MBE Flashcards
1
Q
Three types of subject matter jurisdiction
A
- Federal Question 2. Diversity 3. Supplemental
2
Q
Federal Question Jx
A
A case arising under federal law if the federal question appears on a fair reading of a well-pleaded complaint
AND
where the federal statute provides a remedy
3
Q
When does a state law question meet federal question jx?
A
when the federal law’s impact on the state question is substantial
4
Q
Original jurisdiction for federal courts
A
civil actions arising under the constitution, federal laws, treaties of the U.S., admiralty, and maritime cases, habeas corpus
5
Q
Diversity jurisdiction
A
Completely diverse litigants AND amount in controversy greater than $75,000
6
Q
Complete Diversity
A
dispute involves citizens of different states. No plaintiff and No defendant can share citizenship of the same state
7
Q
When must the diversity requirement be met?
A
At the time the suit is filed
8
Q
3 times diversity jx applies
A
- Citizens of different states in U.S.
- U.S. citizens and citizens of a foreign country
3.) Foreign state v. U.S. citizen
9
Q
Where is a party a citizen?
A
Where they are domiciled
10
Q
Domicile Elements
A
1.) physical presence in the state
2.) intent to remain indefinitely
11
Q
Where are corporations domiciled?
A
BOTH the state of its incorporation AND the state where it has its principle place of business/nerve center
12
Q
Where is an unincorporated association domiciled?
A
Citizenship of all the members of the association
13
Q
Class action- where is an unincorporated association domiciled?
A
The state under whose laws it is organized and the state where it has its PPB/nerve center
14
Q
Supplemental Jurisdiction
A
federal court can hear state claims if those claims arise out of the same TOE as a claim the court has jx over
15
Q
What other type of SMJx has to exist for supplemental jx to apply?
A
either federal question or diversity
16
Q
Concurrent Jurisdiction
A
when federal and state jurisdictions both apply
17
Q
Removal
A
D can remove a case from state to federal court if P could have originally brought case in federal court
18
Q
Removal based in diversity
A
all D’s must be diverse from Plaintiff
19
Q
Removal based in federal question
A
No need to show diversity, removal basically automatic
20
Q
When can a D not remove a case to federal court?
A
When D is a citizen of the forum state
21
Q
What must a D do to remove a case?
A
file a notice in the federal district court in the district the action is currently pending within 30 days of initial/ amended pleading
22
Q
Who must consent to removal?
A
All defendants
23
Q
Territorial Jurisdiction
A
the authority of a court to bind a party to the action
24
Q
Three types of personal jurisdiction
A
In personam
In Rem
Quasi in Rem
25
In personam
D has physical presence or contractual relationship with the forum state
26
In Rem
Subject of lawsuit is land/ real property located within state
27
Quasi in Rem
P wants a judgment on real property owned by D within state
28
What must occur for In Personam jx to apply?
State law must be satisfied so long as state law is constitutional under due process of 14th Amendment
29
Long Arm Statutes
- Domicile
-Consent
- Waiver
- Service
-Substantial Business
- Minimum contacts
30
When are minimum contacts established?
1. Has D purposefully availed himself with privileges of conducting activities within the state
2. Must not offend traditional notions of fair play
31
When is substantial business established?
business must be so significant that the company is essentially at home there
32
When must service of the summons and complaint occur?
Within 90 days of the filing of the complaint
33
Contents of a summons
-signed by clerk
-ID court and parties
-directed at D
-name and address of P/atty
- Notify D of time period for answer
-Seal of the court
34
Who can serve?
A person 18 years or older who is not a party to the action?
35
Who can accept service? (individual)
- The Defendant
- Leaving process at usual home with a person of suitable age and discretion who also resides there
- D's registered agent
36
Who can accept service? (Corporation)
- An officer
- An agent
- anyone authorized by law to accept service
37
Venue
The particular judicial district within a state where the suit can occur
38
When is venue proper?
