CONFLICT OF LAWS



Final Examination, Spring 2004





QUESTION I

196 raw points



Whom can your client sue and where? What substantive law will the court apply?

Comments:

The grading key reproduced below proved nearly useless.  Answers to this question were graded without much use of the key.  Students were credited with out-of-the-box solutions.  Those who confused jurisdiction with choice of law did poorly.

Students generally failed to consider jurisdictions other than Louisiana, Alabama and Illinois.  Many students labored under the mistaken notion that a state needs some interest in the litigation or some "minimum contact" to adjudicate the case.  That notion utterly ignores Hughes v. Fetter, wherein the Supreme Court of the United States said that a state may not constitutionally close the doors of its courts to actions arising elsewhere.

This test question is difficult, as there is something "wrong" with each of the three obvious fori.

We should start by asking the relative liability or fault of Jack and Bubba.  One of these persons may not have any fault and may not even be needed as a defendant.  Indeed, if the policy limits are high enough, neither motorist may be needed!  It would suffice to bring the action in a state such as New York (Collins v. American Automobile Ins. Co.) which, even though not having a direct action statute of its own, is willing to view the Louisiana direct action statute as substantive and therefore creating a transitory cause of action that may be enforced wherever Everystate Insurance may be found.  Everystate, like Ford and Blazerock, may be found in every state either through having qualified to do business and having appointed a registered agent there, or through sufficient minimum contact to support general jurisdiction.

Jurisdiction obviously exists in Illinois as to all defendants except Bubba.  Perhaps Illinois is willing to view LRS 22:655 as substantive.  If so, Bubba is not even necessary as his insurer clearly can be sued in Illinois.

Jurisdiction obviously exists in Alabama as to all defendants except Jack.  Perhaps Alabama is willing to view LRS 22:655 as substantive.  If so, Jack is not even necessary as his insurer clearly can be sued in Alabama.

If suit is brought in Louisiana, prescription is a problem.  But Louisiana Civil Code article 3549 "borrows" the prescriptive period of the state whose law "is applicable to the merits of the cause of action."  It can be argued, using Louisiana's governmental interests test, that that state is Illinois (or Illinois/Alabama taken as an undifferentiated whole).  In such case, the Illinois (or Illinois/Alabama) prescriptive period would be applicable.  But, if Jack might be at fault, the plaintiff has just painted herself into a corner.  If Illinois law (or Illinois/Alabama law) applies, the guest passenger statute of Illinois and/or Alabama arguably applies also.

If suit is brought in Illinois, prescription may also be a problem.  This depends on whether the Illinois borrowing statute borrows the statute of limitations of the place where the accident occurred, or of the place whose law is applicable to the merits.  If the latter, it can be argued that Illinois should apply Illinois law to the case, including Illinois's statute of limitations, but then the plaintiff is back in the same guest-passenger corner.

If suit is brought in Alabama (under this hypothetical, Alabama has no borrowing statute), prescription is no problem.  The plaintiff is thereby free to claim either that Louisiana is the center of gravity, or that Louisiana is the state having the greatest interest, or that Louisiana is the locus of the delictus.  Even if Alabama follows center-of-gravity or governmental interests, it can also be argued that there is no one clear center of gravity, no one clear state having the greatest interest.  In such a case, lex locus delicti would apply.  Louisiana law favors the plaintiff on all substantive issues.

The issue of whether a direct action can be maintained against Everystate does not depend on choice of law.  The Louisiana direct action statute by its own terms applies when the accident occurred in Louisiana.  Some states treat this as creating a substantive cause of action.  Hence the attractiveness of New York, subject only to any borrowing-statute issue there.

This case might be a good candidate for use of depeçage, arguing that while Illinois's prescriptive period should apply, Louisiana law should govern on the guest-passenger issue.

 

Now the largely discarded (as to this question) grading key:

 

The plaintiff will need to find a jurisdiction where:  
A two-year or longer statute of limitation applies, and
7 points _______
There is no "borrowing statute", or
7 points _______
The court will borrow the Illinois/Alabama limitation
7 points _______

Ford, Blazerock and Everystate are subject to in personam
7 points _______
through service within the jurisdiction
7 points _______
or through minimum contact
7 points _______
sufficient for general jurisdiction
7 points _______

Statutes of limitation are procedural 7 points _______
The forum always applies its own limitations 7 points _______
unless it has a borrowing statute
7 points _______
Articulate explanation of borrowing statute 7 points _______

Louisiana Revised Statutes 22:655 applies 7 points _______
Accident occurred in Louisiana 7 points _______
LRS 22:655 creates substantive, transitory cause of action 7 points _______

Jurisdiction against Everystate and/or Ford is all that is necessary 7 points _______
Everystate and Ford have agents for service in every state 7 points _______
Discussion of Oltarsh v. Aetna or its principles 7 points _______
Discussion of Collins v. American Cas. Co. or its principles 7 points _______

Will Illinois or Alabama apply their guest passenger statute? 7 points _______
Do either of those states follow lex loci delicti? 7 points _______
Could a court treat Illinois/Alabama law as undifferentiated whole? 7 points _______

Discussion of limitations issue in light of choice-of-law approaches 7 points _______
Discussion of guest passenger issue in light of choice-of-law approaches 7 points _______
Observation that depeçage may be appropriate 7 points _______

Defense may argue that prescription differs from limitations: 7 points _______
Prescription is substantive and extinguishes the cause of action
7 points _______
Limitations is procedural and only closes a courthouse's doors
7 points _______
Foreign court in this view should apply Louisiana prescription
7 points _______





QUESTION II

135 raw points



The judge has asked you to prepare a memorandum advising him on the jurisdictional questions.

A. Is the Tennessee TRO entitled to FF&C in Louisiana?

The Tennessee order is not entitled to full faith and credit in Louisiana 5 points _______
Ex parte orders are not entitled to FF&C under FPKPA 5 points _______



B. Where does child custody jurisdiction lie?

Tennessee has jurisdiction to hear the custody case 5 points _______
Tennessee is the home state of the children
5 points _______
Discussion of Atkins v. Atkins
5 points _______

"Home state" is where the child has lived for six months 5 points _______
prior to the date suit is filed
5 points _______
If child is less than six months old, since birth 5 points _______
Periods of temporary absence are counted 5 points _______



C. Where does jurisdiction lie to dissolve the marriage?

Both Louisiana and Tennessee have concurrent jurisdiction 5 points _______
It's a race to judgment on the divorce itself
5 points _______
Jurisdiction in divorce is based on domicile 5 points _______

Husband is domiciled in Tennessee 5 points _______
Shelby County is a county of proper venue
5 points _______
Wife is domiciled in Louisiana 5 points _______
East Baton Rouge Parish is a parish of proper venue
5 points _______



D. Where does jurisdiction lie to determine alimony and child support?

Alimony and child support require in personam jurisdiction 5 points _______
Wife may be longarmed into Tennessee based on living there
5 points _______
Husband is subject to Louisiana jurisdiction.  State reason.
5 points _______
Both states have concurrent jurisdiction as to support 5 points _______


 

E. Where does jurisdiction lie to partition the community?

Property issues require either in personam or quasi in rem jurisdiction 5 points _______
Wife may be longarmed to Tennessee based on living there
5 points _______
Husband's longarmability to Louisiana depends on his contacts
5 points _______

Either party may be personally served while in the other party's jurisdiction 5 points _______

With in personam jurisdiction, court may divide all property wherever located 5 points _______

Otherwise, in rem, court may divide only property within the jurisdiction 5 points _______

All but Louisiana immovables are governed by Tennessee law 5 points _______




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