CEMENT 2 Flashcards
2
WHERE GENERAL JX IS FOUND, DEFENDANT MAY BE SUED FOR
ANY CLAIM ARISING IN OR OUTSIDE THE FORUM
(THIS IS FOR PERSONAL JURSIDICTION, WATCH OUT FOR VENUE ISSUES)
2
QUIET TITLE ACTIONS MAY BE
QUASI-IN-REM WHERE AGAINST ONE OR MORE SPECIFIC INDIVIDUALS
(THE PARTIES’ RIGHT TO THE PROPERTY)
IN REM WHERE AGAINST CLAIMANTS KNOWN AND UNKNOWN
(RIGHTS TO THE PROPERTY)
2
QUASI IN REM JURSIDICTION WILL ALLOW JUDGMENT AGAINST DEFENDANT TO BE SATISFIED
ONLY OUT OF THE ADJUDICATED PROPERTY.
1
MULTIPLE P’S CAN AGGREGATE CLAIMS AGINST ONE D IN THE RARE EVENT
- THEY ARE SEEKING TO ENFORCE A RIGHT IN WHICH THEY HAVE A COMMON, UNDIVIDED INTEREST.
2
PRIVILEGE FOR DIVERSITY
In a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
1
DISMISSAL BASED ON FORUM NON CONVENIENS IS NOT FREQUENTLY GRANTED WHERE
- PLAINTIFF IS A RESIDENT IN THE PRESENT FORUM
1
AFTER A 12B MOTION, AN ANSWER MUST BE FILED IN
14 DAYS
1
LACK OF INFORMATION AND BELIEF RESPONSE ON A FEDERAL ANSWER HAS THE EFFECT OF
- A DENIAL
6
THESE DEFENSES, IF NOT RAISED IN THE ANSWER, WILL BE DEEMED WAIVED
- CONTRIBUTORY NEGLIGENCE
- CLAIM PRECLUSION
- STATUTE OF FRAUDS
- FRAUD
- STATUTE OF LIMITATIONS
- SELF-DEFENSE
3
LEAVE TO AMEND WILL BE GRANTED FREELY WHEN JUSTIC REQUIRES. COURT EVALUATES JUSTICE BY
- DELAY THAT WILL BE CAUSED
- POTENTIAL PREJUDICE TO PARTIES
- FUTILITY OF AMENDMENT
3
REQUIREMENTS TO AMEND A FEDERAL COMPLAINT TO ADD A DEFENDANT
- WITHIN 90 DAYS OF COMPLAINT
- DEFENDANT KNEW OR SHOULD HAVE KNOWNT THAT HE SHOULD HAVE BEEN NAMED IN ORIGINAL COMPLAINT
- SAME TRANSACTION OR OCCURRENCE
2
FEDERAL CROSS CLAIMS
- MUST ARISE FROM SAME TRANSACTION OR OCCURRENCE
- ARE NEVER COMPULSORY
3
RULE 11 SAFE HARBOR - PARTY WHO FILES OFFENDING DOCUMENT MUST RECEIVE
- MOTION SEEKING SANCTIONS OFFENDING DOCUMENT (SERVED, NOT FILED)