- The district in which any D resides
- The district where a substantial portion of events occurred
- The district where any D would be subject to PJx
-Consent
39
Transfer of Venue
Court can freely transfer, even if venue is proper, for the convenience of the parties and witnesses
40
Improper Venue
Court can dismiss or transfer
41
Forum non Conveniens
allows a court to decline to exercise its jx and dismiss the action if there is a serious inconvenience and an adequate forum exists
42
Rules and Decision Act
applicable provisions of the federal constitution, treaties, and federal statutes, always take precedence over state law
43
The Erie Doctrine
Substantive law of state where federal court sits
Federal procedural law
44
When does the Erie Doctrine Apply?
1. Diversity or supplemental jx exists
2. state law that would apply conflicts with a federal rule, statute, etc.
45
A pleading for a claim for relief must contain:
1. a short and plain statement of the grounds for jx and the facts of the claim
2. a demand for relief
46
Requirements for responsive pleading
1. admit/deny allegations
2. file within 21 days of service
3. raise any affirmative defenses or risk waiver
47
Objections that can be raised by motion
- lack of SMJx
- lack of PJx
- improper venue
- insufficient process
- insufficient service
- failure to state a claim on which relief can be granted
- failure to joint a party under FRCP 19
48
Amended Pleadings
- Within 21 days of service of the original
- can be amended once freely, then leave or consent is needed
49
Doctrine of Relation Back
the court will treat an amended pleading as through it had been filed with the original
- must related back to same TOE
50
Rule 11 requirements
1. every pleading must be signed
2. must not be harassing D
3. claims are warranted by law
4. facts have or should have evidentiary support
51
Rule 11 Sanctions
If any of the requirements are violated, sanctions may be imposed after notice and an opportunity to be heard
52
Two types of provisional relief
1. TROs
2. Preliminary injuctions
53
Standard for provisional relief
1. substantial liklihood of success on the merits
2. irreparable harm will occur
3. Harm to plaintiff if not granted is greater than harm to D if granted
4. will not be adverse to public interest
54
Joinder of Claims
A party may join as many claims in a single action as the party has against an opposing party
55
Compulsory Counterclaim
arises out of same TOE as original claim
56
Permissive Counterclaim
any claim a party has against an opposing party that is not from the same TOE
57
Cross-claims
a claim against a party who is not an opposing party
- must have either fed question or diversity and arise from same TOE
58
Joinder of Parties
-must be subject to service of process
AND
-whose joinder will not destroy diversity
59
Joinder of parties Test
1. in that party's absence, the court cannot grant complete relief OR
2. the party claims an interest relating to the subject of the action
60
Interpleader
Third party who holds some disputed property can file to resolve liability
61
Impleader/ Third Party Practice
D can proceed against a non-party who may be liable to plaintiff
62
Intervention
A non-party can assert a right or interest in an ongoing action
63
Intervention Test
1. federal statute confers an absolute right to intervene
2. non party is asserting a protectable interest relating to the subject of the lawsuit.
