June 25th Flashcards
If original venue is proper, a district court may…
transfer any civil action to any other district where it might have been brought or to any district of division to which all parties consent
What is forum non conveniens?
When another court is substantially more appropriate for the litigation than the current court, a court may dismiss or stay the case to compel the plaintiff to bring the action to a more appropriate forum.
Remember, under forum non conveniens, PJ and venue are proper, but there is a more convenient forum
What are basic rules for TROs?
A TRO is designed to preserve the status quo. and avoid irreparable injury.
- Notice is required, but a TRO can be obtained ex parte
- Typically lasts 14 days, though a court can renew another 14 days FOR GOOD CAUSE.
If a case involves both a legal and equitable claim, how should a court and jury hear the case?
The jury normally determines the legal claims first, then the court determines any equitable claims.
A federal jury must being with …
At least six jurors. As the trial goes on, there might be less jurors than six, which will be allowed so long as parties stipulate.
What is the N&P Clause?
The N&P Clause allows Congress to enact legislation necessary and proper to execute authority granted to a branch of government. This must be in conjunction with another enumerated power.
Describe PDP for government employees?
There is a legitimate property interest in continued public employment, only if there is an employment contract or a clear understanding that an employee cannot be fired without cause.
For probationary employees, this right is not yet vested so no procedural due process is due.
A man emails a vendor: “At what price will you sell 100 umbrellas?” The vendor responds: “You’re in luck, we have only 100 umbrellas and they’re all 50% off. Available for pickup at our warehouse.”
Under this scenario, what is created here by the vendor’s response?
The vendor had made a valid offer by showing words of promise and terms specific as to quantity and subject matter.
Although the UCC does not follow the mirror image rule…
A contract does not exist if the terms of acceptance:
- materially alter the agreement
- the offer expressly limits the terms, or
- the offeror objects to new terms.
What is battery?`
Battery is the unlawful application of force to another which cause bodily harm or constitutes offensive touching. Battery requires physical contact, either intentionally or with criminal negligence.
What is assault?
Intentionally placing a victim in fear of imminent bodily harm.
The police go to Italy to arrest a woman wanted for jewel theft, without permission from interpol. They kidnap her and take her back to the U.S. She moves to dismiss because the police violated her Fourth Amendment. What’s the outcome and why?
A court would deny her motion to suppress. The police had probable cause to arrest the woman, because she was “wanted.” While the police did go to a foreign country and arrest her, making the arrest illegal, the arrest won’t preclude her from a criminal prosecution.
Felonies other than crimes involving dishonesty may be used for impeachment purposes subject to what test?
Probative-prejudicial balancing test. The court will allow unless:
- The conviction is more than 10 years old (or 10 years free)
- the felony was a juvenile adjudication, or
- the witness has been pardoned
Two people lived on land owned by another person for 15 years. They adversely possessed the land. One of the people died. When the owner sued for quiet title, who prevails?
The land belongs to the surviving adverse possessor, and the deceased AP’s heir as tenants in common.
Describe the doctrine of res ipsa loquitor.
Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the defendant’s negligent conduct in the absence of direct evidence of such negligence.
The plaintiff would have to prove:
- the accident was of a kind that ordinarily does not occur in the absence of negligence
- it was caused by an agent or instrumentality within the exclusive control of the defendant, and
- it was not due to any action on the part of the plaintiff.
What is a prima facie case of strict products liability based on design defect?
A plaintiff must prove:
- the product was defectively designed
- the defect existed at the time the product left the defendant’s control, and
- the defect caused the plaintiff’s injury when the product was used in an intended or reasonably fore-seeable way.
Then, using the risk-utility test, the jury must determine whether the risks posed by the product outweigh their benefits.
A plaintiff must also show that an alternative design was available to the defendant and failure to use that design rendered the product unsafe.