- 21 DAYS TO AMEND
- IF NO CHANGE, MOTION FILED WITH COURT
2
FRCP RULE 19 EVALUATES
A. WHETHER JOINDER OF MISSING PARTIES IS NECESSARY
B. WHETHER THE MISSING PARTIES ARE INDISPENSIBLE, AND THE CASE SHOULD BE DISMISSED AS A RESULT.
2
PERMISSIVE INTERVENTION AND THE GOVERNMENT OFFICER- INTERVENTION MAY BE PERMITTED WHERE PARTY IS
- A GOVERNMENT OFFICER OR AGENT
- EXISTING CLAIM OR DEFENSE RELATIONS TO OFFICER/AGENCY/STATUTE/REGULATION
2
IN DIVERSITY CASES, INTERVENORS MUST ESTABLISH
INDEPENDENT SMJ
SUPPLEMENTAL JX DOES NO COVER DIVERSITY INTERVENTION
2
A NONDIVERSE DEFENDANT INTERVENOR WILL NOT DESTROY DIVERSITY WHERE
- IT ISN’T INDISPENSIBLE
- DEFENDANTS CAN CLAIM THEY ARE INDISPENSIBLE
3
IMPLEADER - D’S CLAIM AGAINST TPD MUST BE
- DERIVATIVE
- MUST CLAIM THE MONEY IS OWED TO HIM FOR CONTRIBUTION/IDEMNIFICATION
- NOT TO PLAINTIFF DIRECTLY
3
CLASS ACTION FAIRNESS ACT IS A
- SEPARATE MEANS OF OBTAINING SMJ
- WHERE CLASS MEMBERS EXCEED 100
- DAMAGES EXCEED FIVE MILLION DOLLARS
2
CAFA WON’T WORK FOR
- SHAREHOLDER CLAIMS AGAINST CORPORATE MANAGEMENT
- STATE SECURITIES LAW CLAIMS
1
FOR REGULAR CLASS ACTION, SMJ WILL BE FOUND WHERE THESE PEOPLE ARE DIVERSE FROM DEFENDANTS
- CLASS REPRESENTATIVES
2
DEPOSITION OBJECTIONS - WHERE DEPONENT’S COUNSEL OBJECTS, DEPONENT MUST STILL
- RESPOND
- UNLESS THE OBJECTION IS BASED ON PRIVILEGE
2
LIKE WITH A MOTION TO COMPEL, THE PARTY MOVING FOR A PROTECTIVE ORDER HAS TO SHOW THAT
- THERE WAS A MEET AND CONFER ABOUT PROTECTED MATTER
- OR AN ATTEMPT TO MEET AND CONFER
1
PARTIAL VIOLATIONS ARE
- LESS SERIOUS DISCOVERY VIOLATIONS
1
PENDING COUNTERCLAIM AND P’S VOLUNTARY DISMISSAL - P CAN’T DISMISS CASE WITHOUT
- D’S CONSENT
3
DEFAULT JUDGMENT IN FEDERAL COURT MAY OCCUR BY
- JUDGE ENTERING DEFAULT
- CLERK ENTERING WHEN NO RESPONSE AND D IS NOT A MINOR
- PLAINTIFF FILES MOTION FOR DEFAULT
2
SPECIAL VERDICT FORMS - ORDER OF DECISION
- JURY MAKES FINDINGS OF FACT ON VERDICT FORM
- JUDGE APPLIES FACTUAL FINDINGS TO LAW
1
FEDERAL COURT - SERVICE BY MAIL ALLOWS
- THREE EXTRA DAYS TO RESPOND
2
WHERE ORIGINAL VENUE OF FILING IS IMPROPER, COURT MAY ONLY TRANSFER CASE IN
- THE INTERESTS OF JUSTICE
- OTHERWISE, DISMISS THE CASE
2
RESIDENCY FOR VENUE - AN UNINCORPORATED ASSOCIATION WILL TRIGGER PROPER VENUE IN THE PLACE
- ORGANIZATION IS LOCATED
- NOT ITS INDIVIDUAL MEMBERS
2
RULE 12 MOTIONS FOR FAILULRE STATE A CLAIM ON WHICH RELIEF MAY BE GRANTED
- BEFORE ANSWER = RULE 12B6 MOTION TO DISMISS
- AFTER ANSWER RULE 12C MOTION FOR JUDGMENT ON THE PLEADINGS
1
RULE 68 OFFER TO COMPROMISE - PARTIES MAKE FORMAL OFFER UP UNTIL 14 DAYS BEFORE TRIAL. IF OFFEREE REJECTS AND AND GETS A LESS FAVORABLE RESULT AT TRIAL
OFFEREE MUST PAY OFFEROR’S COSTS INCURRED AFTER TIME OFFER WAS MADE
3
FEDERAL CLAIM PRECLUSION REQUIRES
- SAME PARTIES
- SAME CLAIM
- FINAL JUDGMENT ON THE MERITS
1
FINAL JUDGMENT ON THE MERITS EXISTS EVEN WHERE
- CASE IS BEING APPEALED
1
A PARTY SUBJECT TO TRO MUST HAVE ACTUAL NOTICE OF THE TRO BEFORE
- THEY CAN BE HELD IN CONTEMPT FOR VIOLATING IT.
