MEE Rules Flashcards
Define substantial Perfrmance, and what happens if there is a material breach.
The doctrine of substantial performance provides that a party who substantially performs can recover on the contract even though full performance has not been tendered.
However, there is no substantial performance if the incomplete performance was a material breach of contract. Under the common law, a material breach of contract, when the nonbreaching party fails to receive the substantial benefit of its bargain, allows the nonbreaching party to withhold any promised performance and to pursue remedies for the breach, including damages.
Substantial performane is less likely to be found when?
Substantial performance is less likely to be found when a party intentionally furnishes services that are materially different from what he promised. Such a breach is more likely to be treated as a material breach for which contract damages are recoverable.
Define a divisible or installment contract
A divisible or installment contract is one in which the parties’ obligations are divisible into distinct units of performance. Recovery is limited to the amount promised for the unit of the contract performed.
When can a party circumvent a divisible contract?
When parties expressly agree to a condition precedent (or a concurrent condition), they are generally held strictly to that condition, and a party must fully comply with that condition before the other party’s performance is due.
Define Restitutionary Relief
When a plaintiff confers a measurable benefit on a defendant and the plaintiff has a reasonable expectation of compensation, it would be unfair to permit the defendant to receive the benefit without compensating the plaintiff. In this case, the court can permit the plaintiff to recover the value of the benefit to prevent this unjust enrichment. Although this type of action is often characterized as based on an implied-in-law contract or a quasi-contract, quantum meruit (as much as has deserved) does not depend on the existence of a contract.
When does the Common Law versus the UCC apply? and what is another test under the common law?
The common law applies to contracts for services or real estate and Article 2 of the UCC applies to contracts for the sale of goods.
If a transaction includes both goods and services, the predominant purpose test is applied to resolve whether the common law or the UCC applies to the entire transaction.
Under the common law when is a breach minor?
Under common law, if the breach is minor (i.e., the breaching party has substantially performed), then the non-breaching party must still perform under the contract. This allows a party who substantially performs to recover on the contract even though that party has not rendered full performance. Generally, the substantially performing party can recover the contract price minus the cost to the other party of obtaining the promised full performance.
Under the common law when is a breach material?
Under the ocmmon law, a material breach of contract occurs when the non-breaching party does not receive the substantial benefit of the bargain. The material breach allows the non-breaching party to withhold any promised performance and to pursue remedies for the breach, including damages. The breaching party who failed to substantially perform generally cannot recover contract damages, but may be able to recover through restitution.
Under restitutionary relief, what happens when a breach is material?
However, most courts hold that recovery in restitution is only available if the breach was not willful. Consequently, a party who intentionally furnishes services that are materially different from what was promised cannot recover anything in restitution unless the non-breaching party has accepted or agreed to accept the substitute performance.
Define the general measure of damages under a construction contract and what economic waste is
In construction contracts, the general measure of damages for a contractor’s failure is the difference between the contract price and the cost of construction by another builder, plus any progress payments made to the breaching builder and compensation for delay in completion of the construction. When a breach results in a defective or unfinished construction, if the award of damages based on the cost to fix or complete the construction would result in economic waste, then a court may instead award damages equal to the diminution in the market price caused by the breach. Economic waste occurs when the cost to fix or complete the construction is clearly disproportional to any economic benefit or utility gained as a result.
Define Compensatiry Damages and Expectation Damages
Compensatory damages are meant to compensate the non-breaching party for actual economic losses.
Expectation damages are intended to put the non-breaching party in the same position as if the contract had been performed.
Expectation damages must be calculated with reasonable certainty.
Define actual (compensatiry damage) and sonsequential damages
Actual damages can be either direct or consequential.
Consequential damages are a direct result of the breach but need not be the usual result of the breaching party’s conduct.
Instead, consequential damages need only be a reasonably foreseeable result of the breach given the parties’ specific circumstances.
The breaching party must have reasonably foreseen the consequential damages for them to be recoverable.
