Missed Questions Flashcards
At what point in time must a title be marketable
at closing
In an installment contract for the purchase of land, where the deed is not t transferred until sometime in the future, at what time does a buyer have a cause of action regarding encumbrances?
no cause of action will arise until closing. Seller has until the transfer of the deed to make title marketable
In a tort case, may a defendant joint a 3rd party with no relationship to the defendant in order to shift liability (its not my fault, its his)
No. A defendant can only join a 3rd party for indemnification/vicarious liability/respondent superior
Firing a gun while intoxicated is what kind of homicide crime
2nd degree murder = depraved heart murder = reckless indifference to an unjustifiably high risk to human life
Is gather the names and contact info of all witnesses to a car accident work product?
no
When do you make a 12b motion?
- In a consolidated preanswer motion or
- in the answer
If a preanswer motion is filed and a 12b motion is left out, that argument has been waived
In a contract for multiple shipments, when may the buyer cancel a second shipment?
the buyer does not have a right to cancel a second shipment unless the defects in the first shipment substantially impair the value of the entire contract
When may a state require US citizen ship for employment purposes?
when necessary to achieve a compelling state interest. Compelling sate interests includes state statutes prohibiting aliens from teaching primary or secondary school on the rationale that teachers at the elementary and high school level have a great deal of influence over the attitudes of young students toward government, the political process, and citizenship.
Requirements to use the dying deceleration hearsay exception
- Must be a homicide or civil case
- declarent must be unavailable
- declarent must have believed death was imminent
- the statement must concern the cause or circumstances of the declarents impending death
When you have a single P v a single D, may P aggregate all claims to meet the 75K requirement even when the claims do not arise from the same transaction or occurrence
yes
For diversity purposes, does the citizenship of the executor of an estate matter?
No. Use the domicile of the dead guy to determine diversity
What must a litigant show to get an ex parte temporary restraining order?
- why notice should not be required; or
- why it is not possible to obtain notice
- irrepressible and immediate harm
When are costs and attorneys fees available under a motion to compel
- Must include in the motion a certification that the moving party made a good faith effort to communicate with he other side.
- Can only get sanctions if you confer good faith with the other side and the other side fails to respond even after the motion to compel is filed
Is an objection not raised during a deposition waived?
yes
When must a judge enter a default judgement
If Defendant has appeared. Defendant will also be entitled to additional notice before the default judgement is entered by the jduge
Plaintiff almost always _____ motions for directed verdict, SJ or Judgement on the Pleadings because ____
- loses
- there is usually some question of fact for the jury to determine
When will a Defendant’s motion for Directed Verdict, SJ, or Judgement on the Pleadings be granted?
when P fails to establish a prima facia case (one or the required elements has not been addressed in the facts)
If multiple claims under a single contract can be bought at one time, they must be brought together or subsequent claims will be
barred by res judicata
A nonparty may intervene in an action as a matter of right in two situations.
- A nonparty may intervene when it has an unconditional right to do so by a federal statute.
- a nonparty may intervene if
(i) it has an interest in the property or transaction the is the subject matter of the action;
(ii) the disposition or resolution of the action may as a practical matter impair the nonparty’s ability to protect its interest; and
(iii) the nonparty’s interest is not adequately protected by an existing party in the action.
The Fair Housing Act prohibits ________ that indicate any preference, limitation, or discrimination based on race, color, religion, sex, disability, familial status, or national origin.
advertisement
The Fair Housing Act does not prevent discrimination when
a dwelling is a single-family home rented by an owner who owns no more than three single-family homes
Does the “ single-family home rented by an owner who owns no more than three single-family homes” exception apply to discriminatory advertising?
no
Under a Strict Liability cause of action, the manufacturer will not be found liable if
a 3rd party is deemed solely legally responsible for the death/injury
Conversion
interference with right to possession of chattel that is serious enough to warrant that the def pay the full market value of the chattel (use without permission that resulted in damage 40% of items market value was conversion.)
Role of custom in contracts
Courts will look to industry custom in contracts cases to determine if both parties implicitly understood said custom when the custom is not specifically referenced in the contract
For claims that assert fraud or mistake the federal rules specifically require that a plaintiff assert the claim for relief with
particularity
Effect of subsequent return and destruction of a deed
has no legal effect on the deeds validity. The original transfer still stands
Government regulations on speech in a limited public forum or a non public forum will be upheld as long as the regulation is
(i) viewpoint neutral, and (ii) reasonably related to a legitimate government purpose.
Who bears the burden when the Government regulates speech in a limited public forum or a non public forum
The citizen would have the burden of proving that there was no reasonable basis for the statute.
Will a statute prohibiting public gatherings on the steps of the courthouse at specified times while the court was in session be upheld?
non public forum = will be upheld if restriction is 1. reasonable effort to preserve government property for its intended use 2. viewpoint neutral
Permissive counterclaim
A third party defendant MAY assert a claim against a plaintiff if the claim arises from the same transaction or occurrence as the original claim.
compulsory counter claim
Original Defendant MUST bring all claims arising from the same transaction or occurrence (compulsory counterclaim)
Remittur is ________ in federal courts.
allowed
Additur is ___________ in federal courts
not allowed
Failure to raise a timely objection to a procedural error_______ the right to appeal the issue
waves
Where is venue proper
- In any district where a defendant resides if all the defendants reside in the same state.
