Before the exam starts, you may read the instructions, AND COUNT TO MAKE SURE THAT YOU HAVE ALL THIRTY-FOUR (34) PAGES, AND YOU SHOULD WRITE YOUR EXAM NUMBER ON EVERY PAGE. OTHERWISE, DO NOT TURN THIS INSTRUCTIONS PAGE OR READ ANY OTHER PART OF THE EXAM BEFORE YOU ARE INSTRUCTED TO START.
Honor Code, Open Rules. "Open-Rules" means that you may have with you during the examination your required Federal Rules of Civil Procedure supplement only. No substitutions will be allowed. Your supplement may be annotated with handwritten notes, but shall not have any attachments other than tabs to mark the location of specific material (the tabs may have on them numbers and the short titles of the referenced material and nothing more). Only handwriting may cover the blank spaces and the original printing on the supplement. The use of stick-on labels or paper, white-out or any other method to eliminate any of the original printing is prohibited. Other than the addition of handwritten notes and tabs, the supplement shall be in its original condition, no material may be added nor may any material be removed in any way. Violations of the Honor Code or of the exam rules should be reported to me before or during the examination. Violation of these rules shall result in a failing grade and in my referring the matter to the Honor Committee.
Read the Entire Exam. PLEASE READ THE ENTIRE EXAM BEFORE YOU BEGIN TO ANSWER ANY QUESTIONS. The exam consists of four (4) multiple-choice questions, seven (7) short-answer questions, and one (1) essay question. The multiple choice questions will account for twenty percent (20%) of your exam grade, equally divided among each of them, the short answer questions will account for a total of thirty-six percent (36%) of the exam grade, and the essay will account for forty-four percent (44%) of your exam grade. Please take these weights into account when you design your answer schedule.
Limited Space. You must answer the questions in the space provided therefor in the exam itself. Do not use bluebooks. While I encourage you to outline the answers before you start to write, do not include scratch paper or any additional material with your completed exam. In answering the short-answer questions and the essay question, please be succinct. You might want to draft the short answer on your scrap paper, before writing it in the answer space. Definitely outline your essay answer before you start to write. I have given you enough room to answer the question comfortably, there is no need to fill up every line in every page. Please strive for precision, specificity, and thoughtful analysis in all points you do address.
Write Legibly. If I am unable to read your answer, it is as if you had written nothing. The exam must be written in permanent, dark-color ink. You may not use pencils, erasable ink, or felt-tip markers.
Do Not Unstaple Pages. Unless you are typing your answer, do not take the exam apart. If you do, you MUST RE-STAPLE IT.
Typing. If you are typing your answer, first, let me thank you; second, you must stay within the margins and write only one line of text per line of space given to you.
Proctoring. I will occasionally drop by the examination rooms to check on you progress and to answer questions. Otherwise, I will be available in my office, Room 337, to assist with any procedural problems and to answer questions.
You must stop work four (4) hours after MY SIGNAL TO START. Completed examinations must be turned in to The office of student services.
Grades and Review. The law school does not allow me to post grades when I turn them in (if I turn them in on time, which I usually do) so you will have to wait until the Registrar posts them. I will be available to discuss examination results during the Fall 2001 semester, beginning after Tuesday, September 18, 2001. I will not discuss examination results during the Summer recess.
Select the best answer to the question presented. In this section, Do not look for "perfect" answers, just the most correct one among those alternatives available to you, in light of the question presented. No explanations are required or allowed. Your answer will either be correct or incorrect, there will be no partial credit for incorrect answers. Circle the letter of your response.
Do not assume any facts not given to you. While you are expected to draw reasonable conclusions based on the facts given, you should not assume facts. In this section of the exam, "missing facts" suggest three possibilities: (1) you need to read the question again, i.e., "it's in there somewhere," (2) the fact is not necessary to the resolution of the question, or (3) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question).
Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked, with the best possible response among the alternatives given.
Applicable Rules. Assume that the applicable rules of procedure are the Federal Rules of Civil Procedure.
Personal Jurisdiction. Assume that corporations are at the very least subject to general personal jurisdiction at their place of incorporation and at their principal place of business.
Long-arm statutes. You should assume that the applicable long-arm statutes have extended personal jurisdiction to the maximum extent allowed by the Due Process Clause of the Fourteenth Amendment.
