Bar Prep Flashcards
Rules/Topics Missed on MEE Practice
Standard for JMOL/RJMOL
Standard for granting the motion is that reasonable people could not disagree on the result. Evidence is viewed in the light most favorable to the non-moving party. (Non genuine issue of fact)
RJMOL must be based on the same grounds as the JMOL.
Moved for at Trial, after the opposing party has been heard. Or after trial (up to 28 days from trial) (RJMOL).
Standard for Summary Judgement
The party moving for summary judgement must show that: there is no genuine dispute on a material fact; and she is entitled to judgement as a matter of law.
If a party supports the motion with an affidavit, the opposing party must counter, via an affidavit or other evidence, on the matter.
In reviewing the motion, the court views evidence in the light most favorable to the nonmoving party. Reviewing affidavits, declarations, depositions, and interrogatories. Generally, the court doesn’t review pleadings unless verified pleadings (rare).
Claim Preclusion STD
For claim preclusion to apply, (1) there must have been a valid, final judgement on the merits, (2) both parties must be the same (or privity with a party from the suit) (mean same configuration, not just same parties), and (3) the action must involved the same cause of action (same claim or same right to relief asserted) (must arise out of the same transaction or occurrence).
Issue Preclusion STD
For issue preclusion to apply, (1) the issues in both actions must be the same, (2) there must have been a final judgement as to that issue, (3) the party against whom collateral estoppel is asserted must have had a fair opportunity to be heard on the matter (full chance to litigate the issue), and (4) the posture of the case must be such that it would not be unfair or inequitable to apply collateral estoppel.
The issue must have been essential to the judgement of case 1, meaning the finding of the issue was the basis for the judgement.
PJ for a Corporation
Specific Juris: : Does the defendant have
such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice? (Contact, relatedness, and fairness)
General Juris: (1) The state in which it is incorporated; and (2) the state in which it has its principal place of business (“PPB”).
Citizen of a Corporation for SMJ
A corporation is a citizen of any state or country in which it is incorporated and of the one state or country in which it has its principal place of business (“PPB”). Although a corporation can be incorporated in more than one place, it is incredibly rare in real life and on the exam.
Limitations on removal
There are two limitations, though, to removing a case based solely on diversity of citizenship:
* The case should not be removed if any defendant is a citizen of the forum state (the “in-state defendant rule”); and
* The case should not be removed more than one year after the case was filed in state court.
Erie Doctrine
Approach an Erie question in this order:
Step 1. Ask: Is there some federal law on point that directly conflicts with state law? If so, apply the federal law, as long as it is valid. This is based on the Supremacy Clause. The FRCP are presumptively
valid and are OK if they are “arguably procedural.”
- Including Forum Selection Clauses
Step 2. If there is no federal law on point, the federal judge must apply state law if the issue to be decided is “substantive.” Issues that are always substantive: Conflict of law rules; elements of claim/defense; statute of lim, tolling statute of lim; standard for new trial based on excessive/inadequate damages.
Step 3. If there is no federal law on point and the issue is not one of the five just listed above, the federal judge must determine whether the issue is “substantive.” The law is very unclear,
consisting of some factors that no one knows how to weigh: Outcome Determinative? Balance of interests? Avoid Forum Shopping
Venue from Removal
The defendant removes to the federal district court “embracing” the state court where the case was filed. It does not matter if this venue would have been proper under the venue statutes.
Forum Selection Clauses
A forum selection clause (“FSC”) is a provision in which the parties agree that a dispute between them will be litigated in a particular place. If one party sues the other in violation of an FSC, the defendant may seek to enforce the FSC through a motion to transfer. Key points to remember are:
* In federal court, federal law governs transfer. So a federal court may enforce an FSC clause even though a state court in that forum state would not (if in state, state rules apply);
* When there is a valid FSC, only public interest factors are considered for transfer; and
* When transfer is to enforce an FSC, the transferee court will apply its own choice of law rules. The transfer does not carry the transferor court’s choice of law rules with it.
Transfer for Convenience (Proper Venue)
If the original district is a proper venue, that court can order transfer based on convenience of parties and witnesses and in the interests of justice. Because transfer overrides the plaintiff’s choice of forum and the plaintiff chose a proper venue, the burden is on the person seeking transfer (usually the defendant).
The court will consider both public and private factors showing that another court is the center of gravity for the case.
* Public: The court will consider things like what law applies, what community should be burdened with jury service, the desire to keep a local controversy in a local court.
* Private: The court considers convenience. For example, it will look to where the defendants and evidence are found.
Effect on Choice of Law When a diversity case is filed in a proper venue but the court orders transfer under statute #1, the transferee court must apply the choice of law rules of the transferor court (unless transfer is to give effect to a valid forum selection clause, as we will see below).
Transfer for Improper Venue
If the original district is an improper venue, the court may transfer in the interest of justice or dismiss. Usually, the court will transfer if possible. When the federal court transfers a diversity case because the original venue is improper, the transferee applies its own choice of law rules, that is, the choice of law rules of the state in which it sits, and not the choice of law rules of the transferor court. The plaintiff doesn’t benefit by filing in an improper forum.
Can you recover attorney’s fees/costs for a motion to compel discovery?
