Adaptibar Flashcards
Defenses to Strict Products Liability:
1) Assumption of the Risk
2) Misuse
Strict Liability in Tort
Strict Products Liability
Inadequate/Failure to Warn:
A type of Defective Product under Strict Products Liability
Commercial Seller:
In the business of selling the product
Strict Products Liability:
1) Defective product
2) Sold by commercial seller
3) Foreseeable user
4) Used in manner it was intended
Fitness for a Particular Purpose:
• Product only works for particular purpose
Examples:
o Hurricane windows can withstand certain wind
speeds
o Tires can only withstand speed up to a certain
mph
o Phone can only make so many phone calls
Merchantability:
Product acted as it should
Products Liability – Breach of Warranty:
Promise about product performance
Products Liability – Negligence:
Negligence in the chain caused the product to break or not work
Product Liability:
• A product breaks or doesn’t work properly • 3 Causes of Action
Negligence
Breach of warranty Strict products liability
Assumption of the Risk:
- Defense to Strict Liability
- Knew & Appreciated the risk
Abnormally Dangerous Activity:
Excavation
• Dynamite
• Toxic Chemicals
Strict Liability:
1) Possession of Wild Animals
2) Abnormally Dangerous Activities
Possession of Wild Animals:
Non-domesticated animals
• Injury that would normally occur
• Domestic animals with dangerous
propensities
Examples:
Wild animals:
o Lions, tigers, and bears Not Wild animals:
o Dogs and cats
Most warranty questions will test
on express warranties
Subject-Matter Jurisdiction:
1) Diversity of Citizenship 2) Federal Question
Amount in Controversy:
- Must be in excess of $75K
- Court must have “legal certainty”
Adding Claims:
• Plaintiff can ADD claims if one exceeds $75K
• Single Plaintiff can ADD claims against Single
Defendant to reach $75K
Dismissal for Improper Venue:
If the more convenient forum is a foreign country
Transfer by Consent:
Both parties must consent
Transfer of Venue – Improper Venue:
1) Judge must dismiss OR transfer in the interest of justice
2) Transfer to any district where the case could have originally been brought
Transfer of Venue – Proper Venue:
1) Court may TRANSFER to another district
2) For the convenience of parties & interest of
justice
3) Law of original venue will apply
Venue is based on where _ resides.
DEFENDANT
Venue – Corporations:
1) Principal place of business
2) Any district in state of incorporation
Proper Venue:
1) Where any defendant resides, if all defendants reside in same state
2) Where substantial part of events took place
ONLY IF 1 & 2 DON’T APPLY:
3) Where there is Personal Jurisdiction over defendant
Definition – Venue
The proper Federal District Court for the case
Remand – Timing:
Within 30 DAYS of filing of Notice of Removal
• Defendant has burden to show Removal was
proper
Definition – Remand
Plaintiff wants to bring case back to State Court after improper Removal
Multiple Claims:
• If one claim is removable, then the entire case can be removed
Diversity Cases:
1) Case cannot be removed more than 1 year after start
2) Defendant cannot remove if he is a citizen of forum state
Removal – Timing:
• Filed within 30 DAYS of service of Complaint
Who Can Remove:
1) Only DEFENDANT may remove 2) ALL defendants must agree
Removal is not allowed for
state agencies
Definition – Removal
When a State Court case could have originally been brought in Federal Court
Service of Process – Corporations:
1) Officer or Designated Agent
2) Anyone of sufficiently high placement
Examples:
Not high placement
o Intern
o Guy in mail room Sufficiently high placement
o Vice President
o Registered Agent o CEO Emeritus
Out-of-State Service of Process:
1) Mail
2) Newspaper if no other reasonable way
Proper Ways to Serve Process:
1) Personal Service by non-party over 18 2) At Home with person of suitable age 3) First Class Mail