1
ISSUES NOT INCLUDED IN THE PRETRIAL ORDER ARE GENERALLY
EXCLUDED AT TRIAL
3
MAKE SURE PROBATIVE VALUE STANDARD INDICATES
- PROBATIVE VALUE IS
- SUBSTANTIALLY OUTWEIGHED
- BY DANGER OF UNFAIR PREJUDICE
1
FRE - WHERE DEFENDANT IS ACCUSED OF HOMICIDE, AND HE OFFERS ANY KIND OF EVIDENCE THAT VICTIM WAS AGGRESSOR, PROSECUTION MAY INTRODUCT EVIDENCE OF
- VICTIM’S CHARACTER FOR PEACEFULNESS
2
FRE VS. CEC, WHERE DEFENDANT OFFERS EVIDENCE ABOUT VICTIM’S BAD CHARACTER,
- FRE - PROSECUTION CAN REBUT THAT DEFENDANT HAS THE SAME BAD TRAIT
- CEC - PROSECUTION CAN REBUT DEFENDANT HAS SAME BAD TRAIT ONLY IF THE TRAIT WAS VIOLENCE
2
FRE - AFTER DEFENDANT HAS OPENED DOOR TO CHARACTER, IT IS LIMITED TO THESE TYPES OF EVIDENCE ON DIRECT EXAM
- REPUTATION
- OPINION
2
FRE - CIRCUMSTANTIAL GUARANTEES OF TRUSTWORTHINESS FOR ANCIENT DOCUMENT MAY BE
- FOUND IN A PLACE OF NATURAL CUSTODY
- DOES NOT PRESENT IRREGULARITIES ON ITS FACE
2
PRIOR CONVICTION INVOLVING ACT OF DISHONESTY
- IS ALWAYS ADMISSIBLE
- NO BALANCING TEST UNDER 403
2
FOUNDATIONAL REQUIREMENT FOR IMPEACHING THROUGH BIAS OR INTEREST
- WITNESS MUST BE QUESTION ON X-EXAM REGARDING FACTS THAT SHOW BIAS OR INTEREST SO
- WITNESS HAS OPPORTUNITY TO EXPLAIN OR DENY
2
ONLY DEFENDANT CAN OPEN THE DOOR TO INTRODUCE EVIDENCE OF
VICTIM’S CHARACTER TO PROVE CONDUCT
2
FRE RAPE SHIELD - CIVIL CASES - REPUTATION, OPINION, AND SPECIFIC INSTANCES OF VICTIM’S CONDUCT ARE ADMISSIBLE ONLY WHERE
- PLAINTIFF PUT HER REPUTATION AT ISSUE IN SOME WAY
- PROBATIVE VALUE OUTWEIGHS UNFAIR PREJUDICE
2
CRIMINAL CASE - RAPE SHIELD - ONLY THIS TYPE OF EVIDENCE MAY BE USED
SP
4
CO-CONSPIRATOR’S STATEMENTS ARE AVAILABLE FOR USE AS AN ADMISSION WHERE
- MADE DURING THE CONSPIRACY
- D WAS A CO-CONSPIRATOR
- MADE IN FURTHERANCE OF THE CONSPIRACY
- A CONSPIRACY ACTUALLY EXISTED
2
FORMER TESTIMONY EXCEPTION - FRE - REQUIRES THAT FORMER TESTIMONY FOR CRIMINAL CASE
- DEFENDANT HAD AN OPPORTUNITY TO X-EXAMINE
- SIMILAR TO PRESENT MOTIVE
1
PAYMENT WITHOUT AN OPPORTUNITY TO INSPECT IS NOT
- ACCEPTANCE
2
WHERE THE CONTRACT TERMS DIVIDE PAYMENT BETWEEN GOODS AND SERVICES
- APPLY UCC TO SALE OF GOODS
- APPLY COMMON LAW TO SERVICE PORTION
2
AN OFFER REQUIRING ACCEPTANCES BY PROMISE MAY STILL BE ACCEPTED BY PERFORMANCE IF
- OFFEREE BEGINS TO PERFORM
- OFFEROR LEARNS THAT OFFEREE HAS STARTED PERFORMANCES AND ACQUIESCES
1
WHERE A MINOR IS SUED FOR A CONTRACT FOR LIFE NECESSITIES, DEFENDANT SHOULD USE
- QUASI-CONTRACT
2
IMPLIED AFFIRMATION AND MINORS WILL OCCUR WHERE
- MINORS FAIL TO DISAFFIRM THE CONTRACT WITHIN A REASONABLE TIME AFTER REACHING THE AGE OF MAJORITY
- RETAINED BENEFITS OF THE CONTRACT
1
LIFETIME CONTRACTS OR DEALS WON’T FALL UNDER THE STATUTE OF FRAUDS BECAUSE THERE IS A CHANCE
- THE PERSON WILL DIE WITHIN THE YEAR.
