Essay Rule Statements

Question 1

Removal Opener

Answer 1

Any civil action commenced in a state court that is within the original jurisdiction of a federal district court may generally be removed by the defendant to the district court for the district in which the state court action was commenced.

Question 2

Removal to a Court that sits in Diversity

Answer 2

For an action that is not based on federal law to be removed, a federal district court must have diversity jurisdiction over the action. A federal district court has diversity jurisdiction when (i) the parties to an action are citizens of different states, and (ii) the amount in controversy exceeds $75,000. For purposes of diversity jurisdiction, a corporation is a citizen of its state of incorporation and the state where it has its principal place of business.

Question 3

Timing for removals

Answer 3

Defendant must file a notice of removal with the federal district court within 30 days after receipt by or service of the initial pleadings or summons unless the last day is a Saturday, Sunday, or legal holiday.

Question 4

Removal Procedure

Answer 4

Defendant must file a notice of removal with the appropriate federal district court and give written notice to all adverse parties and the clerk of the state court to accomplish removal.

Question 5

Impleader

Answer 5

The procedure in federal court for a defending party to make a claim against a non-party for all or part of the defending party’s liability on an original claim is “impleader.”

Question 6

When is impleader allowable

Answer 6

For impleader to be available, the federal district court must have subject matter jurisdiction over the third-party claim as well as personal jurisdiction over the third party against which the claim is asserted.

Question 7

Personal Jurisdiction Analysis

Answer 7

In order for a federal district court to have personal jurisdiction over a defendant, it would need to comport with the State A long arm statue and not violate the defendant’s due process rights. The State A long arm statue states a number of activities that would allow a court to exercise personal jurisdiction over a nonresident defendant. Even if a nonresident defendant’s activities fall within state A’s long arm statute, the court must still analyze whether exercising personal jurisdiction would violate the defendant’s due process rights. The court does this by applying a minimum contacts test which requires a court to analyze whether the defendant could reasonably foresee being sued in state A and whether exercising personal jurisdiction would be reasonable and fair. Purposely availing oneself of a state puts a defendant in reasonable notice that they can potentially be sued in the state.

Question 8

Subject Matter Jurisdiction Diversity Analysis

Answer 8

With a claim not based on federal law, the federal district court has subject matter jurisdiction if diversity jurisdiction exists. A court has diversity jurisdiction over a claim where there is complete diversity between the parties meaning every plaintiff is a resident of a different state than every defendant. An individual can only be a resident of one state, the state in which they reside and intend to indefinitely remain. A corporation can be a citizen of multiple states. A corporation is a citizen of the state in which it was incorporated and where its principal place of business is. A principal place of business is determined by the “nerve center” test which analyzes where the corporation’s highest-level officers conduct their operations. This is usually the headquarters of a corporation. The amount in controversy would also need to exceed $75,000 to qualify for diversity jurisdiction. Multiple claims against the same defendant can be aggregated to meet the amount in controversy requirement however, claims against multiple defendants cannot be aggregated. All claims aggregated against each defendant must individually satisfy the amount in controversy requirement.

Question 9

For diversity purposes, an LLC is a citizen of

Answer 9

of each state that a member of the LLC is a citizen

Question 10

For an impleader, there needs to be diversity between

Answer 10

the defendant and the impleaded party

Question 11

Courts sitting in diversity cannot extend supplemental jurisdiction to

Answer 11

Claims by plaintiffs against parties joined by Rules 14, 19, 20, and 24.

Claims by parties seeking to intervene as plaintiffs under Rule 24.

Claims by parties proposed to be joined as plaintiffs under Rule 19.

Question 12

Rule 14

Answer 12

Impleader- a defending party to make a claim against a non-party for all or part of the defending party’s liability on an original claim

Question 13

Rule 19

Answer 13

Rule 19 specifies circumstances in which additional parties must be joined. Note that the requirements of jurisdiction (both subject matter and personal) and venue must still be met in order for compulsory joinder to occur. Under certain circumstances, if compulsory joinder cannot occur because of jurisdictional or venue issues, Rule 19(b) may require the action to be dismissed from federal court.

