July 2020 First Example Ten-point Answers to Virginia Essay Questions
July 2020 - QUESTION 2 – VIRGINIA BAR EXAMINATION
Jewell Jones, a resident of Fairfax, Virginia, sustained physical injuries after slipping and falling in the main interior walkway of Fairfax Shopping Mall ( “Mall”), while on her way to shop for something to wear to her retirement party. Jewell was the first customer to enter the Mall that morning.
Jewell did not see any foreign material on the Mall’s floor prior to her fall, but afterward she saw that she had slipped on a small glob of ketchup, about three inches in diameter. The edges of the ketchup were dried to the floor, and the top was crusty except where Jewell’s shoe had slid through the ketchup. The Mall’s restaurants in that area (though not yet open on the morning when Jewell fell) were open daily for lunch and dinner, at which times they also sold take-out food, to include condiments such as ketchup.
No one knows who spilled the ketchup, and there is no evidence that the Mall’s owner actually knew about the ketchup on the floor. In fact, no one who worked at the Mall or in one of its stores had seen the ketchup on the floor prior to Jewell’s fall.
Jewell’s fall resulted in a dislocated arm and broken hip. She filed in good faith a Complaint in the Circuit Court of Fairfax County against the Mall’s owner, American Mall Corporation (“AMC”), seeking $200,000 in money damages. AMC owns shopping malls throughout the United States and is a Delaware corporation which maintains offices in Tysons, Virginia and in Charlotte, North Carolina. The Tysons office houses AMC’s advertising group of 20 employees and AMC’s vice president of marketing. All other AMC employees and officers work in AMC’s Charlotte office, including its chief executive officer, chief financial officer, general counsel, chief operating officer, and other vice presidents, as well as AMC’s board of directors, where they make all corporate policy and company-wide decisions.
AMC timely filed a notice of removal to the United States District Court for the Eastern District of Virginia (which includes Fairfax) on the basis of diversity of citizenship. Jewell opposed removal and requested a remand to the Circuit Court, on the ground that complete diversity of citizenship was lacking, since AMC has a Virginia office and AMC owns the Mall which is located in Virginia. The District Court overruled Jewell’s objections and denied her Motion to Remand.
A month later, and with the consent of AMC, Jewell timely filed in the District Court an Amended Complaint, with the sole change being her good faith reduction of damages sought from $200,000 to $74,000. Jewell also filed a Motion to Remand since the Amended Complaint stated an amount in controversy which no longer complied with the statutory requirement for diversity jurisdiction. AMC immediately filed an Answer to the Amended Complaint but opposed Jewell’s request for a remand to the Circuit Court of Fairfax County. Jewell explained that she had reduced the damages because $126,000 in damages originally claimed were attributable to what her medical expert has determined to be a preexisting condition of degenerative joint disease which existed prior to her fall at the Mall.
|(a)||In overruling Jewell’s first request for remand, did the District Court properly find subject matter jurisdiction of the original Complaint based on diversity of citizenship? Explain fully.|
|(b)||How should the District Court rule on Jewell’s second request for remand to the Circuit Court of Fairfax County following her filing of the Amended Complaint? Explain fully.|
|(c)||Upon what grounds should Jewell base her claim for liability on the part of AMC for her injuries resulting from the slip and fall at the Mall (including the substantive legal theory or theories based upon the facts), and is she likely to prevail? Explain fully.|
July 2020 - QUESTION 2 – EXAMPLE ANSWER #1
(a) The Eastern District of Virginia properly found subject matter jurisdiction based on diversity of citizenship. There are two forms of subject matter jurisdiction in federal courts: federal question and diversity jurisdiction. Diversity jurisdiction requires both complete diversity between the parties and a minimum amount in controversy of $75,000. Complete diversity means the plaintiff and defendant cannot be citizens of the same state. In determining citizenship for diversity, an individual is a citizen of her domicile, which is where lives with an intent to remain (i.e. is not there transitorily). A corporation is a citizen of its place of incorporation and its principal place of business. Courts have held that a corporation’s principal place of business is where the corporation’s “nerve center” is: where its board of directors are and where it makes all its significant decisions. Here, there is proper diversity jurisdiction. First, the amount in controversy is $200,000, which is well over the $75,000 minimum. Second, the parties are diverse. Jewell is a domiciliary of Virginia because she lives there and there is no evidence that her residence is merely transitory. AMC is a domiciliary of both Delaware, its place of incorporation, and North Carolina, its principal place of business. Although Jewell alleges that AMC is also domiciled in Virginia, she’s wrong. The Virginia office is not AMC’s “nerve center.” It merely has 20 employees and the vice president of marketing. In contrast, AMC’s Charlotte office has it’s entire board of directors, its CEO, CFO, COO, and general counsel; most importantly, Charlotte is “where they make all corporate and company-wide decisions.” Thus, AMC is a citizen of both Delaware and North Carolina, Jewell is a citizen of Virginia. Consequently, with complete diversity and a minimum amount in controversy over $75,000, the court properly denied Jewell’s first request for remand.