1
STATUTE OF FRAUDS IS SATISIFED WHERE BOTH PARTIES ARE MERCHANTS AND PARTY ASSERTING DEFENSE
- RECEIVED A SIGNED WRITING MEMORIALIZING THE AGREEMENT AND FAILED TO RESPOND WITHIN 10 DAYS OF RECEIPT.
1
WHERE A CONTRACT WAS MADE CONCERNING A LEGAL SUBJECT MATTER BUT IT WAS MADE FOR AN ILLEGAL PURPOSE - THE CONTRACT IS ONLY ENFORCEABLE BY
- THE PARTY WHO DIDN’T KNOW ABOUT THE ILLEGAL PURPOSE
2
PAROL EVIDENCE MAY BE ALLOWED WHERE
- AGREEMENT ONLY PARTIALLY INTEGRATED
- ADDITIONAL TERMS WOULD ORDINARILY BE IN A SEPARATE AGREEMENT
2
RISK OF LOSS WILL PAST TO BUYER AT DELIVERY OF GOODS TO COMMON CARRIER UNLESS IT IS A
- DESTINATION CONTRACT
- ANYTHING NOT FOB [SELLER’S LOCATION]
1
CONDITIONS ARE
AGREED-UPON LIMITATIONS ON PERFORMANCE
2
FAILURE OF A CONTRACT PROMISE LEADS TO
BREACH
A promise or duty is absolute or unconditional when it does not depend on any external events.
1
SUBSTANTIAL PERFORMANCE IS USUALLY CONSIDERED AT LEAST
- HALFWAY PERFORMED
3
WHERE ONE PARTY HAS SUBSTANTIALLY PERFORMED, THE OTHER PARTY IS
- OBLIGATED TO PERFORM
- COMPLETE PERFORMANCE
- BUT CAN SEEK DAMAGES FOR THE DIFFERENCE BETWEEN THE PERFORMANCE RENDERED AND THE PERFORMANCE EXPECTED.
1
WHERE SELLER BREACHES BY DELIVERING NON-CONFORMING BUT SUPERIOR GOODS, IT WILL NOT REDUCE
- BUYER’S DAMAGES
2
WHERE BUYER RETURNS NON-CONFORMING GOODS AND DOESN’T PROCURE COVER, HE CAN STILL RECOVER DIFFERENCE BETWEEN
- FMV OF GOODS AT THE TIME OF BREACH
- MINUS CONTRACT PRICE
2
RELIANCE DAMAGES ARE AWARDED WHERE EXPECTATION DAMAGES ARE TOO
- SPECULATIVE
- UNCERTAIN
2
GRATUITOUS ASSIGNMENTS MAY BE REVOKED BY
DEATH OR BANKRUPTCY OF ASSIGNOR
NOTICE OF REVOCATION BY ASSIGNOR
TAKING OF PERFORMANCE BY ASSIGNOR
LATER ASSIGNMENT TO ANOHTER
1
TPB CAN ONLY SUE PROMISSEE IF THE TPB IS A
- CREDITOR BENEFICIARY
2
ACCORD AND SATISFACTION - WHERE THE ACCORD IS NOT SATISFIED, THE PROMISEE MAY SUE ON
- THE ORIGINAL OBLIGATION
- OR THE ACCORD
2
ENTERPRISE LIABILITY.