Question 14

Rule 19(a)

Answer 14

Under Rule 19(a), a person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction or destroy venue must be joined as a party if:

i) Complete relief cannot be provided to existing parties in the absence of that person; or
ii) Disposition in the absence of that person may impair the person’s ability to protect his interest; or
iii) The absence of that person would leave existing parties subject to a substantial risk of multiple or inconsistent obligations.

A necessary party is therefore a person whose participation in the lawsuit is necessary for a just adjudication. Tortfeasors facing joint and several liability are not parties who must be joined under Rule 19.

Question 15

Rule 19(b)

Answer 15

Under Rule 19(b), if a necessary party cannot be joined because of jurisdictional or venue concerns, then the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or be dismissed. Among the factors for the court to consider are:

i) The extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;
ii) The extent to which any prejudice could be reduced or avoided by protective provisions in the judgment, shaping the relief, or other measures;
iii) Whether a judgment rendered in the person’s absence would be adequate; and
iv) Whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

When the court dismisses an action because of the inability to join a necessary party, the party is said to be “indispensable.”

Question 16

A necessary party, for purposes of personal jurisdiction can be served

Answer 16

within 100 miles from where the summons was issued, even if the service is outside of the state and beyond its long-arm statute jurisdiction

Question 17

A third-party defendant may file a what type of claim against either an original defendant or an original plaintiff.

Answer 17

counterclaim

Question 18

Compulsory Counterclaim

Answer 18

A pleading is required to state as a counterclaim any claim, at the time of service, the pleader has against an opposing party if the claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim, otherwise it is lost if not pleaded in the current action. A compulsory counterclaim will likely fall under the supplemental jurisdiction of the federal court.

Question 19

Permissive Counterclaim

Answer 19

A permissive counterclaim does not necessarily fall within the supplemental jurisdiction of the federal court, as it does not arise out of the same transaction or occurrence as the original claim. Thus, a permissive counterclaim must on its own meet the requirements for federal subject matter jurisdiction.

Question 20

Stopping a payment on a check

Answer 20

does not avoid an obligation; it merely delays payment. A holder in due course can endorse a check notwithstanding a stop payment order unless a real defense (infancy, void contract, bankruptcy, forgery, deception, discharge known to holder) is invoked.

Question 21

In order to avoid an obligation made by delivering a check,

Answer 21

you would need to establish a real defense against a holder in due course by a preponderance of the evidence, or a real or personal defense against a non-holder by a preponderance of the evidence.

Question 22

Someone is a holder in due course when

Answer 22

he took the item for value, in good faith, and without notice that the item was overdue or dishonored; the check had no signs of irregularity; and he had no notice of any claims of the item. Holder in due course status is not changed by subsequent notice that a stop payment has occurred. A holder in due course has all rights to collect the instrument from the maker directly or from the payee (bank).

Question 23

Real defenses to obligation to pay a stop payment on a check

Answer 23

infancy, void contract, bankruptcy, forgery, deception, discharge known to holder

Question 24

Shelter Doctrine

Answer 24

The shelter doctrine states that a party that does not qualify for holder in due course status can assert the rights of the HDC as long as the party is not personally engaged in wrongdoing affecting the instrument. A holder can enforce a dishonored instrument under a contract theory against the maker, the payee (Bank), and the first holder.

Question 25

There is a contract with an instrument when

Answer 25

a party signa the instrument and another party agrees to accept the instrument

Question 26

Transfer warranties you make when you endorse an instrument:

Answer 26

(1) he was a person entitled to enforce the check (that is, the chain of title is clean, up to Willy); (2) all
signatures on the check, including his, are authentic and authorized (no forgery); (3) the check has not been altered; (4) the
check is not subject to any claims or defenses that could be raised against him; and (5) the maker of this note (Billy) is not
insolvent. This enables Collector to recover against the same parties pursuant to tort theories.