1. Emeril Lagasse has filed a federal suit against Wolfgang Puck in the U.S. District Court for the Central District of California, Western Division. The complaint was filed on March 22, 2000, and Mr. Puck was served on March 23, 2000. On April 3, 2000, defendant Puck appeared in the case for the first time by filing his Answer to the complaint. He did not raise any Rule 12(b) defenses in the answer. On March 15, 2001, after the pleadings were closed and discovery had been completed in the case, Mr. Puck filed a motion to dismiss for failure to state a claim upon which relief can be granted. Mr. Puck presents no matters outside the pleadings in his motion. Consideration of the motion would in no way delay the trial, which is scheduled to take place on August 10, 2001. Should the Court consider this motion?
a. No, because the time to file a 12(b)(6) motion has expired.
b. Yes, because the court must treat it as a Rule 56 motion for summary judgment.
c. Yes, because the defense has not been waived and the court can consider this a proper motion for judgment on the pleadings.
d. No, because no matters outside the pleadings are raised, the motion is untimely.
2. Mr. Jamie Oliver suffers a severe attack of food-poisoning that he alleges was caused by the negligence of Federal Express, which mishandled a shipment raw oysters sent to this London home from Louisiana, U.S.A. Mr. Oliver is a citizen of the United Kingdom, who resides in London, U.K., and has never visited the United States. Federal Express is a Delaware corporation with its principal place of business in Nashville, Tennessee. Mr. Oliver files a federal suit against Fedex in the U.S. District Court for the Middle District of Tennessee, Nashville Division. He alleges damages caused by the illness, including medical costs, pain and suffering and loss of income because he was unable to perform in his weekly television program, "The Naked Chef." These are all legitimate claims under applicable British law. The damages claimed exceed, exclusive of costs and interest, $1,000,000.00. Can the federal court hear this action?
a. No, because Mr. Oliver does not raise a claim based on U.S. law.
b. No, because the court lacks personal jurisdiction over Fedex.
c. No, because Mr. Oliver is not a permanent resident alien.
d. Yes, because there is alienage jurisdiction under 28 U.S.C. § 1332.
3. Ally McBeal, a citizen of Massachusetts, kicks Oren Koolie, a citizen of New York, when he is visiting her law office in Boston. She mistook him for "Mr. Huggy," an imaginary dancing baby. Unfortunately, Mr. Koolie is a very real, small person, who happens to be a lawyer. Naturally, Mr. Koolie sues Ms. McBeal in the U.S. District Court for the District of Massachusetts. Ms. McBeal is the only named defendant in the suit. In addition to Ms. McBeal and Mr. Koolie, there were two eyewitnesses to this incident, John Cage, a partner in the law offices Koolie was visiting, and Elaine Vassal, a secretary at that same firm. Lloyds of Cleveland Insurance Company provides insurance coverage to Ms. McBeal. Harry Smith, an agent for Lloyds, took statements from Mr. Cage and from Ms. Vassal. Mr. Smith wrote down what Ms. Vassal and Mr. Cage said and each of them, after reading their respective statement, signed the document. While Mr. Smith was taking down the statements, Mr. Koolie could be heard outside the door to the office that Smith was using screaming "I am going to sue you for every penny you've got, McBeal." Ms. Vassal and Mr. Cage request copies of their statements from the insurance company. Are Ms. Vassal and Mr. Cage entitled to obtain copies of their respective statements under the Federal Rules of Civil Procedure?
b. No, because the statements were collected in anticipation of litigation and are clearly protected "work-product."
c. No, because Vassal and Cage are not parties to the case and therefore not entitled to discovery.
d. Yes, because the statements were not collected in anticipation of litigation and are not protected "work-product."
4. Jerry Seinfeld has sued Cosmo Cramer for the tort of assault and battery with weird hair. He claims over $750,000.00 in damages exclusive of costs and interest. He has filed the action in the US District Court for the Southern District of New York, where all the relevant acts occurred. He claims diversity jurisdiction because he is a citizen of New York, and Cosmo Cramer, for tax purposes, has chosen to retain his citizenship in Florida, where he lived before moving to New York, and where he still owns a home. Mr. Cramer has conceded that he is a citizen of Florida, therefore, he has sworn affidavits, for use in this case, indicating that he is in New York only temporarily and lacks an intention to stay there. Thus, Mr. Cramer is a citizen of Florida. Mr. Cramer has tendered to the court a Third Party Complaint impleading, for contribution only, his hair dresser, one George "Scissors" Costanza, a citizen of New York. The court has held that Mr. Seinfeld's complaint should proceed to trial, and that Mr. Costanza is not a "necessary" party as defined in Rule 19(a) because of the applicable New York joint and several liability statute; however, the court finds that, under the same statute, Mr. Costanza might be adjudged to owe contribution to Mr. Cramer, to the full extent of any judgment against him in favor of Mr. Seinfeld. Accordingly, the Court should:
a. Refuse to order the joinder of Mr. Costanza pursuant to Rule 19, and proceed with the case as filed.
