Tricky shit Flashcards
requirements for compulsory counterclaims to have jurisdiction
- arise from same transaction/occurrance–> court already has supplemental jurisdiction
Do NOT have to meet amt in controversy requirement.
what do permissive counterclaims need
they do NOT arise from same transaction as P’s claim,so they must have separate basis for SMJ- ie. diversity and amt in controversy. MUST NOT DESTROY diversity
if replacement of parties b/c wrong party was named in complaint, does new named party need to meet diversity
YES
elements of false pretenses
1- obtaining title to property
2- through reliance of that person on false info
3- with intent to defraud
in a criminal case, when can D introduce evidence of his good character
anytime as being inconsistent with type of crime being charaged
if adding a party through joinder will destroy diversity, can you still add them
NO
for claim preclusion
both parties must occupy same role in both actions
how can the credibility of witnesses be attacked
R & O testimony or specific instances including crimes of dishonesty or a FELONY
attempt of any crime requires what
Specific INTENT to do that crime, even for statutory crimes
notice of removal must be made when
w/I 30 days of receipt of complaint
when will motion to remand be denied
If the fed ct has SMJ
When can a court hear other claims under Supplemental jurisdiction
if the other claims are part of the same case or controversy
how does impleader work
allows a defendant in diversity in fed ct to IMPLEAD a 3rd party who may be liable to the original D for all or party of P’s claim, can be joined even if NOT diverse or amt is <75k as long as common nucleus of operative fact
For time place manner restriction on speech
interest must be IMPORTANT NOT compelling and narrowly tailored
powers of congress
foreign affairs, coining money, nec and proper, delegating power, commerce clause, spending, tax, war, aliens/non citizens
two types of assault
- attempted battery
- intentionally placing another in fear of imminent bodily harm
Amending pleadings
Can amend once as a matter of right within 21 days but court should freely give leave to amend pleading when justice requires
restitution
Benefit conferred on defendant must be returned to P
When can a court sitting in diversity exercise supplemental jurisdiction
Only if the additional claims come from common nucleus of operative fact and DO NOT DESTROY DIVERSITY
When can a court sitting in fed question exercise supplemental jurisdction
only requirement is that the claims come from common nucleus of operative fact
What is the standard for a new trial
Whether the verdict is against the weight of the evidence
What is the standard for judgment as a matter of law or renewed jmol
whether there is substantial evidence in the record to support the verdict, resolving all disputed issues in the non-moving party’s favor.
For MPT- what to write for intro
one sentence reiterating task memo, - below please find my analysis regarding 1 , 2 , 3
Rule proof
In case name, the court held, (HOLDING) because facts and reasoning.
After Rule Proof…
Just as D in other case did 1, 2 3 so too did D in our case.
conclusion for MPT
Thank you for allowing me to conduct this analysis for you. if there is anything I can do to be of further assistance, please LMK
areas of substantive law
elements of a claim
Statute of limitations
Burden of proof
for conflict of state and fed law- determining which to apply
- is there a valid federal statute or fed rule that covers the disputed issue. If so, the district court must apply fed law rather than state law
–> IF THERE IS NO FED LAW ON POINT< FED ct must apply substantive law of the state in which it sits
if it is a federal rule (not fed statute- is there rule valid- does it change, modify any substantive right? if not, apply the fed rule)
- will failure to apply state law lead to a diff outcome in state v fed court? if no- apply fed law, if yes, apply state law.
statement by party opponent vs statement against interests
Statement by party opponent (non-hearsay)=made by opposing party or their agent… now used against them.
Statement against interests=ONLY APPLIES IF DECLARANT IS UNAVAILABLE!!!
two provisions of dormant commerce clause and a caveat
- IF STATE LAW IS DISCRIMINATORY ON ITS FACE AGAINST OUT OF STATE
if a state law is discriminatory against out of state… then it must show the law is necessary for a COMPELLING state interest and there are NO reasonable alternative means (law usually fails) - If STATE LAW IS NOT DISCRIMNATORY ON ITS FACE- then just check that there is important govt interest and it does not unduly burden interstate commerce.
