Civil Procedure
What are the requirements for intervention as of right?
The movant must show:
a timely motion;
an interest relating to the property or transaction that is the subject of the action;
disposition of the action may impair or impede the movant’s ability to protect that interest; and
the existing parties do not adequately represent the movant’s interest.
What are the requirements for admitting former testimony when the declarant is unavailable?
Former testimony is admissible if:
the declarant is unavailable;
the testimony was given at a prior proceeding or deposition; and
the testimony is offered against a party, or someone in privity with a party, who had an opportunity and similar motive to develop the testimony.
What are the requirements for adverse possession?
Possession must be:
continuous;
hostile;
actual;
open and notorious;
for the statutory period; and
exclusive.
Under the UCC battle-of-the-forms rule, when do additional terms between merchants become part of the contract, and what are the exceptions?
Between merchants, additional terms become part of the contract unless:
the term materially alters the contract;
the offeror objects within a reasonable time; or
the offer expressly limits acceptance to the terms of the offer.
What are the requirements for organizational standing?
An organization has standing if:
one of its members would have standing individually;
the member’s injury is related to the organization’s purpose; and
individual member participation is not required.
What are the Class Action Fairness Act requirements for federal jurisdiction over a class action?
CAFA jurisdiction exists when there are:
at least 100 class members;
more than $5 million in controversy; and
minimal diversity, meaning any class member is diverse from any defendant.
What are the requirements for admitting a recorded recollection?
A recorded recollection is admissible if:
the witness has insufficient recollection;
the witness once had personal knowledge;
the record was made or adopted when the matter was fresh in the witness’s memory; and
the witness can vouch that the record was accurate when made or adopted.
What makes title unmarketable under the DEVA mnemonic, and what does not make title unmarketable?
Title is unmarketable because of:
a defect in the chain of title;
an encumbrance, such as an undisclosed mortgage or easement;
violation of a zoning ordinance; or
title acquired by adverse possession.
A violation of a housing or building code does not make title unmarketable.
What are the exceptions to the common-law preexisting duty rule for contract modifications?
A preexisting duty is not consideration unless an exception applies, such as:
unforeseen difficulty;
good-faith settlement of a lawsuit;
good-faith payment in full of a due and disputed debt;
written promise to pay a time-barred debt; or
the duty was owed to a third person.
What are the two main types of discriminatory state laws under the Dormant Commerce Clause, and what standards apply?
First, laws that expressly discriminate to favor in-state commerce are automatically struck down. Second, laws that discriminate against interstate commerce while claiming to promote health, safety, or welfare are almost always invalid unless the state shows the law is necessary to serve a compelling state interest and there is no reasonable nondiscriminatory alternative. If the law is facially nondiscriminatory but burdens interstate commerce, courts use a balancing test.
Plaintiff sues Defendant in federal court based only on diversity. Defendant impleads Third Party Defendant, who is from the same state as Plaintiff. Plaintiff then wants to assert a direct claim against Third Party Defendant. May Plaintiff do so using supplemental jurisdiction?
No. In a diversity case, a defendant may implead a nondiverse third party, but the plaintiff may not assert a direct claim against a nondiverse third party if doing so would defeat complete diversity.
During trial, a witness says she cannot remember the details of an accident. The attorney shows her a note she wrote the day after the accident. After reviewing it, the witness remembers and testifies from memory. Is the note itself admitted into evidence?
Not necessarily. This is refreshing recollection. The writing is used to jog the witness’s memory, but the witness testifies from present memory. The writing itself is not automatically admitted.
Seller contracts to sell Blackacre to Buyer. After the contract is signed but before closing, a tornado destroys the house. The contract is silent about risk of loss. Who bears the loss?
Buyer bears the loss under equitable conversion. Once the land sale contract is signed, equitable title passes to Buyer, while legal title remains with Seller. Therefore, the risk of loss is on Buyer.
Buyer contracts to buy 500 custom chairs from Seller. Seller ships 500 chairs that do not conform to the contract but includes a letter saying, “These are offered only as an accommodation.” Buyer rejects the chairs. Was Seller’s shipment an acceptance and breach?
No. Under the UCC, shipment of nonconforming goods usually operates as both acceptance and breach. But if the seller ships nonconforming goods with an accommodation letter, the shipment is treated as a counteroffer, not an acceptance.
