February 2023 Questions and Sample Answers
February 2023 Questions
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February 2023 Sample Answers
MPT-1
Sample Answer
Foss & Associates LLP
Attorneys at Law
3200 Lakefront Dr., Suite 700
Franklin City, Franklin 33012
MEMORANDUM
To: Zoe Foss
From: Examinee
Date: February 21, 2023
Re: Jasmine Hill Matter
I. Introduction
Our client, Ms. Jasmine Hill, purchased a boat from Reliant Boating ("Reliant") believing that it was in perfect working condition based on Reliant's representations. Upon using the boat, Ms. Hill discovered that the boat's engine was cracked and needed to be replaced. This memorandum analyzes the potential claims that Ms. Jasmine Hill could pursue against Reliant under the Franklin Deceptive Trade Practices Act (DTPA) (Fr. Bus. Code §§ 200 et. seq.). Included in this analysis is the specific relief that Ms. Hill would be entitled to if she were to succeed in a DTPA action.
II. Ms. Hill has a viable DTPA claim against Reliant because Reliant engaged in false, misleading, or deceptive acts that were the producing cause of Ms. Hill's damage after she relied on Reliant's conduct to her detriment.
The elements of a DTPA claim are (1) the plaintiff is a consumer; (2) the defendant engaged in one or more of the false, misleading, or deceptive acts enumerated in § 204; (3) the act(s) constituted a producing cause of the plaintiff's damage; and (4) the plaintiff relied on the defendant's conduct to his or her detriment.
Ms. Hill is a consumer and the boat is a good.
Under §203(d), a consumer "means an individual...who seeks or aquires any goods or services". The §203(a) definition of goods includes "tangible items or real property purchased or leased for use". In this case, Ms. Hill satisfies the consumer requirement as she is an individual who sought to aquire a good - the boat. The boat is a tangible item that was purchased for use, which complies with the definition of a good.
Reliant engaged in false, misleading, or deceptive acts.
Under §204 of the DTPA , false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful. These unlawful acts are further enumerated in §204(d)(ii) to include representing that goods or services are of a particular standard, quality, or grade if they are of another. Additionally, §204(g) includes failing to disclose information concerning goods or services that was known at the time of the transaction if such failure was intended to induce the consumer to enter into a transaction into which the consumer would not have entered had the information been disclosed.
According to the Franklin Supreme Court in Diaz v. Ellis, actionable representations may be oral or written. In this case, Reliant made both oral and written assurances about the condition of the boat that Ms. Hill purchased. In Ms. Hill's interview, she stated that Greg Stevens, the owner of Reliant, told her that the boat was a real gem and that it was in great condition. Greg Stevens told Ms. Hill that the boat was a "real gem" and that it was in great condition when Ms. Hill returned Reliant for a second time. Additionally, in an email correspondence between Greg Stevens and Ms. Hill, he again repeated that the boat was a "real gem". When Ms. Hill relayed her concern about the age of the boat and explicitly communicated she did not want to buy a boat that would need repairs, Greg Stevens replied that "it's in excellent condition and runs just like new." Reliant, via owner Greg Stevens, made multiple assurances that the boat was in good condition, representing that they were os a particular standard or quality that they weren't. JB Boat Repairs, the company hired to diagnose and repair the boat, found that the engine block was cracked and that there were reminants of epoxy glue indictaing that the engine block had been previously damanged. Additionally, JB Boat repairs was able to determine that the epoxy glue had been recently applied, indicating that the engine block was already damaged when Ms. Hill purchased the boat. Reliant failed to disclose this to Ms. Hill, despite having knowledge of the damaged engine block as proved by their attempts to repair it with epoxy glue. Instead, Reliant assured Ms. Hill in the Boat Bill of Sale that "Seller has no knowledge of any defects in and to the boat."
It is likely that Reliant will raise the defense that these statements were "mere puffing" and simply "sale-speak", and therefore not actionable under the DTPA. "mere-puffing" analysis put forth in Diaz v. Ellis weighs three factors in determining whether a representation is "mere puffing":
(1) the specificity of the alleged misrepresentation - vague or indefinite representations, statements that compare one product to another and claim superiority, and mere opinions are not actionable misrepresentations under the DTPA;
(2) the comparative knowledge of the consumer and the seller or service provider
(3) whether the representation relates to a past or current condition as opposed to a future event or condition - statements about the part or current conditions are more likely to be actionable than statements about the future.
Even if Reliant were to succeed under the "mere-puffing" analysis put forth in Diaz v. Ellis, it would likely only succeed with respect to the "real gem" comments and not the additional substantial comments made about the current condition of the boat, as they were not value and were factual assertions about its condition. Reliant made assurances to Ms. Hill with significant specificity when Reliant wrote that "Seller has no knowledge of any defects in and to the boat" in the Boat Bill of Sale. Simiarly, Ms. Hill has pointed out that he has very limited experience with boats, while Reliant was a seller in the business of selling boats.
Reliant's acts constituted a producing cause of Ms. Hill's damage.
The Court in Ling v. Thompson held that a seller cannot be held liable for failing to disclose information about which the buyer has actual notice; such information could not be a producing cause of the buyer's loss. In this case, Ms. Hill had no notice of the crack in the engine block. In fact, Reliant attempted to hide and disguise any engine trouble when Greg Stevens turned on the engine for a few moments to show Ms. Hill that it was in working order. Reliant attempted to hide any defects in the boat by using epoxy to have the engine work while in the store, long enough to have it sold to an unsuspecting buyer. Therefore, Reliant's acts constituted a producing cause of Ms. Hill's damage.
Ms. Hill relied on Reliant's conduct to her detriment.
Ms. Hill was a new to boating and expressed her concerns to Reliant multiple times. She specificially indicated that she did not want to purchase a boat that would need repairs in her communications to Greg Stevens. She relied on Reliant and their representations when choosing the boat that she purchased, and as a result was stranded on the water during a planned vacation and was forced to pay $3000 for repairs on the boat.
III. Ms. Hills can recover economic damages and attorney's fees.
In a DTPA suit, a consumer who prevails may obtain exemplary damages of three times (treble) the amount of economic damages if the trier of fact finds that the defendant knowingly committed the conduct and damages for mental anguish under §205. Additionally, §205 dictates that each consumer who prevails shall be awarded court costs and reasonable and necessary attorney's fees.
Reliant acted knowingly.
Under the DTPA §203(k), knowingly includes "actual awareness" of the falsity, deception, or unfairness of the act giving rise to the consumer's claim. Additionally, knowingly may be inferred when objective manifestations indicate a person acted with actual awareness. As per the court in Diaz, actual awareness means that the person knew what they were doing was false, deceptive, or unfair. In this case, Reliant knew that there was a crack in the engine block because they had recently tried to repair it with epoxy glue. Instead of informing Ms. Hill of this known problem, Reliant hid the problem and assured her that they had no knowledge of any defects.
Ms. Hill not likely to qualify for mental anguish.
In Oliver v. Elite Systems, the Franklin Supreme Court held that an award of damages for mental anguish "implies a relatively high degree of pain and distress beyond mere worry or anxiety...and includes pain resulting from grief, severe disappointment, indignation, wounded pride, and similar emotions." In this case Ms. Hill stated that having to replace the motor was stressful, and that she was disappointed when her weekend getaway with her family was ruined. Unless her disappointment rises to the level of "severe disappointment" as required, she will likely not be able to recover for mental anguish.
IV. Conclusion
§202 of the Franklin Business Code provides that it is to be liberally constured so as to promote the purpose of protecting consumers against false, misleading, or deceptive business practices. In accordance with this purpose, the DTPA can and should be applied to Ms. Hill's scenario. In considering the facts as presented by Ms. Hill in her interview and the evidence that she has provided, it is likely that she will be successful in her DTPA claim against Reliant because Reliant engaged in false, misleading, or deceptive acts that were the producing cause of Ms. Hill's damage after she relied on Reliant's conduct to her detriment. She is likely to be able to recover both her attorney's fees and three times the amount of economic damages.
Sample Answer
MEMORANDUM
To: Zoe Foss
From: Examinee
Date: February 21, 2023
Re: Jasmine Hill matter
-----------------------------------------
Zoe:
You asked me to analyze whether Ms. Hill has one or more claims against Reliant under the Franklin Deceptive Trade Practices Act ("DTPA") in connection with her purchase of a used boat from Reliant. In short, the applicable law does allow Ms. Hill to recover against Reliant under the DTPA. Ms. Hill's claims are encompassed by the DTPA, and she has viable claims against Reliant under the DTPA under §204(d) and §204(g).
a. Purpose and elements required to suceed on a DTPA claim.
The DTPA was enacted to protect consumers against false, misleading, and deceptive business practices. §202. The DTPA prohibits "[f]alse, misleading, or deceptive acts or practices in the conduct of any trade of commerce." §204. The DTPA defines "trade" or "commerce" as the sale...of any good or service. §203(e). A "consumer" means an individual ... who seeks or acquires any goods or services. §203(d).
The elements of a DTPA claim are (1) the plaintiff is a consumer; (2) the defendant is engaged in one or more of the false, misleading, or deceptive acts enumerated in §204; (3) the act(s) constituted a producing cause of the plaintiff's damage; and (4) the plaintiff relied on the defendant's conduct to his or her determinent. Diaz; §205(a). A "producing cause" is a substantial factor that brings about the injury, without which the injury would not have occurred. Diaz. The plaintiff consumer has the burden of proof as to each element. Id. If a violation is committed "knowingly", the plaintiff is entitled to receive three times his or her actual economic damages (otherwise known as treble damages), as well as damages for mental anguish. §205(b)(2).