64
Class action requirement
1. Numerosity
2. Commonality
3. Typicality
4. Adequacy of Representation
65
A party is entitled to discovery that:
1. relevant to the claim or defense of any party
2. not unreasonably cumulative or burdensome
3. not privileged
66
Mandatory Disclosures
1. Information about individuals likely to have discoverable info
2. total damages claimed and support
3. insurance agreements
4. ID of witnesses that may testify
67
Supplemental Discovery Rule
a party must supplement discovery re3sponse with any information that would have been subject to mandatory disclosure requirement
68
Types of Privilege
1. Atty/client
2. Spousal privilege
3. priest/penitent
4. doctor/ patient
5. psychotherapist/ patient
69
Discovery Devices
1. Depositions
2. Interrogatories
3. Document Requests
4. Requests for Admission
5. Physical and Mental Examination
70
Default
entry of default must be entered by the clerk if there is a failure to answer or respond
71
Sum certain default
affidavit showing amount due, P gets damages claims
72
Not sum certain default
More proof is needed for P to be awarded damages claimed
73
Rule for dismissal on failure to state claim
w/ privilege unless otherwise stated
74
Demand for jury trials
made within 14 days of service of last pleading
75
Peremptory Challenges
cannot be used to exclude jurors on the basis of race or gender
76
12(b)(6) dismissal
- fails to state cognizable claim
- provides insufficient facts
- allegations negate one or more CoA
w/ prejudice
77
Dismissal for failure to prosecute
P fails to proceed on their claim
w/ prejudice
78
Motion for Summary Judgment
granted if the moving party shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law
-based on evidence that MAY be introduced at trial
79
Motion for a judgment on the pleadings
12(c)- after pleadings are closed and before trial a party may move for judgment
80
Motion for a more definite statement
12(e) when pleading is so vague that more facts are required
made before responsive pleading
81
Motion to strike
12(f)- court may strike from a pleading an insufficient defense or redundant matters
82
Judgment as a matter of law
granted if the moving party shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as matter of law
- based on evidence that WAS introduced at trial
83
Renewed Judgment as a matter of law
made within 28 days after verdict
same analysis as JMOL
no reasonable jury could reach verdict
must have made proper JMOL during trial
84
Motion for new trial
- avoiding reversible error
- when jury verdict is too excessive/ jury misunderstood duty
- evidence of jury misconduct
- verdict is against the clear wweight of the evidence
85
Remittitur
party asks judge to reduce excessive damages
86
Additur
unconstitutional
87
Relief from judgment or order
court can correct clerkical mistake in a judgment
88
Number of jurors
no less than 6 nor more than 12
89
Verditcs
unless stipulated otherwise, verdict must be unanimous
90
Res judicata
Claim preclusion
91
Collateral estoppel
issue preclusion
92
Claim preclusion elements
1) between the same parties and those who are in privity with them
2) arising out of the same TOE
3) claims were determined on the merits by a court with proper jx
93
Issue preclusion rule
bars re-litigation of issues that were fully and fairly litigated and were necessarily decided in a proceeding that reached a final judgment on the merits
* cannot be used against someone who was not a party to previous suit
94
interlocutory orders
- not final adjudication on the merits
- generally unappealable before final judgment
95
Collateral Order doctrine
When an interlocutory order can be appealed
1) conclusively determines the disputed question
2) resolves an important issue completely separate from the merits
3) is effectively unreviewable on appeal from final judgment
96
Final Judgment Rule
Only a final judgment can be appealed
97
Standard of review for conclusions of law
De Novo
98
Standard of review for findings of fact
Clearly erroneous
99
Standard of review for judge decisions
abuse of discretion
100
Harmless error doctrine
Errors that do not effect substantial rights will not result in a reversal
101
Governmental/ Sovereign Immunity under the 11th Amendment
the government may not be sued without its consent
- excludes local governments
102
Exceptions to 11th Amendment Immunity
1) suits against state officials for abusing their power
2) federal suits that are state v. state
3) suits for injunctions against state officials
103
Case or controversy
real and substantial dispute that touches the legal relations of parties having adverse interests and that can be resolved by a judicial decree
104
Which court can render advisory opinions?