Caveat, state can discriminate if the state is the market participant-i.e the one buying the goods
standard of review for law
standard of review for factual issues
for law- de novo
for factual issues- clear error
standard of review for discretionary rulings by judge
ABuse of discretion
- i.e admissibility of evidence, testimony s/ be excludied
accomplice liability
aids or encourages principale BEFORE or DURING CRIME WITH INTENT that the principal commit the crime
article 4 privileges and immunities clause
can protect in state resources like RECREATIONAL ISSUES- charging out of state people more for recreational license BUT NOT for commercial things.
for specific intent crimes, mistakes of fact can be what?
Reasonable OR UNREASONABLE.
Can be unreasonable mistake as long as it is HONEST
Attempted x crime = what type of crime
specific intent- so reasonable Or HONEST but unreasonable mistake of fact is a defense
only situations in civil actions when you can introduce character evidence and then which types of character evidence can you use
only those cases can you admit character evidence through R, O and SPECIFIC ACTS!!!!
Defamation, NEGLIGENT HIRING, Negligent entrustment, child custody
anything that is NOT hearsay can be used how
as substantive evidence and to impeach
If statement is taken in violation of Miranda- i.e in a custodial interrogation but without Miranda warnings given, can the statement be used at trial?
Can derivative evidence from the statement be used at trial
The statement in violation of Miranda can NOT be used at trial but can be used to impeach
The derivative evidence CAN be used at trial- as long as the statement was not coerced
What is the fed interpleader ACT vs fed interpleader RULE
Fed interpleader ACT= >75K, complete diversity
Fed interpleader Statute= >$500, only 2 parties need to be diverse, nationwide jurisdition
When does negligent misrepresentation apply and when is it just fraud?
If it is a SELLER, in a business capacity using false statements to sell an item–> Negligent misrepresentation
When can a written contract for the sale of goods be modified orally
If the goods have been paid for or received
The right to a jury trial applies to …
Crime with a criminal sentences over 6 mo.
what is permissive joinder of parties
Multiple P or multiple D’s coming together if their claims come from single transaction and common question of law.
For anti lapse statute to apply, what is a critical condition of the beneficiary of a will?
Must be a relative of the testator
If the beneficiary does not survive the testator by 120 hours, then wheat happens to the gift to the beneficiary in the testator’s will?
It lapses… unless it says otherwise in the will or there is an anti lapse statute
Are Congressional Laws discriminating against non citizens valid? What about state laws discriminating against non citizens
Congressional laws discriminating against non citizens are valid- congress has plenary power over non citizens.
State laws discriminating against non citizens are subject to strict scrutiny. BUT states can prohibit non citizens from voting, serving on jury, being hired as public schools teachers, police officers
Under MPC, if statute says knowingly sell, distribute blah blah to kids under 18. What does knowingly apply to
EVERY word after it. Knowingly sell, knowingly distribute, knowingly that kids were under 18
for modified comparative negligence, recovery by P is barred when
P’s negligence EXCEEDS 50%
ACCOMplice liability
aids or encourages principle with INTENT that principal commit the crime
does exclusionary rule apply to civil proceedings like wrongful death
No
if person has contract to paint house and gets halfway done but then house burns down to no fault of homeowner or painter, how can painter recover
duties of homeowner and painter are discharged but painter can recover in quasi contract for costs and expected profits
For a co tentant to acquire sole ownership of co owned property thru adverse possession what must the cotenant do
OUST the other co tenants and prevent them from getting on property
can a statement by party opponent be used for the truth of the matter
Yes, because hearsay exception
discriminating against out of staters by charging them more for recreational hunting/fishing license
Privileges and Immunities clause article 4
if state law conflicts with a treaty
treaty is considered fed law so state law would be invalid
taking away welfare benefits requires
Pre termination hearing b/c property interest
is voluntary intoxication a defense to recklessness crimes
No
Pullman doctrine
Leave unsettled issue of state law to the states
Younger abstention
court will not enjoin pending state criminal case
standard for JMOL
substantial evidence in the record to support the verdict.. resolving all disputed issues in non moving party’s favor
2 parts of dormant commerce clause