Here, Ms. Hill is a consumer under the statute's defintion, since she is an individual who sought to acquires a good (the used boat). Reliant was engaged in the statute's definition of "trade" or "commerce" by operating Reliant Boat and engaging in the sale of used boats. Reliant engaged in deceptive practices by providing Ms. Hill with misleading and false information regarding the used boat and Ms. Hill relied on Reliant's representation before purchasing the boat. As a result, Ms. Hill suffered damages because of her reliance on Reliant's representations. Therefore, Ms. Hill's case is one that falls under the DTPA and is a consumer who the DTPA sought to protect, and she will have a viable claim against Reliant under the DTPA.
b. Ms. Hill has a claim under §204(d)(ii) because Reliant misrepresented that their boat was of a particular standard, quality, or grade when it was not.
Under §204(d)(ii), a deceptive act includes representation that goods or services have characteristics or uses they do not have, or are of a particular standard, quality, or grade if they are of another. While misreprensetations are actionable under this section, "mere puffing", that is, exaggerated "sales-speak" for promotional purposes, is not actionable under the DTPA. Diaz. Three factors determine whether a representation is "mere puffing":
(1) the specificity of the alleged misrepresentation: vague or indefinite representations, statements that compare on product to another and claim superiority, and mere opinons are not actionable misrepresentations under the DTPA;
(2) the comparative knowledge of the consumer and the seller or service provder: representations made by a service provider with greater knowledge and experience than the consumer are more likely to be actionable; and
(3) whether the representation relates to a past or current condition as opposed to a future event or condition: statements about past or current conditions are more likely to be actionable than statements about the futuer. Id.
Here, Reliant made several representations to Ms. Hill regarding the quality and standard of the used boat. For example, Mr. Stevens of Reliant told Ms. Hill that the boat was "a real gem" and that it "was in great condition." When Ms. Hill examined the boat in the shop, Mr. Stevens turned the engine on and it sounded fine. Furthermore, in Ms. Hill and Mr. Stevens' remail exchange, Mr. Stevens went on to say that even though the boat was a few years old, "it's in excellent condition and runs just like new." This statement was in response to Ms. Hill explicitly stating that she was concerned about its age, and told Mr. Stevens that she did "not want to buy a boat that's going to need repairs." Finally, the boat's bill of sale provided by Mr. Stevens contained an express provision that stated "[s]eller has no knowledge of any defects in and to the Boat." Most of these statements, taken together, are misrepresentations that are actionable.
However, Mr. Stevens' comment that the boat was a "real gem" is not actionable and likely constitutes mere puffing. This statement is likely too indefinite to be actionable. See Salas (dealership's description of a vehicle as "luxurious" and "rugged" was mere opinion or puffery). But cf. Chapman (but affirming DTPA recovery where defendant "guaranteed" he would finish a construction project "no matter what" for a set price within a certain time period and the quality of the construction would be "great"). Furthermore, in Gordon, the court held that where a mechanic's statements that they could get the car fixed and "right back out on the road" was too general and indefinite to be actionable since none of those statements guaranteed a precise time frame for completion of repairs.
Our case is more similar to Chapman and Gordon. Despite the "gem" comment, Mr. Stevens went on to state that the boat was in excellent condition, in great condition, and runs like new. These phrases went beyond mere puffing and were the representations that Ms. Hill deterimentally relied on when deciding to purchase the used boat. Therefore, Ms. Hill has a viable claim under §204(d)(ii).
c. Ms. Hill also has a claim under §204(g) because Reliant failed to disclose information concerning the boat that was known at the time of the transaction, and that failure was intended to induce Ms. Hill to enter into a transaction into which she would not have entered had the information been disclosed.
Under the DTPA (g), the plaintiff must show that (1) the defendant failed to disclose information about goods or services (2) known by the defendant at the time of the transaction and (3) intended to induce the consumer to enter into a transaction (4) into which the consumer would not have entered had the information been disclosed. §204(g). To be sure, a seller cannot be held liable for failing to disclose information about which the buyer has actual notice; such information could not be a producing cause of the buyer's loss. Ling (emphasis added).
Here, there is ample evidence that Mr. Stevens of Reliant knew that its boat was not in the condition in which he represented to Ms. Hill, and Ms. Hill relied on those statements when she contracted to purchase the boat. This is not a situation where these statements were made without knowledge of their falsity or where the information was innocently withheld. This is clear because of the evidence from the diagnosis of JB Boat Repairs. Ms. Hill hired JB Boat repairs to conduct an inspection of the boat after it failed to perform the way Mr. Stevens' represented. The mechanic at JB Boat determined that the enginge block was completley cracked and that there were remnants of epoxy glue, and indicated that the glue had been recently applied, which told him that the enginge block was damaged when Ms. Hill bought it. Furthermore, the mechanic indicated that the boat was able to turn on in the show room and sound fine because the cracked enginge block will allow a motor to run for a few minutes as if it were functioning properly. There is ample evidence from these determinations that Mr. Stevens' was aware of the completley damaged enginge block and purposley put epoxy glue on it to ensure that it could run properly for just long enough to misrepresent that it is a functioning boat. Ms. Hill was very clear with her questions and indicated she did not want a boat that she would have to repair. Mr. Stevens' guaranteed it would work well, ran like new, and went so far as to conceal the damage to convince Ms. Hill to enter into the purchase of the boat. Without Mr. Stevens' representations, Ms. Hill would not have entered the contract. Clearly, Mr. Stevens had actual notice and this information regarding the cracked enginge was not innocently withheld.
In Abrams, the court held that there was ample evidence that the college defendant knew that its catologe of what it offered to students contained misrepresentations that the plaintiff relied on in enrolling and paying tuition for. This is because the school actually did not have any of what was promised in the brochure and therefore there was ample evidence to show the misrepresentation was not innocent and the plaintiff would not have applied had she known the truth. Similarly here, Ms. Hill would not have contracted to purchase the boat had she known the truth, and there is ample evidence Mr. Stevens was aware of these falsisties but chose not to disclose them. Therefore, Ms. Hill has a viable claim under §204(g).
d. Ms. Hill can likely recover economic damages, treble damages, damages for mental anguish, and attorneys' fees.
A plaintiff may recover "economic damages" where the defendant's misconduct was a producing cause. The term "economic damages" has been construed to include "the total loss sustained by the consumer as a result of the deceptive trade practice," which includes related and reasonably necessary expenses. Diaz. Section 203(f) expressly includes "repair or replacement" costs in the definition of "economic damages". Here, Reliant's misconduct (misrepresenting the condition of the engine and boat) was a producing cause because Ms. Hill purchased the boat and then had to pay out of pocket expenses for repairs/replacements. Ms. Hill is entitled to $3,000 for the cost of doing a total engine repair by JB Boat Repairs.
Ms. Hill can also recover exemplary damages in the form of treble damages and mental anguish damages. To justify an award of these categories, the plaintiff must prove that the defendant's actions were taken "knowingly." 205(b)(2). The Act provides that it is to be liberally construed so as to promose the purpose of protecting consumers. The DTPA defines "knowingly" to include "actual awareness" of the falsity, deception, or unfairness of the act giving rise to the consumer's claims. 203(k). Knowledge may be inferred where objective manifestations indicated that a person acted with actual awareness. Id. The court explained in Diaz that "actual awareness" does not mean merely that a personknows what he is doing.. rather it means that a person knows that what he is doing is false, deceptive, or unfair. The person must think at some point, "Yes, I know this is false, deceptive, or unfair, but I'm going to do it anyway." Diaz. Here, Mr. Stevens acted knowingly which can be objectivley inferred by the evidence that the enginge was fully unusable and was recently mended with epoxy glue - enough to portray that the boat is functionable.
Furthermore, Ms. Hill can recover for mental anguish, which "implied a relativley high degree of pain and distress beyond mere worry or anxiety...and includes pain resulting from grief, severe disspointment, indignation, wounded pride" and similar emotions. Oliver. The court in Abrams allows the student plaintiff to recover these damages because she testified that she felt severed dissapointment with the college's academic program, indignation at its poor instruction, wounded pride at "being had" and such severe despair that she had to drop out of the college. Here, Ms. Hill can make similar arguments. She bought the boat specifically for a weekend getaway that was ruined by the boat's failure. She did not plan to engage in any other activities but boating. When the boat stopped working, the trip lost its point, and she packed up with her guests and left - ending the trip early. It also severely set Ms. Hill back financially which has caused her a lot of stress. She feels that Reliant took advantage of her (like being had). Therefore, Ms. Hill should likely also be able to recover mental anguish damages because Reliant/Mr. Stevens knowingly made this misrepresentation, and she suffered mental anguish as a result.
Finally, Ms. Hill will likely be entitled to attorneys fees. "Each consumer who prevails shall be awarded court costs and reasonable and necessary attorney's fees." §205(c). The award of reasonable and necessary attorney's fees is mandatory for a prevailing DTPA plaintiff. Gordon. Since Ms. Hill is likely to recover on at the very least one claim as mentioned above, she will be entitled to a reasonable and necessary attorneys' fees.
MPT-2
Sample Answer
Pursuasive Brief
I. Caption
Omitted.
II. Statement of Facts
Omitted.
III. Plaintiff B&B is not entitled to an award of the profits earned by defendant Happy Frocks Inc. from the sale of the infringed buttons, because in considering the relevant factors, each factor weighs against award of profit.