4) Authorized Agent
5) State Law Methods
Remember, don’t get stung by A WASP A - Abode
W - Waiver
A - Agent
S - State method
P - Personal service
Service of Process & Notice:
• Method must give adequate NOTICE
100 Mile Bulge Rule:
1) Out-of-state service allowed within 100 mile radius
2) Only for out-of-state 3rd party defendants/indispensable parties
Service of Process:
1) Only in the state where district court sits OR 2) Anywhere allowed by long-arm statute
Quasi in rem Jurisdiction:
• Going after property to satisfy a judgment against an individual
Example:
o Trying to get judgement from Jon by getting his boat
In rem Jurisdiction:
• Jurisdiction over an object/property
Minimum Contacts – Corporations:
- Purposeful Availment
- Systematic & Continuous Activities
Minimum Contacts Standard:
1) Suit does not offend traditional notions of Fair Play & Justice
2) Defendant could Reasonably Anticipate litigation
Long-Arm Statute:
• Gives courts the power to reach out-of-state persons
If you are in the state for a different proceeding or because of fraud, the court will
not be able to get personal jurisdiction
Definition – Personal Jurisdiction:
• In personem
• Ability to bring the individual into court
General Rules:
1) Present/ Personally Served 2) Domiciled
3) Consent
Supplemental Jurisdiction & Discretion:
Court has DISCRETION to apply
Supplemental Jurisdiction
If defendant is trying to add,
If the plaintiff is trying to add,
AdaptiTip
• If defendant is trying to add, generally ok
• If the plaintiff is trying to add, generally not ok
Supplemental Jurisdiction – NOT Allowed:
1) Original Plaintiff vs. 3rd Party Defendant 2) Compulsory Joinder
3) Joinder of Defendants
4) Intervention
Supplemental Jurisdiction – Allowed:
1) Compulsory Counterclaim
2) Joinder in Compulsory Counterclaim 3) Cross-claim
4) Impleader of 3rd Party Defendants
Diversity Cases:
• New party cannot destroy diversity of citizenship
May add claims without subject-matter jurisdiction if they arise from
a “common nucleus of facts”
Federal Question Cases:
1) Admiralty
2) Maritime
3) Intellectual Property
Federal Issue as a defense is NOT
a federal question
Federal Question:
1) Plaintiff’s claim must be based on federal law 2) Well-Pleaded Complaint Rule: Federal issue
must be obvious
Joining Parties:
• CANNOT join a party just to obtain Diversity
Foreign Citizens:
• US Citizen + Foreign Citizen = Diversity • Two Foreign Citizens = NO Diversity
Class Action:
One named member must meet $75K
Multiple Plaintiffs (SMJ 75k requirements)
- If Single Plaintiff meets $75K then other plaintiffs can join
- Cannot join if no Single Claim exceeds $75K
Preliminary Injunction:
1) Notice & Hearing required 2) IRREPARABLE HARM
Temporary Restraining Order:
1) No notice
2) IMMEDIATE IRREPARABLE HARM 3) Expires in no more than 14 days
Final Pretrial Conference:
1) Court MAY hold conference
2) IF there is a conference, Court MUST issue
Pretrial Order
3) ONLY modified to prevent
“Manifest Injustice”
Scheduling Conference:
1) Court MUST have conference to limit time 2) Must issue SCHEDULING ORDER within 90
days of filing complaint
3) CANNOT be modified unless “Good Cause”
Conference of Parties:
1) Court MUST have conference
2) Parties MUST submit Discovery plan
You cannot depose the same person more than once without
the court’s permission
Interrogatories:
- Only to a PARTY
- Written/Answered in writing • Limit = 25
Request to Admit:
- Written request
- Conclusively established
Request to Produce:
Documents in the other side’s possession, control, custody
Physical/Mental Exam:
1) Must be at issue 2) Court Order
3) Good Cause
Object to a Request:
Information not relevant
Protective Order:
• Stop Discovery for embarrassment, harassment, undue burden
Order to Compel:
• Party not complying with Discovery
What information is admissible at trial?
