Simulated MBE Flashcards
Claim Joinder by D - Same Transaction/Occurrence - Use or Lose?
Compulsory counter claim. Must be raised or waived
Claim Joinder by D - Different Transaction/Occurrence - Use or Lose?
Permissive counter claims. Not required to raise.
Cross Claims - Use or Lose?
Claim against co-party, same T/O, not required to raise but may (not compulsory)
What are cross-claims?
When parties on the same side (P or D) want to sue each other
Not compulsory, may raise later
Federal Question Jurisdiction - Jurisdiction over Supplemental Claims
Federal court has discretion to exercise supplemental jurisdiction (like over state law claims) if they arise from a common nucleus of operative facts
Diversity Jurisdiction - Aggregation of Amount
Plaintiffs can aggregate their claims only where they are seeking to enforce a single title or right in which they have a common or undivided interest
General Personal Jurisdiction
Where person is domiciled
Plus typical requirements of PJ (statute authorizes and exercise is constitutional [pervasive contacts])
How long does an individual have to object to personal jurisdiction?
May be asserted by first response (pre-answer motion OR answer [without pre-answer motion])
Where is venue proper?
All Ds reside in same state: Any district where a defendant resides or where action occurred
Ds reside in different states: Any district where cause of action occurred
Third Party Defendants - Claims against Plaintiffs
A third-party defendant may assert a claim against the plaintiff if the claim arises out of the same transaction or occurrence as the plaintiff’s original claim.
Defendant - Claims against Third Parties
Third-party claims may be asserted only to obtain recovery, and that recovery must be for the defendant/third-party plaintiff’s own liability to the plaintiff.
You can’t drag in a third party defendant unless you are saying “yeah, I’m responsible, but so are they!”
You cannot do in situation like: “It wasn’t me, it was X! I would like to assert a claim against X.”
Amended Complaint - When do they “relate back”?
Amendments substituting a new defendant for one originally named are allowed and the amendment will relate back to the time the original complaint was filed if (i) claims in the amendment arise from the same transaction or occurrence as the claims set out in the original pleading; and (ii) within the time allotted for serving the original complaint (90 days), the new defendant received such notice of the action that it will not be prejudiced in defending on the merits and knew or should have known that the action would have been against it (the new defendant).
How long does an individual have to object to venue?
May be asserted by first response (pre-answer motion OR answer [without pre-answer motion])
How long does an individual have to object to subject matter jurisdiction?
FOREVER!
Whose rules apply for service of process?
Service may be made as provided by the rules of the state in which the federal court sits or the state in which service is to be effected, regardless of the basis of subject matter jurisdiction
Otherwise: personal, at abode with person of age residing there, or authorized agent
Do we care about hearsay during discovery?
Nope! Just whether info is privileged or relevant.
What must be disclosed prior to discovery request (initial disclosures)?
Names of individuals likely to have discoverable info that the disclosing party may use to support its claims or defenses along with subjects of information
To what does the work-product doctrine apply (re discovery)?
Documents prepared in anticipation of litigation by a party or its representative are not discoverable unless the opposing party can show substantial need and that it cannot obtain the materials in an alternative way without undue hardship.
What sanctions can a court impose after a motion to compel?
The court may not impose sanctions on the defendant, but it must require the defendant to pay the plaintiff’s reasonable expenses incurred in making the motion.
If nondisclosure continues > then sanctions
What may a peremptory challenge NOT be based on?
A party cannot use peremptory challenges if the court suspects the challenge is for race, national origin, religion or gender, which violate the juror’s equal protection rights under the Fourteenth Amendment.
Effect of failure to object to a procedural mistake?
Procedural mistakes must be objected to in a timely manner or be waived on appeal
When may a default judgement be entered after a default?
A defendant against whom a default is entered loses the right to contest liability unless the entry of default is set aside
However, the amount of damages must still be determined before a default judgment may be entered, and the defaulting party can be heard at the hearing for damages.
If the defendant has “appeared,” even though he has not answered, he must be notified of the request for a default judgment by first-class mail at least seven days before the hearing on the application for a default judgment.
When can a clerk enter a default judgement?
When damages are for a certain sum + D has never appeared
When may a motion for new trial be granted?
There is an error during trial (verdict against evidence, jury issues, admissibility of evidence, verdict is excessive)
When may a motion for judgement as a matter of law be granted?
A motion for judgment as a matter of law (formerly known as a motion for directed verdict) may be made by any party any time before submission of the case to the jury.
One after it is given to the jury is a renewed judgement as a matter of law and you must have first raised the judgement as a matter of law in a timely manner.
When may a judge use “remittitur”?
If the judge believes that the jury’s compensatory damages award is so excessive as to “shock the conscience” the judge may order a new trial or may offer the alternative of remittitur.
Allowed in both state and federal cases.
When may a judge use “additur”?
If judge believes jury’s damages award is inadequate, judge can order a new trial or offer the alternative of additur to D.