Enterprise liability is a legal doctrine under which individual entities can be held jointly liable for some action on the basis of being part of a shared enterprise
2
EQUITABLE LIEN
Equitable Lien: An equitable lien is a equitable remedy used where plaintiff’s unjustly taken funds have been commingled with defendant’s property. By granting plaintiff a security interest, plaintiff may secure repayment, but equitable lien will be cut off by transfer of the property to a bona fide purchaser for value who takes without notice of the lien.
2
FEDERAL CIVIL CASE - PRESUMPTIONS AND AFFECT ON BURDEN OF PERSUASION.
PROPONENT PRODUCES EVIDENCE SUFFICIENT TO SUPPORT PRESUMPTION FACT IS TRUE +
BUT OPPONENT PRODUCES EVIDENCE SUFFICIENT TO SUPPORT PRESUMPTION IS NOT TRUE =
JURY WEIGHS ALL OF THE EVIDENCE, WITH NO PRESUMPTION
2
FRE AND BURDEN OF PRODUCTION
PROPONENT PRODUCES EVIDENCE SUFFICIENT TO SUPPORT PRESUMPTION FACT IS TRUE +
OPPONENT PRODUCES NO EVIDENCE TO REBUT PRESUMPTION=
PROPONENT IS ENTITLED TO JURY INSTRUCTION TO CONCLUDE EXISTENCE OF FACT (MUST/MAY FOR CIVIL/CRIMINAL)
2
IF WITNESS BELIEVES SOMETHING BUT HE IS NOT ABSOLUTELY
- The victim’s uncertainty goes to the weight that should be
- given to his testimony, not to its admissibility.
1
GENERAL WELFARE CLAUSE ANSWER WILL INVOLVE
- TAXING AND/OR SPENDING
1
CAUSATION FOR INTENTIONAL TORTS
- SUBSTANTIAL FACTOR
2
FOR FALSE IMPRISONMENT, DURATION
- IS NOT IMPORTANT
- BRIEF CONFINEMENT WILL SUFFICE.
1
FOR INTENTIONAL TORTS, A DRUNK PERSON DOES NOT HAVE THE CAPACITY TO
- CONSENT
2
PRIVILEGE TO ENTER PROPERTY TO RECAPTURE WRONGFULLY TAKEN PROPERTY - INNOCENT THIRD PARTY’S PROPERTY
- GIVE NOTICE TO THIRD PARTY
- IF THIRD PARTY SAYS, “NOPE”, ENTER PROPERTY AT REASONABLE TIME AND IN PEACEFUL MANNER
2
MALICIOUS PROSECUTION VS. ABUSE OF PROCESS
- ABUSE OF PROCESS = DEFENDANT COMMENCED A LEGAL ACTION AGAINST PLAINTIFF FOR AN IMPROPER PURPOSE FOR WHICH THE LEGAL SYSTEM IS NOT DESIGNED
- MALICIOUS PROSECUTION = DEFENDANT BROUGHT CRIMINAL OR CIVIL CASE AGAINST PLAINTIFF WITHOUT PROBABLE CAUSE. PROCEEDING TERMINATED IN PLAINTIFFS FAVOR. MUST BE TERMINATED.
1
PRIVILEGE DEFENSE TO INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONS
- D’S CONDUCT WAS A PROPER ATTEMPT TO OBTAIN BUSINESS OR PROTECT HIS INTERESTS
2
IF D’S CHATTEL IS ON ANOTHER’S PROPERTY DUE TO D’S OWN FAULT, HE DOES NOT HAVE
THE PRIVILEGE TO ENTER AND RECAPTURE HIS CHATTEL
2
USE OF FORCE TO RECAPTURE CHATTEL
- REASONABLE FORCE ONLY
- NEVER DEADLY FORCE OR SERIOUS HARM
1
CUSTOM OR USAGE IN THE INDUSTRY CAN BE USED TO ESTABLISH A STANDARD OF CARE, BUT FIALURE TO ADHERE DOES NOT AUTOMATICALLY MEAN
- BREACH OF DUTY
1
WHERE OWNER HAS REASON TO BELIEF TRESPASSERS ON HER LAND, SHE HAS A DUTY TO WARN OF ALL
- KNOWN OR CONCEALED ARTIFICIAL CONDITIONS.