In 2020, the supreme court of Franklin heard a case called Romag Fasteners, Inc. v. Fossil Group, Inc in which the court held that willfulness is not a pre-requisite to an award of profits under the Lanham Act. (Romag (2020). Specificically, that court, which is a controlling court here, found that mental state and willfullness is a highly important consideration in awarding profits, but not an absolute precondition. (Alito Concurrance in Romag). In general, award of profit is justified under three rationales: (1) to deter a wrongdoer from doing so again, (2) to prevent unjust enrichment, and (3) to compensate the plaintiff for harms. Therefore, in determining whether someone is entitled to this kind of profit award is subject to a balancing test and must consider (1) the infringer's mental state, (2) the connection between the infringer's profits and the infringement, (3) the adequacy of other remedies, (4) equitable defenses, and (5) public interest. (Spindrift auto v. Holt, Dist. Ct., 2021). After balancing each of the factors, an award for profit is not available as each factor indicates against such an award.
Happy Frocks lacked the required mental state to be required to pay this kind of damages because they were merely negligent in their quality control.
On one hand, willfullness, recklessness, callous disreguard, willful blindness, and specifit intent should all be taken into account and generally reflect a willingness on the infringer and shift the weight towards profit awards. (spindrift auto). On the other hand, however, mere negigence or an innocent nature to the infringement argues against an award of profits. (id).
Here, Happy Frocks, in cross examination, stated that they asked all employees to get their jobs done as quickly as possible to meet the demand. The plaintiff's attorney argues that in doing so, Happy Frocks was negligent. Even if this is true, negligence does not rise to the willfullness element that is considered here, opposing the award of profits. In Spindrift v. Holt, the court found that by knowingly and deliberately selling automobile parts not made by Spindrift, but containing the tradepark of Spindrift, and continued to do so after notification, satisfies the willingness. Differing from the case here, Happy Frocks immediately began investigating the claim after notice from B&B. They subsequently told Quality to stop engaging in the act and also disolved the contract between the two. While there is evidence that Happy Frock should have recalled the buttons upon notice of the infringement, recalling over 900 retailers world wide is not feasible.
The alleged infringement has a weak connection between the infringer's profits and the infringement as only 3% of those customers indicated noticing the logo at all.
This factor turns to the question, "was the trademark owner harmed by lost or diverted sales due to the infringement, beyond those sales lost by infringement itself." Here, B&B testifies that no other company has stopped using their buttons because of the infringement. Further, B&B testifies that they did not lose any sales during the period the infringed buttons were used and in fact saw an increase in sales. Specifically B&B testifies that the only lost profit was from the revenue of sales of the buttons for the time Quality Clothes used the infringed buttons until they stopped. Happy Frocks gained a total profit of $450,000 from the clothes with the non B&B button. However, In a study done with 839 consumers of Happy Frocks clothes manufactered by Quality Clothes, it was found that B&B's logo was a very minimal factor in clothing purchase with only 3% noticing the logo at all. Also, there is evidence that B&B did in fact keep charging Happy Frock for the buttons, reguardless of the fact they were not shipping them out to Quality Clothing. Therefore, this factor is opposed to the award of profits.
B&B will be made whole actual damages and injunction, not requiring profit award.
Another factor that is to be considered is the adequacy of other remedies. For example, if a trademark owner will be made whole by actual damages and injunctive relief, the weight is against profit award. Here, B&B is arguing for damages, injunctive relief, and for award of profits. However, actual damages would reimburse them for their loss in sales, the only alleged damage. However, B&B was in fact still charging Happy Frocks for the buttons, making this obsolete. The injunction would ensure that Happy Frocks would be unable to engage in such infringing actions again, protecting B&B from future infringements. There are no other outstanding damages to B&B, therefore, actual damages and injunction would sufficiently make B&B whole. Similarly to Spindrift v. Holt, there is nothing in the factual record indicating that buying the infringed buttons will cause customers to lose confidence in the products.
Happy Frocks has a claim of equitable defense for the unreasonable delay in pursuing a legal remedy (laches).
If a defendant has an equitable defense of laches (unreasonable delay in pursuing a legal remedy), this argues against an award of profit. Here, B&B asked their attorney to send the cease-and-desist letter within two weeks of discovering the infringement. However, B&B waited nine months, right before "black friday" sales, to seek an immediate injunction. While there is evidence that this delay was due to Happy Frocks failure to let them know what was going on, this is insufficient. When you are aware of the infringement, you should take immediate steps to prevent it from continuing. In the contrary to reasonable delay, the facts infer that by waiting nine months and up until right before the largest sales of clothing for the year, decided to bring the injunction, causing severe damage to Happy Frocks and pressuring them into settling the case on B&B's terms. This unreasonable delay in pursing legal remedy is a factor against the award of profit. Comparing this case to that of Spindrift v. Holt, the plaintiff there immediately took actions to stop the sale of the infringed products, including filing suit and seeking injunctive relief. Here, however, there were no such immediate actions.
The infringement here does not preserve public safety or deter other infringements.
The final factor in determining whether B&B is entitled to award of profit is whether there is a public interest in making an award of profits such as preserving public safety or deterring other infringements. Here, the infringement involves buttons on clothing. The only public safety hazard a button of this kind may pose to the public is the same of that as any other button. For example, a small child that removes a B&B button faces the same risk as a child who removes a different button. Additionally, B&B testified that the infringing buttons are not poisonous, pose no direct heath risks to users, and simply contain cheap plastic. Furthermore, Happy Frocks has subsequently terminated their contract with Quality Clothing, evidencing that allowing profit award here would not work to deter future infringements by Quality Clothing, as this action would no longer apply to them. Considering the lack of evidence that the infringing party caused a danger to the public coupled with the seeking of an injunction, an award of profit cannot be justified based on this factor.
In conclusion, considering all five factors, none of which indicate that B&B are entitled to profit award, Happy Frocks is not liable for an award of profits.
Sample Answer
I. Caption [omitted]
II. State of Facts [omitted]
III. Legal Argument
Based on the recent Supreme Court Decision Romag Fastners, Inc. v. Fossil Group Inc., the court concluded that cases brought under the Latham Act at issue here proving willfuliness was not a prerequiste to an award of profits. The court nust look at three addtional rationals, to deter a wrongdoer, to prevent defendants unjust enrichment, and to com
A. Despite a warning from B&B Inc. ("B&B"), Happy Frocks Inc. ("Happy") was merely negligent in regards to the infringment, and such action, does not justify an award of profits.
"The court must consider the infringer's mental state in light of the harm to the trademark owner and to customers . . ." Spindrift. "[R]ecklessness, callous disregard for the plaintiff's rights, willfull blindness, and a specific intent to deceive" should subject a defendant to an award of profits, whereas, if there was "mere negligence, or an innocent nature to the infrigement", the court should not make an award of profits. Id
In Spindrift, Holt was notified by Spindrift that it that it was selling parts not made by Spindrift, yet "containing the Spindrift's trademark." Despite this clear warning, Holt continued to "deliberately" sell these parts. The Spindrift court found this conduct "hardly innocent" justifying an award of profits. Here, B&B sent a letter to Happy stating some of their clothes "contained infringing buttons" but failed to identify which line of clothes from which of the four manufacturers it was reffering to. Happy, took it upon itself to investigate, which took several weeks, to identify which manufactur or manufacturers were using the infringed buttons. Upon doing so, they learned it was Quality Clothes, and contacted them to "stop immediately" and "terminated the relationship." Further, Happy stopped selling their existing inventory of clothing that was manufactured by Quality Clothes
B&B may argue that Happy was reckless or had willful blindness because it failed to recall the clothing and catch the infrigement with the quality controls Happy put in place. Previously recalling the clothing from about 600 retalers was a manageable task but doing so from over 900 retailers that got the Quality Clothes prodcuts would not be so.
Happy also had quality controls that sampled each shipment to make sure the quality standards were proper. Despite it's best efforts, Happy, was only able to catch that Quality Clothes was using non B&B buttons on the fourth shipment. The facts suggest that this oversight was from a "lax" approach to quality control during a time of increased demand due to the designs "flying of the shelves." Happy simply requested that their employees, including the quality control employees, get their "jobs done as quickly as possible." B&B fails to provide any evidence that Happy cut corners, much the less, did so recklessly or willfully.
Since Happy's actions can be viewed at most as negligent, such actions do not justify an award of profit.
B. Happy did not benefit economically from the infringement, and as such, an award of profit is not justified.
Only a certain benefit to the infringer from the infringement justifies an award of profits. Spindrift. An award of profits may be justified if a trademark holder was harmed with lost or diverted sales beyond lost sales due the infringement itself, the infringer profited the infringement, the infringement caused customers to think the trademark holder authorized the infringing acts, otherwise, no award of profits is justified. Id.
In Spindrift, Holt "sold infringing parts that cost it but 25% of the cost it would have paid for the genuine Spindrift parts and then Holt charged the public the full amount as if it was genuine Holt parts. The court in Spindrift found that Holt "benefited economically from the infringement." Here Happy did not benefit did not benefit economically from the infringement. Happy had its manufacturing partner Quailty Clothes buy the buttons directly from B&B, and then the manufacturing partner would invoice Happy directly for the cost of the buttons. In this case, Happy was paying to Quality Clothes the "cost of the B&B buttons even though "they were using the cheaper buttons." Further, Happy suffered a "lost of value" from the infringed inventory that they can no longer sell. Happy is unlikely to recover against a foreign manufacturer and is therefore unlikely to recieve any economic benefit from this infringment. Whereas, except for the lost reveune directly linked to Quality Clothes not buying buttons from B&B, B&B oversales did not decline.
