1L Exam Prep and Motivation Thread Forum

[GeePee]

Bet you all wish you read Thane's book now. Quick! There's still time!

LOL I forgot about that!

[Cherith Cutestory]

So I took a break from memo research to do a Civ Pro hypo (only in 1L...) and was feeling ok until I got to the last question.

Basically, the entire hypo was the normal proceeding through the case thing, and the trial ends with our client getting a judgment that she hasn't committed copyright infringement, and both sides agree not to seek appeal. The final question says that the opposing party comes back later and files a new claim in a separate state for copyright infringement. Instead of arguing claim preclusion (probably because my prof has been vocal about how he feels its a morass of unclear common law) we have to find some basis in the FRCP to challenge the suit without going to trial. He says he only used two sentences to answer. (As opposed to answer sheets, he 'helpfully' includes the number of sentences his model answer used, but that we can go over/under his amounts if we want.)

I don't know if I'm research-brain-drained, but I have no idea what he could be asking for. I don't know if he's fishing for a 12(b) discussion (I'm guessing not since it seems to satisfy the requirements), and I'm not really sure if you can Rule 56 with a past judgment on a claim as an affirmative defense.

Anybody got an idea? Or should I just go back to the Torts PTs I can actually handle?

[inchoate_con]

Well just to be clear, it's not a defense when the criminal misinterprets the law. Example:

Statute says "Stealing a cat is a class A felony, punishable by death." Guy steals a jaguar, thinking to himself, "a jaguar is not a cat, so I'll be good."

Not a defense.

Defense argument: stealing a jaguar is fucking badass, so he should be acquitted.

[keg411]

Cherith, check out Rule 41(b). I just read about it all of a few minutes ago and it relates to claim preclusion (talks about a dismissal "with prejudice" vs. "without prejudice").

[GeePee]

Cherith, check out Rule 41(b). I just read about it all of a few minutes ago and it relates to claim preclusion (talks about a dismissal "with prejudice" vs. "without prejudice").

Oh boy... you may not have gotten there yet, but 41(b) does little to no work for you. I'm not sure how your prof. wants you to get around it, but these issues are decided by specific federal common law (permissible under Erie).

I guess you could use 41(b), but it's only even arguably applicable when a Federal court rendered the original decision and another federal court is now deciding whether or not to yield preclusive effect to the original case. Even then, common law still basically controls, although all sources of the law more or less yield you the same result. Courts are supposed to give at least as much preclusive effect to the rendering court's rulings as that court would give, although more is arguably okay.

(Back to Cherith) However, if you wanted to avoid preclusion altogether, just use the compulsory counterclaim rule (FRCP 13(1)(A)). Clearly this suit is being brought out of the same transaction or occurrence as the original suit, and therefore the claim must have been brought at the time of the original suit, or not brought at all. Therefore, the Rules give you support without having to rely on "the morass of unclear common law," which makes good sense to me, but I could easily frustrating professors.

[beach_terror]

Independent contractors + vicarious liability = no sense to me. A note said that homeowners are liable to a roofing contractor if the roofers negligence causes hot tar to drop on someone walking by. What. the. fuck?

[stratocophic]

Independent contractors + vicarious liability = no sense to me. A note said that homeowners are liable to a roofing contractor if the roofers negligence causes hot tar to drop on someone walking by. What. the. fuck?

That doesn't sound right I thought independent contractors are supposed to be the ones that you aren't liable for, it's something about having substantial control over their actions or something like that

[beach_terror]

Independent contractors + vicarious liability = no sense to me. A note said that homeowners are liable to a roofing contractor if the roofers negligence causes hot tar to drop on someone walking by. What. the. fuck?

That doesn't sound right I thought independent contractors are supposed to be the ones that you aren't liable for, it's something about having substantial control over their actions or something like that

"Suppose homeowner hired a roofing contractor to replace the roof on his home and a passerby was injured when the contractor's employee negligently dropped hot tar from the roof. The bystander would be able to sue the homeowner through this exception to the rule that homeowner is not liable for the actions of independent contractors." The exception to the rule is inherently dangerous activities, apparently.

[stratocophic]

Independent contractors + vicarious liability = no sense to me. A note said that homeowners are liable to a roofing contractor if the roofers negligence causes hot tar to drop on someone walking by. What. the. fuck?