Damages are foreseeable if they were a natural and probable consequence of breach, if they were “in the contemplation of the parties at the time the contract was made,” or if they were otherwise foreseeable.
Consequential damages do not concern the value of the lost performance due to breach, but there must be a causal link between the breach and the consequential damages for them to be recoverable. And the plaintiff must prove the dollar amount of consequential damages with reasonable certainty not speculatively.
Tell me about what is involved in mitgitaing damages or avoiding damages
A party to a contract must avoid or mitigate damages to the extent possible by taking steps that do not involve undue risk, expense, or inconvenience. A non-breaching party is held to a standard of reasonable conduct in preventing loss. The non-breaching party’s failure to mitigate does not give the breaching party a right to sue the non-breaching party for such failure to mitigate; it only reduces the non-breaching party’s damages recovery.
How is a contract formed under the UCC, for the sale pof goods?
Under the UCC, a contract is formed if both parties intend to enter into a contract and there is a reasonably certain basis for giving a remedy. Other than the identity of the parties and subject matter of the agreement, the quantity is the only term essential to forming the contract. As long as the parties intend to create a contract, the UCC “fills the gap” if other terms are missing—e.g., time or place for delivery.
Is an oral contract for the sale of goods valid?
An oral contract for the sale of goods is valid and enforceable unless the contract is for the sale of goods for $500 or more. In that case, the contract must be in writing and signed by the party to be charged (i.e., the one against whom enforcement is sought) in order to satisfy the SOF and be enforceable. The writing need only be sufficient to indicate that the parties intended to enter into a contract
IN what instance is a contract required to meet the SoF, yet satisfied another way?
A contract for the sale of goods is outside the UCC Statute of Frauds to the extent that goods are received and accepted, and to the extent that payment has been made and accepted.
Define how a contract satisfied the SoF
The UCC requires a memorandum for a sale of goods for $500 or more to (i) indicate that a contract has been made, (ii) identify the parties, (iii) contain a quantity term, and (iv) be signed by the party to be charged. A “signature” is any authentication that identifies the party to be charged—e.g., a letterhead on the memorandum. A mistake in the memorandum or the omission of other terms does not destroy the memorandum’s validity. An omitted term can be proved by parol evidence. However, enforcement of the agreement is limited to the quantity term actually stated in the memorandum.
Define a Merchant
A merchant is a person who regularly deals in the type of goods involved in the transaction or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction.
Define a confirmatory Memorandum
In contracts between merchants for the sale of goods for $500 or more, if a memorandum sufficient against one party is sent to the other party who has reason to know its contents, and the receiving party does not object in writing within 10 days, then the contract is enforceable against the receiving party even though he has not signed it.
How may an offer be revoked?
In general, an offer can be revoked by the offeror at any time prior to acceptance.
An offer is revoked when the offeror makes a manifestation of an intention not to enter into the proposed contract before the offeree accepts. A revocation may be made in any reasonable manner and by any reasonable means, and it is not effective until communicated. Under the UCC, a person receives notice of revocation when (i) it comes to that person’s attention, or (ii) it is duly delivered in a reasonable form at the offeree’s place of business.
Define the firm offer rule
Under the UCC firm offer rule, an offer to buy or sell goods is irrevocable if: (i) the offeror is a merchant, (ii) there is an assurance that the offer is to remain open, and (iii) the assurance is contained in a signed writing from the offeror. This firm offer may remain open for a maximum of 3 months. A firm offer in a form prepared by the offeree, however, must be separately authenticated by the offeror to protect against inadvertent signing. Firm offers do not require consideration. Also note, it is still possible for an offer to be irrevocable if the offeree reasonably and detrimentally relies on the offeror’s promise prior to acceptance.
Define an offer
An offer is an objective manifestation of a willingness by the offeror to enter into an agreement that creates the power of acceptance in the offeree. An offer can only be accepted while it remains open. One way that an offer terminates is by the offeree’s rejection of the offer.