(b)The Court should deny Jewell’s second request for remand. Diversity jurisdiction is generally judged at the time the complaint is filed. This means that both the citizenship of the parties and the minimum amount in controversy is judged for diversity purposes at the initial time of filing. So long as the minimum amount in controversy is alleged in good faith, a court will not second-guess it. However, a court will second-guess the minimum amount in controversy if it is clear on the fact of the complaint that the amount is incapable of being attained and is clearly just to manufacture diversity jurisdiction. After the initial complaint, even if the amount in damages is subsequently reduced to below the minimum amount in controversy, the court can still retain jurisdiction so long as it properly had it at the time the initial complaint was filed. Here, at the time the initial complaint was filed, Jewell alleged a minimum amount in controversy of $200,000, far greater than the required $75,000. She then amended her complaint to state damages of $74,000, which is less than the minimum amount required for diversity. She made this reduction in good faith, and presumably not to manipulate the case to destroy diversity jurisdiction purposely. However, the court can still deny remand because diversity jurisdiction was properly determined a month prior on the basis of the initial complaint, and subsequent changes do not necessarily affect the court’s diversity. Additionally, although Jewell is only requesting $74,000, she is not precluded from being awarded more than $75,000 by a jury, who could potentially award her punitive damages that exceed her requested amount. Consequently, her claim still coul dplausibly be for more than $75,000, and even if not, subsequent changes to the amount in controversy do not destroy the court’s initially (and properly) determined subject matter jurisdiction.
(c)Jewell should base her claim in negligence, and argue on grounds of both res ipsa loquitor and premises liability; the theory of premises liability is her best chance of prevailing.
First, Jewell could try arguing neglgience under a res ipsa loquitor theory, but it likely will fail. Res ipsa loquitor is a theory of negligence that allows a plaintiff to establish a prima facia case with only circumstantial evidence. It requires that there be an accident that could only concievably happen because of someone’s negligence, that the instrumentality that caused the harm was in the sole control of the defendant, and that the plaintiff did not contribute to the harm. Here, Jewell can establish that she did not contribute to her own slip and fall because she said that she did not see the ketchup on the floor. She can also establish that a slip and fall like she had ordinarily does not occur in the absence of neligence; in fact, had someone cleaned up the ketchup, she would not have slipped, discloated her arm, and broken her hip. However, Jewell will not be able to establish that the instrumentality--the ketchup--was solely in the control of AMC. Although “no one knows who spilled the ketchup,” AMC can argue the ketchup came from a customer from dinner the previous night. If the customer spilled the ketchup, then the ketchup was not in the exclusive control of AMC. Thus, Jewell’s res ipsa loquitor theory will likely fail.
Second, Jewell could argue negligence based on premises liability and likely prevail. In Virginia, the owner of a premises that is open to the public and invites the public in for business owes a duty of reasonable care to its invitees. As part of this reasonable care, the business must not only warn of concealed dangers, but actively inspect its premises to ensure that the dangers are discovered and rectified, such that the invitees are protected from them. When a business owner breaches this duty, it is liable for all harms that are actually and proximately caused by its breach. Proximate cause in Virginia extends to all natural and probable consequences of the negligence. Here, AMC was the owner of the mall. The mall was a business that held itself open to the public and invited in guests to do business. AMC therefore owed a duty of reasonable care to all its invitees. This duty required AMC to regularly inspect its premises for hidden dangers and protect the invitees from those dangers. One clear danger here is that after a busy lunch and dinner rush, the restaurant areas will be filthy. It is reasonably foreseeable that food, including condiments, will spill on the ground, so AMC as a business owner has the duty to inspect its restaurant area to ensure there are no dangers--like food spills--that could harm its clientele. AMC breached that duty here by failing to inspect its facility sufficiently to find the ketchup spill. It’s clear the ketchup spill was from the dinner rush the night before, because the ketchup was dried when Jewell, the next morning, slipped on it. It’s clear that AMC failed to fix this spill, so it breached its duty of reasonable care as a business owner to its invitee, Jewell, who was on the way to the mall to shop. Her harm, a dislocated arm and broken hip, were actually and proximately caused by the fall; its a natural and probably consequence of a fall that someone nearing retirement age, like Jewell, will break a hip upon falling. Consequently, Jewell can likely establish that AMC had a duty of reasonable care to its business invitees, it breached that duty by failing to find the ketchup and clean it, and the breach of that duty actually and proximately caused Jewell’s injuries.