B&B may argue that it's infringened logo may have contributed to increase sales for Happy and that it confused consumers. This is not accurate, as a survey conduct by TM Surveys regarding Happy's clothing manufactured by Quality Clothing found that "B&B's logo played a minimal role in the clothing purchase." Only a mere 3% of the respondents to the survey stated that "notice the logo and thought it added to the desirability of the logo." Further another survey conducted by TM surveys regarding childrens found only "1% said that the appearence of a brand name was the only reason for purchasing a particular item of clothing over another." Therefore, it is unlikely that the buttons caused an confusion that would harm B&B nor any that increased the sales of Happy's clothing.
Since Happy certainly did not benefit from the infringment by Quality Clothes, such actions do not justify an award of profit.
C. B&B will be maded whole by actual damages and injunctive relief, and as such, an award of profit is not justified.
If a trademark holder, would be made whole with other remedies such as injunctive relief or actual damages then there is no basis for an award of profit. Spindrift.
In Spindrift, Spindrift alleged that the "infringing parts are inferior parts to its geneine parts, and that customers buying the infringing parts will lose confidence in its products." The court in Spindrift found "nothing in the factual record to support the plaintiff's claims" thereby not justifying an award of profits on this factor. Here, B&B claims that the infringed buttons were of inferior quality but the facts do not support that beyond actual damages, that B&B can not be made whole. B&B confirmed that Quality Cloths, nor Happym, are no longer infringing on B&B's buttons. B&B's main concern is that they do not start again. Further, B&B has not provided facts that support damages beyond actual damages.
Since there is nothing to support that B&B can not be made whole with actual damages, or injunctive relief, an award of profit on this issue is not justifed
D. Happy has the defense of laches because after notifying Happy, B&B proceed to wait nine months before filing this current action, and as such, an award of profit is not justified.
If a defendant has a claim for "equitable defenses, such as laches or failure to timely act on the part of the plaintiff, or unclean hands . . . then [s]uch defense would argue against the award of profits." Spindrift.
In Spindrift, as soon as Spindrift learned of that Holt was selling infringing parts, Spindrift immediately filed a lawsuit seeking to the "stop the sales" including "seeking and obtaining a preliminary injunction." Here B&B wait a week or two to send a "ceist and desist letter" to Happy upon discovering the infringment. This letter did not specifically identify all the facts that B&B knew that would help Happy address and cure the infringement issue. B&B then further waited nine months to file this current action. The timing of this action was right before black friday sales were to commence, most likely in an effort to put addtional pressure on Happy. Since B&B did not help identify the infringement issues knowing that Happy has potentially numerous sources of production and then proceed to wait nine whole months, Happy has at least the defense of laches if not unclean hands
Since Happy has equitable defense, an award of profit on this issue is not justifed.
E. There is no public interest in making an award of profit as the infringed buttons were not harmful to the public and the appearence of the button is not a motivating factor in the purchase of Happy's clothing.
If there is a pubic interest reason, for example like a medicine containing containing an ingredient that would cause harm to the consumer would raise concerns for the public interest and would argue for an award of profits. Spindrift.
In Spindrift, the court found there was no evidence that the infringing parts were of danger to the public. Here, the infringing buttons were not "posinous" or otherwise dangerous to the public. Therefore there is no safety concern that raise to that of public interest.
B&B may argue that its this will motivate other in infringing on their buttons. Given their buttons did not increase Happys sales, that upon the cancelation of the contract with Quality Clothes, the infringment stopped. There is no public interest in dettering others. Quality Clothes lost it's contract and Happy lost profits.
Since there is no public iinterest concern here, an award of profit on this issue is not justifed.
Conclusion
Considering all five factors, all if not most of the factors should justify this court in not awarding profits.
MEE-1
Sample Answer
1. Under the insane delusion rule, Joan's will is not invalid. The insane delusion rule states that a person suffering from a delusion does not possess the requisite mental capacity to execute a valid will and that a will executed when the testator is suffering from a delusion will be invalid. However, a noted exception to this rule is that a testator may execute a will during a "lucid interval," which is a time period during which they are not suffering from delusions that impact their capacity.
Here, Joan is taking medications that clearly cause her to frequently experience hallucinations that the male line of her family was "cursed" by Martians. The facts state that she continued to take the drug because it was the only medication available. When she went to her lawyer to draft her will, Joan remarked that she did not want to leave anything to her male heirs because leaving the "males in [her] family anything valuable would be a complete waste on burglars and thieves." Though the facts suggest that Joan would have been on the medication at this time, the insane delusion rule will likely not apply here to invalidate Joan's will. While Joan's intention to disinherit the males in her line is the same group that she suffers delusions about, her justification to her attorney appears to be a sufficient demonstration of reasoned and lucid thinking. If her jusitifcation reflected the delusion, such as "Leaving property to Martians would be a complete waste" then there would be a stronger case for declaring the will invalid pursuant to the insane delusion rule. Thus, given the facts as they are, a court would likely find that Joan's will was executed during a lucid interval and cannot be invalidated under the insane-delusion rule.
2. The facts do not establish that Joan's will is invalid because she lacked general mental capacity to execute a will. In order to prove sufficient mental capacity to execute a will, most jurisdictions merely require that the testator understand four things: (1) the nature and extent of their act; (2) the nature and extent of their property; (3) the natural fruit of their bounty (relatives); and (4) an orderely scheme of distribution. The capacity required to execute a valid will is less than the capacity most states require for a party to enter into a valid contract.
Here, Joan suffers from delusions related to her medication, as described above. Also as described above, those medically-induced delusions do not render the "lucid interval" exception inapplicable, and she likely possessed the requisite capacity to execute a valid will.
An additional issue is whether her frequent misrepresentations to her friends at lunches establish a general mental incapacity. Under these facts, they do not. As the rule states above, the capacity to execute a will is lower than that required to enter into a valid contract, and Joan would arguably have the capacity to do either. Making misrepresentations to one's friends about one's wealth is not sufficient to demonstrate a general lack of mental capcity. Additionally, the facts state that Joan monitored her bank account regularly AND reconciled her bank statement every month. These facts in particular would strongly support the notion that Joan did, in fact, possess the general mental capacity to execute her will because she would have understood the nature and extent of her act to draft and execute her will, she understood the nature and extent of her property because she reconciled her statements, she understood who her relatives were based on the fact she regularly sent birthday cards and inexpensive presents to her relatives, and she recognized an orderly scheme of distribution for her assets by consulting her attorney to draft a will leaving property to her daughter.
Therefore, these facts do not establish that Joan's will is invalid due to a lack of general mental capacity to execute a will.
3. Of Joan's surviving relatives, only her daughter and son have standing to contest the will. Generally, the only parties that have standing to contest a will are named beneficiaries within a will. Of Joan's surviving relatives, only her daughter is a named beneficiary and can contest the will. However, relatives who would otherwise take if the decedent died intestate may also contest the will on grounds that the decedent lacked testamentary capacity or that the will was the product of fraud, duress, or some other form of undue influence. Here, the son, who was intentionally not named in the will because Joan did not like his extensive criminal history for theft, may contest the will, as he would stand to receive half of Joan's estate if Joan died intestate. Grandaughter and the three Grandsons cannot contest the will, as they are neither beneficiaries, nor do they have vested interests in Joan's estate.
Additionally, Son may try and claim a forced share as a pretermitted child. Generally, where a child of a decedent is omitted from a will, courts will allow the pretermitted child to receive a forced share of the decedent estate. However, if the child was intentionally disinherited by the testator, most jurisdictions will honor the testator's wishes and the intentionally disinherited child will not receive anything.
Based upon the foregoing analysis, only Joan's daughter and son have standing to contest Joan's will.
Sample Answer
1. Joan's will is not invalid under the insane delusion rule. Generally, the insane delusion rule is invalid, if at the time the will was made, the testator suffered from insane delusions and as a result of those insane delusions, distributed their property in a manner affected by those insane delusions. Here, Joan's will would not be invalid under the insane delusion rule. Joan did in fact suffer from insane delusions as a result of her medication, thus meeting the first prong of this rule. The second prong of this rule however would not be met. Joan's delusions did not cause her to distribute her property in a manner affected by her insane deluisions. Joan's delusions caused her to think that the male line in her family was cursed by martians. However, when Joan when to her lawyer, she told her attorney that she did not want to leave her son and grandsons anything under her will as it would be wasted on burglars and thieves. This statement was backed up by Joan's son and three grandsons having extensive criminal records for theft and burglary. As the distribution under her will was not a result of her insane delusions but rather justified due to her sons' and gradsons' extensive criminal records for theft and burglary, the insane delusion rule would not apply. Therefore, Joan's will as not invalid under the insane delusion rule.
2. The facts do not establish that Joan's will was invalid because she lacked general mental capacity, but rather Joan had full capacity to execute this will. General mental capacity for creating a will requires an individual to be able to appreciate the assets they have and understand that they are creating a will and who they are leaving the assets to. Courts examine the circumstances to see if the testator has a general mental capacity. Here, Joan did have a valid mental capacity to create a valid will. Joan was fully aware of who her issue were. While she was not particlarly close with her children and grandchildren, she sent them birthdays cards and inexpensive presents, showing that she was aware of who her issue were. Further, Joan was fully aware of her assets. While she may have lied about being a multimillionaire and owning a luxurious home and automobile to her wealthier friends, this is not enough to show she did not appreciate the assets she possessed. Rather, the facts show that Joan monitored her bank account and reconciled her bank statements every month, showing she was very aware of all her assets. Finally, when she went to the lawyer to have her will drafted, she explained to the lawyer that she wanted all of her assets to go to her daughter as her son and grandsons had extensive criminal records for theft and burglary and therefore would be wasted on them. Therefore, as Joan appreciated her assets, was fully aware of her issue, and was aware of creating a will and how she was distributing her assets, Joan had full capacity to execute this will and any challenge on the basis of lack of general mental capacity would likely fail.
