Civ Pro/Con Law
Where is venue proper?
Venue is the geographical location of specific federal districts in which a plaintiff's claim may be heard. A state can have multiple federal districts within its borders. And venue may be proper in more than one district because it is proper in any district where:
any defendant resides—so long as all defendants reside in the same state (ie, residency-based venue)
a substantial part of the events that gave rise to the suit occurred (ie, events-based venue) or a substantial part of the property at issue is located (property-based venue) or
any defendant is subject to the court's personal jurisdiction—but only if neither of the above provisions applies (ie, fallback provision).
An appliance store owner received a flyer advertising a cleaning service that dealt exclusively with commercial properties. The owner sent an email to the cleaning service that described the relevant features of the store and asked for a price quote. The owner received a reply email from the cleaning service offering to clean the store for $200 per week for a period of 52 weeks. The store owner responded, "Fine. I'll pay once a month in advance."
Has a contract been formed? Why or why not?
No, because the owner's response contained an additional term
Contracts for services (eg, cleaning services) are governed by the common law, which follows the mirror-image rule for contract formation. Under this aptly named rule, an acceptance must mirror the terms of the offer. A purported acceptance that contains different or additional terms is treated as a rejection of the original offer and as a counteroffer.*
Here, the cleaning service offered to clean the store for $200 per week for a period of 52 weeks. Because the store owner's response contained an additional term regarding when payment would be made ("once a month in advance"), his response was not an acceptance that created a contract. Instead, it constituted both a rejection of the cleaning service's offer and a counteroffer.
An employee and her boss were leaving work late one evening. As they were passing a dark alleyway on the way to their cars, the defendant jumped out holding a knife. The defendant abruptly pushed the boss against the wall of a nearby building, held the knife to the boss's throat, and demanded the watch on his wrist. The boss complied. The defendant then turned to the employee and threatened to stab the boss if the employee did not hand over her money. The employee handed her wallet to the defendant, who took the wallet and ran away. Shortly thereafter, the police found and arrested the defendant.
What crime(s) can the defendant be properly convicted of?
A. Assault on the employee, battery on the boss, and robbery from both the employee and the boss
B. Battery on the boss, and larceny from both the employee and the boss
C. Larceny from the employee and the boss, and robbery from the boss
D. Robbery from both the employee and the boss
Larceny is the unlawful taking and carrying away of the victim's personal property with the specific intent to permanently deprive the victim of that property (ie, to steal). Larceny is elevated to robbery when:
the property is taken from the victim's person or presence and
the taking is achieved by force or threat of force against the victim, the victim's family member, or another person present.
The threat-of-force element of robbery can be satisfied by a battery, which is the unlawful application of force to another resulting in bodily injury or an offensive touching. This element can also be satisfied by an assault, which is an attempted battery or conduct that intentionally puts the victim in reasonable apprehension of imminent bodily harm.
Here, the defendant battered the boss by grabbing him, pushing him against a wall, and holding a knife to his throat. The defendant also assaulted the boss by threatening to stab him. But the defendant did not assault the employee since he did not attempt to batter her or place her in apprehension of bodily harm (Choice A). The defendant then committed larceny by taking the boss's watch and the employee's wallet.
Both larcenies elevated to robbery since (1) the taking from the boss was accomplished by force and threat of force against him and (2) the taking from the employee was achieved by threatening force against the boss. Since larceny satisfies the taking requirement for robbery—and both battery and assault satisfy the threat-of-force requirement—all three crimes are lesser included offenses. This means that they merge with the robbery and the defendant can only be convicted of robbery; not the other crimes (Choices B & C).
What are the two types of defeasible fees (language to create them and future interest they create) because I still mess these up lol
1) Fee Simple Determinable
Durational language: "so long as", "during", "until"
Future interest: Grantor's possibility of reverter or third party's executory interest (fee simple subject to executory limitation)
2) Fee simple subject to condition subsequentFuture Interest: Grantor's right of entry, third party's executory interest
What two additional elements must a plaintiff prove in a defamation case against a public figure
1) that the statement is false
2) that defendant acted with malice (malice is present when the defendant knows the statement is false or acts with reckless disregard as to whether it is true or false.)