Define an option contract
An enforceable option will render the offer irrevocable. An option is an independent promise to keep an offer open for a specified period of time. Such a promise limits the offeror’s power to revoke the offer until after the period has expired, while also preserving the offeree’s power to accept. Under the common law, if the option is a promise not to revoke an offer to enter a new contract, the offeree must generally give separate consideration for the option to be enforceable.
Define constructiev revocation of an offer
If the offeree acquires reliable information that the offeror has taken definite action inconsistent with the offer, the offer is automatically revoked. This is called constructive revocation.
An offer can only be accepted while it is still outstanding. An offer can be terminated in multiple ways, including revocation. In general, an offeror may revoke his offer at any time prior to acceptance. An offer is revoked when the offeror makes a manifestation of an intention not to enter into the proposed contract. A revocation may be made in any reasonable manner and by any reasonable means, and it is not effective until communicated.
If the contract does not mention, where is the place of delivery?
When a contract governed by the UCC is silent as to a term, the UCC will “fill the gap” and supply a reasonable term. When a contract is silent as to delivery, the UCC provides that the place for delivery is the seller’s place of business.
Define course of dealing
However, the terms of an agreement may be supplemented by the parties’ course of dealing. A course of dealing is a sequence of conduct concerning previous transactions between the parties that can reasonably establish a common basis of understanding for interpreting their conduct
Under the UCC must a party sretctly perform?
Under the UCC, a party must strictly perform all obligations under the contract and failure to do so results in breach. Expectation damages are intended to put the nonbreaching party in the same position as if the contract had been performed. These damages are calculated as the difference in the value of performance with and without the breach.
When/How does an offer terminate upon death
An offer terminates upon the death or mental incapacity of the offeror or the offeree, even if the offeree does not learn of the offeror’s death or mental incapacity until after the offeree has dispatched what he believes is an acceptance. Consequently, the offer with regard to the chairs terminated upon the furniture maker’s death
Define the elements of the warranty of “Fit for a particular purpose”
A warranty that the goods are fit for a particular purpose is implied whenever the seller has reason to know that (1) the buyer has a particular use for the goods, and (2) the buyer is relying upon the seller’s skill to select the goods.
Define how to disclaim the warranty of “Fit for a particular purpose”
One way for a seller to disclaim the implied warranty of fitness for a particular purpose is to make the disclaimer in writing and conspicuous so a reasonable person would notice it. A statement that there are no warranties which extend beyond the description on the face is sufficient to exclude all implied warranties of fitness.
Tell me about non conorming goods and the right of rejection
Under the UCC, if either the tender or the goods is nonconforming, then the buyer has the right to accept or reject all of the goods.
The buyer has the right to inspect the goods before deciding whether to accept or reject them. Payment does not constitute acceptance if there is no right of inspection before payment.
A valid rejection requires the buyer: (1) give notice to the seller (2) within a reasonable time and (3) before acceptance. Upon a rightful rejection, the buyer is entitled to a return of any payments made on the goods.
What damages are available when a buyer justifiably revokes an acceptance of goods?
When a buyer rejects goods or justifiably revokes their acceptance, the buyer may be entitled to recover not only the purchase price, but also expectation damages, as well as incidental and consequential damages. Expectation damages are calculated as the difference between the contract price and the market price. Incidental damages are those incidental to the seller’s failure to perform, such as the costs of warehousing or transportation. Consequential damages are losses resulting from the buyer’s general or particular requirements and needs which the seller knew or had reason to know of at the time of contracting.
Define discovery
the compulsory disclosure, by a party to an action, of relevant documents referred to by the other party.
Discovery is genreally permitted with reagrd to?
Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action.
A party may request the other party to produce and permit the inspection of any discoverable documents or electronically stored information.
Tell me about information during discovery that is prepared in anticipation of litigation…
In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. Such materials will be subject to discovery, however, if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
Does discovery information have to admissible at trial?
Information within the scope of discovery need not be admissible evidence at trial to be discoverable.