A city ordinance bans all picketing in public parks after 8 p.m., regardless of message. The city says the rule is meant to reduce noise and keep parks safe. What type of speech regulation is this, and what test applies?
This is a content-neutral time, place, and manner restriction in a traditional public forum. The regulation must be content neutral, narrowly tailored, and leave open alternative channels of communication.
Plaintiff files a diversity case in federal court in District A, where venue is improper. The court transfers the case to District B, where venue is proper. Which district’s law applies after transfer?
The law of the transferee court, District B, applies because the case was transferred from an improper venue to a proper venue.
In a criminal case, the prosecution offers a police report containing testimonial statements from an unavailable witness. The defendant had no prior opportunity to cross-examine the witness. Is the statement admissible under a hearsay exception?
No. Even if a hearsay exception might otherwise apply, the Confrontation Clause generally bars testimonial hearsay in a criminal case when the declarant is unavailable and the defendant had no prior opportunity to cross-examine.
Owner conveys Blackacre “to A for so long as the property is used as a school.” A later stops using the property as a school. What estate did A have, what future interest did Owner have, and what happens when school use stops?
A had a fee simple determinable. Owner retained a possibility of reverter. When the property stopped being used as a school, the estate ended automatically and title reverted to Owner.
Buyer contracts to buy goods from Seller. Seller delivers nonconforming goods before the contract deadline. Buyer rejects. Seller still has time left to perform. Does Seller have a right to cure?
Yes. Under the UCC, if the seller fails to make perfect tender and the buyer rejects, the seller has an automatic right to cure if there is still time left to perform under the contract.
A state refuses to hire out-of-state citizens for ordinary private-sector jobs located in the state. Which constitutional doctrine is implicated, and what standard applies?
The Article IV Privileges and Immunities Clause is implicated because employment is treated as a fundamental right for Article IV purposes. The state may not discriminate against out-of-state citizens unless it has a substantial justification and no less restrictive means.
Plaintiff files a state-law negligence claim in federal court based on diversity. The issue is whether the statute of limitations has expired. The federal court sits in Illinois, but Illinois choice-of-law rules point to Indiana law. What law governs the statute of limitations issue, and why?
The federal court applies state substantive law under Erie, and statutes of limitations are substantive for Erie purposes. Under Klaxon, the federal court sitting in diversity applies the choice-of-law rules of the state where it sits. So the federal court applies Illinois choice-of-law rules, and if those rules point to Indiana, Indiana’s statute of limitations applies.
Plaintiff introduces the first paragraph of a letter to prove Defendant admitted liability. Defendant wants the rest of the letter admitted because it explains the statement and puts it in context. Plaintiff objects on hearsay grounds. Should the rest of the letter come in, and what rule applies?
Yes, if fairness requires the rest of the letter to be considered contemporaneously. The completeness rule allows the opposing party to require admission of the rest of a writing or transaction when one party introduces only part of it. By introducing part of the writing, Plaintiff waives objections such as hearsay or competency as to the related remainder.
Owner conveys Blackacre to Buyer by warranty deed before Owner actually owns Blackacre. Later, Owner acquires title to Blackacre. Then Owner conveys Blackacre to a bona fide purchaser. Who owns Blackacre, and what doctrine controls?
Under estoppel by deed, when a grantor purports to convey property by warranty deed before having title and later acquires title, title automatically passes to the earlier grantee. However, the exception is that if the grantor later conveys to a bona fide purchaser, the BFP prevails. So the later BFP owns Blackacre.
A buyer agrees to purchase a rare painting from Seller. Before closing, Seller refuses to deliver the painting and sells it to someone else. Buyer wants the painting, not money. What remedy should Buyer seek, and why might it be available?
Buyer should seek specific performance. Specific performance is generally not available for ordinary goods, but it may be available when the goods are unique. A rare painting is likely unique, so money damages may be inadequate.
A state passes a law requiring state police officers to perform background checks required by a new federal statute. Congress argues that the law is valid because federal law is supreme. Is the federal requirement constitutional, and what doctrines are involved?
No. Although the Supremacy Clause makes valid federal law supreme over conflicting state law, the Tenth Amendment prohibits the federal government from commandeering state officials to enforce federal law. Congress may incentivize states to cooperate, such as through conditional funding, but it cannot compel state officers to administer or enforce a federal regulatory program.