Question 27

A jury trial may only be waived with the consent of

Answer 27

the defendant, the Commonwealth, and the court.

Question 28

Transfer when a 16 or 17 year old is charged with a felony

Answer 28

when a juvenile is 16 years of age or older and is charged with a felony, the juvenile court shall conduct a preliminary hearing and if the court finds probable cause it will certify the charge to the grand jury. If the court finds probable cause, the court loses jurisdiction over the charge and any ancillary charges, and the Commonwealth may seek direct indictment. An indictment cures any error or defect in the juvenile court proceeding.

Question 29

Confrontation Clause

Answer 29

The confrontation clause of the Sixth Amendment guarantees the right of cross examination, and a defendant can cross-examine a witness as to any evidence that bears on the credibility of the witness. Indeed, a plea bargain in exchange for one’s
testimony is highly relevant because it means the witness’ testimony may be based on self interest.

Question 30

Is there a presumption against fathers in custody determinations?

Answer 30

Virginia has abolished all presumptions in favor of either parent in custody determinations

Question 31

Quorum

Answer 31

an action by the Board of Directors must be approved by a majority of the Directors in a vote taken when a quorum is present. A quorum number is determined by the by laws of the corporation.

Question 32

Conflict of Interest Transaction

Answer 32

“transaction with the corporation in which a director of the corporation has an interest that precludes
him from being a disinterested director. Such a transaction is permissible if either (1) it is approved
by disinterested directors or members after disclosure of material facts or (2) it is fair to the corporation.

Question 33

Sale of all assets of a corporation

Answer 33

The sale of substantially all assets outside the regular course of business is a fundamental corporate change and must be approved by the members of the non-stock corporation

Question 34

Holographic Will

Answer 34

a holographic will is valid without further requirements, provided that (1) it is wholly in the testator’s handwriting; (2) it is signed
by the testator, and (3) is proved by at least two disinterested witnesses familiar with her handwriting. The testator must also be 18 and have the requisite testamentary intent and capacity. The holographic will must be signed in such a manner as to make it manifest that the name is intended as a signature. Virginia law does not define what shall constitute a signature, and a first name, initials or even a mark can be sufficient, if that was an ordinary way for a testator to sign her name.

Question 35

revoking a will by damaging it

Answer 35

If a testator with the intent to revoke a will, cuts, tears, burns, obliterates, cancels, or destroys the will, such will is void
and of no effect

Question 36

Reviving a revoked will by codicil

Answer 36

Once a will is revoked, the will cannot be revived unless it is re-executed with full testamentary formalities. A codicil
is a later testamentary instrument that amends, alters, or modifies a previously executed will. A codicil must be executed with
the same testamentary formalities as a will. The valid execution of a codicil that makes referenced to the revoked will would
cause the will to be revived under the republication by codicil. A disinterested witness is someone that
is not a beneficiary under the will.

Question 37

. If a will beneficiary dies before the testator,

Answer 37

the gift lapses

Question 38

Anti-apse statute, residuary clause- wills rule statement

Answer 38

a gift could be saved under the anti-lapse statute so long as the predeceasing beneficiary was a grandparent or lineal
descendant of a grandparent of the testator. If the beneficiary, is not protected under the anti-lapse
statute, a non-residuary bequest made to that beneficiary will pass under the residuary clause. If there is no residuary clause,
then the gift will pass under intestacy. If a decedent dies partially intestate and without a surviving spouse, the estate passes
to the decedent’s descendants, who take per capita with representation. The property is divided into equal shares at the first
generational level at which there are living takers

Question 39

A valid deed does not need to be signed by which party?

Answer 39

The party receiving the deed.