3. Joan's daughter and son would have standing to contest her will. An individual has standing to challenge a will if they would have been a beneficary under the laws of intestate succession. Under intestate succession, a decedent's estate would pass to her surviving spouse then any surviving issue. Here, Joan is survived by her daughter, granddaughter, her son, and her three grandsons. As Joan's daughter, the monther of the granddaughter, and Joan's son, the father of the three grandsons, are still alive, they would be the issue who would take if Joan died with out a will and subject to the laws of intestate succession. Both her daughter and son would have standing as the beneficiaries under intestate succession to challenge the will. The grandchildren would not have standing to challenge the will as they would not take as both of their parents are alive. Therefore, as the son and daughter would have been the beneficiaries who would have taken in the absence of a will, Joan's daughter and son have standing to challenge the will.
MEE-2
Sample Answer
1. Officer's entry into the house should NOT result in the exclusion of evidence
Fourth Amendment protects against unlawful search and seizure. A search of a home requires a valid search warrent, which requires probable cause, unless an emergency situation requires promt action with no time to get the warrent. A seizure, which also requires probable cause, takes place when items are taken by police or upon an arrest, meaning when a reasonable person belives they are under arrest and not free to leave. Probable cause is when a reasonable person either belives that a crime is being commited or there's evidence that a crime has been commited.
Generally the "knock and announce" rule is a public policy that was made to prevent unnecsary volience, injury, and/or embarrasment. By knocking and annoucing, you prevent injury from someone, like a small child, from getting his with the door, a phyical alteraction from startling someone, or finding someone in bed or otherwise indecent. It was not intented to inavlidate an otherwise valid serach warrent. If the knock and announce rule is not followed, it is considered "harmless error" and will not result in the search being held as invalid. "No knock" are generally reserved for siatuations where notice would place the offericers or others in danger or lead to the dystruction of evidence.
Here, the officers were executing a valid search warrant of a home but failed to knock and annoucnce, though the search warrent did not explicitly authozie a "no knock" entry. Despite this, the search is still valid, and because no one was hurt due to the "no knock" entry, this will be veiwed as "harmless error."
Therefore, the search is valid and the items seized will not be excluded
2(a). Officer's seizure of marijuana from Driver should be excluded
Officers are not allowed to serach people of the premisis during a validly executed warrant search. However, if officers have a reasonable suspection that someone may be harmed and poses a danger to the police or others, they can preform a stop and frisk. A reasonable suspection is something articuable that's more than just a hunch. During a stop and frisk, the officer must be able to identify a weapon or contriband by "plain feel", meaning no manipulation, such as squeezing. Plain feel then establishes probably cause to search the person and their pockets
Here, the officer preformed a stop and frisk on the driver because she saw a lump in his pocket that she belived was a gun and was worried for her and her partner's safety. Therefore the stop and frisk was permitted since it wasn't done solely because the Driver was present during the execution of the search warrant. However, when patting down the driver, the officer felt that the lump was NOT a gun and she could NOT determine what it was through plain feel. This should have ended the encounteder since plain feel did not cause her to belive that she was in danger from a weapon, nor that the driver has contriband. Since she did not end the encounter, but instead reached in the Driver's pocket to see what the lump was, and only then discovered the drugs, this violates the plain feel requirment of the stop and frisk.
Therefore, the seizure of the drugs from the driver should be excluded
2(b). Officer's seizure of the computer from Homeowner should NOT be excluded
If plain sight develops probable cause that the item is evidence of a crime, then an officer is able to sieze the evidence without a search warrant. For plain sight to be valid, the officer must leaglly be in the area in which the item was found. Like plain feel, the officer must have probale cause that the item is evidence of a crime from sight alone; no touching, moving, or minipulation of the item is permited. A search of a serial number in a police database found in plain sight is permitted.
Here, the officer was excuting a vaild serach warrent in the home.During the lawful search, an officer noticed a computer sitting on the kitchen counter in plain view. The compuer's serial number was on the top of the computer and also in plain view. After search the permitted police database, she discovered the computer was stolen and seized the computer.
Therefore, because the computer and it's serial number was in plain sight when the officer was lawfully in the kitchen exceuting a valid search warrent, the computer should not be excluded
2(c). Officer's seizure of the drugs from Homeowner should be excluded
When executing a search warrant, the officer can search anywhere the items listed on the search warrant may be found. This includes in drawers, closets, boxes, and other containers that may hold the listed items. Any other illeagle evidence may also be seized, even if it is not listed on the warrant, but the items must have probable cause of being eviudence of a crime when discovered.
Here, the officers had a valid search warrant to search the home for counterfeit $100 bills. The officer did that the right to look at and even open the pill bottle found in the bedroom, because it is possible that the counterfeit bills may be in there. However, upon finding no bills were in the bottle, the officer should have continued his search elsewhere. there was nothing on the bottel itself to give probable cause that a crime has been commited. Ues, it may be suspecious to have a bottle of unmarked pills with no label, but susption alone is not enough to seize the property.
Therefore, since there was no probable cause to find the bottle or pills was evidence of a crime, the bottle and the drugs should be excluded.
Sample Answer
1. The officer's entry into the house should not result in the exclusion of evidence. The exclusion of evidence is one protection against violations of the fourth amendement- unlawful searches and seizures. Unlawful searches occur with the police lacks a search warrant or probable cause to searh the home. However, the exclusionary doctrine is typically not used when officers acted in good faith, and without knowledge that their actions were improper. Also, courts will not exclude evidence where the evidence would have been discovered even without the violation. Here, the Defendants would likely argue that the police improperly executed their warrant by kicking the door down, without any exigency or other emergency, and without a "no-knock" warrant. The State would argue that, even if the court finds that the officers should have knocked first, the officers did still have a valid warrant to search. So, even without that mistep, they would have still found all of the evidence they found in the home. Thus, the officers' entry into the house would not result in the exclusion of evidence.
2.
a) The officer's seizure of the marijuana from the Driver would result in the exclusion of evidence because the officer should have stopped searching once she determined "the lump" was not a weapon. Police are able to do cursory pat downs in order to protect themselves in the suspect during a lawful search of a home/property, or even if the officer has reasonable suspicion that someone on the street has a weapon or is doing something illegal. However, once it is clear that there is no danger in the form of a weapon, or if there is no longer reasonable suspicion, the officer should not continue the search. Here, the officer patted Driver down, which was reasonable, given that they were doing a search of the house and Driver had a lump in his back pocket that looked like a handgun. But, when the officer felt that the lump was soft, and was not a weapon, the officer should have stopped the search. Especially since the officer did not continue because there was reason to believe that Driver had counterfeit money. It had nothing to do with their search warrant or safety, so the seizure of the marijuana would likely be excluded.
b) The seizure of the computer from Homeowner is unlikely to be excluded. Contraband in plain view during a lawful search is typically admitted. Here, the desktop computer was sitting on the kitchen counter, which is a odd and open place to have a computer, which would reasonably give an officer a suspicion that it may be stolen. Similarly, the serial number was visible to the officer and she was able to determine quickly that it was a stolen computer. Because this contraband was in plain view, it is unlikely to be excluded.
c) Finally, the seizure of the narcotics would likely be excluded because the contents of the bottle were not immediately ascertainable as illegal. As stated above, contraband in plain view will not be excluded, however, when a more in depth search or testing has to take place in order to determine if something is illegal, it would require a search warrant. Here, the valid search warrant was for counterfeit money. While the pill bottle was out in the open, it was not immediately obvious that the contents of the pill bottle were illegal. At this point, the police had control of the house, so they could have taken time to get a valid warrant to test the pills. The state would likely argue that the fact that the medicine bottle was unlabeled gave them reason to believe that the contents were illegal, and thus probable cause to do the testing, but that may not be enough, especially since there was no urgency to do the test. The evidence was not going anywhere. Thus it is likely that the narcotics would be excluded.
MEE-3
Sample Answer
1. The issue is whether the FRCP permit the woman to bring the insurance company into the action as a third-party defendant.
Under civil procedure law, diversity jurisdiciton exists when the parties are completely diverse and at least $75000 is in controversy. Compete diversity exists when plaintiffs are diverse from all defendant. Corporations are "domiciled" (i.e. considered a citizen of for purposes of diversity jurisdiction) in the state where it was incorporated and the state where it has a principal place of business ("PPB") (typically, headquarters).
Assuming diversity jurisdiction exists, courts can exercise supplemental jurisdiction over claims by defendants against the plaintiff or third-party defendants (even state law claims) if the claims arise out the same transcation or occurrence as the plaintiff's claims. In other words, there must be the same operative facts as to each claim. Federal courts can exercise suppmental jurisdiciton over claims by defendants against third-party defendants even if doing so would otherwise defeat diversity. The rationale of this rule is giving defendants an opportunity to fairly litigate their claims at the same time and place as plaintiffs.
Here, diversity jurisdiction between the man and woman exist--the woman lives in state A, the man lives in state B, and there is $250,000 in controversy. Thus, the woman is permitted to bring claims arising out of the same operative facts against relevant parties.