Instead, the test is whether the information sought is relevant to any party’s claim or defense.
Define spoilation and tell me more about it
Spoliation of evidence is the negligent or intentional destruction or significant alteration of evidence required for discovery.
When litigation is reasonably anticipated, even if it has not yet commenced, potential litigants in possession of potentially relevant evidence have a duty to preserve such evidence.
Once a duty to preserve evidence is triggered, the party in possession of the evidence must take reasonable measures to preserve it.
If a party has a policy in place that results in routine operations that may destroy evidence, such as electronically stored information, that party must affirmatively act to prevent the destruction or alteration of such evidence, even if the destruction would typically occur in the regular course of business.
Define sanctions
A punishment imposed on parties who disobey laws or court orders.
How can a party be sanctioned for spoilation?
A party may be subject to sanctions for failing to take reasonable steps to preserve evidence that should have been preserved in the anticipation or conduct of litigation.
Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery.
In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.
What happens when retrieval of spoilation is possible?
When retrieval of the information is possible, even if typically considered inaccessible due to the cost of retrieval, a court may order it and assign the costs to the party who destroyed the evidence; no further sanctions may be imposed.
If a party failed to preserve electronically stored information that should have been preserved and it cannot be restored or replaced, the court may order alternate sanctions against the wrongful party, limited to the court’s discretion of those necessary to cure any prejudice to the other party.
What happens if a court stipulates that spoilation was with purpose?
If the court finds that the sanctioned party acted with the purpose of depriving the other party of the evidence’s use in litigation, then the available sanctions include
(i) a presumption that the destroyed or lost information was unfavorable to the sanctioned party;
(ii) a jury instruction that it may or it must presume the information was unfavorable to the party; or
(iii) an entry of a default judgment against the party.
Who has the right to remove an action from state to federal court?
Generally, the defendant in any civil action filed in state court has the right to remove it to the district court for the district in which the state court action was filed as long as the civil action is within the subject-matter jurisdiction of a U.S. district court.
if removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of the state in which the action was filed.
Define diversity jurisdiction
Federal courts may exercise diversity jurisdiction over actions when
(i) the opposing parties to an action are citizens of different states and
(ii) the amount in controversy in the action exceeds $75,000.
Generally, a plaintiff’s good-faith assertion in the complaint that the action satisfies the amount-in-controversy requirement is sufficient, unless it appears to a legal certainty that the plaintiff cannot recover the amount alleged.
Are courts able to transfer civil cases?
For the convenience of the parties and in the interests of justice, a district court in which venue is proper may transfer any civil action to any other district or division where it might have been brought.
Where is venue proper?
Venue is proper in a judicial district in which (i) any defendant resides, if all defendants reside in the same state in which the district is located,
(ii) a substantial part of the events or omissions on which the claim is based occurred, or
(iii) a substantial part of the property that is the subject of the action is located.
Define a Forum selection clause
A contractual agreement that designates the court and location where the parties would like to have their legal dispute decided.
Is a forum sleection clause afforded respect?
Moreover, when transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect.
If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching.
Furthermore, the Supreme Court has held that a forum selection clause should be given “controlling weight in all but the most exceptional cases.
Tell me about transferor/tranferee rules
Generally, if the venue of an action is transferred when the original venue is proper, then the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law.
Tell me about transferor/tranferee rules with a forum sleection clause
However, when venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the conflict-of-law rules, of the state in which it is located.
The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue.
Define Res Judicata
The doctrine of claim preclusion (i.e., res judicata) provides that a final judgment on the merits of an action precludes the parties from relitigating an identical claim in a subsequent action.
For claim preclusion to apply, the claimant and the defendant must be the same (and in the same roles) in both the original action and the subsequently filed action.
Because application of claim preclusion is limited to the parties (or their privies), a similar action by a different party would not be precluded.
Define Collteral Estoppel
The doctrine of issue preclusion (i.e., collateral estoppel) precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim.
Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) was a party to the original action (i.e., offensive collateral estoppel).
