QUESTION 1 (33⅓ points) Peter is a movie actor with a distinctive tough guy image. He is a resident of Pennsylvania. "Harry's Harley's" is a motorcycle dealer incorporated in New York with its principal place of business in Albany, and stores in Buffalo, Syracuse, Binghamton and Elmira. Without Peter's permission, Harry's used pictures of Peter as part of its advertising campaign in upstate New York newspapers. The newspapers have mostly local circulation, although many Pennsylvania residents who live near the New York/Pennsylvania border have them delivered to their homes. The Pennsylvania circulation amounts to 1% of the total circulation of the newspapers. This information is given to potential advertisers in the newspapers. Harry's does business exclusively in New York, and the motorcycles it sells are made in Michigan. It is not authorized to do business in Pennsylvania. Harry's occasionally purchases specialty motorcycles from Pennsylvania suppliers for all its New York customers. The only other contact with Pennsylvania is its hiring of a sales training company based in Pennsylvania to provide training to its employees at its New York stores. Peter has now sued Harry's in a Pennsylvania state court for the unauthorized commercial use of his image. In response Harry's has moved to dismiss for lack of personal jurisdiction. Pennsylvania law provides that personal jurisdiction over non-domiciliaries may be exercised to the extent permissible under the United States Constitution. You are the judge assigned to the case. Rule on the motion. QUESTION 2 (33⅓ points) Pat and David, New York domiciliaries, entered into an agreement in 2002 pursuant to which David agreed to manage Pat's financial affairs, including the three million dollars he had inherited from his sister. Pat is an attorney, licensed to practice New York and Vermont. David is a registered financial analyst and broker, and is Pat's long-time friend, dating back 30 years ago when they were fraternity brothers at State University. Their written agreement gives David the discretion to invest the inheritance in investments through David's investment firm located in New York City. In return, David will be paid $25,000 a year and a percentage of the annual increase in value (if any) of the investments. The agreement specifies that any action that is commenced by either Pat or David must be commenced in the courts of New York, federal or state; and that any claim or cause of action arising out of their relationship asserted by Pat or David may be brought within 10 years from the time the cause of action or claim arose. The agreement was negotiated and executed in Stowe, Vermont where Pat owns a condominium that he occasionally uses in the winter. In December 2015, Pat commenced an action against David alleging that as a result of David's negligence or fraudulent conduct Pat's inheritance is now worth $5,000. Pat asserts both tort and contract causes of action, and seeks $5,000,000 in damages. The action is commenced in a Vermont state court. Vermont law, if applicable to the action, fully supports his claims, but New York law if applicable does not. David now moves to dismiss the complaint. His motion has two parts. First, he argues the action must be dismissed because the claims asserted are banned by a Vermont Statute of Limitations which bans actions against financial analysts and stockbrokers unless brought within two years of the discovery of the claimed negligence or fraud of the analyst or broker. (You may assume the statute if applicable does in fact bar Pat's action.) Second, David argues that the complaint should be dismissed because the action may not be commenced in a Vermont court by reason of the parties' forum selection clause which he further asserts is enforceable. You may assume that there is no precedent in Vermont addressing the enforceability of forum selection clauses; and that as to choice law clause issues the Vermont courts have adopted in whole the Restatement (Second) of Conflict of Laws. You are the judge assigned to this action. Rule on both parts of David's motion to dismiss. QUESTION 3 (33⅓ points) Paula, a New Jersey domiciliary, was involved in an action on the Massachusetts Turnpike when the car she was driving rear-ended a car driven and owned by Dennis, a Maine domiciliary. The rear-end collision occurred when Dennis's car stopped suddenly while in the passing lane and Paula was unable to stop in time or maneuver to avoid the collision. Dennis' explanation for his sudden stopping was that he spilled hot coffee on his lap while drinking it. Paula was driving within the speed limit at the time of the accident but was texting. Paula but not Dennis was seriously injured. Paula has commenced an action in Maine Superior Court against Dennis, alleging negligence. Dennis in his answer asserts as an affirmative defense that Paula's action is barred because Massachusetts General Law #2012 bars any action commenced by a person who claims injury as a result of motor vehicle accident when that person is texting at the time of the accident. The law's legislative history states that the intent of the law is to deter drivers from texting while driving because of the danger to other drivers on the road such conduct creates. New Jersey and Maine law allows evidence of texting to be admitted at trial of a motor vehicle accident as proof of a driver's comparative fault but does not bar an action by a texting driver, unless such texting is the proximate cause of an accident. Paula has moved to strike the affirmative defense, asserting New Jersey or Maine law applies to her action, but not Massachusetts law. Dennis opposes the motion, contending Massachusetts law applies. How should the court rule on the motion? Massachusetts choice of law rules are not clear. You may choose to apply the Restatement (First) of Conflicts Torts choice of law rule; New York's "governmental interest" Torts choice of law rule; Currie's interest analysis choice of law rule; or the Restatement (Second) of Conflicts Torts choice of law rule.