Rule Statements

Question 1

Definition of partnership and how one is formed

Answer 1

A partnership is an association of two or more legal persons to co-own a business for profit.

Question 2

What is the duty of care?

Answer 2

It is the duty to make business decisions reasonably or some shit

Question 3

Co-managing rights of a partnership

Answer 3

Regardless of how they share profits, partners have equal rights to manage ordinary affairs, with a majority vote to settle disagreements.

Question 4

Liability for debts of the partnership

Answer 4

Partners are jointly and severally liable for the debts of the partnership that were incurred during their time in the partnership.

Question 5

Fiduciary duties of partners

Answer 5

Each partner owes fiduciary duties to the other partners and the partnership itself. Those duties are the duty of care (competent decisionmaking), duty of loyalty (non-usurpation, no self-dealing, no competition) and the duty to account (reporting and splitting profits).

Question 6

When and how does a partnership end (dissolution)?

Answer 6

A partnership ends in 3 stages: first, dissociation, then winding up, then termination. If the partnership is at will, its dissolution can be triggered by a partner’s notice.

NOTICE. At dissociation, partners must personally notify prior creditors. Others who knew of the partnership, but are not creditors, are entitled to newspaper notice.

WINDING UP. Assets liquidated, creditors paid. NOT OVER YET! Partners are still liable for new stuff (debts, torts, etc) during this period.

TERMINATION: after debts are paid and notice is given, partnerships actually ends and can no longer be liable for anything new.

Question 7

If I’m a partner, how am I liable for the partnership’s debts?

Answer 7

Partners are jointly and severally liable for the obligations of the partnership. This includes any obligation for which a partner had apparent authority. A credit “should” go after the partnership first, then must get individual judgments against each partner to go after their personal assets.

Question 8

Formalities required for different types of partnerships.

Answer 8

General partnership requires no formalities. Limited or limited liability partnerships must file a certificate with the state to be formed.

Question 9

Definition of LLP and liability

Answer 9

A limited liability partnership means that no partner is personally liable for the obligations of the partnership.

Question 10

Definition of limited partnership and liability, formalities, conversion from GenP to LLP

Answer 10

A LP is a partnership formed only for a specific, defined purpose. They must file a certificate with the state.
Limited partners have liability limited to their capital contributions, but general partners in the same partnership have the same liabilities as a general partnership, as well as management control.
If a general partnership converts to an LLP, then partners remain jointly and serially liable for the actions that took place before the change.

Question 11

jurisdiction: first sentence explaining the 3

Answer 11

Jurisdiction determines whether the court can hear a claim with this particular plaintiff and defendant. It’s divided into subject matter, and personal, and venue.

Question 12

Subject matter jurisdiction 3 categories and what it is

Answer 12

SMJDX concerns the power of the court to hear the subject of the case. Federal courts have limited jurisdiction and can only hear cases that involve a federal question, diverse parties, or a claim that supplements the first two types of claims.

Question 13

Federal question jurisdiction

Answer 13

Federal question jurisdiction is proper when a question of federal law appear on the face of a well-pleaded complaint (not the answer or in an anticipated defense).

Question 14

diversity jurisdiction

Answer 14

A federal court has diversity jurisdiction over a question of state law only if there is complete diversity of citizenship between plaintiffs and defendants, and the amount in controversy is over $75K.

Question 15

How to determine state of citizenship for diversity JDX

Answer 15

For the purposes of jurisdiction, a person is a citizen of the place they are domiciled. A natural person is domiciled in a place they are physically present and at home, and intend to remain at home indefinitely. A corporation is domiciled in at least 2 places: where it is incorporated, and its principal place of business. Domicile is only at the time the suit is filed, not when the events took place or during the duration of the suit.

Question 16

Supplemental jurisdiction

Answer 16

When there is valid SM jurisdiction, either federal question or diversity, for one claim in a case but not another, a party may sometimes add the non-jurisdictional claim so long as is arises from the same transaction or occurrence as the claim that is the basis for jurisdiction.

Question 17

Removal jurisdiction

Answer 17

A defendant may remove an action filed in state court to a federal court of that state if the P could have originally brought the case in federal court. [However, a D may not remove the case if he is sued in his home state and the jurisdiction arises from diversity (so, if the P was kind enough to bring the fight to D’s home).-NOT USUALLY ON MEE]

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 original jurisdiction of a U.S. district court. Federal courts may exercise original diversity jurisdiction over actions when (i) the 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.

Question 18

explain venue and where it’s proper

Answer 18

Venue refers to the federal district court in which it is geographically appropriate to bring a case. Venue is proper:
1. where any D resides, so long as all reside in same state
(A corp defendant resides in any judicial district in which it is subject to PJDX)
2. where substantial part of action giving rise to claim occurred OR
3. substantial part of property subject to action is situated

FALLBACK, rarely tested: if none of the above work, where any D is subject to PJDX

Question 19

Describe personal jurisdiction (first sentence)

Answer 19

Personal jurisdiction refers to whether the court may get personal jurisdiction over the defendant. It can be general (obtained by consent, presence, or domicile) or specific (arising from a person’s contacts).