- If they are from different states, venue is proper where the cause of action occurred
When will an amendment to a complaint relate back
- The claims in the amendment relate back
- The Amendment it is in the time allotted for serving the original complaint (90 days)
- The new defendant receives notice so that it will not be prejudice in defending on the merits and
When will a Plaintiff be allowed to amend a complaint when the originally filed against the wrong defendant?
- The claims in the amendment relate back
- The Amendment it is in the time allotted for serving the original complaint (90 days)
- The new defendant receives notice so that it will not be prejudice in defending on the merits and
- The defendant knew or should have known they were the correct defendant
Cross claims (DvD) are _______ compulsory
never
Are the opinions of experts who are retained in anticipation of litigation but who are not expected to testify at trial discoverable?
only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means or when a medical report for an exam conducted under FRCP 35 is requested.
When may a court relieve a party form a final judgement or order based on fraud, misrepresentation or misconduct of an adverse party?
On a motion for relief of judgement which must be made within a reasonable time not to exceed one year.
Does the 7th amendment preserve a right to a jury trial for equitable claims?
no. Equitable claims are tried by a judge
Under the 7th Amendment, who may demand a jury trial in a civil action?
both plaintiff and defendant (for legal claims only)
When is a denial of a motion to compel immediately appealable
The denial of a motion to compel is an “interlocutory order” that can be reviewed prior to final judgment only if the trial court certifies it for immediate appeal and the appellate court, in its discretion, agrees to hear the appeal.
if legal and equitable claims are joined in one action involving common fact issues how is the case tried?
the legal claim is tried first before the jury, and then the equitable claim is tried to the court. The jury’s finding on fact issues will bind the court in the equitable claim.
What is the document used to get 3rd party (nonparty) discovery?
subpoena
Viewpoint regulation is
presumptively unconstitutional and subject to strict scrutiny review
The contracts clause
- only applies to the states.
- Prohibits states from retroactively and substantially impairing contract rights unless
- the state law serves an important government interest and that state law is narrowly tailored to promote that interest.
A States best argument to refute a claim under the contracts clause
is the 10th Amendment.
When the standard of review is rational basis, the burden falls on the
challenger (not the state)
If the state law and the federal law have different purposes, will the state law be upheld?
States are allowed to give their citizens greater protections, unless congress has occupied the field.
Unless congress expressly says they are occupying the field, the law is okay.
New Establishment Clause standard announced in 2022
- Establishment Clause compels the government to pursue a course of neutrality towards religion.
- Government cannot aid or formally establish religion or directly or indirectly coerce individuals to exercise or refrain from exercising religion.
- a questionable action may be upheld if it is supported by history and tradition, including if the founders of this country would have deemed it permissible.
When may congress regulate under the commerce clause
conceivable rational basis for concluding that the activity regulated, in aggregate, substantially affects interstate commerce.
For standing/injury, if an entity has taken ________ towards some goal that is going to be the subject of future litigation, the entity has standing
substantial steps (includes having signed a contract for future action)
When dose a seller of goods have third party standing?
- when challenging a law that adversely effects the rights of her customers.
- Have to show a nexuses between the person bringing the suit and the people being harmed. (Look for words like “linked” in the answer)
Equal protection claims against the federal government must be analyzed under
the 5th amendment or substantive due process
A federal court may not hear a private party’s or a foreign government’s claims against a state government under ______
the 11th amendment
May a president refuse to spend funds allocated by congress?
there is no constitutional basis for the President to “impound” (i.e., refuse to spend) funds whose expenditure Congress has expressly mandated
Under what amendment does Congress have the power to regulate discriminatory conduct by individuals?
Under the 13th amendment, the Supreme Court has allowed Congress to prohibit any private conduct that Congress deems to be a “badge” or “incident” of slavery, and has upheld statutes regulating private contracts.
To be upheld, government regulations on speech and assembly in public forums must be
- content neutral
- narrowly tailored to serve an important government interest, and
- must leave open alternative channels of communication.
When has 3rd party beneficiary’s rights vested?
Learn and assent, learn and rely, learn and sue→ learning alone is not enough
promissory estoppel
a promise, reasonable expectation of reliance, actual reliance, interests of justice require enforcement of the promise
If someone says “hey I can find a buyer that will pay $5K for that for a 10% finders fee “ and you say nothing, but later they give you a potential buyers number and you call the buyer and they buy the product, do you have to pay the finders fee?
Yes, by getting the number you entered into a contract
What does the S stand for in MY LEGS
Surety
Do Surety contracts have to be in writing?
yes under the SoF
What is an accord and what is its effect on the original agreement
- An Accord is a separate agreement that suspends the buyers obligations under the original contract until the buyer either satisfies or breaches the accord.
- If the accord is satisfied, the original contract obligation is discharged.
- If you breach the accord, can sue for breech under the original agreement or the accord
“Would you consider” “would you be willing” is an
inquiry, not a counter offer so the original offer stands
FOB “seller” or “seller’s location” or “common carrier’s location” means
the buyer assumes all risk once the seller ships the product.
FOB “buyer” or “buyers location” means
the sender is responsible for any loss incurred even if they assign their responsibility to another (i.e. a delivery company)
Main purpose rule exception to the SoF
If the main purpose of the promisor in promising to answer for the debt of another was to benefit themselves, you can take out of the statue of frauds and enforce the contract even if it is not in writing
(co-signing on a loan for ones own benefit)