2
SUBSTANTIAL FACTOR VS. BURDEN SHIFTING
- SF = MULTIPLE CAUSES
- BURDEN SHIFTING/II = SEVERAL POSSIBLE CAUSES BUT ONLY ONE CAUSED PLAINTIFF’S INJURY
1
CONTRIBUTORY NEGLIGENCE IS AVAILABLE AS A DEFENSE IF MISREPRESENTATION WAS
- NEGLIGENT
2
PRIVATE NUISANCE CLAIMS REQUIRES
- SUBSTANTIAL = OFFENSIVE TO THE AVERAGE PERSON
- UNREASONABLE = PLAINTIFF’S INJURY OUTWEIGHS THE UTILITY OF DEFENDANT’S CONDUCT
4
APELLATE COURTS WILL NOT DISTURB VALID PLEA BARGAINS UNLESS
- PLEA WAS INVOLUNTARY
- COURT THAT TOOK PLEA LACKED JURISDICTION
- D HAD INEFFECTIVE ASSISTANCE OF COUNSEL
- PROSECUTOR FAILED TO HONOR PLEA BARGAIN
2
PLEA BARGAINS MAY BE ENFORCED AGAINST BOTH PARTIES, BUT THE JUDGE
IS NOT REQUIRED TO ACCEPT OR ADHERE TO THE AGREEMENT
3
A FAILURE TO ACT CAN CONSTITUTE AN ACTUS REUS WHERE
- D HAD A LEGAL DUTY TO ACT
- D HAD KNOWLEDGE OF THE FACTS GIVING RISE TO THE DUTY
- IT WAS REASONABLY POSSIBLE FOR D TO PERFORM THE DUTY
4
MPC CULPABILITY STANDARDS
- PURPOSELY - DONE TO CAUSE A CERTAIN RESULT
- KNOWINGLY - KNOWLEDGE THAT CONDUCT WILL NECESSARILY OR VERY LIKELY CAUSE A CERTAIN RESULT
- RECKLESSLY - KNOWS OF SUBSTANTIAL AND UNJUSTIFIABLE RISK AND CONSCIOUSLY DISREGARDS IT
- NEGLIGENCE - FAILS TO RECOGNIZE SUBSTANTIAL RISK
1
FOR TRANSFERRED INTENT
- DEFENSES AND MITIGATING FACTORS TRANSFER TOO
2
DEFENSE OF DWELLING - DEADLY FORCE MAY BE USED WHERE
- INTRUDER INTENDS TO HARM SOMEONE WITHIN THE DWELLING
- INTRUDER INTENDS TO COMMIT A FELONY WITHIN THE DWELLING
1
CRIMINAL DEFENSE OF NECESSITY IS NOT AVAILABLE WHERE
D CAUSED THE EVENTS GIVING RISE TO THE NECESSITY
2
BREAK IN INTERROGATION REQUIREMENTS UNDER MIRANDA
- RIGHT TO COUNSEL ASSERTION = 14 DAY BREAK IN CUSTODY
- RIGHT TO REMAIN SILENT = SIGNIFICANT LAPSE OF TIME, NEW SET OF WARNINGS
1
FOR SIXTH AMENDMENT INVOCATION RIGHT TO COUNSEL
- RIGHT REMAINS REGARDLESS OF WHETHER DEFENDANT IS IN CUSTODY OR NOT
1
IF AN OUT OF COURT IDENTIFICATION IS EXCLUDED FOR SUGGESTIVENESS OR UNRELIABILITY
- A SUBSEQUENT IN COURT IDENTIFICAITON WILL NOT BE ALLOWED IF IT IS TAINTED BY THE UNNECESSARILY SUGGESTIVE LINEUP
- BUT NOT IF HE HAS AN INDEPENDENT BASIS, WHOLLY UNRELATED TO THE PRE-TRIAL PROCEDURE, FOR POINTING TO THE DEFENDANT.
