Bar Review Flashcards
Termination of Agency
A) Manifestation to terminate (Apparent not until communicated to 3rd party)
B) Term of authorization expires
C) Death of either party
D) Incapacity of either party
Actual Authority
A) Express - explicitly told the agent
B) Implied - i) agent believes action is necessary to carry out duties ii) Agent acted similarly previously iii) customary for agent to act
Act within reasonable understanding of the authority
Apparent Authority
1) 3rd party reasonably believes person has authority to act on behalf of principal
2) Belief traceable to principal’s manifestations (holding out - A) position/title B) previous holding out/no published revocation C) cloaked in appearance)
Ratification of Agent’s Act
1) Agent had no authority
2) principal had knowledge of all material facts
3) principal manifests assent
Agent still liable for ratified for undisclosed principal
Independent Contractor Factors
1) Extent of control
2) Agent engaged in distinct occupation/business
3) type of work
4) Type of Payment (hourly v. per project)
5) who supplied tools/equipment
6) degree of supervision
7) degree of skill required
8) job part of principal’s regular business
9) length of service
10) intention of the parties
11) hired for a business purpose
Respondeat Superior Factors
A) conduct is kind employee is employed to perform
B) occurs substantially within the authorized time/space
C) Serves the employer
Disregard of employer’s directions insufficient
Respondeat Superior Intentional Torts
Not within scope of employment unless
A) specifically authorized
B) Driven by a desire to serve the employer
C) naturally occurring friction
Vicarious Liability
A) principal intended the conduct B) Principal was negligent/reckless in control of agent C) Non-delegable duty D1) apparent authority D2) actions constitute tort D3) 3rd party relied on authority
Vicarious Liability for Independent Contractors
Generally not liable A) inherently hazardous activity B) Non-delegable duty C1) principal holds the IC to be his agent C2) 3rd party reasonably relies C3) harmed suffered
Fiduciary Duties
1) Duty of Care - act reasonably
2) Duty of Loyalty - act for the principal’s benefit
3) Duty of Obedience - obey reasonable directions
Supplemental Jursidiction
Common Nucleus of operative fact
Exceptions-
A) Cannot violate complete diversity
B) Cannot be used by original plaintiff against 3rd party defendant
Court may decline - A) raises novel/complex state law issue B) state claim predominates federal claim C) federal court has dismissed federal claims D) exceptional circumstances
Must decline primarily domestic relations issues
Diversity in Class Action
1) Exceeds $5M [aggregate individual class claims]
2) 100+ class members
3) minimal diversity (any diversity) - may decline when non-diverse parties constitute 1/3 to 2/3s; must decline if non-diverse constitutes greater than 2/3s
Must decline - State government primary defendants; securities or corporate fiduciary claims
Removal
Sitting in the State where Claim was filed
1) Subject matter jurisdiction
2) Defendants agree
3) no Defendant resident of forum state
4) sought within 30 days (not 1 year after commencement)
Removal Procedure
1) File Notice of Removal in federal court [state basis for jurisdiction; include filed summons/complaint]
2) Serve Notice on all parties
3) File copy of removal with state
Removal is automatic
Personal Jurisdiction
Same extent as the State which the federal court is located
1) Traditional bases
2) State’s Long- Arm Statute
Obtaining Personal Jurisdiction
A) Domicile
B) Presence in State during Service of Process
C) Consent
D) Wavier (appearance without objection)
Personal Jurisdiction Constitutional Requirements
1) Minimum Contacts (General & Specific)
2) Not offending notions of fairness and justice
Personal Jurisdiction - General Jurisdiction
Defendant is at home in the jurisdiction (Domiciled)
Jurisdiction does not arise from where the claim took place
Personal Jurisdiction - Specific Jurisdiction
Jurisdiction arises out of defendant’s contacts with state which are related to the underlying claim
Personal Jurisdiction Fair Play and Justice
Burden on defendant to show unreasonable; Factors-
A) Burden on defendant to litigate in state
B) states interest in providing a forum
C) plaintiff’s interest
D) Interest of the judicial system in efficiency
Service of Process
1) within 90 days of filing compliant
Extension permitted on good faith showing
2) Server is at least 18 years old
3) Server is not a party
Service of Process on an Individual
A) To the person
B) Someone of suitable age/discretion living at the current dwelling
C) to an authorized agent
D) Accordance to state law (forum state or place of service)
Venue
Proper where (at the time the suit is filed)
A) any defendant resides
B) Substantial portion of claim occurred
C) Substantial portion of property located
D) Not A-C then where there is personal jurisdiction
Transfer of Venue
When Original Venue was Proper -
1) convenience of parties
2) could have initially been brought in new venue
[Transferee court applies law of transferor court]
When Original Venue was not proper-
A) must dismiss
B) transfer if interests of justice requires