Here, however, joining the company would defeat diversity, as it appears to be domiciled in State A given the facts (i.e. it is heardquarted in State A). This fact does not bring the case of the jurisidciton of federal courts, however. The court can still exercise supplmental jurisdiction, as the woman's claims appear to arise out of the same operative facts as that of the man (i.e. they are both making claims arising out of the same car accident).
For the foregoing reasons, it is likey the FRCP would permit the woman to bring the company in a third-party defendant.
2. The issue is whether the federal court in State B can exercise personal jurisdiction over the the company.
Under civil procedure, for purposes of personal jurisdiction, general personal jurisdiction exists for a corporation in its state of incorporation and state of PPB. General personal jurisdiciton means the person can be sued in the state for most any rasons. Specific jurisdiction applies when a person or entity does not reside in the forum state, but their specific contacts give rise to a claim in the state (e.g. a person from NJ driving to CA can be sued in MO for a car accident that occurs there, even if the NJ resident was only passing through.
Further, under federal law, if the forum court cannot exercise personal jurisdiction over a third-party defendant, the "Bulge provision" will allow that defendant to be served within 100 miles of the forum federal court house. Assuming that the third party defendant is served, the forum can exercise personal jurisdiciton over them for purposes of the specific suit.
Here, general personal jurisdiction does not exist for the company with regard to State B. The company is headquarted in State A. No facts exist as to where it was incorproated, so I will assume its PPB is in State A and thus the company is domiciled in State A. Specific jurisidiction does not exist--the comapny does no business in State B and has no facilities there.
However, given that Big City in State A is only 10 miles away from the forum court hoes in Small Town in State B, and the bulge provision provides for service within 100 miles, the bulge provision shuold apply here.
For the foregoing reasons, assuming that the company is served at its HQ in State A, the Court can exercise personal jurisdiciton over the company for this third-party claim by the woman.
3. The issue is whether the Court should grant leave for an interlocutory appeal for the woman to appeal the dismiaal of the insurance company.
Generally, interlocutory (i.e. not final) orders are not appealble until final judgment has been entered. An example of a likely unappealable interlocutory order would be the granting of a plaintiff's motion to compel discovery responses of a defendant. The rationale for the final judgment rule is to prevent constant appeals and docket-clogging. Some interlocutory orders are appealable as of right, mostly under the basis that some orders are important enough to warrant immediate appeal--for example orders that ratify a class for a class action lawsuit.
Interlocutory orders can be appealed however, if a party moves for leave to do so. Both the lower court and the court to hear the appeal must grant leave for the interlocutory appeal to take place. The lower court must certify that the issue to be appealed is more or less incredibly important, and the failure to hear the appeal promptly will result in some injustice or will fundamentally affect the outcome of the case. When an interlocutory appeal is heard, proceedings are stayed in the trial court until disposition of the appeal.
Here, the order dismissing the complaint as to the insurance company is not specifically appealable as of right under the rules as to interlocutory appeals. Thus, if the Court wishes to allow an interlocutory appeal, it must certify that the appeal is of great importance to the matter and that failure to answer some fundamental question of law will result in a drawn-out trial or litigation.
Here, the district court grant grant the appeal if it so chooses, assuming it certifies the appeal and the appellate court similarly grants leave. The factors in whether to grant an interlocutory appeal likely militate against the company and lie in favor of the woman. Despite the trial court order (which is wrong with reagrd to personal jurisdiction), the presence of the insurance company is likely necessary to the suit. At least, the company's presence will facilitate prompt disposition of matters arising out of this single car accident that is already being litigated. The promotion of judicial efficiency should suggest that the order should be appealed immediately as to resolve all issues arising out of the car accident. Further, the issue of whether the company is liable at all over the woman, is of fundamental essence to the case. WIthout an opportunity to be heard immediately on appeal, the woman may be saddled with a $250,000 verdict despite her bargain with the insurance company--for that reasons, public policy favors an interlocutory appeal as well.
For the foregoing reasons, the Court may grant leave for a motion to file an interlocutory appeal, and it is likely they should do so here.
Sample Answer
1. The Federal Rules of Civil Procedure do permit the woman to bring the company into the action as a third-party defendant. The issue is whether the woman is permitted to bring her insurance company into the action when the insurance company is not diverse from the plaintiff and the amount in controversy may not exceed $75,000.
Federal courts must have jurisdiction over claims in order to hear them. These types of jurisdiction break down into personal jurisdiction (over the parties) and subject matter jurisdiction (over the nature of the claims). For a federal court to exercise subject matter diversity over a claim, all plaintiff's must have diversity of citizenship from all defendants and the claim must be for more than $75,000.
When a defendant seeks to bring a claim against a party for indemnification or contribution, the claim is called an impleader claim. In order to properly assert an impleader claim, a defendant must allege that the Third Party Defendant is liable to them for indemnification or contribution. An allegation that the third party defendant is directly and fully liable to the plaintiff will not be permitted. Additionally, even if the defendant's claim does not independently satisfy the requirements for subject matter jurisdiction, the court may exercise supplemental jurisdiction to satisfy the SMJ requirement. A court may exercise it's supplemental jurisdiction over claims arising from the common nucleus of operative facts in the present action.
Here, the woman has properly asserted an impleader claim against the insurance company for indemnification as a result of the traffic accident that forms the common nucleus of facts for the man's claim against the woman for negligence. Because the woman is seeking indemnification from the insurance company, and not to assert that the insurance company is liable directly to the plaintiff, this is a proper third party claim. A business entity is deemed to be a resident of the state in which it is headquartered. Here, the insurance company is a resident of State A. Even though the woman is a resident of State A, and the parties would not be diverse such as to satisfy diversity requirements in an independent claim, the court may still exercise its supplemental jurisdiction over the woman's third party claim because she is a defendant in this action.
Therefore, the Federal Rules of Civil Procedure permit the woman to bring the company into the action as a third-party defendant.
2. The Federal Rules of Civil Procedure do not allow the District Court to exercise personal jurisdiction over the company. In order to hear a claim, a federal court must have personal and subject matter jurisdiction over the parties to the action. Personal jurisdiction exists in two forms - general and specific. A court will have general personal jurisdiction over parties domiciled in that court's geographic district. A court may have specific juridiction over parties that have purposefully availed themselves of the court's jurisdiction and have minimum contacts with the forum. The court's analysis of whether or not a party has sufficient minimum contacts will be guided by an intent not to offend traditional notions of fair play and justice.
Here, the insurance company does not do business in State B nor does it have any facilities in State B. Because of this lack of minimum contacts, the District Court will likely find that the minimum contacts test does not support the exercise of personal jurisdiction over the company. A party may consent to the court's personal jurisdicition, usually through a choice of forum clause or by answering a complaint and waiving a lack of PJ defense, but the facts here do not indicate that either of those circumstances are present. The last aspect the court could explore is whether the insurance company purposefully availed itself of the court's jurisdiction. A finding that a party purposefully availed themselves is usually accompanied by facts indicating that the party took advantage of the protections of that jurisdiction and so it would be unfair for the party to escape liability from that same jurisdiction. Here, the insurance company does not appear to have been insuring State B drivers (it does no business in State B and maintains no facilities there). However, if the woman could demonstrate that the insurance company knew that most of its drivers routinely traveled through State A, this may be sufficient for demonstrating that the insurance company purposefully availed itself.
Bar that showing, however, based upon the foregoing analysis, the District Court of State B does not have personal jurisdicition over the insurance company due to a lack of minimum contacts and the fact that the company has not purposefully availed itself to the court's jurisdiction.
3. Under the Federal Rules of Civil Procedure, the appellate court would likely deny the woman's appeal for lack of finality; however, if the district court were to certify the dismissal as a collateral order with no just reason for delay, the appellate court may exercise its discretion in favor of hearing the appeal.
Appellate courts generally only exercise their jurisdiction over final judgments. This is to avoid hearing appeals over partial judgments. There are exceptions to the "final judgments" rule, whereby the appellate court may hear appeals for certain circumstances such as the grant or denial of a preliminary injunction or the certification of a class in a class action lawsuit. One means for appeal that falls outside of these exceptions is the Collateral Order doctrine, which states that where an order is certified as a collateral order, the decision to be appealed is final, does not impact the merits of the case, the party may not be able to ascertain relief otherwise and there is no reason for delay, the appellate court may hear the appeal.
Here, the woman's claim would fall within the Collateral Order exception if the district court certified the dismissal of her complaint as such. This is because the woman's claim for indemnification would not impact the merits of the ongoing action, which is the man's suit against the woman for negligence, and the dismissal of the woman's complaint at this stage may leave her without a means of recourse once the litigation of the negligence action has concluded (because the woman is seeking for the insurance company to provide her with an attorney to represent her in the negligence action.)
Therefore, the district court could certify the dismissal of the woman's claim as a collateral order under the Collateral Order doctrine to allow the woman to immediately appeal the court's dismissial instead of wiating for the final judgment at the end of the negligence-based litigation.
MEE-4
Sample Answer
1. State X furniture store has an enforceable, but unperfected security interest in the couch used by the lawyer.
The issue is whether the purchase money security interest (PMSI) in equipment is automatically perfected.
Article 9 of the UCC governs the security interests in the transaction of all tangible goods. Article 9 of the UCC allows the creditor to attach a secuirty interest if 1) value was given, 2) debtor owns the property where security interest is attached, and 3) there was a valid security agreement.
Here, the lawyer purchased a couch on the credit held in the State X furniture store. Because it was purchased for the given value, the element 1) of the attachment is satisfied. Also, because the lawyer will take possession of the couch in his State X office, he properly owns the property, and element 2) of the attachment is also satisfied. Lastly, the lawyer and furniture store signed a Credit Sales Agreement describing in the agreement the manufacturer and model number indicating that the lawyer agrees the furniture shop to attach security interest on the couch. This satisfies element 3) of the attachment. Because all three elements are satisfied, the State X furniture store successfully attached a security interest in the couch.