Explain SCOTUS Jurisdiction
Original Jurisdiction (Congress cannot adjust)
- Case filed directly in SCOTUS
- Cases involving either 1) ambassador/public minister/consul or state as party
Appellate Jurisdiction (Congress may limit)
- Case filed after decision by either lower federal court or highest state court
- All other cases by either 1) writ of certiorari or 2) direct appeal (rare)
What are the three seller warranties?
1) Implied Warranty of Merchantability: Commercial seller warranted product is generally acceptable & reasonably fit for its ordinary purpose.
2) Implied fitness for a particular purpose: Seller (commercial or noncommercial) warranted product is fit for particular purpose. Purchaser relied on seller's judgment or skill to purchase product.
3) Express: Seller (commercial or noncommercial) made affirmation of fact or promise that is part of basis of bargain.
What are the dangers to weigh against probative value under the FRE 403 balancing test
1. Unfair prejudice: Evidence tends to encourage jury to decide case on improper grounds
2. Confusing the issues: Evidence leads jury to focus on nonmaterial matters
3. Misleading the jury: Evidence creates misconceptions in the jurors' minds
4. Undue delay/wasting time: Presenting evidence will cause unnecessary delay or waste time
5. Needless Cumulation: Similar evidence on same issue has already been admitted.
Explain the 3 types of notice
1. Actual Notice: A grantee possessing actual, personal knowledge of a prior interest cannot prevail under a notice or race-notice recording statute.
2. Inquiry Notice: If a reasonable investigation would have disclosed the existence of prior claims, then the grantee is considered to possess inquiry notice, and she cannot prevail against those prior claims. The purchaser is charged with whatever knowledge a reasonable inspection of the property would have disclosed. In most states, taking a quitclaim deed does not in itself create inquiry notice of prior claims.
3. Record Notice: Grantees are held to have constructive notice of all prior conveyances that were properly recorded.
What are the elements of false imprisonment
i) The defendant intends to confine the plaintiff within a limited area;
ii) The defendant's conduct causes the plaintiff's confinement or the defendant fails to release the plaintiff from a confinement despite owing a duty to do so; and
iii) The plaintiff is conscious of the confinement.
Explain the two types of interpleader
Interpleader is a procedure used when multiple persons claim an interest in the same property (ie, the stake). It allows the possessor of the stake (ie, stakeholder) to avoid multiple liability by joining the claimants to litigate the ownership of the stake among themselves. There are two types of interpleader with distinct subject-matter jurisdiction requirements that must be met before a federal court can hear the dispute:
Rule interpleader – requires that (1) the action involve a federal question or (2) the amount in controversy exceed $75,000 and complete diversity exist between the stakeholder and the claimants—ie, they must be citizens of different states
Statutory interpleader – requires an amount in controversy of at least $500 and minimal diversity between the claimants—ie, at least two claimants are citizens of different states
In a single writing, a painter contracted with a farmer to paint three identical barns on her rural estate for $2,000 each. The contract provided for the farmer's payment of $6,000 upon the painter's completion of the work on all three barns. The painter did not ask for any payment when the first barn was completely painted, but she demanded $4,000 after painting the second barn.
Is the farmer obligated to make the $4,000 payment? Why or why not?
No, because the farmer has no duty under the contract to pay anything to the painter until all three barns have been painted.
Although courts prefer to interpret contracts as divisible for reasons having to do with fairness, they will not do so if the contract expressly states that it is indivisible. Here, the parties' contract provided that the farmer had no duty to pay the painter anything until she had painted all three barns. As a result, the contract was expressly indivisible, and the painter's completion of the work on all three barns was a condition precedent to the farmer's duty to pay (Choice C). Therefore, the farmer is not obligated to pay the painter $4,000 (i.e., $2,000 per barn for two barns).