b. Order the dismissal of the case pursuant to Rule 19(b), because the joinder is not feasible.
c. Grant leave to file the third-party complaint, under Rule 14(a), and allow Mr. Cramer to sue Mr. Costanza under Rule 14(a), for contribution only; subject-matter jurisdiction over this claim can properly be based on 28 U.S.C § 1332.
d. Grant leave to file the third-party complaint, under Rule 14(a), and allow Mr. Cramer to sue Mr. Costanza under Rule 14(a), for contribution only; subject-matter jurisdiction over this claim can properly be based on 28 U.S.C. § 1367.
Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, "missing facts" suggest three possibilities: (1) you need to read the question again, i.e., "it's in there somewhere," (2) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question), or (3) you need to indicate that you need to establish certain facts in order to provide a complete opinion. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.
Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked. Civil procedure is a broad and complex course, I have crafted the questions narrowly, do not waste your time covering issues that the question does not require you to resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the question.
Citations. Since this is an open-rule exam, citation should be made to the appropriate rule, especially the Federal Rules of Civil Procedure, section of title 28, Constitutional Provision, etc. Case citations will be judged on a "close-enough" basis.
Residence and Citizenship are NOT interchangeable terms in this exam.
Michelle Goodwin, a citizen of Iowa, was seriously injured in an automobile accident that she alleges was caused by the negligence of George Miller, a citizen of Illinois who resides in the county of Winnebago in that state. The accident occurred in the city of Des Moines, Iowa.
Ms. Goodwin is the divorced mother of two children, Ana Johnson, age 14, and Douglas Johnson, Jr., age 12. She has joint custody of the children and can thus act as their legal representative, but they reside with their father in Illinois and are citizens of that state as is their father, Douglas Johnson, Sr. At the time of the accident, the children were visiting their mother for the weekend and were also victims of this accident and suffered serious injuries as a result thereof.
Mr. Miller is an employee of AKA Gourmet, a corporation that sells gift baskets via the internet. Mr. Miller delivers AKA Gourmet gift baskets in the state of Iowa only; he picks up the baskets at airports within the state of Iowa. AKA Gourmet is a Delaware corporation with its principal place of business in California. AKA Gourmet's only offices and facilities in California are located in Sonoma county.
Mr. Miller has an automobile insurance policy from the Prudential Insurance Company. The policy covers both personal and work use of his vehicle. Prudential is a Connecticut corporation with its principal place of business in Pennsylvania. All of Prudential's offices in Pennsylvania are located within the city and county of Philadelphia in that state.
You may assume that corporations would be subject to general personal jurisdiction in their state of incorporation and at their principal place of business. A corporation would also be subject to specific personal jurisdiction in any state in which an employee of the corporation would be subject to personal jurisdiction on the basis of acts that were performed within the scope of their corporate employment. An insurance company will be subject to specific personal jurisdiction in any state where its insured would be subject to personal jurisdiction. Assume that general and specific personal jurisdiction over corporations are treated equally for federal venue purposes.
Assume that there are no compulsory parties in this scenario.
Assume that claims arising out of the accident pursued by any potential plaintiff exceed, as to each plaintiff and each defendant, $75,000.00 exclusive of costs and interest.
The so-called Iowa long-arm statute is in Rule 56.2 of the Iowa Rules of Civil Procedure, which, in pertinent part, reads as follows:
56.2. Alternate method of service.
Every corporation, individual, personal representative, partnership or association that shall have the necessary minimum contact with the state of Iowa shall be subject to the jurisdiction of the courts of this state, and the courts of this state shall hold such corporation, individual, personal representative, partnership or association amenable to suit in Iowa in every case not contrary to the provisions of the Constitution of the United States.