July 2020 - QUESTION 2 – EXAMPLE ANSWER #2
(a) The District Court properly found subject matter jurisdiction based on diversity jurisdiction because complete diversity existed between the parties, and the amount in controversy exceeded $75,000.
A federal court must have subject matter jurisdiction in order to hear a case or controversy. Subject matter jurisdiction may be established through diversity jurisdiction or federal question jurisdiciton. Diversity jurisdiction requires complete diversity of citizenship between parties and for the amount-in-controversy to exceed the statutory amount. Complete diversity of citizenship is established when no plaintiff is a citizen of the same state as any defendant. Individuals are considered a citizen of the state in which they are domiciled. Corporations are considered a citizen of both the state in which they are incorporated, and the state of their primary place of business. The primary place of business is a single location and tends to be where the main office is located. Indicators of a primary place of business include the presence of the CEO and other executive officers, and the place where corporate policies are set. The amount in controversy must exceed $75,000, and any amount that is pleaded in good faith (and that is not an impossibility) is considered valid for purposes of determining the amount in controversy.
Here, the court properly found subject matter jurisdiction through diversity jurisdiction. Jewell is a citizen of Virginia - she is a resident of Fairfax and there is nothing in the facts that suggests that she may be domiciled anywhere else rather than Virginia. AMC is a citizen of Delaware and North Carolina - it is incorporated in Delaware ("a Delaware corporation") and its primary place of business is in Charlotte, North Carolina. The primary place of business is identifiable through the presence of the CEO, CFO, GC, COO, and other vice presidents, as well as the board of directors, plus company-wide decisionmaking and corporate policy. The presence of the mall in Fairfax county does not make AMC a citizen of Virginia, nor do the offices in Tysons (there is nothing in the facts to suggest that the Tyson's office could possibly be considered a "primary place of business" - especially when compared to the Charlotte office). Because the plaintiff's citizenship is Virginia, and the defendant's citizenship is Delaware and North Carolina, there is a complete diversity of citizenship. Finally, Jewell's complaint alleged $200,000 in money damages. There is no indication that this amount was mae in bad faith or that it is an impossibility to recover $200,000, and therefore the $200,000 easily satisfies the greater-than-$75,000 requirement. Accordingly, the District Court did not err in overruling Jewell's first motion to dismiss.
(b) The District Court should also overrule Jewell's motion to remand based on her Amended Complaint, as the court is able to maintain diversity jurisdiction even with the reduced amount-in- controversy.
When dealing with an amended complaint, a federal court in diversity jurisdiction must maintain complete diversity of citizenship. Once the amount-in-controversy has been established as sufficient, however, the court is able to maintain the action even if the damages sought are later reduced to at or below the $75,000 limit.
Here, the parties continue to have complete diversity of citizenship, so there are no issues. While Jewell's complaint did reduce the damages sought from $200,000 to $74,000, the court does not need to reject jursidiction. Rather, the court is able to maintain jurisdiction based on the original amount alleged in the complaint, and therefore the court should overrule Jewell's motion to remand based on her Amended Complaint.
(c) Jewell should base her claim for liability on the part of AMC on negligence grounds, and she is likely to succeed.
To state a claim for negligence, a party must establish that (i) the defendant had a duty of care for the plaintiff, (ii) the defendant breached that duty of care, (iii) the was causation, and (iv) harm resulted. Each element is discussed in turn, below.
(i) As business owner, AMC had a duty of care to protect its invitees from harms on the property. Jewell was an invitee of the business and AMC therefore had a duty of care to protect Jewell.
(ii) AMC breahed the duty of care by failing to ensure the floors were properly cleaned. There are a few elements that help point to this being an inexcusable breach. First, Jewell was the first customer to enter the Mall that morning - there is no possibility that another customer dropped the ketchup immediately before Jewell tripped. Second, the ketchup was dried to the floor and had a crusty top - an indication that the ketchup had been there for at least a few hours. Third, the ketchup was spilled in an area nearby the Mall's restaurants - an area that the Mall management should have known would need regular cleaning in order to maintain a safe environment. It does not matter that the Mall's management did not know about the ketchup on the floor. From all the facts, the management should have known, and should have taken steps to ensure the mall was properly cleaned and safe.
(iii) AMC's breach of the duty caused Jewell's injury. Jewell did not see the ketchup, and her shoe slid through the ketchup. She did not unwittingly fall on her own, but rather appears to have fallen as a result of the spilled ketchup. There is both actual causation (but-for the ketchup, Jewell would not have fallen) and proximate causation (it is foreseeable that someone may slip on spilled food).
(iv) There is harm - Jewell ended up with a dislocated arm and a broken hip.
In sum total, it appears that Jewell will be able to prevail in a negligence action against the Mall.