When can summaries be used to prove content
Proponents of writings, recordings, or photographs may use summary, chart, or calculation to prove contents if proponent establishes:
1) Originals are voluminous & cannot be conveniently examined in court
2) Originals would be admissible
3) Originals or duplicates were made available for other parties to examine/copy and
4) Summary is fair & accurate
What do you need to create an express equitable servitude
1) The covenant must be in writing
2) The promising parties must intent for it to run with the land
3) It must touch and concern the land
4) The owner of the servient estate must have had notice of the covenant
Explain the four invasions of privacy
1) Intrusion upon seclusion: Highly offensive & intentional intrusion on plaintiff's solitude, seclusion, or private affairs
2) Appropriation of name or likeness: Unauthorized use of plaintiff's name or likeness for personal benefit - e.g., commercial advantage
3) Public disclosure of private facts: Publicity given to highly offensive & private matter concerning plaintiff that is not of legitimate public concern & results in damages
3) Publicity in a false light: Publicity given to false information about plaintiff with actual malice that places him/her in highly offensive & false light & results in damages
Explain the process and effect of voluntary dismissal and involuntary dismissal
Voluntary Dismissal
Process
P may dismiss suit without court order when:
P may request court order to dismiss suit unless:
Effect
Dismissal without prejudice unless:
Involuntary Dismissal
Process
D may move to dismiss suit if P failed to:
D may move to dismiss suit via:
Effect
Dismissal with prejudice unless:
When can an advertisement constitute a general offer?
Advertisements are generally considered invitations to negotiate or solicitations of offers, which create no power of acceptance in the recipient. However, an advertisement can constitute a general offer—the acceptance of which creates a binding contract—if the advertisement:
What are the two theories for D's liability for death caused by others?
Proximate Cause Theory: Liable for any person's actions
What are the four unities of a joint tenancy
Unity of possession, interest, time, and title
What are the 3 negligence rules of recovery?
1. Contributory Negligence: A plaintiff who fails to use reasonable care for his/her own safety and thereby contributes to his/her own injury is barred from recovering damages
2. Pure Comparative Fault (default rule on the MBE): Recovery is reduced by the plaintiff's percentage of fault
3. Modified Comparative Fault: The same as pure comparative fault, except that recovery is barred if the plaintiff's fault exceeds 50%
What are the appellate standards of review and their applicability
De Novo
Level of Review
- No deference to trial judge's legal determination
- Reverse if reasonably believe trial judge misinterpreted law
Applicability
Pure legal issues, e.g., conclusions of law, content of jury instructions
Clear Error
Level of Review
- Highly deferential to trial judge's factual findings
- Reverse if no reasonable judge would have made this finding
Applicability
Factual issues in bench trials, e.g., credibility of witnesses, jury's verdict
Substantial Evidence
Level of Review
- Highly deferential to jury's factual findings
- Reverse if no reasonable jury would have made this finding
Applicability
Factual issues in jury trials, e.g., credibility of witnesses, jury's verdict
Abuse of Discretion
Level of Review
- Highly deferential to trial judge's discretionary findings
- Reverse only if decision was unreasonable/arbitrary
Applicability
Discretionary rulings by judge, e.g., grant/denial of new trial, admissibility of evidence
Under the UCC parol evidence rule, evidence of any prior agreement (or any contemporaneous oral agreement) cannot be used to contradict the terms of a final written agreement. But the following evidence can always be used to explain or supplement those terms, regardless of whether the terms appear ambiguous:
Priority is given as follows: (1) express contract terms prevail over all others, (2) course of performance prevails over course of dealing and trade usage, and (3) course of dealing prevails over trade usage.
When can evidence of compromise offers and conduct and statements made during compromise negotiations be admissible?
2) Negating contentions of undue delay
3) Proving efforts to obstruct a criminal investigation or prosecution
In what order are proceeds from a foreclosure sale distributed
Order of priority:
1) Expenses from the sale (e.g., attorneys' fees, court costs)
2) Mortgage being foreclosed
3) Junior liens, in order of lien priority
4) Debtor, if any surplus remains
A disgruntled former employee of a corporation posted false job listings online for his former position. The false job listings directed applicants to email multiple documents, including a resume, to the employee's former manager. The employee intended to generate enough email responses to impede performance of the corporation's computer system.
However, the employee accidentally posted an email address belonging to a small business owner. As a result, the owner received hundreds of emails from job applicants. This made it hard for the owner to find emails relevant to her business but caused no functional disruption to her computer system. Upon discovering that the employee had posted the false job listings, the owner filed suit against the employee for trespass to chattels.
Should the owner prevail in her lawsuit? Why or why not?
No, because the owner cannot show that the employee's interference caused her actual damages.
Trespass to chattels (ie, tangible personal property) occurs when an actor intentionally interferes with another's right of possession by either:
And under the doctrine of transferred intent, an actor's intent to commit trespass to chattels against one person will transfer to the actor's commission of the tort against a different person. However, in the absence of actual damages (eg, actual harm to chattels), an action for trespass to chattels based on use or intermeddling will fail.