Civ Pro
Rule 11
Created so every attorney needs to validate their documents under oath to prove they are not frivolous or baseless- that it has purposeful
Names all intentional torts and elements
Battery
Assault
False Imprisonment
Intentional Infliction fo Emotional Distress
Trespass
What do you need for proper K?
Offer
Acceptance (mutual assent)
Consideration --> <--
Definiteness of terms
- exceptions fo UCC?! BONUS POINTSSSS
Define Illusory promise
When one has no required exchange - "i might if..."
- if it is based on "as long as i am satisfied" they must exercise reasonable good faith
Defense to intentional torts
Consent
- expressed
-apparent
-substituted
Medical - u must provide informed risks to get proper consent from P
Then self defense or defense of property or necessity (not in class meep)
How can D respond to an Answer
1) Motions OR/then
2) Answer
How to Prove breach of duty
Negligence Per Se
- Prove statute protecting P
- and harm was under the purpose of the statute
Custom
Res Ipa Loquitar
- Bizarre without negligence
-In D's control
-P had no opportunity to cause harm
If you accept by performance what do you gotta do?
Obviously perform
- but then you must notify the offeror in a reasonable diligent way
- The offeror must learn of the performance within a reasonable time
- offer must indicate that no notification is required in order to accept!
Reseller vs Reconditioner
Reseller- no liability because they sell "as it" and no contact with manufacture
Reconditioner- liability because they inspect product before sending it back into stream of commerce - even liable for defect they are not responsible for
Run through Venue (how to pick and transfer)
- Venue where all D's are in the same state - any district
- Where a substantial part of the event took place
- FALLBACK Anywhere there is PJ over D
Transfer-
- Must go to a proper venue with proper PJ with no waiver
- If transferring for convenience - can apply transferor law
- If transferring for justice/proper court may dismiss for improper or transfer and use the new transferee laws
What are the Rule 12 Motions
12b1- Subject Matter
12b2- Personal Jurisdiction
12b3- Venue
12b4- Improper Process
12b5- Improper service of process
12b6 failure to state a claim
12b7- indispensable party
12c-motion for judgment on pleadings
12e- more definite statement
12f- motion to strike irrelevant claims
Types of Strict Liability
1) Wild Animals (meh)
2) Abnormally Dangerous Activities
3) Vicarious Liability
4) Product liability
When can you use silence as acceptance
- Offeree takes benefit of services with reasonable opportunity to reject
- Offer says silence is an acceptance
- Due to continuous dealing, it is more reasonable for offeree to notify if they don't want the offer
How to get minimum contact for PJ?
Purposeful availment
Forseeability of Suit
Relateness
Fairness
Types of Terms (K)
1) Party Supplies
2) Context Supplies (Course of Perf, Deal, Trade Usage)
3) Court Supplies (Intent of Parties)
4) Legislative (Gap fillers)
How to Get Subject Matter Jurisdiction
Diversity of Citizenship
2 requirements
→ Different Citizens in Different States
→ Amount of Contravery is above 75k
Citizenship
Citizens of Different States
COMPLETE Diversity = NONE of P is a citizen of a state of ANY D
People = Domicile (1- need presence and intent)
Businesses: All states of “principal place of business”
(HQ + Incorp.)
Amount in Controversy
Exceeds 75k (need 75k+1 penny)
Whatever P claim will govern, unless it is clear of legal certainty, that she cannot recover more than 75k
Aggregation: where we must add multiple claims to get over 75k
→ Aggregate P’s claims of 1 P v 1 D (don't need relation)
→ No limit to how many claims you can aggregate
→ Cannot aggregate claims involving multiple parties on either side
→ D1 = 40k + D2 = 50k you cannot aggregate
Exception: Joint Claim: total value of the claim
→ The number of parties is irrelevant
→ 3 ppl are joint tortfeasors and can be held liable for all
75k+1 penny
Federal Question
The citizenship of parties is irrelevant
The amount of controversy is irrelevant
Requirement: Claim arises under Federal Law (Constitution or Congress Statute/Rule)
Well-Pleaded Complaint Rule:
→ Look ONLY at Complain!