Question 40

Inter vivos deed conveyance Rule Statement

Answer 40

A deed may validly convey real property by inter vivos gift so long as there is [1] donative intent, [2] delivery, and [3]
acceptance. The deed must [1] be in writing, [2] signed by the grantor; and reasonably identifies [3] the parties and [4] the land.
With respect to the identification of the parties, the parties’ names need only to be reasonably identifiable. Delivery can occur
by various methods, including manual deliver. The grantee becomes bound by the terms of the deed by his acceptance of a
deed delivered by the grantor, even though a deed is signed only by the grantor. Acceptance on the part of the grantee can
be implied since the conveyance is presumed to be beneficial.

Question 41

the mortgage assumption clause is not subject to the suretyship provision of the

Answer 41

Statute of Frauds

Question 42

The suretyship provision of the Statute of Frauds

Answer 42

provides that no action concerning an agreement shall be brought against any person upon a promise to answer for the debt, default, or misdoings of another, unless that agreement is in writing and signed by the party to be charged or his agent. A collateral undertaking applies when the promisor is merely a surety or guarantor, receives no direct benefit, and is liable only if the debtor defaults. A grantee who assumes an existing mortgage is not a surety. The grantee makes no promise to the mortgagee to pay the debt of another, but promises the grantor to pay the mortgagee the debt the grantee owes to the grantor. Thus, a valid deed containing an assumption clause, when accepted by the grantee, is an enforceable agreement to assume the mortgage debt.

Question 43

Mutual Mistake vs. Unilateral Mistake

Answer 43

A contract may be reformed or rescinded in equity on the ground of mutual mistake. A unilateral mistake of fact, on
the other hand, will not invalidate a contract. AA argues mistake of fact, perhaps based on the fact that it thought Dr. Jones
was entirely gifting the property to AA rather than transferring the property subject to the mortgage assumption clause. If that
is true, then, at most, there was a unilateral mistake of fact.

Question 44

Venue Rule Statement

Answer 44

Under the federal general venue statute, venue is proper in a federal district where substantial events or a series of
events giving rise to the claim arose. Alternatively, venue is proper in a federal district where the defendant resides. The
substantial-events part of the statute supports both districts as proper venues.; the defendant’s residence supports the
Southern District of New York. Just because there are more bases under the general venue statute for one district over another
doesn’t determine whether a transfer of venue is appropriate. Instead, the question here comes down to whether the district
to which the case is being transferred would have jurisdiction. In other words, the venue statute provides that transfer requires
that the action have been properly filed in that jurisdiction. When here the plaintiff files suit in a proper forum, the presumption
favors the plaintiff’s choice of district. Here, Long chose the U.S. District Court for the Western District of Virginia. Because
that is a proper district, and Long’s choice was the Western District of Virginia, the court should refuse to transfer the case.
Venue should remain in the Western District of Virginia.

Question 45

Unclean Hands

Answer 45

Under the doctrine of unclean hands, a party seeking equitable relief must himself not have been guilty of inequitable
or wrongful conduct, and the wrongful conduct must relate to the claim asserted. Here, Colin is an avid baseball card collector
and, according to the appraiser, knew the real value of the Babe Ruth cards. Thus, for Colin to offer $1,000 each to Paul after
suggesting the cards would be hard to value, is wrongful conduct dealing directly with the claim he asserts for specific
performance of the contract.

Question 46

Availability of a legal remedy versus an equitable remedy

Answer 46

Specific performance is an equitable remedy, which compels the performance of a contract in the precise terms agreed
upon, or such a substantial performance as will do justice between the parties under the circumstances of the case. Equity may
compel parties to perform their agreements, when fairly entered into, according to their terms; but it has no power to make
agreements for parties, and then compel them to execute the same. Rison v. Newberry, 18 S.E. 916, 919, 90 Va. 513, 521
(Va. 1894). In addition to the basic elements for specific performance (the contract at issue is enforceable; all conditions
precedent to performance have been satisfied; the contractual terms at issue are sufficiently definite to be enforced by the
court; the defendant is able to perform or the performance can be abated; and it would be fair (equitable) to specifically enforce
the contract), Colin would need to show that there is no adequate remedy available at law. Here, Paul should assert that
monetary damages could be awarded.