Pefection of the security interest however occurs when the creditor files a financing statement to the state's relevant office of record.
Here, the attachment of the security interest does not automatically perfect unless it is PMSI of a consumer goods. Because the lawyer used the credit owed to the furniture store to purchase the product, it is true that generally holder of PMSI are superior, it does not mean that its interest is perfected. If the product sold to the debtor is equipment, which may be used for the purpose of furthering the debtor's business, the creditor must file a financing statement to perfect its security interest. The furniture store in State X failed to do so. Thus, although it has attached security interest, it failed to perfect the security interest.
2. State X furniture store has an enforceable, and perfected security interest in the table used by the lawyer
The issue is whether the creditor has obtained a perfected security interest in the PMSI on consumer goods without filing a financing statement.
Article 9 of the UCC allows the creditors to automatically perfect its security interest if PMSI is attached to consumer goods. Unless the consumer goods is sold to another consumer, holder of PMSI in consumer goods has superior security interest against other creditors.
Here, because the lawyer has engaged in the same transaction in purchasing the table with respect to his purchase of the couch in State X furniture store, the analysis of the attachment of security interest is the same as the issue 1. However, the difference between the transaction of table versus couch is that the lawyer's intended use of the furniture in the case for table is for personal use. If PMSI is attached to the consumer goods, it will be automatically perfected unless the debtor later involves in transaction with another consumer, which is not seen here. Thus, because the lawyer used the table for the purposes of his private use, the security interest is attached to consumer goods, and it is automatically perfected because the lawyer bought the table on the store's credit.
3. State Y furniture store has an enforceable, and perfected security interest in the desk used by the lawyer.
The issue is whether the filing of financing statement satisfy the requirements of perfection.
If security interest is attached on the equipment, the creditor may pefect the security interest attached to the equipment by filing financing statement to the relevant office of record.
Here, the lawyer purchased desk on credit for the use of his home office. Similarly to the analysis in the issue 1, the furniture store gave value, satisfying element 1), lawyer properly owned the desk, satisfying element 2), and there was a valdi agreement signed by both parties, thereby satisfying element 3) of the attachment.
Because the desk was used by the lawyer only in conjunction with her law practice, it is considered equipment. The store filed a financing statement in the State Y central filing office for financing statements. The financing statement listed the lawyer as debtor, named the furniture store as the secured party, and indicated the desk as the collateral.
Because the filing of financing statement was procedurally correct, the furniture store in State Y successfully attached security interest and perfected it.
Sample Answer
1. The State X furniture store does not have a perfected security interest in the couch; however, they do have an enforceable security interest. The primary issue is whether the nature of the use of the couch has an effect on its perfection as a purchase-money security interest.
Purchase-money security interests are security interests that provide funds for the purchase of a product, inventory, good, or property. Purchase money security interests in consumer goods are automatically perfected upon attachment, whereas merchant-to-merchant transactions must be filed within a specififed time span to be perfected.Attachment is the process that gives a creditor priority over the property of they buyer and occurs when value is given by the creditor to the buyer, a security agreement is established, and the agreement is authorized (signed) by the debtor. Perfection is the process whereby creditors achieve priority over each other. For PMSIs, perfection occurs by filing or possession.
The couch is being used in the lawyer's office and would be considered equipment. To perfect a PMSI in equipment, the lender/seller must file in the appropriate office within 20 days of the receipt of the goods by the buyer.
Because the lawyer is a sole propietor, the couch was purchased for non-consumer purposes. The transaction can thus be classified as a merchant-merchant transaction. The seller has attached their security interest by executing an authorized agreement and giving the lawyer value (the couch). However, the facts do not show that they have filed their interest.
Therefore, the PMSI remains unperfected, but enforceable upon default by the debtor.
2. The State X furniture store has a perfected and enforceable security interest in the table used by the lawyer in her dining room. The main issue is whether the lack of filing by the store means that the interest remains unperfected.
The agreement concerning the table is a PMSI in consumer goods. Although the parties did not explicitly state that their agreement was a security interest, a security interest may be found even when it was not the parties' subjective intent to create one. The transaction qualifies as a PMSI because the seller retains title until the table is paid for. By holding the table until title is paid, the seller becomes a consignor. Attachment has occured because there is a signed agreement with a description of the collateral, authorized by the buyer, with value given (loan for the table) to the buyer. Perfection has also occurred because PMSIs in consumer goods are automatically perfected. Although filing strengthens the claim against subsequent creditors by providing notice, it is not necessary for perfection to occur. The transaction qualifies as a sale of consumer goods because the table is being used in the lawyer's home rather than under her responsibilities as a sole proprietor.
Because the PMSI in the table is a PMSI in consumer goods, the interest of the store is perfected despite the interest not being filed.
3. The State Y furniture store's interest in the desk is temporarily perfected. The primary issue is whether filing the interest in State Y is appropriate when the lawyer is domiciled in State X.
If a creditor seeks to perfect a security interest by filing, they must do so in the appropriate state. The desk was purchased for the lawyer's business. The lawyer is a sole proprietor domiciled in State X. A sole proprietor is considered a resident of the state of their domicile. The interest is a PMSI in non-consumer goods, because the desk is for the lawyer's business as equipment. This means that it must be filed within 20 days of delivery to the debtor. When a debtor moves, the creditor remains perfected for 4 months and has 4 months to file in the state of the debtor's domicile. After the lapse, if the original creditor has not filed in the appropriate office, another creditor can file on the same collateral and have a priority in that collateral. The interest will be as if it was never perfected.
Although the creditor filed their security interest, they are not perfected until they file their interest in State X.
MEE-5
Sample Answer
1. In 2020, Wendy did acquire title by adverse possession to the central acre. At issue is whether title is acquired by adverse possession is valid even when the owner of the land is a minor and subject to certain statutory protections. As established at trial, Wendy did indeed adversely possess central acre by way of adverse possession at the end of 2021. the question is now whether any protections provided for minors/infirmed/incapacitated persons either statutorily or by common law can apply. As a defense to adverse possession, an individual can claim that they were incapacitated or were a minor and therefore not of the necessary capacity and should be afforded the defense of these exceptions. However, these defenses are required to be at the existence of the adverse possession. As we are told, John was the original title holder to central acre at the beginning of Wendy's adverse possession. Mary, John's daughter, did not come into ownership of central acre until 2016, which is 6 years into Wendy's adverse possession. As John was the rightful owner at the beginning of Wendy's adverse possession, the fact that Mary was under the age of 18 at the time does not matter as this was not a present handicap for the rightful owner at the beginning of the adverse possession. Similarly, the statute also does not provide protection based ont eh same concept. While it does propvide an additional 10 years after Mary turns 18 years old for a claim, it is dependent on the party being underage at the time the cause of action accrues. As John was the rightful owner and over the age of 18 at the time the cause of action accrued, this exception does not provide any protection against WEndy for Central Acre and accordingly Wendy did adversely possess Central Acre in 2020.
2a. Assuming that Wendy acquired title by adverse possession to central acre in 2020, she also acquired title to western acre. at issue is whether the color of title allows Wendy to claim possession of western acre, land that she did not actually possess during her adverse possession of central acre. As stated in the established facts at trial, adverse possession requires possession of the property in a manner that is actual, open and notorious, continuous, exclusive, and hostile. Here, Wendy is established to have actually adversely possessed central acre. western acre, at a glance, does not seem to satisfy the actual possession requirement of adverse possession for Wendy to take. However, under the color of title doctrine, Wendy does have adverse possession of western acre. Color of title doctrine allows for the adverse possessor, upon quiet title action, to be considered the title owner of the complete property in which title was obtained by adverse possession. In abstract, it means that if there are two lots under the same title, so long as the adverse possessor does take title to one lot under adverse possession, the second lot under the title is also taken as well. Here, we have that exact situation. While Wendy did not possess western acre, western acre was under the title owned by John which included Central Acre. applying the principle of color of title, as western acre is also under the title that central acre is, Wendy is now the title owner to both lots.
2b. Assuming that Wendy acquired title by adverse possession to central acre in 2020, she did not acquire title to eastern acre. as established by the facts, wendy became title owner to central acre by way of adverse possession. by the color of title doctrine, she also became the title owner to western acre as central and western were under the same title. however, eastern acre is owned by beth. wendy did not acquire it by virtue of having central acre, as there was no common title to both central and eastern acre. Additionally, as wendy never had possession of eastern acre by the established facts, she cannot quiet title and claim ownership of eastern acre.