→ Complaint MUST arise out of a Federal Law
→ If P enforcing a federal right?!
→ Yes = Federal Jurisdiction
→ No = State Jurisdiction
**The defense under Federal Statute does not constitute arising under Federal law (Mottley)**
Types of Product Defects and how to prove
- compare the normal product to yours
2) Design Defect
- reasonable alternative design
3) Failed to Warn
- show the inherent danger of product and how it needs a warning (reasonable)
- warning or instrucrtions
Run through the 2-207 LMAO
first 2-207(1) if it is a K
then go to 2-207 additional
- Additional are mere proposals UNLESS they are merchants then they are in K unless
1. Offer limited acceptance to only its terms
2. Objection is in reasonable time
3. If they materially alter K
- If different terms
1. same analysis as additional
2. MAJORITY- Knock Out Rule
3. Minor- Fall Back
IF NOT K
2-207 (3)
- If no K but they act like there is K then follow knock out rule
Run throguh how to show casuation
1) Cause in Fact
- BUT FOR
- Substantial Factor
2) Proximate Cause
- Foreseeable victim and foreseeable consequence/harm
- Intervening causes do not break chain of cause if foreseeable
What are 5 tools of discovery
- deposition
-interragatories
-requests for access to documents/things
- medical exams
-request for admissions
Run Through Erie Issue!
Hannah Doctrine/Prong
There is a federal provision on the issue that conflicts with/state!
→ Rules Enabling Act: You apply Federal Law
→ Can be amendment, federal statute, constit.
→ If it is FRoCP then you must prove it
procedural and not modifying
state substantive law!!
Erie Doctrine/Prong
There is NO federal provision!
→ Federal Judge MUST apply state substantive law
→ If not a substantive issue Federal Judge may use federal law
How to Test!!
The Outcome Determinative Test
If outcomes are v different then you apply state law
Guaranty Trust
→ State law = case is barred under Statute of Limitations
→ Federal law = case is NOT barred
The statute of limitation is substantive and outcomes are VERY different
Balancing Test
Who has the most interest??
If a law is not substantive then a federal court should apply state law
→ UNLESS the federal system has an interest in doing it another way!
Byrd
→ State Law = trial by judge NOT jury
→ Federal Law = judge or jury
7th amendment entitling to jury under law claims so Federal interest overrules!
Twin Aims!!
Avoid Forum Shopping
Avoid Inequitable Administration of Law
Ask yourself:
→ **If you ignore state law would parties flock to federal?
→ If yes = apply state law
→ D state citizen cant remove to federal and
non-diverse/fq cases can never go to federal
Case:
What are the duties of the occupier of their land
Trespasser - willful/wanton conduct - no man-made traps
Licensee (social guests- u invite them in on purpose) - reasonable care and warning them of concealed risks on your land
- If police and firefighters come in non-emergency settings they are held under this duty to disclose
Invitee (open to the public)- reasonable care, warning of concealed risks,, and any risks that could have been discovered with reasonable and proper inspection
Parol Evidence Breakdown
1) For Modification
Ask if Partial or Fully
Partial - some terms - cannot introduce conflicting evidence...
- if K says nothing about it you can introduce
Fully - There must be a merger clause and you cannot introduce evidence at all
UNLESS trying to prove fraud/duress
2) Ambiguity
- regardless of type of integration you can introduce PE to explain ambiguous term
Res Judicata
→ You have 1 claim = 1 case
→ Requirements (if you got = dismisses)
Same P and Same D
Final Judgement on the merits
Same claim
→ Transactional Test:
If claims rise under the same real-world transaction/occurrence
Claims from case 1 (same event) you waived and cant sue now!!
→ If P wants to sue for another claim - can’t do should've added to case 1
→ If D now wants to sue P - can’t do it! D should have raised it as a compulsory counterclaim!
Statute of Frauds Run down
- for sale of land
- for acts that cannot be done within a year
- for sales 500 Plus
EXCEPTIONS
- if D admits in legal setting (both com and ucc)
- UCC: if buyer receives and accepts the goods
- UCC: Specially unique products