Question 20

Describe the ways to get general jurisdiction over a defendant

Answer 20

A federal court may exercise general jurisdiction over a defendant by the defendant’s consent (express or implied), serving the defendant while he is in the forum state, or by trying the case in the state in which he is domiciled.

Question 21

General statement describing PJDX re: state/fed comparison

Answer 21

Federal district courts may exercise personal JDX over a defendant to the same extent as the state court in which the district court sits.

Question 22

Describe specific jurisdiction

Answer 22

State courts of general jurisdiction may exercise PJDX over nonresidents defendants to the extent authorized by the state’s long-arm statute and the DP Clause of the 14A. Due Process permits jurisdiction over a person who has established minimum contacts with the state such that the courts’ exercise of jurisdiction over the defendant would not offend traditional notions of fair play and substantial justice. To determine minimum contacts, the court will look at whether the defendant has purposefully availed himself of the state’s benefits and protection, and at the quality of his in-state contacts.

Question 23

discovery is… first 2 sentences

Answer 23

Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action. Information within the scope of discovery need not be admissible in evidence to be discoverable.

Question 24

non-atty work product exemption: explain sentence

Answer 24

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.

Question 25

bug fucking explanation of e-info storage in anticipation of litigation

Answer 25

A party may request the other party to produce and permit the inspection of any discoverable documents or electronically stored information. 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 been 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. A party may be subject to sanctions for failing to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation.

Question 26

big fucking wordy explanation about e-info sanctions

Answer 26

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.

When retrieval of the information is possible, even if typically considered inaccessible due to 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.

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.

Question 27

What is privity?

Answer 27

Parties are in privity with each other when they have a relationship that is recognized by law, such as a relationship based upon contract, shared ownership of real estate, or other lawful relationship. This does not apply to relatives unless they are guardians or otherwise are representing each others’ interest in some identifiable way.

Question 28

claim preclusion

Answer 28

The doctrine of claim preclusion (res judicata) provides that a final judgment on the merits of an action precludes the parties from successive litigation of 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.

Question 29

issue preclusion

Answer 29

The doctrine of issue preclusion (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) must have been 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.

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 should not allow use of offensive collateral estoppel.

Question 30

Under the U.S. Constitution, state courts are required to give full faith and credit to valid judgments of other states. State courts are likewise required to treat federal judgments as those judgments would be treated by the federal courts. The issues decided in one court cannot be re-litigated in another, and the state in which enforcement is sough must honor the judgment of the federal court. Therefore, a party against whom enforcement of a judgment is sought may collaterally challenge the original state judgment based on lack subject matter jurisdiction only if the jurisdictional issues were not litigated or waived in the original action.

Question 31

how choice of state v fed law works in fed court in diversity action

Answer 31

When an action is commenced in U.S. district court, the court must determine the substantive law and rules of procedure that will govern the action. In a diversity action, the district court is required to apply the substantive law of the state in which the district court is located, if there is no federal law on point. With regard to procedure in a diversity action, if a procedural issue is addressed by a valid federal law, such as a statute, then the federal law will be applied, even if a state rule or statute is in conflict.

Question 32

State the requirements to maintain a class action in federal court

Answer 32

Rule 23(a) establishes four requirements for representative members of a class to sue or be sued on behalf of all members of the class: 
NUMEROSITY (i) the class must be so numerous that joinder of all members is impracticable (numerosity); 
COMMONALITY (ii) there must be questions of law or fact that are common to the class (commonality); 
TYPICALITY (iii) the claims or defenses of the representatives must be typical of the class (typicality); and 
ADEQUACY(iv) the representatives must fairly and adequately protect the interests of the class (adequacy).

Question 33

Standing in federal court

Answer 33

Under the Constitution, a federal court may only hear “cases” and “controversies.” To have standing to fulfill this requirements to bring a case in federal court, a plaintiff must establish that he has (i) injury in fact; (ii) the injury was fairly traceable to the challenged action (causation); and (iii) the relief requested must prevent or redress the injury.

Question 34

Injury in fact: explain (not what standing is, just this element)

Answer 34

Standing requires a concrete and particularized injury, even in the context of a statutory violation. The injury need not be physical or economic. An injury such as the invasion of privacy may be a sufficiently concrete injury in itself even when extensive damages cannot be proved.

Question 35

When does a party have a right to intervene in action?

Answer 35

Under Rule 24, a nonparty has the right to intervene in an action when, upon timely motion, it can show:

(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.

Question 36

Requirements for a TRO

Answer 36

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 must post a bond to cover the costs in the event the TRO is issued wrongfully.

Question 37

Elements of a preliminary injunction

Answer 37

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 his favor; and
(4) the injunction is in the best interest of the public.

Additionally, the party seeking the preliminary injunction must provide a bond to cover the costs in the event the preliminary injunction is issued wrongfully.