• Discoverable information is admissible at trial
Conference of Parties:
1) Court MUST have conference
2) Parties MUST submit Discovery plan
Scheduling Conference:
1) Court MUST have conference to limit time 2) Must issue SCHEDULING ORDER within 90
days of filing complaint
3) CANNOT be modified unless “Good Cause”
Final Pretrial Conference:
1) Court MAY hold conference
2) IF there is a conference, Court MUST issue
Pretrial Order
3) ONLY modified to prevent
“Manifest Injustice”
DISCOVERY
Discoverable:
Work Product:
Work Product – Discoverable:
Absolute Immunity:
EXPERT – Testifying:
EXPERT – NOT Testifying:
Duty to Supplement:
Depositions:
DISCOVERY
Discoverable:
1) Not privileged
2) Relevant
3) “Proportional to needs of the case”
Work Product:
• Generally immune from discovery
• Documents prepared in anticipation of trial
Work Product – Discoverable:
1) Substantial need
2) Cannot obtain without UNDUE HARDSHIP
Absolute Immunity:
• Mental impressions
• Conclusions
• Legal opinions/theories
EXPERT – Testifying:
1) MUST provide ID
2) Expert must prepare report
EXPERT – NOT Testifying:
• Discoverable only in “EXCEPTIONAL CIRCUMSTANCES”
Duty to Supplement:
• Duty to supplement incomplete or wrong information
• Must be done in a timely manner
Depositions:
• Party or non-party
• Written or oral
• Non-party by subpoena • Limit = 10
Definition – Rule 11
Attorney signs to best of “knowledge, information, and belief” there is a basis for the claim
Key Words:
• Warranted by existing law • Evidentiary support
• No improper purpose
Counterclaim:
• Defendant raises a claim back at the plaintiff
Compulsory Counterclaim:
1) Same transaction or occurrence 2) Supplemental jurisdiction
Permissive Counterclaim:
1) NOT same transaction or occurrence 2) Needs independent jurisdiction
Permissive Joinder:
1) Single transaction or occurrence 2) Common questions of law/fact
Compulsory Joinder:
• Party needs to be joined or unfair
1) Necessary Party = Impair Interest
• If cannot join due to jurisdiction –
Case may STILL PROCEED
2) Indispensable Party = Prejudice
• If cannot join due to jurisdiction –
Case must be DISMISSED
Class Certification:
1) Size
2) Common Question
3) Typical
4) Representation/Conflict
Types of Class Actions:
- B1 = Impairment of Interests
- B2 = Injunctive Relief
- B3 = Common Question (the superior method)
Opting Out:
• B1 & B2 =
• B3 =
Opting Out:
• B1 & B2 = Members MAY NOT OPT OUT
vs.
• B3 = Member MAY OPT OUT
Notice & Class Actions:
• B1 & B2 =
• B3 =
Notice & Class Actions:
• B1 & B2 = Notice NOT required, in discretion
of Court
• B3 = Notice to ALL members
Diversity in Class Actions:
1) Citizenship of the named representatives 2) One member must meet $75K+
OR the sum of claims is $5 million
Appealability of Class Actions:
• If Certification of Class is denied – May be appealed
Intervention as of Right:
1) Interest in property/transaction 2) Interest is impaired
3) NO Court permission required
Permissive Intervention:
1) Claim/defense has common question of law/fact
2) Court permission IS required
Interpleader:
• 1 party owes something to 2 or more people
Statutory Interpleader:
1) Nationwide Service
2) ANY 2 claimants can be diverse
3) $500 or more at stake
4) Deposit money/property in Court/bond
Rule Interpleader:
1) NO Nationwide Service
2) Complete Diversity between claimant & ALL
opponents
3) $75K+ requirement
4) NOT required to deposit money
Impleader:
• Adding a 3rd party defendant who owes part or all of claim
Cross Claim:
1) Co-party
2) Same transaction or occurrence 3) Actual damage
AMENDMENT
Amendment as of Right:
Relation Back:
Relation Back (for PARTIES):
AMENDMENT
Amendment as of Right:
• Once within 21 days of service of pleading
After 21 Days:
• Need Court’s permission
• “When justice so requires”
Relation Back:
• “Arose out of the same conduct, transaction, or occurrence”