Based on the facts described above, and taking into account any modifications made by the question, answer the following questions by writing your answer in the space provided. In references to statutory provisions, you must identify the specific sub-section that applies. In references to the Federal Rules of Civil Procedure, you must identify any specific subsections, as precisely as they were identified in class.
Questions one (1), two (2), three (3), four (4), and seven (7), will each account for 4% of the exam grade. Questions five (5) and six (6) will each account for 8% of the exam grade.
1. Ms. Goodwin, as the sole plaintiff, files a federal suit to pursue claims arising out of the accident, using section 1332 as the only basis of subject-matter jurisdiction. She names Mr. Miller, AKA Gourmet, Inc., and Prudential Insurance Co., as defendants. In which district(s) of the U.S. courts would venue be appropriate for this action? Identify the pertinent provision(s) of the venue statute and any other applicable provision(s) from title 28. [Seven (7) lines to answer].
2. Ms. Goodwin, as the only plaintiff, files a federal suit to pursue claims arising out of the accident, using section 1332 as the only basis of subject-matter jurisdiction. She names Mr. Miller as the only defendant. In which district(s) of the U.S. courts would venue be appropriate for this action? Identify the pertinent provision(s) of the venue statute and any other applicable provision(s) from title 28. [Seven (7) lines to answer].
3. Ms. Goodwin, as plaintiff in her personal capacity and in her capacity as the legal representative of her minor children, files a federal suit to pursue claims arising out of the accident, using section 1332 as the only basis of subject-matter jurisdiction. She names AKA Gourmet, Inc., as the sole defendant, alleging that Mr. Miller was acting within the scope of his employment. In which district(s) of the U.S. courts would venue be appropriate for this action? Identify the pertinent provision(s) of the venue statute and any other applicable provision(s) from title 28. [Seven (7) lines to answer].
4. Ms. Goodwin, as the sole plaintiff, files a federal suit in an appropriate U.S. District Court in Iowa to pursue claims arising out of the accident, using section 1332 as the only basis of subject-matter jurisdiction. She names Mr. Miller as the only defendant. Assuming that Mr. Miller was not personally served with process while physically present within the state of Iowa, and setting aside constitutional concerns, what would be the basis for the exercise of personal jurisdiction over Mr. Miller? Why? [Seven (7) lines to answer].
5. Ms. Goodwin, as plaintiff in her personal capacity and in her capacity as the legal representative of her minor children, files a federal action in a U.S. District Court in Iowa that would be a proper venue for her suit, to pursue claims arising out of the accident, using section 1332 as the only pleaded basis of subject-matter jurisdiction. She names Prudential Insurance Co., as the only defendant. Does the court have subject-matter jurisdiction over the claims in this action? Explain your answer and identify the citizenship of each party and the pertinent provision(s) of title 28. [Nineteen (19) lines to answer].
6. Ms. Goodwin, as the sole plaintiff, files a federal action in a U.S. District Court in Iowa that would be a proper venue for her suit, to pursue claims arising out of the accident, using section 1332 as the only pleaded basis of subject-matter jurisdiction. She names Mr. Miller, AKA Gourmet, Inc. and Prudential Insurance Co., as defendants. She also includes in her complaint a claim, against AKA Gourmet only, for $300.00 for a fruit basket that she ordered which was delivered so late that all the fruit had spoiled. Does the court have subject-matter jurisdiction over the claims in this action? Explain your answer and identify the citizenship of each party and the pertinent provision(s) of title 28. [Seventeen (17) lines to answer]
7. Can all the claims being pursued in the action described in question number six (6) properly be joined in one action under the Federal Rules of Civil Procedure? Explain and identify the applicable rule(s). [Seven (7) lines to answer].
EXTRA SPACE: You may use this space to supplement any answer in this section. [This section gave fourteen (14) extra lines].
After law school graduation, you have been hired as a law clerk by the Honorable Joel Dubina, a judge on the United States Court of Appeals for the 11th Circuit. The judge has given you the file in the case of Lloyds of London v. Weisberg, with instructions to draft a reasoned opinion for his signature ruling that a Florida Statute allowing the court to award attorney's fees to the prevailing party in insurance contract litigation is applicable in Federal Courts sitting in maritime jurisdiction. The judge summarizes the case and the law for you as follows:
Appellant, Mark Weisberg ("Weisberg" or "Appellant"), entered into a marine insurance contract with Appellee, Underwriters at Lloyds, London ("Lloyds"), to insure Appellant's 32 foot motor vessel named "After Hours." The policy provided hull and machinery coverage for $50,000, beginning on September 27, 1996, and extending for a one-year period. Underwriters issued the policy pursuant to Florida's Surplus Lines Law and delivered it to Weisberg's residence in Miami, Florida.
