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Day 3 Flashcards

2
Q

Merrel Dow case

A

Pl can get 1331 w/ state COA but must prove “substantial proposition of federal law”

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3
Q

Free Exercise clause(Trigger and test)

A

Laws of neutral applicability are acceptable unless intended to interfere w/ religion by restricting or prohibiting free exercise of religion.

TEST/EXCEPTION:

  1. Sincerely held religious belief
  2. Belief burdened by state regulation
  • **State may counter if regulation is:
    1. important to a state goal, and
    2. Permitting an exception would be hindered by an exemption.

** Incidental burden caused by law of general application will be reviewed under rational basis scrutiny

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4
Q

Time to answer complaint

A

must be filed and served w/in 20 days of service and summons and complaint or 60 days from mailing waiver of service

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5
Q

Burford abstention

A

federal courts should abstain if important state interest and sufficient state regulatory scheme

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6
Q

Dormant commerce clause(trigger and test)

A

Threshold: Does the state action burden interstate commerce?

Law is invalid if the burden on interstate commerce outweighs legitimate non discriminatory local interest
Look to the following: (SPIL)
1. How SUBSTANTIAL is the burden?
2. PURPOSE of the law?
3. Purpose IMPORTANT enough to justify burden?
4. LESS-BURDENSOME alternative?

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7
Q

Stalking

A

Intentional + repeated following or harassing that causes alarm or distress

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8
Q

Establishment clause(Trigger and test)

A

Government cannot pass laws advancing/prohibiting religion and/or prefer religious over non-religious.

“Lemon” TEST:

  1. Secular purpose
  2. Primary effect of benefit neither advances nor prohibits religion, and
  3. No excessive govt entanglement w/ religion
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9
Q

Work product doctrine

A

protects the mental impressions of the parties and their agents and documents prepared by them in anticipation of litigation;

To obtain evidence protected by the work product doctrine, must show:

  1. substantial need and
  2. inability to obtain by any other means;
  • cannot discover information that is the work product of the party’s attorney;
  • have to give notice that withholding the evidence b/c of the work product claim.
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10
Q

Suspect classes

A

Race, national origin, religion

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11
Q

Preliminary injunction (1983)

A

must show:

  1. no adequate remedy at law;
  2. irreparable injury will occur if the PI does not obtain preliminary injunction and has to wait for the trial of the permanent injunction; and,
  3. probability of success on the merits on the claim for the permanent injunction.
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12
Q

Exceptions to warrant requirement (6)

A
  1. SITA
  2. Automobile
  3. Consent
  4. Plain view
  5. Stop and frisk
  6. Hot pursuit/exigent circumstances
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13
Q

Armed robbery

A
  1. Taking anything of value
  2. belonging to another
  3. from their person or immediate control
  4. by means of force or violence
    * 5. While armed with a dangerous weapon
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14
Q

Vague statute

A

Restricts speech without an ascertainable standard.May result in a chilling effect in that people will refrain from speech because there is no understandable standard - fear of violation results in restraint

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15
Q

Quasi suspect class

A

Gender, sex, illegitimacy

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16
Q

motion for new trial

A

only granted when the judgment is against the clear weight of the evidence; must move for w/in 10days from the entry or judgment.

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17
Q

Citizenship of corporation

A
  1. citizen of the state(s) of incorporation;
  2. citizens of principal place of business (PPB);

Hertz test for PPB –

  1. “nerve center” of the corporation and
  2. “place of director and officer activity”
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18
Q

Theft of an auto/carjacking

A

Intentional taking of a motor vehicle belonging to another in the presence of the owner by use of force or violence

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19
Q

First degree murder

A
  1. Specific intent to kill AND
  2. a. in perpetration of an enumerated felony, or

b. aggravating factor (killing multiple individuals, victim is in law enforcement, victim is child under 13 or adult over 65 years old)

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20
Q

compulsory counterclaims

A

arise from the same transaction or occurrence as the original claim; they will be entitled to use supplemental jurisdiction if there is not an independent basis for federal SMJ.

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21
Q

Exception to State action burden on interstate commerce

A

Market participant

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22
Q

Simple robbery

A
  1. Taking anything of value
  2. belonging to another
  3. from their person or immediate control
  4. by means of force or violence
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23
Q

requirements of pleadings (7)

A

any pleading stating a claim must contain:

  1. jurisdictional statement,
  2. short and plain statement showing entitlement to relief,
  3. demand for judgment;
  4. caption,
  5. name of the parties,
  6. organized in paragraphs, and
  7. be signed by an attorney or party.
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24
Q

Declaratory judgment

A

Federal ct is authorized to declare rights and other relations of any interested parties
Must show:
1. Dispute is definite, concrete and immediate
2. Declaratory Judgment will resolve dispute
3. No further factual development of the claim will occur in the future

  • does not create SMJ
  • has force and effect of final judgment
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25
Q

unincorporated business entities

A

citizenship of all of the entity’s members (so either apply the natural person test or the corporation test);

    • special rules:
      1. a business trust is a citizen of where it’s trustee is a citizen;
      2. national banks are citizens of the state where it’s head office is;
      3. political subdivisions are citizens of the state.
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26
Q

Overbroad statute

A

Regulates protected AND unprotected speech

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27
Q

Procedural Due Process(trigger and test)

A
  1. State Action
  2. Adverse effect on a vested liberty or property interest.
  3. Notice
  4. Opportunity to be heard
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28
Q

constitutional standard for due process

A
  1. minimum contacts purposeful availment: contacts must be a result of intentional conduct and not a mere accident; look at whether conducted activities w/in the forum state and availed themselves of the benefits of the state’s laws; placing an item within the stream of commerce (but may need more); activities of D make it foreseeable that he would be amenableto suit in the forum.2. exercise of jurisdiction must not violate notions of fair play and substantial justice
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29
Q

Exceptions to Free Exercise clause (2)

A
  1. Important to state goal & hindered by granting exemption

2. Incidental burden on law of general application - rational basis scrutiny

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30
Q

Intermediate scrutiny

A
  1. Substantially related

2. Important govt interest

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31
Q

Justification based defenses

A

Self defensePrevent felonyDefense of othersLaw enforcement purposes

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32
Q

Aggravated 2nd degree battery

A

Aggravated 2nd degree if battery w/dangerous weapon AND serious bodily injury

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33
Q

Pullman abstention

A

federal courts should abstain from interpreting unclear issue of state law

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34
Q

Best evidence rule

A

Duplicates are admissible unless

  1. Truly exceptional circumstances, OR
  2. Genuine issue raised as to authenticity 3. Unfair to admit duplicate in lieu of the original
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35
Q

2nd degree battery

A
  1. Simple battery, and

2. Serious bodily injury

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36
Q

Criminal trespass

A

Entering or remaining on the property of another w/out authorization

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37
Q

required disclosures/initial disclosure (discovery)

A

must make initial disclosure w/in 14 days of the discovery conferenceand the pretrial disclosure at least 30 days before trial;disclose identity of witnesses and documents that the disclosing party may use to support its claims or defenses; do not have to disclose if used solely for impeachment purposes; duty to disclose is continuing; failure to comply is automatic exclusion;

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38
Q

Aggravated Battery

A

Simple battery + dangerous weapon

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39
Q

Second degree murder

A

Killing of a human being:
1. Specific intent to kill or cause great bodily harm, OR

  1. In perpetration of an enumerated felony
  2. Victim dies as a result of CDS administered by D.
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40
Q

Rule 56 Motion for Summary Judgment (MSJ)

A
  • Filed after close of discovery
  • judge cannot weigh credibility/evidence
  1. No genuine issue of material fact
  2. Movant entitled to judgment as a matter of law

*attach: affidavits - based on personal knowledge, by competent witnesses, that would be admissible at trial

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41
Q

Test to see if state law violates DCC

A
  1. Discriminate against interstate commerce?
    * if yes, per se unconstitutional
  2. If not, does the law burden interstate commerce?
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42
Q

Conspiracy

A
  1. Agreement between two or more persons
  2. for the specific purpose to commit a crime
  3. Overt act in furtherance of criminal goal
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43
Q

Procedure for removal to federal court

A
  1. Determine if removal is timely!
    - Defendant/s have 30 days from the complaint (calculated by date of last defendant served)
  2. Obtain consent of all defendants to remove
  3. Prepare and sign notice of removal stating grounds for Federal SMJ & attach all state court documents to notice
  4. File in federal court
  5. Provide plaintiff with a copy of the notice, state docs & memo explaining reasons for removal
  6. File notice and attachments (state court docs and memo provided to plaintiff) in state court.

Removal is effective as of filing in state court

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44
Q

“Arising under”

A

complaint alleges an expressed or implied federal cause of action or a state law claims where the Pl alleges a right or interest that is substantially founded on federal law.

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45
Q

12(c) motion for judgment on the pleadings

A
  • cannot be filed until all pleadings are filed; the 12(c) motion alleges that the pleadings warrant a judgment for the moving party as a matter of law; if the motion refers to matters outside of the pleadings, then treat as a MSJ
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46
Q

Natural persons (citizenship)

A

place of fixed and permanent residence (domicile)

Look to:

  1. physical presence, and
  2. intent to remain indefinitely
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47
Q

Freedom of Speech

A

Content regulation is not tolerated unless falls within an exception1. Political - protected unless incitement2. Commercial - regulate false or deceptive 3. Public Employee - matters of public concern are protected unless gov’t shows interest in efficiently delivering public services outweighs 4. Obscenity5. Fighting words - not protected

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48
Q

Resisting arrest

A

Intentional interference or resisting lawful arrest

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49
Q

Fraudulent Joinder doctrine

A
  1. no reasonable basis for liability against non diverse party
  2. File a notice of removal in federal court alleging fraudulent Joinder to defeat removal
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50
Q

Language for procedural due process

A

The state may not deprive a person of a liberty interest without first giving them notice and a reasonable opportunity to be heard.

51
Q

Strict scrutiny

A
  1. Narrowly tailored to

2. Compelling govt interest

52
Q

permissive counterclaims

A

do not arise from the same transaction or occurrence as the original claim.

**MUST be independent subject matter jurisdiction - supplemental jurisdiction will not attach.

53
Q

Impleader

A

Complaint can be filed by a Defendant to bring in a third party who may be liable

54
Q

Defendant’s previous convictions admissible if

A
  1. Defendant takes the stand
  2. Felon in possession of firearm - felony conviction is an element of the charge
  3. KIPPOMIA
55
Q

Standards of scrutiny

A

Strict scrutiny - narrowly tailored to a compelling government interest (fundamental rights, race, origin religion)

Intermediate scrutiny - substantially related to an important government interest (gender, legitimacy)

Rational basis - rationally related to a legitimate government interest (everything else)

56
Q

Interpleader

A

Allows person (stakeholder) to compel litigation so two other parties can settle dispute

Rule interpleader (FRCP 22)

  1. stakeholder and 2 parties diverse;
  2. $75K;
  3. normal venue rules

Statutory interpleader (§ 1335)

  1. 2 parties diverse “minimal diversity”;
  2. $500;
  3. venue is proper wherever a claimant resides
57
Q

Rule 12(b) Motion to Dismiss

A
  1. Lack of SMJ
  2. Lack of Personal Jurisdiction
  3. Improper venue
  4. Insufficient service of process
  5. Failure to state a claim on which relief may be granted
58
Q

Rule 54 Entry of Final Judgment

A
  1. Judge makes express determination that there is no just reason for delay
  2. Makes an express direction for the entry of judgment
59
Q

Statutory interpleader

A

Minimal diversityAmount in controversy = $500Usually stakeholder is disinterested, but need not be

60
Q

Possession of stolen things

A
  1. Intentional possession/procuring/receiving
  2. anything of value
  3. that has been acquired by robbery or theft
61
Q

Necessary party

A
  1. cannot afford complete relief in their absence; 2. claim an interest and their absence may impair/impede their ability to protect the interest; and 3. those whose absence would leave the other parties subject to multiple and inconsistent obligations.
62
Q

Identity theft

A
  1. Intentional or fraudulent use of another’s personal identification
  2. to obtain, possess, anything of value
  3. without authorization or consent.
63
Q

Full faith and credit clause

A

Public acts, records and judicial proceedings have same force in every state.

64
Q

Due process re: line-ups

A

Violates due process if:

  1. Unnecessarily suggestive, and
  2. Substantial likelihood of misidentification or unreliable ID
65
Q

2nd degree robbery

A
  1. Taking anything of value
  2. belonging to another
  3. from their person or immediate control
  4. by means of force or violence, AND
  5. Intentional infliction of serious bodily injury
66
Q

Criminal damage to property

A

Intentional damage to structure or movable w/out consentAggravated if human life might be endangered

67
Q

Younger Abstention

A

abstain from exercising jurisdiction when the plaintiff seeks an injunction or prospective declaratory relief against an ongoing state criminal proceeding or quasi-criminal proceeding (like contempt)

68
Q

Equal protection(Trigger and test)

A

A class of citizens is treated differently than others

TEST

  1. Identify class of citizens affected
    a. Suspect classification
    b. quasi suspect classification
    c. Everything else
  2. Apply appropriate level of scrutiny
    a. Suspect class - strict scrutiny
    b. quasi suspect - intermediate scrutiny
    c. Everything else - rational basis
69
Q

Flight from officer

A

Failure to bring a vehicle to a stop after visual and audible signals from police.- aggravated if human life endangered

70
Q

Arson

A
  1. Intentional damaging of property
  2. by means of fire or explosive
  3. without consent.
71
Q

False imprisonment

A
  1. Intentional confinement (perceived or actual)
  2. W/out consent, and
  3. W/out proper authority
72
Q

Prior restraint

A

Heavy presumption against validity. Apply strict scrutiny

73
Q

Intervention

A

3d party wants to join suit

Intervention of right:
1. interest of 3d party may be harmed

Permissive intervention when at least one common question; allowed unless would cause delay

74
Q

1331 federal question jurisdiction

A

federal courts have jurisdiction over cases arising under the Constitution, laws, or treaties of the United States; there is no jurisdictional amount.

75
Q

Privilege and Immunities Clause

A

Threshold: state discriminates against out of state citizen in regards to a fundamental right.

TEST:

  1. Citizen (out of state and must be natural person)
  2. Fundamental right (travel, transact business, trade, etc.)
76
Q

Motion for continuance

A
  1. Written
  2. 7 days before trial
  3. State reasons
77
Q

§ 1983 purpose and remedy

A

give remedy if a state actor acting under apparent color of law (meaning statute or custom) violates

Remedy:
damages against state actor acting in private capacity;

injunction/declaratory judgment against state actor acting in official capacity

78
Q

Aggravated arson

A
  1. Intentional
  2. damaging of property by means of fire or explosive
  3. Without consent,
  4. Foreseeable that human life may be endangered
79
Q

Aggravated burglary

A
  1. Unauthorized entering of a dwelling or vehicle
  2. w/ intent to commit a felony therein
  3. person is present and
  4. offender is armed w/dangerous weapon or commits a battery inside
80
Q

Plain view seizure

A
  1. Police legitimately on premises
  2. Discover evidence, fruits of crime or contraband
  3. In plain view
  4. Probable cause to believe it is evidence, contraband or fruit of crime
81
Q

Public employee free speech rights

A

Must be balanced against state’s interest in efficiently performing functions.

  1. Matter of public concern?
  2. If yes, does govt interest in efficiently delivering public services outweigh the employee’s free speech rights?
82
Q

Rational basis review

A
  1. Rationally related to

2. Legitimate govt interest

83
Q

Rule 11

A

signing certifies that to the best of the signor’s knowledge, information, and belief formed after reasonable inquiry, the document being filed is

  1. not being interposed for an improper purpose,
  2. the claims and/or defenses are warranted by existing law or by a nonfrivolous argument for its extension, modification, or reversal,
  3. allegations have evidentiary support.
  4. Each denial is based on evidence or reasonable lack of information
84
Q

Substantive Due Process(trigger and test)

A

Right as a citizen - burdened or deprived life/liberty/property interest w/out due process

TEST:

  1. Action depriving citizenry of fundamental right?
  2. What right is burdened?
  3. Strict scrutiny if fundamental right, and rational basis to other rights
85
Q

Principal

A

Commit criminal act or aid, abet or procure another to commit a crime

86
Q

Erie Doctrine

A

requires that state law apply in federal court in the absence of controlling federal law on point;

the Erie rule says that you apply the state’s statutory and decisional law;

to determine choice of law, use the choice of law rules of the state in which the federal diversity court sits.

87
Q

well pleaded complaint rule (Motley)

A

look at the face of the Pl’s complaint to see if there is a claim that arises under federal law; the D’s answer is irrelevant and a federal defense does not supply federal SMJ

88
Q

Obstruction of justice

A

tampering with evidence with the specific intent to doctor results of a criminal investigation

89
Q

Aggravated assault

A
  1. Intent or placing another in reasonable apprehension of an imminent battery
  2. While armed with a dangerous weapon
90
Q

Aggravated assault with a firearm

A

Intent or placing another in reasonable apprehension of an imminent battery

Accompanied by the discharge of a firearm

91
Q

Hertz test (re: corporations - jurisdiction)

A

Nerve center - principal place of business where corporation’s officers “direct, control and coordinate”

92
Q

Takings clause(Trigger and test)

A

Private property taken or interfered w/ by govt entity

TEST:
1. Was there a taking? - physical occupation or denial of all economically viable use

  1. Was it for a public purpose? - state must reasonably believe it will benefit the public
  2. Was just compensation given?
93
Q

Theft

A
  1. Misappropriation or taking of2. Anything of value3. From another4. Without consent, or by means of fraud5. With the intent to permanently deprive
94
Q

Assault

A

Intent or placing another in reasonable apprehension of an imminent battery*also attempt to commit battery

95
Q

Rule 50 Judgment as a matter of law

A

No reasonable jury could find for non moving party- moved for after party has been fully heard on the issue

96
Q

Illegal carrying of a firearm

A

Concealment of a firearm on one’s person

97
Q

Valid warrant

A
  1. Issued by neutral and detached magistrate
  2. Probable cause
  3. Declaring w/ particularity the place to be searched and thing to be seized
98
Q

Manslaughter

A

killing of a human being,1.committed in the sudden passion or heat of blood 2. by provocation 3. sufficient to deprive an average person of his self-control and cool reflection. OR1. while engaged in any felony not enumerated, 2. an intentional misdemeanor against the person, or 3. resisting lawful arrest.

99
Q

Bruton problem

A

2 persons tried together and one has confessed

Cannot admit confession as right to confrontation prohibits the use of the statement

100
Q

Elements of class action

A 
Joinder impractical because - 
(1) Numerosity – the class is so numerous that joinder of all members is impracticable

(2) Commonality – questions of law and fat common to the class
(3) Typical Claims or Defenses – the c and d of the representatives are typical of c or d of the class
(4) Fair and Adequate Protection of Interests – the representative parties will fairly and adequately protect the interests of the class; and
(5) Objectively Defined Class – the class may be defined objectively in terms of ascertainable criteria

101
Q

Drugs/CDS

A

Possession of a CDS and/or possession w/intent to distribute

102
Q

1367 (supplemental jurisdiction) language

A

Claim must be
1. So related that it

  1. Forms part of the same case or controversy
  2. Demonstrated by how it shares CNOF
  3. b/c it arises out of STO
103
Q

Commerce clause

A

Fed govt regulates interstate commerce, but cannot regulate

  1. purely local commerce, and
  2. intrastate commerce
104
Q

Privileges and immunities clause language

A

Citizens of each state shall be entitled to the privileges and immunities of citizens in several states.

Ex:Travel, own property, transact business, etc.

105
Q

Time period for service of complaint

A

120 days

106
Q

Excuse based defenses

A

Infancy, Insanity, Intoxication (if precludes specific intent element of a crime)

107
Q

Joinder requires

A

Same transaction or occurrence

108
Q

analysis for a personal jurisdiction issue

A
  1. whether or not there is a state or federal statute authorizing personal jurisdiction; if there is not, then the inquiry ends;
  2. whether or not exercising jurisdiction violates the 14th Amendment due process clause.
109
Q

Prior restraint

A

Any govt action that would prevent a communication from reaching the public

**usually per se unconstitutional

110
Q

Time place and manner restrictions

A
  1. Must be reasonable
  2. No greater than necessary to achieve stated purpose
  3. Not thinly veiled content restrictions - cannot have unfettered discretion and must have discernible standards
111
Q

Temporary Restraining Order (TRO)

A

ex parte relief must show:

  1. irreparable injury will occur before the D can be notified and
  2. reasons why notice should not be required;

expires by operation of law in 10 days and Pl must post security.

112
Q

When severance allowed

A

When Joinder would be prejudicial

  1. Confusion of jury
  2. Unable to present a defense
  3. “Bad man taint”
113
Q

Indispensable party

A

necessary party plus dismiss if

  1. in equity and
  2. in good conscience the suit cannot proceed in the absence of the nonjoined party and
  3. joinder is not feasible.
114
Q

permissive counterclaims

A

do not arise from the same transaction or occurrence as the original claim

MUST be independent subject matter jurisdiction as supplemental jurisdiction is unavailable

115
Q

time and method for appealing

A

file notice of appeal with the clerk of the district court w/in 30 days from the entry of anappealable judgment.

116
Q

Crawford

A

Prior testimonial statement not admissible unless

  1. Declarent unavailable, and
  2. Defendant had opportunity to cross examine Declarent at the time the statement was made.
117
Q

Amount in controversy (standard)

A

Facially apparent

Plaintiff may rely on inferences from facts

Prove by preponderance of evidence

118
Q

Claims which always have 1367 supplemental jurisdiction

A
  1. Compulsory counterclaim
  2. Cross-claim
  3. Impleader claim by a defendant who brings a 3rd party defendant
  4. Claim by impleaded 3rd party against Pl.
  5. Intervention of right under rule 24
119
Q

Simple Battery

A
  1. Intentional
  2. use of force or violence, or Admin of poison/noxious substance
  3. w/out consent of victim
120
Q

Accessory after the fact

A

Harbors, conceals or aids another w/ actual knowledge that they have committed a felony, andIntends to keep offender concealed to avoid punishment

121
Q

Objections to jury instructions

A

must make objections and state them on the record before the jury retires for deliberationfailure to object timely waives objection unless the instructions are plain error.

122
Q

Discovery requests requirements

A
  1. relevant
  2. non-privileged,
  3. described with reasonable particularity, and
  4. reasonably calculated to lead to the discovery of admissible evidence.

Uncategorized (3 decks)

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