State courts
105
Declaratory judgment
decision where court is requested to determine the legality of proposed conduct without awarding damages or injunctive relief
106
RAMPS Requirements
Ripeness
Abstention
Mootness
Political Questions
Standing
107
Mootness
when the matter has already been resolved
108
Ripeness
claim is not fully developed/ statute hasn't been enforced
109
Abstention
court may abstain from cases where there are undecided issues of state law
110
Standing
1) injury in fact
2) causation
3) redressability
111
Third-party standing
1) special relationship exists between claimant and third party
2) third party has been constitutionally injured
3) third party would be unable to bring his own suit
112
Political Question
a matter assigned to another branch by the constitution or incapable of a judicial answer
113
SCOTUS Jurisdiction
Congress may not enlarge nor restrict
114
Grounds for SCOTUS appellate jx
1) by appeal
2) writ of certiorari
115
Grounds for Certiorari
1) conflicts between different federal courts
2) conflicts between two states' highest courts
3) conflicts between state high court and federal court
4) from other courts involving important, unresolved issues
116
Adequate and Independent State Grounds
even where a fed question exists, if state court can adequately rule on an independent state ground, SCOTS will not take Jx
117
Congress Enumerated Powers
- collect taxes and spend money
- borrow money
- regulate commerce between foreign nations and between states
- declare war
- raise and support military
118
Congress Implied Powers
to make all laws which shall be necessary and proper
119
Enabling Clauses
-found in 13, 14, 15
- gives congress power to enforce those amendments by appropriate legislation
120
Affectation Doctrine
congress has the power to regulate any economic activity that has a substantial effect on interstate commerce
121
Commerce Power
Congress can regulate
1) channels of interstate commerce
2) instrumentalities of interstate commerce
3) activities that substantially affect interstate commerce
122
Cumulative Effect Doctrine
federal commerce power permits regulation of the amount of wheat a farmer could grow on his own land for his own consumption, because the activity as done by all farmers would have a substantial effect on interstate commerce
123
Taxing Power
congress has the power to lay and collect taxes, etc to provide for the common defense and general welfare
- must be for the general welfare
124
Tax Objective Test
Does the tax actually raise revenue?
125
Tax Subjective Test
Was the tax intended to raise revenue?
126
Conditional receipt of federal funds test
1) spending serves the general welfare
2) condition is unambiguous
3) related to a federal program
4) state is not acting unconstitutionally
5) condition is not unduly coercive
127
What clause gives Congress investigatory power?
Necessary and Proper Clause
128
Eminent Domain
limited by 5th amendment takings clause
- must be justly compenstated
129
Executive Powers
1) appointment
2) removal
3) Veto
4) pardon
5) Executive privilege
6) military powers
7) treaty power
130
What clause prevents states from regulating the federal government?
Supremacy clause
131
10th Amendment
powers not delegated to the U.S. by the Constitution are left to the states
132
Dormant Commerce Clause/ Negative Implications Doctrine
imposing more limitations on state power to regulate under portions of the commerce clause that congress has not legislated
133
State law- Discrimination between in-state and out-of-state actors
1) regulation serves a compelling state interest
2) regulation is narrowly tailored to serve that interest
134
Exceptions to Dormant Commerce Clause
1) when congress tells a state it may legislate in areas of violation
2) when states are acting as market participants, they can discriminate between in and out of state business
135
State Action requirement
Plaintiff must show government action was the cause of the constitutional violation
136
Private action exception
1) public function theory
2) significant state involvement theory
137
Public function theory
private entity is carrying on activities traditionally and exclusively performed by the government
138
Significant state involvement theory
where the government and private entity are so closely related that the action by the private party fairly can be treated as action by the government
139
Which amendments also apply to private action?
13, 14, and 15
140
Preemption
federal law will supersede any state law that is in direct conflict
141
Doctrine of Selective Incorporation
1, 2, 4, 5, 6, 8, child bearing decisions
142
Major rights NOT incorporated
5th right to grandy jury, 7th right to jury in civil cases
143
Incorporation
certain amendments of the constitution are imposed on the states through the Due Process clause of the 14th amendment
144
Who does the due process clause protect?
Persons, not just citizens (corporations, aliens, citizens, etc.)
145
What does Due Process protect?
