Jurisdiction and Venue
How do you determine the citizenship of an individual and a corporation?
An individual is a citizen of the state in which the individual is domiciled. Domicile requires physical presence in a state and intent to make that state the person's permanent or indefinite home. A person retains an existing domicile until a new one is acquired. A corporation is a citizen of every state or foreign country in which it is incorporated and the state or foreign country containing its principal place of business. The principal place of business is the corporation's nerve center, ordinarily the place where senior officers direct, control, and coordinate corporate activities.
What must the claim be for a third party claim?
third party plaintiff must be alleging derivative liability.
What is the standard to survive a MTD for failure to state a claim?
A complaint survives a motion to dismiss when its well-pleaded factual allegations, accepted as true and viewed favorably to the plaintiff, state a plausible claim for relief. Legal conclusions and conclusory recitations are not assumed true. The court ordinarily considers the pleadings, attached or incorporated documents, and matters properly noticed.
State the first amendment test.
CB: strict scrutiny, If PF TPM- intermediate, if NPF- rational
What is a unilateral mistake and when does it void?
A unilateral mistake generally does not permit avoidance unless the other party knew or should have known of the mistake, caused it, or enforcement would be unconscionable and avoidance would not substantially prejudice the other party. The mistaken party may not obtain relief if it assumed the risk.
State all the rules for aggregation.
A single plaintiff may aggregate all claims against a single defendant, whether related or unrelated. A plaintiff generally may not aggregate separate claims against multiple defendants unless the defendants are jointly liable. Multiple plaintiffs generally may not aggregate separate claims, but supplemental jurisdiction may permit additional plaintiffs whose claims arise from the same case or controversy when at least one plaintiff satisfies the amount requirement and complete diversity remains.
What is discoverable?
Anything that is relevant and not privileged
What is a rule 56(d) motion?
When a nonmovant shows by affidavit or declaration that specified facts essential to oppose summary judgment cannot yet be presented, the court may defer or deny the motion, allow discovery, or issue another appropriate order.
Standard for a licensing restraint.
A prior restraint requires speech to be approved before it occurs and carries a heavy presumption of invalidity. A licensing scheme must contain narrow, definite, objective standards, no unbridled discretion, prompt decisionmaking, and adequate judicial review.
What are all the elements of SOF and all the exceptions for each element
MY LEGS, SWAMP
What is the procedure for removal?
The removing defendant files a notice of removal in the proper federal district court, attaches the state-court process and pleadings, gives written notice to adverse parties, and files a copy with the state court. Venue after removal is the federal district and division embracing the state court, regardless of whether ordinary federal venue would otherwise have been proper.
State the rules for TRO (is notice needed?, How long are they? can they be appealed?), State all the rules for a preliminary injunction.
For a TRO notice is not needed unless you are seeking enforcement of the TRO, no longer than 14 days unless good cause is shown, immediate and irreperable injury, must state the injury and reasons, be narrowly drawn, not appealable
Prelim Injunction- requires likelihood of success on the merits, likely irreparable harm without relief, a balance of equities favoring the movant, and consistency with the public interest. Notice and an opportunity to be heard are required, not appealable.
What are all the reasons you can get relief of judgment and what are the corresponding time periods.
clerical error (any time), mistake/excusable neglect (reasonable time, never more than 1 year), Fraud/misrep/misconduct by opposing party (reasonable time never more than 1 year), Newely discovered evidence without lack of due diligence and existed at time of trial (reasonable time never more than 1 year, void (reasonable time/no max).
Standard for an injunction against speech.
An injunction directed at speech receives close scrutiny. An injunction based on content must satisfy strict scrutiny; a content-neutral injunction must burden no more speech than necessary to serve a significant interest. Publication of lawfully obtained truthful information is rarely restrainable.
All exceptions for the PER
Extrinsic evidence may be admitted to interpret ambiguity, establish a defense to formation or enforcement, show that the writing was subject to an oral condition precedent, prove a later modification, correct a clerical mistake, or establish a separate collateral agreement not ordinarily expected in the writing.
What is the rule for service on an individual and corporation?
An individual may be served by following state law in the state where the district court sits or service is made; personal delivery; leaving process at the individual's dwelling or usual abode with a person of suitable age and discretion who resides there; or delivery to an authorized agent.
A corporation, partnership, or association may be served by following applicable state law or by delivering process to an officer, managing or general agent, or another agent authorized by appointment or law to receive service.
What is the time limit for service, amend complaint or answer, answer a complaint, remove?
Service-90 days
amendment- 21 days
answer- 21 days
remove - 30
What is the standard for a judgment of the pleadings?
After the pleadings close but early enough not to delay trial, a party may move for judgment on the pleadings. The standard generally mirrors failure to state a claim: the court accepts the nonmovant’s well-pleaded facts and grants judgment only when no material factual dispute remains and the movant is entitled to judgment as a matter of law.
State all things not covered by first amendment and the definitions for them.
Obscenity & CSAM: Material appealing to prurient interests lacking serious value and visual depictions of child sexual exploitation.
Threats & Incitement: True threats of violence against individuals and speech intended to, and likely to, cause imminent lawless action.
Defamation & Fraud: False statements of fact that damage a person’s reputation (libel/slander) and fraudulent, deceitful speech.
Criminal Solicitation & Fighting Words: Speech integral to criminal conduct, such as blackmail or extortion, and face-to-face insults tending to provoke immediate violence
What is the rule for minors?
A contract entered by a minor is generally voidable by the minor during minority or within a reasonable time after reaching majority. The minor may disaffirm but may be liable in restitution for necessities. After majority, the person may ratify expressly or by conduct.
List all the claims that are non removable from state court?
violence against women act, actions against railroads, workers comp, family law, probate
What are the requirements for a class action, when does a class action have federal jurisdiction
commonality, numerosity, adequacy, typicality, plaintiff must show superiority and that common question predominate. for jurisdiction must be 100 or more plaintiffs and over 5 million, AND need diversity.
What is the standard for a new trial?
A court may grant a new trial after a jury verdict for reasons historically recognized, including a verdict against the great weight of evidence, excessive or inadequate damages, prejudicial error, juror misconduct, or newly discovered evidence. The judge may weigh evidence and credibility but should not simply substitute judgment for the jury’s.
Closure requires an overriding interest, narrow tailoring, consideration of alternatives, and adequate findings.
What is the rule for promissory estoppel?
A promise is enforceable without consideration when the promisor should reasonably expect it to induce action or forbearance, it does induce reasonable and detrimental reliance, and enforcement is necessary to avoid injustice. The remedy may be limited as justice requires.