Question 47

Hardship or oppression to avoid specific performance

Answer 47

A court of equity will not decree specific performance of the agreement where it would entail great hardship, and
the hardship was due, in some measure, at least, to the conduct of the other party.

Question 48

To rescind a contract based on fraud

Answer 48

To rescind a contract based on fraud, there must be a false statement of facts, positively made, not mere matters of
erroneous opinions. A concealment to afford ground of rescission for fraud must be a willful suppression of such facts in regard
to the subject–matter of the contract as the party making it is bound to disclose

Question 49

How do you intervene in a case

Answer 49

attorney should file a motion to intervene in the case. Intervention requires leave of court, and the court has considerable
discretion in granting or refusing such a request.

Question 50

To be granted a temporary injunction

Answer 50

Susie must allege facts showing that she has a recognized legal right to the baseball cards and will suffer irreparable harm without an injunction prohibiting Paul from disposing of them. Susie must further allege facts showing that the balance of equities weighs in her favor, that she is likely to succeed on the merits of her claim to the baseball cards, that exigent circumstances support the injunction, and that she has no adequate remedy at law. The granting of an injunction is an extraordinary remedy and rests upon the discretion of the court. It will not be awarded unless the court is satisfied of Susie’s equity

Question 51

Sovereign Immunity

Answer 51

The doctrine that the State and its governmental agencies, while acting in their governmental capacities, are immune
from liability for tortious personal injury negligently inflicted, has long been recognized and applied in Virginia. Counties were
created as geographical subdivisions for the administration of state authority at the local level; therefore, counties are viewed
as “political subdivisions” of the Commonwealth entitled to the same immunity as the Commonwealth, receiving a greater level
of sovereign immunity protection than do cities unless a statute provides otherwise. A county retains sovereign immunity even
when the county takes on characteristics of a city and exercises powers and performs services rendered by a city. County
actions are not assessed under the governmental-proprietary distinction applicable to municipalities. Instead, county immunity
extends to acts that would be considered governmental or proprietary. County immunity extends to cover county officers and
employees who negligently cause injury to another.

Question 52

School board sovereign immunity from tortious injury

Answer 52

The basis for a school board’s immunity from liability for tortious injury has been generally found in the fact that it is
a governmental agency or arm of the state and acts in a governmental capacity in the performance of its duties imposed by
law. The immunity is incident to a governmental agency. Pursuant to Virginia statute, immunity for school boards has been waived for damages arising out of an accident to the extent of an insurance policy covering a vehicle involved in the accident.

Question 53

How to establish whether a government employee is covered by sovereign immunity for tortious injury

Answer 53

(1) the nature of the function the employee performs, (2) the extent of the governmental entity’s interest and
involvement in the function, (3) the degree of control and direction exercised by the governmental entity over the employee,
and (4) whether the alleged wrongful act involved the exercise of judgment and discretion. The court also considers whether
plaintiff is asserting a claim of negligence as compared to gross negligence or intentional conduct.

Question 54

Contributory Negligence

Answer 54

Contributory negligence, if proved, is a complete bar to recovery by a plaintiff in Virginia. This affirmative defense must
be raised in writing in an initial responsive pleading or the defense is waived, unless contributory negligence is shown by the
plaintiff’s own evidence. A plaintiff is contributorily negligent if he fails to act as a reasonable person for his own safety under
the circumstances. As in all negligence claims, the defendant has the burden of proving not only that a plaintiff is negligent,
but that his negligence is a proximate cause of plaintiff’s injuries.

Question 55

Assumption of Risk

Answer 55

Assumption of Risk, if proved, is a complete bar to recovery by a plaintiff in Virginia. Davis must prove that Paul fully
understood and appreciated a known danger and voluntarily exposed himself to that danger.