1) if it is discriminatory on its face to out of state –> law is only ok if COMPELLING state interest and NO REASONABLE ALTERNATIVE MEANS
2) if it is not facially discriminatory BUT burdens interstate commerce–> law must serve IMPORTANT state interest and not UNREASONABLY BURDEN IC
O’Brien test for expressive conduct
Regulation must
1) further an IMPORTANT GOVT INTERST
2) NOT be related to SUPPRESSION OF IDEAS
3) burden on speech is no greater than necessary
covenant of quiet enjoyment vs implied warranty of habitability
Covenant of quiet enjoyment- in ALL leases. Breached by constructive eviction. T must move out
Implied w of habitability- only in RESIDENTIAL leases, can repair and deduct, or not pay rent. Don’t have to move out
What is NOT hearsay
Verbal acts
effect on listener
state of mind
Prior statements of trial witness
Party admission
reasons to pierce the veil
to get to shareholder’s assets when there is evidence of:
1) alter ego- treating corp as self, no formalities
2) undercapitalization
3) fraud
types of common law murder
intent to kill
intent to GBH
depraved heart- reckless disregard for human life
felony murder
Hearsay EXCEPTIONS only for use if Declarant is unavailable
dying declaration
statement against interest
former testimony under oath
for joint tenancy, a mortage or lien severs the JT in what type of jurisdiction
Title. B/c Liens are lenient
time place manner restrictions on speech
1) content neutral
2) narrowly tailored to significant govt interest
3) leaves open alternative channels for communication of ideas
for private nuisance- what is the standard
causes substantial and unreasonable interference with the NORMAL use of the person’s property. Can be just economic loss
for conviction of manslaughter, do you still need to prove but for and proximate causation
YES
for BREACH OF WARRANTY suit, the person suing must be…
in privity with the manufacturer. I.e the consumer who bought the good and not a third party that was harmed by defected car, etc.. can be family member or member of the household though
do identical cross offers for sale of goods form acceptance
NO
for IIED against public figures you need what
Actual malice- knowing the statement is false or reckless disregard as to whether it is true or false
if a mortgage goes into default, can either tenant avoid foreclosure by …
exercising their EQUITABLE right of redemption by paying off whatever. A cotenant could pay off entire amount and then get reimbursement from other covenants for their share
can a profit be transferred? I.e. if landowner gives you permission to fish from lake on their property can you transfer that permission to someone else
YEs UNLESS The profit is personal or a transfer would be against the INTENT of the parties who created the profit
is a 4th amendment violation (improper seizure or search) ground to dismiss an indictment
NO
where can a minor or incompetent be served with process
ONLY following the service rules in the state where service occurs
if the state’s highest court has never ruled on something, where do the federal courts look to
rulings from state’s lower courts
if congress is adjourned in the 10 day period the president has to veto or accept a bill, what happens
If the President does NOTHING, then the bill automatically gets rejected b/c congress is adjourned
if school officials search a kid’s backpack what do they need
Reasonable suspicion
If school officials search a kid’s backpack AT THE DIRECTION OF POLICE
they need a warrant based on probable cause or an exception to the warrant requirement
initial aggressor usually can’t use self defense justification EXCEPT WHEN
initial aggressor’s use of non deadly force is met with deadly force OR
initial aggressor has completely withdrawn from altercation and communicated that to the victim
will intention to commit trespass against one party transfer to another
yes
if in suit one, a sues b for breach of contract from transaction x and then in suit 2 a sues b for negligence from the same transaction, does claim preclusion apply
yes because…claims are identical if they arise from the same transaction or occurrence and could have been raised in the first action- even if the claims are labelled differently.
treaties- fall within…what jurisdiction of the supreme ct?
federal question
jury instructions must be given
BEFORE closing arguments- with a chance for parties to object on the record then outside the presence of the jury
If a case is being REMOVED to federal court, what MUST You check for in the fact pattern
See if it is the plaintiff removing it- remember ONLY DEFENDANTS CAN REMOVE TO FED CT
If a woman filed suit based on xyzzy and the state did not recognize xyzzy claims at the time of her initial lawsuit… but new state supreme ct ruling now recognizes xyzzy, will appellate court consider her suit
YES
voluntary vs involuntary dismissal of a case
voluntary- by plaintiff
involuntary- By Defendant