Relation Back (for PARTIES):
1) Same conduct, transaction, or occurrence 2) Within 90 days of filing the party had notice 3) Knew/should have known but for mistake
of ID
Complaint:
Elements of the Complaint:
Specific Complaint:
Answer:
Affirmative Defenses – Pled in Answer:
Complaint:
• Filing of Complaint commences Statute of Limitations
• Service of the Complaint within 90 days
Elements of the Complaint:
1) Statement of Jurisdiction
2) Statement of Facts (not theory) 3) Demand for Relief
Specific Complaint:
• Fraud & Special Damages
Answer:
1) Signed by lawyer
2) Whatever is not denied is admitted 3) Served within 21 days of service of
Complaint
Affirmative Defenses – Pled in Answer:
• Contributory Negligence • Statute of Frauds
• Statute of Limitations
• Illegality
• Duress
Larceny:
1) Trespassory Taking
2) Carrying Away
3) Personal Property of Another
4) With Intent to Permanently Deprive
Example: Continuing Trespass
o Wrongful taking without permission
o No intent to steal at the time of taking
o Can turn into a Larceny if you decide to keep it
Burglary:
Burglary:
1) Breaking & Entering
2) Dwelling of Another
3) At Nighttime
4) With Intent to Commit a Felony
Example:
Breaking & Entering
Not a Breaking
Not a Dwelling of Another
Example:
Breaking & Entering
o Picking the lock
o Cutting the alarm
o Shattering the glass
o Any enlarging of the door or window
o Entering by force or fraud
o Any part of your body goes across the threshold Not a Breaking
o A wide-open door or window
Not a Dwelling of Another
o Office
o Store
o Your own home
Burglary – Intent:
Burglary – Intent:
• Intent must be present at the moment of Breaking
• Felony does NOT have to be actually committed
Larceny merges into
Larceny merges into Robbery
Robbery:
Example:
Robbery
Robbery:
1) Trespassory Taking
2) Carrying Away
3) Property of Another
4) By Force, Intimidation, or Fear
Example:
Robbery
o Robbing a bank by holding up a gun and saying,
“Give me the money”
o Threatening someone with a sniper far away that
he can’t see Not a Robbery
o Holding someone up with a water pistol, and he laughs but gives you the money anyway
Assault:
Assault:
• Intent to commit a Battery
• Intent to place another in Imminent Fear • Words are NOT enough
Larceny by Trick:
Larceny by Trick:
• Obtain POSSESSION to property by False Statement
• Use as the default crime before False Pretense or Embezzlement
False Pretenses:
Larceny by Trick
False Pretenses:
• Obtain TITLE to property by False Statement
Example:
Larceny by Trick
o Jon lies to you to get your car and drives it
around for a year False Pretenses
o Jon lies to you that he has to drive 100 mph to get to the hospital. You give him title and registration to your car
o Jon tricks you into signing the deed of your house over to him
o Jon sells you a fake Rolex
Embezzlement:
Embezzlement:
1) Lawful Possession of Personal Property 2) Converted for own use
Example:
o You give your watch to a pawn shop to hold for 90
days. The shop sells it the next day
Receiving Stolen Property:
Receiving Stolen Property:
1) Physical Possession of Stolen Property 2) Knowledge it was Stolen
3) Intent to keep
Forgery:
Forgery:
1) Fraudulent making of a False Document 2) With Legal Significance
3) Intended Wrongful Use
Accomplice Liability:
Example:
Accomplice Liability:
1) Specific Intent to achieve the crime
2) Aid or Abet the completion of the crime
Example:
o Driving someone to the crime
o Acting as the look-out
o Buying the gun used in the crime
Crimes Accomplice is Guilty of:
Crimes Accomplice is Guilty of:
• Accomplice is guilty of ALL underlying crimes completed
• If the crime isn’t completed, Accomplice is only guilty of accomplice liability
Accessory Before the Fact:
Accessory Before the Fact:
• Not present at scene of crime
Accessory After the Fact:
Example:
Accessory After the Fact:
1) Felony Completed