Yes, as long as the winning party made a good faith effort to meet & confer with the opposing party.
What is a necessary or indispensable party?
The case has been filed. Now the court might force some nonparty (“absentee”) to join in the case, usually on motion by the defendant.
There are three questions to ask:
* Is the absentee necessary (or “required”)?;
* If the absentee is necessary, can the absentee be joined?; and
* If the absentee can’t be joined, can the case proceed anyway?
What does “necessary” (or “required”) mean? It means that:
* Without the absentee, the court cannot accord complete relief among the existing parties (worried about multiple suits); or
* The absentee’s interest may be harmed if she is not joined; or
* The absentee claims an interest that subjects a party (usually the defendant) to a risk of multiple obligations.
The second is the most likely one that you’ll encounter on the exam. And note that joint tortfeasors are never necessary
What if you cannot join a necessary party?
What happens if the absentee cannot be joined (for example, there is no PJ over the absentee)? The court then must determine whether to proceed without the absentee or dismiss the entire case. How does the court make that decision? It looks at these factors:
* Is there an alternative forum available? (maybe some state court);
* What is the actual likelihood of harm to the absentee?; and
* Can the court shape relief to avoid that harm to the absentee?
So “necessary” is an odd label; don’t let that trip you up. You don’t necessarily need a necessary party’s presence to continue with the case. It’s just necessary to join him if feasible. But if the court decides to dismiss rather than proceed without the absentee, the absentee is called “indispensable.”
Interpleader STD
Rule 22 interpleader requires (1) complete diversity between the stakeholder and all adverse claimants and in excess of $75,000 in issue, or (2) a federal question claim. Normal service and venue rules apply.
Statutory interpleader requires only diversity between any two contending claimants and $500 be in issue. Service may be nationwide and venue is proper where any claimant resides.
Right to Jury Trial
The Seventh Amendment preserves the right to jury in “civil actions at law,” but not in suits at equity. The Seventh Amendment doesn’t apply in state court, only federal civil cases.
a. Mixed Suits of Law and Equity
What if a case includes both law and equity? Suppose a case includes a claim for damages (legal relief) and for an injunction (equitable relief). Facts underlying a damages claim will be tried to the jury. Facts relating wholly to an equity claim are tried to the judge. Generally, the jury issues will be tried first.
b. Same Fact Underlies Both Law and Equity Claim
But what if a fact (for example, whether the defendant trespassed on the plaintiff’s property) underlies both a claim for damages and a claim for an injunction? The jury will decide that fact.
c. Jury Demand
A party must demand the jury in writing no later than 14 days after service of the last pleading addressing a jury triable issue. If a party fails to do so, she waives the right to a jury. The last pleading addressing a jury issue is usually the answer.
Material Benefit Rule (Minority Rule)
Some courts will enforce a promise, even if no consideration, if: it is based on a material benefit that was previously conferred by the promisee on the promisor, and the promisee did not intend to confer the benefit as a gift. Second restatement, which follows this rule, also includes the limitation that the promise is unenforceable to the extent it is disproportionate to the benefit conferred.
Promissory Estoppel
If necessary to avoid injustice, a court will enforce a promise without consideration if:
- the promisor should have expected the promisee to change his position in reliance on the promise;
- the promisee did change his position; and
- the change in position was to the promisee’s detriment.
Restitution
When a contract is unenforceable or no contract between the parties exists, an action to recover restitutionary damages often is referred to as an action for an implied in law contract, an action in quasi-contract, or an action for quantum meruit.
Damages = Generally, the measure of restitution is the value of the benefit conferred
When a contract has been breached and the nonbreaching party hasn’t fully performed, they may choose to cancel the contract and sue for restitution to prevent unjust enrichment.
When No Contract Involved—Quasi-Contract Remedy
Restitution may also be available in a quasi-contract action when there is no contractual relationship between the parties if:
- The plaintiff has conferred a benefit on the defendant by rendering services or expending properties;
- The plaintiff conferred the benefit with the reasonable expectation of being compensated for its value;
- The defendant knew or had reason to know of the plaintiff’s expectation; AND
- The defendant would be unjustly enriched if they were allowed to retain the benefit without compensating the plaintiff.
Modification of a Contract
Under general contract law, a contract can’t be modified unless the modification is supported by new consideration.
The modern view, however, permits modification without consideration if: (1) the modification is due to circumstances that were unanticipated by the parties when the contract was made and (2) it is fair and equitable.
Under the UCC, consideration isn’t necessary to modify; all the parties need are
good faith promises of new and different terms.
Specific Intent Crimes
Students can always face a laugh, even for ridiculous bar facts.
Solicitation - Intent to have person solicited commit the crime
Conspiracy - Intent to have the crime committed
Attempt - Intent to complete the crime
Premeditated Murder - Premeditated Intent to kill
Assault - Intent to commit a battery
Larceny - Intent to permanently deprive from another
Embezzlement - Intent to defraud
False Pretenses - Intent to defraud
Robbery - Intent to permanently deprive from another
Burglary - Intent to commit a felony in the dwelling
Forgery - Intent to defraud
Additional Defenses only Available for Specific Intent Crimes
Voluntary Intoxication
Unreasonable Mistake of Fact
Defenses to Intent
