You set fire to a house in Alaska while on vacation, and are sued in Alaska by the homeowner.

2. General Jurisdiction – When a cause of action does not arise out of a defendant’s specific conduct with the forum state.  Instead, jurisdiction depends on the non-resident defendant’s systematic and continuous contacts with the state.  Helicopteros.

Easy Example:  You set fire a rich dude’s house in Hawaii while on vacation, but he sues you in Alaska because you have a salmon fishing business there (you don’t live in Alaska it is where you catch all of your salmon that you market as “real Alaskan salmon”).

b.  Fair play and substantial justice.  Whether the exercise of jurisdiction comports with traditional notions of fair play and substantial justice depends on five factors:

1)      The burden on the defendant for having to appear in the case

2)      The interest of the forum state in adjudicating the matter

3)      The plaintiff’s interest in litigation the matter in the forum state

4)      The interest of the judicial system in the efficient resolution of controversies;

5)      The shared interest of the states in promotion substantive social policies

• Note 1:  There is generally very little guidance on how to apply these factors.

HYPO

Facts

Can’t get enough Batman, right?  Here’s more.

Shortly after the events depicted in The Dark Knight, but well before the events in the Dark Knight Rises  lesser movie that followed, Bruce Wayne decided to generally stay away from Gotham.  He liked kidnapping that dude in Hong Kong and taking him back to face justice in Gotham.

“Hook ‘Em AND Cook ‘Em LLP” (HACE LLP) is a Nevada corporation owned solely by Bruce Wayne dedicated to capturing people on the run and taking them to face justice – whether criminal or civil.

Neymar Jr., Brazilian soccer superstar and wearer of hairstyles, was viciously kneed in the back by Juan Zuniga, a Colombian national who plays professionally in Italy.

Watch it here:

Watch it here.

Shortly after kneeing Neymar in the back, Zuniga receives an offer to meet with WWE (World Wrestling Enterprises), who want him to consider appearing in that year’s installment of WrestleMania as “El Backbreaker!”

Zuniga and his agent fly to Las Vegas on 5 separate occasions in July 2014 to work out the details.  Zuniga is given a suite in The Wynn casino, and WWE opens a bank account at Nevada Savings Bank in Zuniga’s name.

Neymar’s father, Neymar Sr., wants to punish Zuniga somehow.  He flies to meet Bruce Wayne in Reno, Nevada and on behalf of Neymar Jr. sells any back-injury related tort claim against Zuniga to HACE LLP for $1 million.

In August, while still negotiating with WWE, Juan Zuniga reported to training camp in Naples, Italy, where he played for Napoli SSC, a famous Italian professional soccer club (its most famous player was Maradona, but I digress).

Shortly after that, Bruce Wayne suits up and kidnaps Juan Zuniga from Naples, bringing him to Nevada to face justice.  Zuniga struggled and was injured in the kidnapping attempt, ironically losing the use of his kneecaps.  Only his Naples-based teammates were on hand.  Zuniga is kept locked up in a suite at the Encore (also owned by Steve Wynn!).

Question