Other elements necessary for issue preclusion to apply are that
(i) the issue sought to be precluded must be the same as that involved in the prior action;
(ii) the issue must have been actually litigated in the prior action;
(iii) the issue must have been determined by a valid and binding final judgment; and
(iv) the determination of the issue must have been essential to the prior judgment.
Do courts have discretion on the application is collateral estopple?
However, trial courts have broad discretion to determine when issue preclusion should apply.
If a plaintiff could easily have joined in the earlier action, a trial judge may not allow use of offensive collateral estoppel.
What is a collateetal challenge?
A collateral Challege is a challenge on the validity of a prior judgment through a new case rather than by a direct appeal.
What is the domicile of lega; representatiave to a deceased member?
a legal representative of a decedent’s estate will be deemed a citizen of the same state as the decedent—not the state where the legal representative is domiciled.
What is full faith and credit and how does it play out?
A party who obtains a judgment in one state may petition a court in another state to enforce the judgment.
Under the U.S. Constitution, state courts are required to give full faith and credit to valid judgments issued by state courts in other states.
State courts are likewise required to honor valid judgments issued by federal courts as those judgments would be treated by other federal courts.
This means that issues decided in one court cannot be relitigated in another court, and the court in the state in which enforcement is sought must honor the judgment of the federal court.
However, a party against whom enforcement of a judgment is sought may collaterally challenge the original judgment based on lack of subject matter jurisdiction if that jurisdictional issue was not litigated in the original action.
Joinder/Right to intervene
Under the Federal Rules, a nonparty has the right to intervene in an action when, upon timely motion,
(1) the nonparty has an interest in the subject matter of the action;
(2) the disposition of the action may impair the nonparty’s interests; and
(3) the nonparty’s interest is not adequately represented by existing parties. The burden is on the party seeking to intervene.
Define a Temporary Restraining Order
A temporary restraining order (TRO) preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction.
A TRO has immediate effect and lasts no longer than 14 days unless good cause exists.
A TRO can be issued without notice to the adverse party if the moving party can show (1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and
(2) the efforts made at giving notice and the reason why notice should not be required.
Additionally, the party seeking a TRO usually must give security (typically by posting a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully restrained.
define a A preliminary injunction
A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue.
A party seeking a preliminary injunction must establish that:
(1) the party is likely to succeed on the merits;
(2) the party is likely to suffer irreparable harm in the absence of relief;
(3) the balance of equities is in the party’s favor; and
(4) the injunction is in the public’s best interest.
Additionally, the party seeking the preliminary injunction usually must provide security like it would for a TRO.
SMJ
Subject-matter jurisdiction is a court’s competence to hear and determine cases of the general class and subject to which the proceedings in question belong.
For a federal district court to have subject-matter jurisdiction over a complaint, it must have either federal question jurisdiction or diversity jurisdiction.
For diversity jurisdiction to exist, both the amount-in-controversy and diversity-of-citizenship requirements must be met.
Define Diversity Jurisdiction
a. Amount in Controversy
The amount-in-controversy requirement mandates that the amount in controversy exceed $75,000. In general, a plaintiff’s good-faith assertion in the complaint that the action satisfies the amount-in-controversy requirement is sufficient, unless it appears to be a legal certainty that the plaintiff cannot recover the amount alleged.
b. Diversity of Citizenship
For the diversity-of-citizenship requirement to be met, there must be complete diversity between opposing parties when the action is filed. There is no diversity of citizenship if any plaintiff is a citizen of the same state as any defendant. For an individual to be a citizen of a state, the individual must be a citizen of the United States and a domiciliary of the state. In general, an individual is a domiciliary of the state in which she is present and intends to reside for an indefinite period. An individual can have only one domicile at a time. The presumption is that a place of domicile continues until it is definitively changed. An intent to move without relocating to another state will not result in a change in domicile. A corporation is a citizen of its state of incorporation and the state where it maintains its principal place of business. The principal place of business refers to the “nerve center” of the corporation, which is generally the corporate headquarters.