2) Knowledge of Completed Crime 3) Aid to avoid Arrest/Conviction
Example:
o Hiding evidence
o Sneaking you out of town
GENERAL INTENT CRIMES
GENERAL INTENT CRIMES
1) No Specific Intent required 2) The Act itself is enough
Battery:
• Unlawful application of Force
Arson:
• Malicious Burning of the Dwelling of Another • Malicious = Reckless
Definition – Reckless
Definition – Reckless
Knew or should have known the harm could occur
Common Law: Burning your own home is
• Modern Trend:
Common Law: Burning your own home is not arson
• Modern Trend: Will give you a statute or it will be obvious they are testing arson
Rape:
Rape:
1) Unlawful Sexual Intercourse 2) By a Male with a Female
3) Without Consent
Kidnapping:
Kidnapping:
• Unlawful Restraint of a Person’s Freedom by Force
If a question asks about Attempted Kidnapping, it is an ___ question, not a Kidnapping question
If a question asks about Attempted Kidnapping, it is an Attempt question, not a Kidnapping question
Contracts:
Legal Remedy:
Expectation Damages:
Formula - Expectation Damages:
LEGAL REMEDIES Legal Remedy:
• Money damages
Expectation Damages:
• Put plaintiff in position if K had been performed
• “Foreseeable with reasonable certainty”
Formula - Expectation Damages:
• (K price) – (Money received/saved) + (Costs)
Reliance Damages:
• Put plaintiff in position he would have been prior to K
• Unreimbursed costs
• NO Expectation Damages
Example:
o Jon was going to teach out in California, and now he has unreimbursed costs because he relied on you telling him to come out to California on June 1 to teach a class
Reliance Damages:
• Put plaintiff in position he would have been prior to K
• Unreimbursed costs
• NO Expectation Damages
Example:
o Jon was going to teach out in California, and now he has unreimbursed costs because he relied on you telling him to come out to California on June 1 to teach a class
Reliance Damages:
Example:
Reliance Damages:
• Put plaintiff in position he would have been prior to K
• Unreimbursed costs
• NO Expectation Damages
Example:
o Jon was going to teach out in California, and now he has unreimbursed costs because he relied on you telling him to come out to California on June 1 to teach a class
Restitution:
Restitution:
• Getting back any value you already gave • Contract PARTIALLY performed
• Measured by market value of the services
Consequential Damages:
Consequential Damages:
• Foreseeable costs because of breach
Example:
o You don’t buy Jon’s house, now he has to pay
to put it back on the market
Liquidated Damages:
Liquidated Damages:
• Determined at time of contract • Enforced if reasonable
• Not a penalty
Quantum Meruit:
Quantum Meruit:
The Breaching Party can recover: • (Reasonable value of services) –
(Damages incurred)
UCC Seller Damages:
UCC Seller Damages:
If Buyer breaches, Seller can recover:
• Goods Delivered & Accepted = (K price)
• Some/None goods Delivered = (K price) –
(Market price)
• Goods Resold = (K price) – (Resale price)
• Additionally, Incidental Damages
Lost Volume Seller:
Lost Volume Seller:
• Seller can sell as many widgets as possible
Lost Profits:
• (Expected profit) + (Costs) – (Payment for resale)
UCC Buyer Damages:
UCC Buyer Damages:
If the Seller breaches, Buyer can recover:
• Purchased replacement goods = (K price) –
(Cost of new goods)
• NO replacement goods = (K price) – (Market
price at time of breach)
• (Incidental/Consequential Damages) –
(Expenses saved)
Equitable Remedies:
EQUITABLE REMEDIES
Equitable Remedies:
• Recoverable when remedy at law is inadequate
Specific Performance:
• Court will make a party perform • For UNIQUE items
Injunction:
Employment contracts
Rescission:
Injunction:
• To “prevent irreparable harm” • Employment contracts
• Trade secrets
• Proprietary information
Example:
o You work at McDonald’s, and you are going to
move to Burger King and talk about the secret sauce