Allowed only in state cases.
When does issue preclusion take effect?
Can only be used against someone who was party to Case 1 or in privity AND by someone who was a party to Case 1 or in privity.
The relevant issue must have been actually litigated and determined in the previous case
Does issue preclusion apply to consent judgements or settlements?
NO! It was not litigated.
Content-Based Restrictions on Speech are Judged to be…
Presumptively unconstitutional!
Give strict scrutiny.
Federal laws which classify based on alienage are subject to which scrutiny?
Rational basis
State laws which classify based on alienage are subject to which scrutiny?
Strict scrutiny
State and local laws that classify persons based on alienage are subject to strict scrutiny unless the law is discriminating against alien participation in the functioning of the state government (rational basis if so)
To what does the contracts clause apply?
State laws that retroactively invalidate already existing contracts
The Contracts Clause prohibits states from retroactively and substantially impairing contract rights unless the governmental act serves an important and legitimate government interest and is a reasonable and narrowly tailored means of promoting that interest.
When are private actors considered the state for the purposes of equal protection/due process?
Private action may constitute state action where the private actor is performing an exclusive state function or the government is significantly involved in the private actor’s activities.
State laws which classify based on age are subject to which scrutiny?
Rational basis.
Because age is not a suspect or quasi-suspect class, government action based on age will be upheld if there is a conceivable rational basis for the classification.
When are state laws preempted by federal law?
Express preemption OR Implied preemption (intent of the federal government to occupy the entire field with its regulation, the state law directly conflicts with the federal law, or the state provisions prevent achievement of federal objectives).
For regulations involving health, safety, and welfare, the Court will presume that state police powers are not preempted unless that was the clear and manifest purpose of Congress when it enacted the federal law.
What is the current establishment clause rule/ask?
Is the government action neutral toward religion (aid or establish), and if not, is there a long history of the action being accepted or would the Founding Fathers have found the government action to be acceptable?
How to measure whether due process provisions are sufficient?
Fair procedure at a minimum requires an opportunity to present objections to the proposed action to a fair, neutral decisionmaker.
Whether a prior evidentiary hearing is required and the extent of procedural requirements is determined by weighing (i) the importance of the individual interest involved, (ii) the value of specific procedural safeguards to that interest, and (iii) the governmental interest in fiscal and administrative efficiency.
May the press use an illegally recorded/gathered statement or information?
Generally, the press has a right to publish information about a matter of public concern, and this right can be restricted only by a sanction that is narrowly tailored to further a state interest of the highest order.
The right applies even if the information has been unlawfully obtained in the first instance, as long as (1) the speech relates to a matter of public concern, (2) the publisher did not obtain it unlawfully or know who did, and (3) the original speaker’s privacy expectations are low.
When may Congress spend to provide for common defense/general welfare?
This power allows Congress to spend for any public purpose as long as it does not infringe on other specific constitutional restrictions (such as the Bill of Rights).
PICK IT IF ITS COUPLED WITH TAXING AND SPENDING
Commerce Clause - Congress using it for noneconomic purposes
Congress must make a factual finding that the activity regulated has a substantial economic effect on interstate commerce.
When may a state discriminate against out of state businesses under Commerce clause?
When Congress authorizes it OR state is acting as a market participant
When can Supreme Court take on a state court case on appeal?
Final Judgement
Judgement from Highest State Court
Substantial Federal Question
& Decision did not rest on adequate and independent state grounds
Elements for Standing
Injury in fact (present)
Causation (suing person who caused harm)
Redressability (court can fix it)
When is a final court judgement advisory?
When the final review is subject to agency or political review after (can decide whether to listen to it).
When does a P have third-party standing on constitutional issues?
A person has standing only if she can demonstrate a concrete stake in the outcome of a controversy and that the governmental action at issue impairs her own rights.
A plaintiff may assert third-party rights if she has suffered injury and that injury adversely affects her relationship with third parties, resulting in an indirect violation of their rights.
Who bears the burden with intermediate scrutiny?
The state has the burden of proving that the program is substantially related to an important government interest.
Applies to gender/sex.
When can Congress use strings (conditions) on grants of money?
So long as those strings are not unduly coercive
Discrimination under a Federal law is looked at under…
Due Process Clause of the 5th Amendment
Discrimination under a State law is looked at under…
Equal Protection Clause of the Fourteenth Amendment
Commercial Speech regulation is allowed if:
Although commercial speech is protected by the First Amendment, it is subject to significant regulation. A state may outlaw commercial speech that proposes an unlawful transaction or that is misleading or fraudulent.
If commercial speech concerns a lawful activity and is not misleading or fraudulent, the government regulation, to be valid, must directly advance a substantial governmental interest and must be no more extensive than necessary to serve that interest.
The regulation must be narrowly drawn and there must be a reasonable fit between the legislation’s end and the means chosen.
What gets intermediate scrutiny under free speech?