Specific Personal Jurisdiction
Specific Jurisdiction
When a cause of action arises out of or closely relates to a defendant’s contact with the forum state, jurisdiction may be warranted over that action even if that contact is the defendant’s only contact with the forum state.
Personal Jurisdiction
The Due Process Clause of the Fourteenth Amendment permits a court to exercise personal jurisdiction over a defendant if the defendant has “minimum contacts” with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.
A defendant’s contacts with the forum state must be purposeful and substantial, such that the defendant should reasonably foresee being taken to court there. Foreseeability depends on whether a defendant recognizes or anticipates that by running his business, he risks being party to a suit in a particular state.
General Personal Jurisdiction
General Jurisdiction
To determine whether a corporation is subject to general personal jurisdiction, the proper inquiry is whether a corporation’s affiliations with the forum state are so “continuous and systematic” as to render the corporation essentially “at home” in the forum state. A corporate defendant is always at home in the state of the corporation’s place of incorporation and the state of its principal place of business. In exceptional cases, a corporate defendant’s operations in another forum may be so substantial and of such a nature as to render the corporation also at home in that state.
Define Summary Judgement
A motion for summary judgment should be granted if the pleadings, discovery, and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.
A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the nonmoving party.
In ruling on a motion for summary judgment, the court must construe all evidence in the light most favorable to the nonmoving party and resolve all doubts in favor of the nonmoving party.
Can parties make a pre answer motion? if so then what?
Under the Federal Rules of Civil Procedure, if a party makes a pre-answer motion, the motion must raise the defense of insufficient service of process in the pre-answer motion, or the defense is waived. However, courts have generally allowed a party to amend a motion to dismiss to raise an omitted ground if the party acts promptly and before the court rules on the original motion. This is in line with the Federal Rules’ liberal policy with regard to amendments, and there would be no undue prejudice to the opposing party.
Define how service of process is conducted
The federal rules allow service by delivering a summons and complaint to an individual personally or by “leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there.”
what law must a state sitting in diversity apply?
A federal court sitting in diversity must apply the substantive law of the state in which it sits, including that state’s choice-of-law rules.
which choice of law do you follow in a non compete clause?
If there is an express choice-of-law provision in the contract, then that law will generally govern unless there is no reasonable basis for the parties’ choice, it is contrary to public policy, or there was fraud or mistake and true consent was not given.
What must a complaint or pleading include?
Rule 8(a), a complaint (or any pleading in which a claim is made) must include a short and plain statement of the claim establishing entitlement to relief.
There are no special pleading rules for a defamation case under the Federal Rules. Thus, Rule 8(a) generally applies to any claim brought in federal court and will prevail over any state-law pleading rules.
Define supplemental jurisdiction and when it applies
A district court with original subject-matter jurisdiction over a claim may exercise supplemental jurisdiction over additional claims over which the court would not independently have subject-matter jurisdiction (usually state law claims against a nondiverse defendant).
These additional claims must be so related to the original claim that the additional claims form part of the same case or controversy under Article III of the U.S. Constitution.
In judging whether the claims are related, the test is whether they arise out of a “common nucleus of operative fact” such that all claims should be tried together in a single judicial proceeding
when may a court deny supplemental jurisdiction?
A district court has discretion to decline to exercise supplemental jurisdiction over a claim that would otherwise qualify for supplemental jurisdiction in each of the following circumstances:
(i) the supplemental claim raises a novel or complex issue of state law;
(ii) the supplemental claim substantially predominates over the claims within original federal jurisdiction;
(iii) all of the claims within the court’s original jurisdiction have been dismissed; or (iv) in exceptional circumstances, if there are other compelling reasons for declining jurisdiction.
Whay is Rule 8(a)?
Rule 8(a) generally applies to any claim brought in federal court and will prevail over any state-law pleading rules.
If there is a valid federal rule of procedure on point, then the court must determine whether the rule is valid under the Rules Enabling Act.