Rescission:
• No meeting of the minds • Mistake
• Misrepresentation
• Duress
• Lack of capacity
Default Judgment:
Voluntary Dismissal:
Involuntary Dismissal:
Involuntary Dismissal – Usually with
Prejudice:
JUDICIAL BIAS
Challenge for Cause:
JUDGMENTS
Default Judgment:
- One party fails to plead or defend
- Court enters default judgment
Voluntary Dismissal:
- Plaintiff voluntarily dismisses
- Before Answer/Summary Judgment
- First time without prejudice
Involuntary Dismissal:
• COURT dismisses the case
Involuntary Dismissal – Usually with
Prejudice:
1) Failure to State a Claim
2) Failure to Obey Court Order
3) Failure to Prosecute
JUDGMENTS
Default Judgment:
- One party fails to plead or defend
- Court enters default judgment
Voluntary Dismissal:
- Plaintiff voluntarily dismisses
- Before Answer/Summary Judgment
- First time without prejudice
Involuntary Dismissal:
• COURT dismisses the case
Involuntary Dismissal – Usually with
Prejudice:
1) Failure to State a Claim
2) Failure to Obey Court Order
3) Failure to Prosecute
JUDICIAL BIAS
Challenge for Cause:
Grounds for Recusal:
Judge MUST recuse himself and parties CANNOT waive if:
JUDICIAL BIAS
Challenge for Cause:
- The appearance of bias
- Parties can waive
Grounds for Recusal:
Judge MUST recuse himself and parties CANNOT waive if:
1) Personal knowledge of facts
2) Acted as lawyer with one of the other lawyers
3) Expressed an opinion on merits while in government employment
4) Financial interest in subject matter/party 5) Violates Due Process Rights
Involuntary Dismissal – Without Prejudice:
1) Lack of Jurisdiction
2) Venue
3) Failure to Join Indispensable Party
Res Judicata/Claim Preclusion
Res Judicata – Merger:
Res Judicata – Bar:
Claim Splitting:
Res Judicata does not apply to:
Change of Law:
Privity:
Res Judicata/Claim Preclusion
1) Same parties or privity
2) Same transaction or occurrence
3) Judgment on the merits
Res Judicata – Merger:
- Plainti wins case
- Claim merges into judgment
- Cannot sue on same cause of action
Res Judicata – Bar:
- Plainti loses case
- Barred from suing on same cause of action
Claim Splitting:
• Plainti cannot SPLIT a claim
Res Judicata does not apply to:
1) Dismissal for lack of jurisdiction
2) Dismissal for improper venue
3) Settlement
Change of Law:
• Once there is a final judgment, you cannot
bring suit again
Privity:
- Legal or special relationship
- Res Judicata applies
Collateral Estoppel/Issue Preclusion
Collateral Estoppel does not apply:
Necessary to Judgment:
Collateral Estoppel typically has ____ people
Defendant CANNOT use Collateral Estoppel to
____________
Collateral Estoppel/Issue Preclusion
1) Same issue
2) Final judgment
3) Issue necessary to judgment
Collateral Estoppel does not apply:
1) Settlement
2) Default Judgment
Necessary to Judgment:
• Party preclusion is asserted against must have
had full & fair opportunity to litigate
Collateral Estoppel typically has THREE people
Defendant CANNOT use Collateral Estoppel to
prevent NEW plaintiff from bringing suit
HYPO
Jon sues Bob. Jon loses. Now, Jon wants to sue
Fred. Can Fred use Collateral Estoppel to prevent Jon from suing?
Defensive Use of Collateral Estoppel:
Defensive Use of Collateral Estoppel:
- Same Plaintiff , New Defendant
- New Defendant can use Collateral Estoppel as
defense
HYPO
Jon sues Bob. Jon loses. Now, Fred sues Bob. Can Bob use Collateral Estoppel to prevent Fred from suing him?
Off ensive Use of Collateral Estoppel:
- New Plaintiff, Same Defendant
- New Plaintiff cannot use Collateral Estoppel
against Same Defendant
HYPO
Jon sues Bob. Jon wins. Now, Fred wants to sue
Bob. Can Fred use Collateral Estoppel?
Applicable Preclusion Rule – Diversity Cases: •
First case in Federal Court, apply federal
preclusion rule
• First case in State Court, apply the first
jurisdiction’s preclusion rule
Full Faith & Credit:
