FUCK BAR SURVEY
Service of Process may be made by:
1) personally serving the defendant,
2) leaving the summons and complaint with a person of suitable age or discretion at the defendant’s dwelling or usual place of abode
3) serving an agent appointed or designated by law to receive process.
A person of “suitable age” may be served at a defendants “dwelling or usual place of abode”, not at a defendant’s workplace.
Every defense to a claim for relief must be asserted either in the responsive pleading or by motion.
The FRCP provides no general authority to serve process to a third party at the defendant’s workplace.
Under the automobile exception to the warrant requirement of the fourth amendment, the police may search a vehicle if they find probable cause to believe that it contains contraband, fruits, or instrumentalities of a crime.
If the police have probable cause to search a vehicle, they may search the entire vehicle and all containers that might contain the evidence they are searching for.
The government may regulate speech in public forums with reasonable time place and manner restrictions. The regulation must be
1) content neutral in both subject matter and viewpoint
2) narrowly tailored to serve an important governmental interest, and
3) leave alternate avenues of expression
An assignment established privity of contract between the obligor and the assignee.
After contract rights are assigned, an obligor may be able to recoup damages agaisnt claims by the assignee if they arise under the original contract that was assigned.
When contracts rights are assigned, the assignee stands in the shoes of the assignor, meaning he has the same rights the assignor had and may be subjected to the same defenses.
If an obligor has a claim against the assignor based on the same contract that was assigned to the assignee, the obligor may recoup losses regardless of when the obligor received notice of the assignment.
RECORDING ACTS:
A subsequent bona fide purchaser is one who gives valuable consideration, and has no notice of the prior instrument.
Under a notice statute, a SBP prevails over a prior grantee who failed to record. The SBP must have no actual or constructive notice at the time of the conveyance.
Under a race notice statute, a SBP prevails if they record before the prior grantee. Thus, a SBP wouldn’t have notice because they were the FIRST to record.
Under a race statute, whoever records first wins.
A plaintiff who obtains a judgement lien under a recording statute is not protected through being recognized as a SBP because they did not pay value for the judgement.
A dying declaration applies when the declarant to
1) believe their death is imminent,
2) the statement relates to the actual cause or circumstances surrounding the impending death
3) and the declarant is unavailable
A statement of interest applies when the declarant
1) knows such statements subjects them to civil liability when making them
2) the statement is based on personal knowledge
3) without a motive to lie
4) and the declarant is unavailable
(Ask: “would a reasonable person in that position made such a statement unless they believed it to be true?”
The fourteenth amendment protects suspects from involuntary confessions.
Only coercion or compulsion will cause a confession to be involuntary.
A confession is not considered involuntary simply when it’s made by someone with a mental illness. there must be a lack of free will when making the statement.
Motion for summary judgement is proper when the non-moving party fails to demonstrate a genuine issue of material fact for trial.
MSJ’s can be filed up to 30 days after the close of discovery
Motion for new trial is proper when the verdict is against the weight of the evidence, or errors at trial substantially affected a party’s rights.
Motion for judgment as a matter of law is proper when the court finds that “ viewed in the light most favorable to the non-moving party, a no reasonable jury would have a legally sufficient evidentiary basis to find for the party on that issue”.
A motion for judgement as a matter of law must be made at the close of evidence, before the jury verdict.
A renewed motion for judgement as a matter of law after the jury renders their verdict, but within 28 days after the entry of judgement
A JTWROS requires the constant presence of four unities:
Possession, Time, Tittle, and Interest.
A severance of JTWROS reverts to tenancy in common.
A re-establishment of JTWROS requires the re-satsfaction of the four unities
Evidence of the beliefs or opinions of a witness on matters of religion are not admissible for the purpose of showing enhancement or impairment of their credibility.
Evidence of the beliefs or opinions of a witness on matters of religion are admissible to show bias or motive.
A person has a reasonable expectation of privacy in one’s curtilage.
Curtilage is determined by the property’s
1) Proximity to the house
2) Enclosure (or lack thereof)
3) Nature of use
4) Steps taken to avoid detection.
A person does not have a reasonable expectation of privacy from aerial observation made from public airspace that a private person could see from the same location
When a case is originally filed in a proper venue, the court has discretion to transfer the case if allowed under the rules governing jurisdiction and venue
A motion to transfer venue is more likely to be granted than a dismissal for forum non conveniens because a transfer is more appropriate than dismissal.
Venue is proper where a defendant resides, where a substantial part of the relevant events occur, or the place where a court has personal jurisdiction over the defendant.
a district court may transfer any civil action to
1) any other district or division where the action might have been brought, or
2) to any district or division where all parties have consented
so long as initial venue was proper.
When original venue is improper, a district court can
1) dismiss the case
2) transfer to any district or division in which it could have been brought.
When a non-resident commits a tort that occurs within a state, that state’s long arm statute grants the court specific jurisdiction over the non-resident for claims that relate back to that tort.
An employer’s non-liability for torts that their independent contractor commits does not extend to abnormally dangerous activities.
Abnormally dangerous work renders a person vicariously strictly liable, regardless of the degree of control they exercise over the work, or the classification of that worker.
An employer is not vicariously liable for a contractor’s tortious conduct in an absence of non-delegable duties.
A mortgage is a security for a loan that a lender makes to the borrower
A mortgagor of a property is generally free to transfer title of that property.
When the recipient of the property “assumes” the mortgage: the recipient becomes personally liable on the mortgage and the lender may collect from the recipient or the mortgagor.
When the recipient of the property takes the property “subject to” the mortgage”: The mortgagor is personally reliable.
In either situation, all recipients of the property an lose the property through foreclosure if the mortgage is not paid.
Privity of estate arises when the parties share a relationship with the land, such as a LL & T.
Voluntary dismissal is proper so long as the defendant has not filed an answer or MSJ.
Unless otherwise stated in the notice of dismissal, the notice of dismissal is without prejudice.
A second dismissal, is with prejudice.
To dismiss with prejudice, means that such a claim cannot be brought again (“an adjudication on the merits”)
If the defendant
1) has not filed an answer or motion for summary judgement, and
2) the plaintiff has not also previously dismissed the same claim
the plaintiff can dismiss an action without moving for leave of court.
A lessor must warn a lessee of existing defects in the premises of which
1) the lessor is aware, and
2) knows that the lessee is not likely to discover on a reasonable inspection.
A failure to disclose such defects makes the lessor liable for any injury resulting from the condition.
The speech and debate clause of Article 1 of the USCON provides that anything said in the course of federal legislative process is immune from prosecution.
A declarant’s statement qualifies as a “business record” exception to hearsay when
1) it is a record of acts, events, conditions, opinions or diagnoses
2) made at or near the time by/or from information transmitted by
3) a person with knowledge
4) kept in the course of regularly conducted business
5) and such records are regular practice
Unless there is a genuine question as to the authenticity of the original, a duplicate is acceptable as evidence.
The Equal Protection clause requires classifications based on alienage to be narrowly tailored to promote a compelling state interest.
Strict scrutiny does not apply where the discrimination against aliens relates to functions that go to the heart of the representative government.
Evidence is relevant if it has any tendency to
1) make the existence of any fact of consequence
2) more or less probable than it would be without such evidence
When a person is charged with a crime, extrinsic evidence of their other crimes or misconduct is inadmissible if such evidence is offered solely to establish criminal disposition.
Evidence of crimes/ “prior bad acts” are admissible to show:
1) motive
2) intent
3) absence of mistake
4) identification
5) common plan or scheme
6) opportunity
Evidence of uncharged prior bad acts are admissible without a preliminary ruling so long as:
1) there is sufficient evidence to support a jury finding that the defendant committed the prior act, and
2) it’s probative value is not substantially outweighed by the danger of unfair prejudice.
There is no foundation requirement for impeachment of a witness through sensory defects.
Extrinsic evidence of a sensory defect is generally admissible to impeach a witness
Extrinsic evidence of a witness’ prior inconsistent statement is admissible so long as
1) the witness is given an opportunity to explain or deny the prior inconsistent statement, and
Before OR after the prior inconsistent statement is admitted into evidence
2) the opposing party is given the opportunity to examine (opportunity to rehabilitate) the witness.
There is no foundation requirement when
1) the PIS impeaches a hearsay declarant, or
2) the statement is being offered as a (nonhearsay) “statement by party opponent”
Impeachment of a person through their untruthful character is done through reputation or opinion testimony or specific instances of conduct.
Impeachment of a person through criminal convictions
A plaintiff who obtains a judgement lien over a joint tenant, does not have a lien over other joint tenants because a joint tenant may only encumber their own interest in the property.
For a plaintiff to enforce a judgement lien against, they must foreclose on the lien through severing joint tenancy; and then collect on proceeds from the sale.
If the tenant, who a plaintiff has a judgement lien against, dies, the lien is extinguished with their death because joint tenants can not encumber other joint tenants.
A person who aids or encourages another in the commission of a crime is an accomplice.
An accomplice is liable for the principal crime so long as they intend the crime to be committed.
An accomplice is liable for the principal crime, as well as all other foreseeable crimes that occur.
A provision for liquidate damages does not preclude recovery of other types of damages
A party who wishes to have another person perform their duties under a contract delegates them, without needing extra consideration
Generally, all contractual duties may be delegated by the party with the duty to perform the obligation.
When performance of a duty is delegated, the delegator remains liable for the delegate’s performance of that duty.
A novation occurs when an obligee (the one receiving the delegated obligation) explicitly agrees to accept the delegate’s performance in full substitution for that of the delegator.
A novation releases the delegator from liability.
An obligee’s mere consent to delegation of an obligation is not a novation of the delegator.
A delegation, as a transfer of duties under a contract, does not require separate consideration to be effective.
Customers who enter a business are invitees, and that business owed them a duty of care.
Businesses owe their customers a limited duty to protect them from harm, including harm caused by other customers.
Proximate cause turns largely on the idea of foreseeability.
A majority of jurisdictions charge a buyer with knowledge of whatever they would have discovered by an inspection of the property.
This acts as notice, and destroys their claim through a title race issue when a previous claimant is currently in possession of the property a buyer subsequently claims.
Under the FRCP, impleader occurs when a defendant joins a third party.
Impleader can be used to overcome a lack of diversity. *****
Character evidence can be offered through the form of
1) reputation or opinion, or
2) specific instances of conduct
Habitat or routine evidence is generally admissible
Character evidence is generally inadmissible.
When a question is testing character evidence:
1) is the case civil or criminal?
2) is the evidence being used for propensity purposes or non-propensity purposes?
3) is it reputation/opinion testimony evidence? Or specific instances of conduct?