Specifically, the court must ask whether the federal rule abridges, enlarges, or modifies any substantive right. Pursuant to this Act, the Federal Rules of Civil Procedure have been created, and apply to all civil actions and proceedings in federal court, including actions that raise state law claims.
Under Rule 8(a), a complaint (or any pleading in which a claim is made) must include a short and plain statement of the claim establishing entitlement to relief. There are no special pleading rules for a defamation case under the Federal Rules.
Rule 8(a) generally applies to any claim brought in federal court and will prevail over any state-law pleading rules.
When may plainfiffs join in an action?
Under the Federal Rule of Civil Procedure, persons may join in one action as plaintiffs if
(i) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence, and
(ii) there will be any question of law or fact common to all plaintiffs.
define issue preclusion/collateral estoppel
The doctrine of issue preclusion, often called “collateral estoppel,” precludes the re-litigation of issues of fact or law that have already been necessarily determined in an earlier adjudication.
A party asserting that collateral estoppel precludes the re-litigation of a factual issue must establish:
(1) the issue sought to be precluded is the same as in the prior action and the relevant facts and applicable law must be identical; (2) the issue must have been actually litigated in the prior action;
(3) the issue must have been determined by a valid and binding final judgment; and
(4) the determination of the issue must have been essential to the prior judgment. In addition, the party to be precluded must have been a party to the original action.
Define dispositive
A dispositive fact is a fact that, if proven with necessary certainty, resolves a legal dispute on its own.
Oftentimes, establishing the truth of a dispositive fact will lead to the resolution of the lawsuit as a whole.
Offensive Collateral Estoppel
Offensive collateral estoppel is asserted by a plaintiff in a suit to prevent the defendant from relitigating an issue previously decided against the defendant, this allowing the paintiff to “win” on that point
Non Mutual Offensive Collateral Estoppel
a suit by a first-time plaintiff seeking to hold a repeat defendant to the same outcome from a prior suit
MUtual Collateral Estoppel
The doctrine of mutuality of estoppel provides, generally, that a judgment in a prior litigation will preclude litigation of matter in a sub- sequent action only where both parties to that subsequent action are bound by the prior judgment.
What are the exceptions to voluntarily being in a state and being served, that eliminates the PJ over that person that was served?
If a defendant is voluntarily present in the forum state and is served with process while there, then the court has PJ over the defendant.
However, most courts have two exceptions to this rule.
If a plaintiff fraudulently brings a defendant into the state for the purpose of serving process on him, then the service will most likely be invalid.
A defendant is also immune if the defendant is merely passing through the state to attend other judiciary proceedings.
Where is venue proper?
Venue concerns which court among the courts having PJ and SMJ is the proper forum for hearing the matter.
In general, venue in a federal civil action is only proper: (i) where any defendant resides, if all defendants reside in the same state, or
(ii) where a substantial part of the events on which the claim is based occurred.
If there is otherwise no judicial district in which a claim may be brought, then the fallback alternative is that venue may be proper in a judicial district in which the defendant is subject to PJ.
Define the privileges and immuinties clause
The Privoleges and immunites clause bans states from discriminating against citizens of other states
Deefine the equal protection clause
The governing body state must treat an individual in the same manner as others in similar conditions and circumstances.
Equal protection forces a state to govern impartially and not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.
Thus, the equal protection clause is crucial to the protection of civil rights.
The individual will need to prove that the governing body’s action resulted in actual harm to them.
Murder
murder – an unlawful killing committed with malice aforethought—i.e., (1) intent to kill, (2) intent to inflict serious bodily injury, (3) reckless disregard for an obvious or unjustifiably high risk of death, or (4) intent to commit an inherently dangerous felony
voluntary manslaughter
voluntary manslaughter – an intentional killing based on (1) adequate provocation or (2) imperfect self-defense and
involuntary manslaughter
involuntary manslaughter – an unintentional killing committed (1) with criminal negligence or (2) during the commission of an unlawful act.
