Civ Pro/Con Law
Where is venue proper?
Venue 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 four types of present interests?
fee simple absolute
fee simple determinable
fee simple subject to condition subsequent
fee simple subject to 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 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.
3. Record Notice: Grantees are held to have constructive notice of all prior conveyances that were properly recorded.
To prove duty of care, a trustee can show they did these 3 things
1. were a prudent investor
2. administered the trust using reasonable care, skill, and caution
3. diversified investments of the trust
Explain the two types of interpleader
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
What is the rule for revocation?
If a buyer accepts goods he can not reject them. The buyer must show that the defect substantially impairs the value of the goods
What is judicial notice?
A court accepts a fact that is not subject to reasonable dispute because it generally known within the jurisdiction or it can be accurately and readily determined from sources whose accuracy cannot be questioned
What is the difference between lien theory and title theory?
Lien theory: mortgagee only has a lien on the land *majority rule*
Title theory: Title is transferred to the bank immediately upon the bank loaning the money
Notice is valid for annual corporate meeting when...
-written notice was given 10-60 days prior
The notice included time, place, and purpose of the meeting
What are the requirements for a class action?
Commonality
Adequacy
Numerosity
Typicality
*with common question suits - superiority and that questions predominate
When can an advertisement constitute a general offer?
The acceptance of which creates a binding contract—if the advertisement:
A defendant can be liable for deaths caused by others under these two rules
Agency Theory: Liable for co-felon's actions
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 is tacking?
When adverse possessor tacks on the time a previous adverse possessor adversely possessed the land to reach the statutory period
What is the Klaxon doctrine?
Federal court sitting in diversity must apply the choice of law approach prevailing in the state where it sits
What are the two elements of unconscionability and if its found what is the result?
procedural unconscionability (unfair bargaining process)
substantive unconsionability (grossly unfair terms)
The contract is voidable.
When are leading questions permitted? When permitted, what can they be used for?
On direct examination.
-To develop preliminary matters
-To aid young or forgetful witnesses
-To examine hostile witnesses or the adverse party
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
When can an irrevocable trust be terminated by someone other than the settlor?
When the income beneficiaries and the remaindermen unanimously consent and there is no material purpose of the trust that has not been performed