Life, liberty, and property interests
146
Privilege AND Immunities Clause
Article IV- bars states from discriminating against nonresidents
147
Privilege OR Immunities Clause
14th amendment- No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
- can be associated with the right to travel
148
Rational Basis Review
Classification serves no legitimate interest OR is not rationally related to any legitimate interest
- age, poverty/wealth, disability
- P has burden
149
Intermediate Scrutiny
classification is substantially related to an important government interest
- quasi suspect classifications: gender, illegitimacy, sexual orientation
150
Strict Scrutiny
Classification is necessary to achieve a compelling government interest
- suspect classifications: race, alienage, voting, and national origin
- government has burden
151
Economic Regulation Standard
will be upheld if it is rationally related to a legitimate government interest
152
Strict Scrutiny applies to:
1) right to vote
2) right to travel
3) right to privacy
4) first amendment rights
5) family rights
7) marriage
6) other fundamental rights
153
Standard for Sexual Orientation
Strict Rational Basis
154
Standard for Ballot Access
Rational basis review
155
Standard for Affirmative Action- race
Strict scrutiny
156
Justifications for Affirmative Action
1) remedying effects of past discrimination in a particular institution
2) achieving a diverse student body in higher ed
157
Privileges AND Immunities Clause
14th A- no state shall make or enforce any law which abridges the privileges or immunities of citizen of the United States
158
Protections Under Privileges and Immunities Clause
right to travel, petition congress, vote for national offices, enter public lands, protection while in custody of US marshals, assemble peaceably
159
Comity Clause
Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states
- states cannot discriminate against citizens that are nonresidents
160
Contracts Clause
No state shall pass any law impairing the obligation of contracts
161
Contract Clause applications
only to state legislation, not state court decisions or federal government. Private contract can still be modified by state police power to serve an important and legitimate public interest and regulation is reasonably and narrowly tailored
162
Ex Post Facto Laws
1) makes criminal an act that was not a crime when committed
2) prescribes greater punishment for a crime after commission
3) decreases amount of evidence required
4) extends the statute of limitation for a crime
163
Bills of Attainder
legislative act that inflicts punishment without a judicial trial upon named individuals
164
Establishment Clause
when government program prefers one religion over another
-Strict scutiny
165
Free exercise clause
a person's religious beliefs are absolutely protected
166
Freedom of Expression
government may neither censor all categories of speech nor engage in content-based discrimination among different categories of speech
167
Exceptions to Freedom of Speech
- Passage of strict scrutiny test
- conduct regulation
- government speakers
168
Unprotected Speech
speech that advocates violence
fighting words
hostile audience speech
obscene speech
defamatory speech
169
Obscene Speech Test
1) to the average person, based on community standards, the speech pertains to obscene interests
2) the work depicts sexual conduct in an offensive way
3) on a national standard, the speech has no artistic or literary value
170
Commercial Speech
protected by 1st if it is not false or deceptive and does not relate to unlawful activity
171
Speech by public employees
can speak out on matters of public concern but government has a legitimate interest in regulating their speech
172
Time, Place, and Manner restrictions
1) must be content neutral as to both subject matter and viewpoint
2) be narrowly tailored to serve a significant government interest
3) leave alternative channels of communication open
173
Freedom of Association
close nexus with free speech
strict scrutiny
174
Public Employment based on association
generally, an individual cannot be denied public employment based on membership in a political organization unless the position is a high level policy making position
175
Political Association Employment Test
1) is an active member of a subversive org
2) such membership is with knowledge of illegal aims of the organization
3) has specific intent to further those illegal aims
176
Chilling Effects
where states can regulate speech, they must not do so in an unnecessarily broad way that would produce a chilling effect on types of speech
177
Quantum meruit
enforcing both implied in fact and implied in law contractual obligations
178
Offer
1) an outward manifestation
2) that signals that acceptance will conclude the deal
179
Commercial Advertisements
generally treated as invitation for offer unless there's language that could identify the who can accept