On November 16, 1996, the After Hours sank as a result of heavy winds and storm surge. Appellant made a claim for constructive total loss of the After Hours within four days of the sinking. After conducting an investigation, Lloyds filed a declaratory judgment action in the United States District Court for the Southern District of Florida seeking to have the contract deemed void ab initio due to alleged misrepresentations by Appellant in his application for insurance. Lloyds invoked the district court's admiralty jurisdiction pursuant to 28 U.S.C. § 1333. Appellant filed a counter-claim against Lloyds for breach of contract.
In his Answer and Counterclaim, Appellant demanded attorney's fees pursuant to Fla. Stat. § 627.428. The district court struck Appellant's demand for attorney's fees, finding that "any Florida law awarding attorney's fees to a prevailing party in the absence of bad faith clearly conflicts with federal law and cannot be applied."
After the district court denied Lloyds' summary judgment motion, the Parties agreed to settle Appellant's claim for the full contractual value of Appellant's loss, plus costs and interest. In the settlement agreement, Appellant specifically reserved the right to appeal the district court's order striking the demand for attorney's fees and reserved the right to seek attorney's fees. After the district court entered judgment in favor of Appellant on the counter-claim, Appellant filed a timely appeal on the issue of attorney's fees. Because this is a matter of law, the review of the District Court's decision is de novo, meaning that the Court of Appeals must make its own determination about the Erie questions.
Fla. Stat. § 627.428 provides:
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had.
The Florida state courts have viewed Fla. Stat. § 627.428 as substantive law. See Bitterman v. Bitterman, 714 So. 2d 356, 363 (Fla.1998) ("The ability to collect attorney's fees from an opposing party, as well as the obligation to pay such fees, is substantive in nature."); L. Ross, Inc. v. R.W. Roberts Constr. Co., Inc., 481 So. 2d 484, 485 (Fla.1986) ("The right to attorney fees is a substantive one ....").
Lloyds contends that Fla. Stat. § 627.428 is procedural law, and thus, a federal court sitting in admiralty cannot apply it. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996) ("Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law."). Appellant argues that the district court erred in holding that a practice applicable in federal maritime law cases existed on the issue of attorney's fees, thereby preempting the application of Fla. Stat. § 627.428.
Federal courts have long considered actions involving marine insurance policies to be within the admiralty jurisdiction of the federal courts and governed by federal maritime law. See Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 321, 75 S. Ct. 368, 99 L. Ed. 337 (1955); New England Mut. Marine Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 33-34, 20 L. Ed. 90 (1870); Morewitz v. West of England Ship Owners Mut. Protection & Indem. Ass'n, 896 F.2d 495, 498-99 (11th Cir.1990); Morrison Grain Co., Inc. v. Utica Mut. Ins. Co., 632 F.2d 424, 428 n. 4 (5th Cir.1980). However, marine insurance contracts do not fall under the exclusive grant of admiralty jurisdiction to the federal courts, rather, they constitute an exception to section 1333 of Title 28. Marine insurance contract litigants are therefore permitted to choose between the concurrent federal and state jurisdiction over litigation of marine insurance contracts. Additionally, state law is never completely preempted even in admiralty cases within the exclusive jurisdiction of the federal courts. "[W]hen neither statutory nor judicially created maritime principles provide an answer to a specific legal question, courts may apply state law provided that the application of state law does not frustrate national interests in having uniformity in admiralty law." Coastal Fuels Mktg., Inc. v. Florida Express Shipping Co., Inc., 207 F.3d 1247, 1251 (11th Cir.2000); see also Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222-23, 106 S. Ct. 2485, 91 L. Ed. 2d 174 (1986) (the extent to which state law may be used to resolve maritime disputes is governed by the Erie doctrine); Steelmet, Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488 (11th Cir.1986) ("One must identify the state law involved and determine whether there is an admiralty [or any other federal] principle with which the state law conflicts, and, if there is no such principle, consideration must be given to whether such [a] rule should be fashioned.").
The parties in this case differ as to whether an applicable federal principle governs the question at issue.