Zoning laws re adult theaters
Nude dancing bans
Symbolic speech
Content-neutral time, place, and manner restrictions
What raises an equal protection issue?
Whenever a law treats certain classes of people differently from others, a potential equal protection issue is raised.
If the governmental action classifies persons based on a suspect classification (such as race), a strict scrutiny standard.
Most classifications, including those based on income level, are reviewed under the rational basis standard and will be upheld unless they bear no rational relationship to any conceivable legitimate government interest.
For a non-public forum, government regulations reserving forum for intended use are upheld if:
(i) viewpoint neutral, and (ii) reasonably related to the intended purpose of the nonpublic forum
For a limited public forum, government regulations reserving forum for intended use are upheld if:
(i) viewpoint neutral, (ii) content neutral, and
(iii) tailored for an important gov interest
For a public forum, government regulations reserving forum for intended use:
May be regulated by time, place, and manner regulations that
(i) are content neutral (i.e., subject matter neutral and viewpoint neutral),
(ii) are narrowly tailored to serve an important government interest, and
(iii) leave open alternative channels of communication.
Contracts must have consideration, which is:
Consideration consists of: (i) a bargained-for exchange between the parties; and (ii) an element of legal value to that which is bargained for.
Legal value is present if the promisee has incurred a detriment
To have a “bargained-for exchange,” the promise must induce the detriment, and the detriment must induce the promise. If something has already been given or performed before the promise is made, it will not satisfy the bargain requirement, because it was not given in exchange for the promise.
When does a contract offer remain open?
Common law: w/ consideration
UCC: Merchants firm offer rule (merchant + offer in writing) [if no time stated, <90 days]
What is the maximum “offer” contract timeline a court will enforce?
Three months.
If the stated period extends beyond three months, the firm offer will stand, but it will only last for the three-month maximum.
Remedy for Breach of Contract - Builder Entitled To:
Any profit he would have derived from the contract plus any costs he has incurred to the date of the breach.
When performance of a unilateral contract begins, the offeror may not
Cancel!
Does a unilateral contract terminate upon death of offeror?
No!
An offer will not be terminated by the death of the offeror if the offeror’s power to revoke is limited by law, such as in the case of a valid unilateral contract.
Exception to the surety writing requirement under SoF
If we can show that the main purpose of the promisor is to secure an advantage or pecuniary benefit for himself, the contract is not within the Statute of Frauds, even if the effect is still to pay the debt of another.
Effect of a mutual mistake
If mutual mistake is at the essence of the agreement > recission
Place parties at point as if contract never happened
Effect of a unilateral mistake
Does not prevent contract formation UNLESS non-mistaken party knows or has reason to know of other party’s mistake
Modifications - Common Law
Requires new consideration because there is a pre-existing duty in the contract
Where a modification would operate to the benefit of only one of the parties, it generally will be unenforceable unless some consideration is being given to the other party.
No consideration if: fair, equitable, and need for modification was unforeseeable when contract formed
Modifications - UCC
Allowed so long as they are in good faith!
Modifications - Does parole evidence rule apply?
NO!
Modifications - Statute of Frauds
For sale of goods contracts, a modification must be in writing if the contract as modified falls within the Statute of Frauds; i.e., if the contract as modified is for $500 or more.
Parole Evidence Rule
If a contract is reduced to an integrated writing (i.e., a writing reflecting the whole deal), a party may not introduce prior or contemporaneous oral statements (or prior written statements) seeking to vary the terms of the contract.
Does NOT bar subsequent evidence
When can a minor sign a contract?
Minors will be held liable in restitution for the benefits they receive under contracts they make for necessities, such as medical care.
When is a contract unconscionable?
Unconscionability usually arises where one of the parties has substantially superior bargaining power and can dictate the terms of the contract to the other party, who has inferior bargaining power.
UCC - Merchants Confirmatory Memo
Oral contract and then one party sends the other party a written confirmation of their oral agreement that is sufficient to bind the sender, it also will bind the recipient if he has reason to know of its contents and does not object within 10 days of receipt.
Both parties MUST be merchants!
Modifying/Cancelling Contracts Benefiting an Intended Third Party Beneficiary
Contract can be modified or canceled w/o consent of third party beneficiary if their rights have not yet vested
Once rights have vested, parties cannot modify or cancel without beneficiary consent.
How/When do a Third Party Beneficiary’s Rights Vest?
Vesting: (i) manifests assent to the promise in a manner invited or requested by the parties, (ii) brings suit to enforce the promise, or (iii) materially changes his position in justifiable reliance on the promise.
When may parties to a contract rescind the contract?
Both parties to a contract may agree to rescind and discharge their contractual duties as long as the duties are still executory on both sides.
Promissory Estoppel - Elements
Promise
Reasonable reliance on promise
Actual reliance
Interests of justice
Generally, a substitute for consideration
Shipping Contract - F.O.B.
Seller responsible for breach/loss