EX. first come, first serve; first 10 people
180
Four ways to terminate the power of acceptance
1) lapse of time
2) death or incapacity
3) revocation by offeror
4) rejection by offeree
181
Lapse in Time
if time is unspecified, a reasonable standard applied
182
Face to Face Rule
an offer made during a conversation terminates at the end of that conversation
183
Revocation by Offeror
at any time, for any reason so long as
1) it occurs prior to acceptance AND
2) it is effectively communicated
184
Direct revocation
the offeror communication the recovation directly with oferee
185
Indirect revocation
1) the offeror has taken definite action inconsistent with intention to enter the proposed contract
2) the offeree acquires reliable information of the offeror's inconsistent action
186
Functional Equivalent Rule
when an offer is made to multiple people, it must be revoke in a way that is functionally equivalent to how the offer was made
187
Rejection by Offeree
1) outright rejection
2) rejection via counteroffer
3) rejection via nonconforming acceptance
188
Mirror Image Rule
Common law- the acceptance must mirror the terms of the offer and any variation will result in rejection by counter offer
189
UCC Acceptance
NO mirror image rule
recognizes acceptance even if it is nonconforming in these two circumstances:
1) the shipment of nonconforming goods
2) battle of the forms
190
Revival
the offeror has the power to revive an offer that the offeree has rejected or that has lapsed
191
Preventing Revocation
common law option contract
OR
UCC firm offer
192
Common law Option Contract
1) an offer
2) a promise to keep offer open
3) a valid mechanism for securing enforcement of that promise (generally consideration)
193
Special Rule for Construction Contracts- option contracts
When a general contractor uses a subcontractor's bid to formulate his own, an implied option contract is created
194
UCC- Firm Offer
1) the offer is made by a merchant
2) the offer is made in writing and signed by merchant
3) the offer expressly states by its terms that it will be held open
-open for a reasonable time
195
Bilateral contracts
a promise exchanged for a promise
196
Unilateral contracts
an offer seeking performance as acceptance
197
Revocation of unilateral contracts
Modern rule- when performance has begun, the offeror may not revoke
198
Exception for revocation of unilateral contracts
Mere preparations to perform do not constitute binding performance
199
Acceptance
Common law- mirror image rule
1) acceptance must be communicated to offeror
200
Acceptance by silence
generally not acceptable UNLESS
1) the offeree takes the benefit of services
2) offeror has given offeree reason to understand that silence is acceptance
3) previous dealings indicate silence is acceptance
201
The Mailbox rule
common law- acceptance by mail is effective when offeree places it in the mail
** if rejection is mailed first, mailbox rule does not apply. It will depend on which reaches offeror first
202
Battle of the Forms
when the buyer places an order and the seller's acceptance is nonconforming
- functions as valid acceptance
203
Knock out rule
when acceptance is nonconforming and contains different terms than agreed to, the conflicting terms are both omitted
204
Consideration
a bargained for exchange
205
Preexisting Duty Rule
promisor cannot provide consideration where there is already a duty they are obligated to perform
206
Minority jx- consideration
Benefit/detriment rule
207
Illusory promise
a promise to perform that leaves performance to the discretion of the promising party
- NOT consideration
208
Past/Moral consideration
a promise given in exchange for something already done
- NOT consideration
209
Promissory Estoppel
1) a promise
2) foreseeable reliance
3) actual reliance
4) injustice without enforcement
210
Statute of Frauds
MYLEGS
Marriage, not completed in one year, land, executory, guarantee, sale of goods $500 or more
211
Satisfaction of UCC Statute of Frauds
a writing signed by the party against whom enforcement is sought; and sufficient to indicate that a contract has been made"
-relaxed standard
212
Signature Requirement
must be signed by the party against whom enforcement is sought
213
Recovery of Benefits Conferred
when one party gives another party a benefit that should have been under the statute of frauds, the aggrieved party can seek restitution
214
Merchants confirmation- UCC
oral agreement by merchants is memorialized in writing and one party fails to object within a reasonable time
215
Warranty of Title against infringement
for the sale of goods, implied that seller has title to goods, has right to xfer the goods, and the no other security interests are attached
216
Warranty of merchantibility
if seller is a merchant, he guarantees that the goods are fit for their ordinary purpose
217
Warranty of fitness
grants that the goods being sold are fit for a particular purpose that the buyer intends to use them