Lloyds argues that there exists a well-established maritime law practice of prohibiting any award of attorney's fees in an admiralty action absent a contract provision, a federal statute, or bad faith in the litigation process. See Coastal Fuels, 207 F.3d at 1250; Noritake Co., Inc. v. M/V Hellenic Champion, 627 F.2d 724, 730 n. 5 (5th Cir.1980). Because Fla. Stat. § 627.428 allows an insured to collect attorney's fees based solely on whether he prevailed, Lloyds asserts that § 627.428 conflicts with established maritime law and with general federal procedural practices.
Appellant agrees that, in general, attorney's fees are not recoverable in federal actions. However, he contends that this general rule does not apply in the context of this marine insurance contract action because the Federal Court must apply the Florida statute. The Supreme Court has held that in the absence of a specific and controlling federal rule, the interpretation or construction of a marine insurance contract is to be determined by state law. See Wilburn Boat, 348 U.S. at 321, 75 S. Ct. 368 ("We, like Congress, leave the regulation of marine insurance where it has been'with the States."); see also Steelmet, 842 F.2d at 1244 n. 9 ("Admiralty courts will generally look to appropriate state law in determining questions involving a marine insurance contract.") (quoting Gulf Tampa Drydock Co. v. Great Atlantic Ins. Co., 757 F.2d 1172, 1174 (11th Cir.1985)).
But the court must further determine whether there exists an established federal policy addressing the specific issue of whether attorney's fees lie in the context of marine insurance contract disputes. Because the matter is not expressly covered in federal maritime legislation or rules, the court must determine if there is federal maritime common law on point.
Two other courts of appeal have addressed this issue and have reached opposite results from each other. In INA of Texas v. Richard, 800 F.2d 1379 (5th Cir. 1986), the Fifth Circuit held that "there is no specific and controlling federal rule of law relating to attorney's fees in maritime insurance litigation." Id. at 1381. To the contrary, the court concluded that the Fifth Circuit has consistently found state law to govern the issue of whether or not attorney's fees lie in the context of a marine insurance contract dispute. See id. In contrast, the Second Circuit, in American National Fire Insurance Co. v. Kenealy, 72 F.3d 264 (2nd Cir. 1995), held that there exists an established federal practice applicable in maritime law cases that prohibits attorney's fees in marine insurance contract disputes. See id. at 270. (Assume that 5th and 2nd Circuit decisions are not binding on the 11th Circuit, they carry only persuasive authority). The Kenealy court concluded that the Second Circuit in Ingersoll Milling Machine Co. v. M/V Bodena, 829 F.2d 293 (2d Cir.1987), held that the general prohibition on attorney's fees in admiralty suits applies in a suit over a marine insurance contract. See 72 F.3d at 270. Next, the Kenealy court rejected the Richard decision by noting that the First and Third Circuits, writing after Ingersoll, reached the same conclusion as Ingersoll.
Lloyds argues that this court should reject the Fifth Circuit's decisions and follow the decision in Kenealy as signifying the emergence of an established federal practice in maritime cases. Lloyds further agues that § 627.428 also conflicts with the general federal policy of not awarding attorney's fees in litigation in the U.S. courts that is reflected in Rule 54(d) of the Federal Rules of Civil Procedure.
Judge Dubina and the other two members of the panel have agreed that they will hold that the district court must award attorney's fees pursuant to Fla. Stat. § 627.428 against an insurer, even in a maritime insurance contract case. Judge Dubina and his colleagues are not unmindful of the federal interests discussed above, but they simply do not believe that these principles, and any rules derived thereunder, need to displace the Florida law on awarding attorney's fees at issue here. Accordingly, draft the opinion to reverse the district court's judgment and remand this case for further proceedings consistent with the opinion.
In addition to the information described above, in drafting the proposed opinion, you must consider the U.S. Constitution, Erie and its progeny, the Rules Enabling Act (28 USC § 2072), the Rules of Decision Act (28 USC § 1652), our class discussion, and your sound judgment.
Unless otherwise expressly indicated, assume only that the Federal Rules of Civil Procedure apply in this situation. Accordingly, you must ignore the Supplemental Rules for certain Admiralty and Maritime claims.
Modified from All Underwriters v. Weisberg, 222 F.3d 1309 (11th Cir. 2000). The facts were slightly modified, arguments and legal rules and parentheticals were modified to fit the question. Legal rules in the real world outside the Civil Procedure course may vary. In other words, don't try this at home!