Sample Answer
1. In 2020, did Wendy acquire title by adverse possession to the Central Acre?
Adverse possession requires possession to be (1) actual, (2) hostile, (3) continuous for the statutory period, (4) exclusive, and (5) open and notorious. Hostile possession occurs when the possessors holds the interest counter to the actual owners interest. It will not be actual or hostile if they have permission to be there and are in that scope. To be continuous it needs to be for the statutory period, but they may use the property as the use for it is fit under the circumstances, such as leaving during the winter if it gets cold there and it is a summer cabin, etc. Open and notorious possession occures where the possessor effectively puts the owner on notice by them being there visibily, whether building a house there or staying there. To be exclusive does not mean no one else is living there, two friends could collectively possess a property exclusively, this mans the original owner is not here. Time may also be tolled or tacked on. To Toll the clock the original owner would need to be incapacitated, in prison, or incompetent. To tack on time the second possessor would need to be in privity of estate with the original. In mistaken possession cases, courts are split as to whether the possessor needs to only objectively believe they are actually possessing or whether they must subjectively have the actual belief that they are taking over the land. Constructive adverse possession over land not possessed can occur when the possessor has (1) color of title and (2) adversely possesses a substantial portion of an entire lot that is connected to the other lots
Here, Wendy gained a faulty title in 2009 to the entire lot. On January 1, 2010, Wendy began to occupy one acre of the three-acre parcel - one of John's two acres which was identified as the "central acre." In 2016 John died and was survived by his 12 year old daughter who was his sole heir to the land - the western and central acres. His daughter will not turn 18 until some time in 2022 and is thus a minor. Wendy continued to occupy the land until January 1, 2022 in a manner the trial court found was open, notorious, hostile, and under claim of right. The state law provides 10 years to require adverse possession. It states that a minor owner existed at the time, the person may, after the 10 years, bring a cause of action to recover within five years of reaching the age of 18.
Therefore, the clock was tolled while Wendy was in possesion after John died in 2016 because his daughter, the heir, was a minor. The daughter was 12 in 2016 and thus turns eighteen sometime in 2022. Wendy stopped possesion on January 1, 2022 and thus only had adverse possession from January 1, 2010 to the point when John died in 2016 and his minor daughter became owner.
Therefore, Wendy did not acquire title to the Central Acre due to the time tolling as she had possessed it for six years prior. In the alternative, if I am misreading the language of the trial court and they permit the time for some reason that I misunderstand, she would have adverse possession but the daughter could recover it within 5 years of turning 18.
2. Assuming Wendy acquired adverse possession to the Central Acre in 2020
(a) Did she also acquire title to the Western Acre in that year?
As stated above in more detail, constructive adverse possession can occur if there is color of title and actual possession of a substantial part of a lot that is connected to the others. This does not apply if the lot is divided or owned by someone else.
Here, the original three acres was divided into the western acre and eastern one acre. John owned the western acre which includes the western half and central acre. Wendy occupied the central acre. Wendy obtained a color of title to the full three acres in 2009 and took possession of the central acre on January 1, 2010 until January 1, 2022. The trial court stipulated it satisfied the adverse elements as it was, notorious, continous, exclusive, hostile, and actual. The jurisdiction has a 10 year statute of limitations to obtain. Assuming wendy acquired adverse possession to central acre in 2020, she likely acquired title to the western acre because it is substantially connected to the central acre. They are both connected to the same conveyance and she effectively posssesed half.
Therefore, Wendy likely acquired title to the Western Acre via constructive possession.
(b) Did she also acquire title to the Eastern Acre in that year?
The rules stated above are incorporated here.
Here, the eastern acre was sold in 2005 to Beth - who bought the one acre eastern acre when John bought the two acre western part. The lots were subdivided into the two lots. Although Wendy had color of title, she never posssed anything on the eastern part and it is divided and distinct from the western part.
Therefore, even assuming Wendy acquired title to the westrern acre she did not acquire title to the eastern acr.
MEE-6
Sample Answer
I. Whether the defendants admissions made in connection with a guilty plea in which he later withdrew is admissable?
As a general rule, a party's statements of them admitting guilt is admissable as non hearsay as a statement against their interest or an admission. However, for public policy reasons, the federal rules of evidence as excluded admissions that defenants make in connection with negotiating a guilty plea that is later withdrawn. If the guilty plea is not withdrawn and is accepted by the court, it is permissible in future litigation to use those admissions against the party. However, when the party withdraws the guilty plea - those admissions are not permitted as substantive evidence and can only be used for impeachment purposes (prior inconsistent statement). Here, the facts state that the Defendant withdrew his guilty plea and the criminal case against him is still pending. Therefore, public policy requires that this evidence be excluded.
II. Whether the deposition testimony of man who stated Defendant watched him under similar circumstances is admissable?
Here, the Defendant seeks to exclude from evidence previous deposition testimony from a man who rented an apartment from defendant and also testified that he caught defendant spying on him under similar circumstances. Hearsay is defined as an out of court statement that is being offered for its truth. Here, the statement by the witness was not made in this pending litigation so it would be considered an out of court statement. Moreover, it is being offered for its truth since the testimony is being offered to prove that defendant actually spied on previous tenants. However, there are many exceptions to the prohbition against hearsay evidence. One exception is the testimonial exception - which provides that if the declarant is unavailable, and they had previosly testified under oath and the Defendant had an opportunity to cross examine the witness and had same motive for cross examining - then the statements will be admissable as an exception to the hearsay rule. Here, the witness made the statement under oath at a deposition and the case involved very similar facts of defendant spying. Thus, Defendant had opportunity to cross examine witness and had similar motive. Last requirement is that witness is unavailable. A witness is unavailable when the court is unable to get them to appear in court for the proceeding. Here, facts indicate that the man lives hundred miles away from State A where the action is being litigated, and he has refused to attend trial and testify despite extensive efforts by plaintiff. These facts are sufficient to show that witness is unavailable. Lastly, the facts indicate that the Defendant and his attorney were present when witness made these statements at deposition which is further evidence that it should be admissable. Thus, all the requirements for the prior testimony exception have been met and this evidence is admissable.
Plaintiff can also argue that this statement by witness is not hearsay at all because it is not being offered for its truth. Non truth purposes of hearsay include: legally operative facts, intent, state of mind, motive, notice etc. Here, Plaintiff can be argue that the testimony of the witness is not being offered for its truth, and instead is being offered to prove the Defendants motive/notice of the hole. In the case between plaintiff and Defendant, the defendant claims that he was inspecting a water heater in the closet and did not know that a hole existed or that he ever looked through it. However, the deposition of this witness can be used to show that the landlord had notice of the hole in the closet and this would be considered a non-truth purpose that would make the testimony non-hearsay.
III. Whether the evidence about plaintiff plagiarizing her senior thesis and lying about it on grad school application is admissaible?
All parties in a case have the option to testify as to relevant matters that they have personal knowledge about in the case. Here, the plaintiff is attempting to testify at trial. When a party takes the stand to testify in a criminal case, they are automatically putting their credibility at issue and the defendant can attack their credibility by impeachment methods including opinion evidence and reputation evidence. However, This case is a civil action for invasion of privacy. As a general rule, character evidence is not permissible in civil cases unless party's character is directly in dispute and examples include negligent hiring cases or defamation. Here, the plaintiff's character is not directly at issue because invasion of privacy is not one of these enumerated types of cases and the plaintiff is the one bringing the suit so their character is not in issue at all. Thus, since it is a civil case and plaintiff's character is not directly in dispute, no character evidence will be permitted in this case. Therefore, the Defendant cannot admit evidence about plaintiff plagiarizing her senior thesis and lying about it on grad school applications because this would be considered invalid character evidence. If this was a criminal case, rather than civil, the character evidence may have been admissable because it goes to witness's tendency to lie and would be considered valid impeachment evidence. however, it is important to note that extrinsic evidence would not be permitted to prove that the witness lied since there was no formal conviction. Instead, if it was a criminal case all the defendant's attorney could do is ask about the plagiarized paper and would be stuck with Plaintiffs response even if they lied on the stand.
Sample Answer
1. The admissions the defendant made in connection his voyeurism case may not be used against him in the current case. Statements that are made during the course of guilty pleas which are later withdrawn are inadmissible in court under the federal rules. The rationale for this is that they are unduly prejudicial and may tend to mislead the jury, confuse the issues, or inflame passions of the jury. There is also a public policy justification, in that those who withdraw guilty pleas do so for a reason, and any admissions made in conjunction with those guilty pleas do not have an air of truth due to the context in which they were made.
2. The deposition testimony of the unavailable witness may be properly used in court. The main issue is whether the former testimony may be used when the witness is unavailable.
Former testimonial statements made under oath by an unavailable, non-testifying witness are admissible for both their substance and impeachment as an exception to the hearsay rule. The exception requires that, during the former proceeding, the party at issue had the same motive and opportunity to examine the witness and the circumstances must be substanitally similar in nature. The facts show that the defendant and his attorney had proper motive and opportunity to examine the witness for the same issue that is the basis of the cause of action in the instant case.
Next, to be admissible, the witness must be properly unavailable for a qualifying, adequate reason. One qualifiying reason for unavailability is when a witness is beyond reach of the court. When a witness is lives or works more than 100 miles away from the court, the witness may not be compelled to appear and is considered properly unavailable.
These requirements are present in this case. The witness' case concerned the same behavior and facts. The defendant and his attorney had the ability to cross examine the witness. The statements were made under oath and therefore have an air of credibility. Therefore, the statements by the unavailable witness are admissible.
3. The plaintiff will be unable to exclude her plagiarism from being brought up in court and they are admissible under proper circumstances. Because the plaintiff does not appear to have received any criminal charges for her plagiarism, the act can be considered a "prior bad act." Prior bad acts may be brought into evidence solely for impeachment purposes, and only after a proper foundation has been laid. A proper foundation is laid during direct examination, and must raise enough evidence of the bad act to be able to convince a reasonable juror that the prior bad act did indeed occur.
Prior bad acts may be used for impeachment purposes because they are relevant to show the truthfulness or lackthereof of a witness. Plagiarism is an act that involves untruthfulness and deceit. Therefore, the prior bad act is relevant to the value of the Plaintiff's testimony and determining its credibility.
However, when the prior act is brought up, the questioning attorney is limited to cross examination; they are not permitted to bring in extrinsic evidence or discuss the consequences of any bad acts.