That doesn't sound right I thought independent contractors are supposed to be the ones that you aren't liable for, it's something about having substantial control over their actions or something like that

"Suppose homeowner hired a roofing contractor to replace the roof on his home and a passerby was injured when the contractor's employee negligently dropped hot tar from the roof. The bystander would be able to sue the homeowner through this exception to the rule that homeowner is not liable for the actions of independent contractors." The exception to the rule is inherently dangerous activities, apparently.

*Cue hands shooting into the air and accompanying groans of dread

[stocksly33]

"Suppose homeowner hired a roofing contractor to replace the roof on his home and a passerby was injured when the contractor's employee negligently dropped hot tar from the roof. The bystander would be able to sue the homeowner through this exception to the rule that homeowner is not liable for the actions of independent contractors." The exception to the rule is inherently dangerous activities, apparently.

3 possibilities:

1 - there is a duty rule for "traveler's on an adjacent highway"

2 - it is possible the act of pouring tar on a home with an adjacent thoroughfare, is a non-delegable duty. Non-delegable duties that apply include: inherently dangerous work, nuisances, and work performed in public places.

3 - this could be a premises liability issue

[beach_terror]

"Suppose homeowner hired a roofing contractor to replace the roof on his home and a passerby was injured when the contractor's employee negligently dropped hot tar from the roof. The bystander would be able to sue the homeowner through this exception to the rule that homeowner is not liable for the actions of independent contractors." The exception to the rule is inherently dangerous activities, apparently.

3 possibilities:

1 - there is a duty rule for "traveler's on an adjacent highway"

2 - it is possible the act of pouring tar on a home with an adjacent thoroughfare, is a non-delegable duty. Non-delegable duties that apply include: inherently dangerous work, nuisances, and work performed in public places.

3 - this could be a premises liability issue

I think it falls under the bolded. To (hopefully) have this make sense, the homeowner can sue the contractor for the damages afterwards right?

[stocksly33]

"Suppose homeowner hired a roofing contractor to replace the roof on his home and a passerby was injured when the contractor's employee negligently dropped hot tar from the roof. The bystander would be able to sue the homeowner through this exception to the rule that homeowner is not liable for the actions of independent contractors." The exception to the rule is inherently dangerous activities, apparently.

3 possibilities:

1 - there is a duty rule for "traveler's on an adjacent highway"

2 - it is possible the act of pouring tar on a home with an adjacent thoroughfare, is a non-delegable duty. Non-delegable duties that apply include: inherently dangerous work, nuisances, and work performed in public places.

3 - this could be a premises liability issue

I think it falls under the bolded. To (hopefully) have this make sense, the homeowner can sue the contractor for the damages afterwards right?

I also would bet it is a non-delegable duty.

I don't believe the homeowner can then sue the contractor (but I could be wrong)... Nondelegable duty is a bit of misnomer. It's not the duty that is non-delegable, but the liability.

[Cherith Cutestory]

I don't think he can sue for damages, but as 'joint' tortfeasor contribution is definitely on the table, and since its a case of direct liability v. vicarious liability he'll probably be able to indemnify the contractor/employee.

[beach_terror]

I don't think he can sue for damages, but as 'joint' tortfeasor contribution is definitely on the table, and since its a case of direct liability v. vicarious liability he'll probably be able to indemnify the contractor/employee.

Assuming that's true, that at least restores some logic to that whole scenario.

[Gatriel]

lol @ all the kids who did "supplemental" reading the first month and a half of school and were the gunner of all gunners, whom are now burned out, and get hammed 4 nights a week.

[TTH]

Christ all mighty why did I wait so long to start outlining?

[stocksly33]

lol @ all the kids who did "supplemental" reading the first month and a half of school and were the gunner of all gunners, whom are now burned out, and get hammed 4 nights a week.

lol @ the slackers who justify their slacking by convincing themselves all the hard-workers are burning out. and lol @ "supplemental"

[beach_terror]

lol @ all the kids who did "supplemental" reading the first month and a half of school and were the gunner of all gunners, whom are now burned out, and get hammed 4 nights a week.

lol @ the slackers who justify their slacking by convincing themselves all the hard-workers are burning out. and lol @ "supplemental"

lol @ loling @ others loling @ others who care what others are doing/have been doing

[stratocophic]

lol @ all the kids who did "supplemental" reading the first month and a half of school and were the gunner of all gunners, whom are now burned out, and get hammed 4 nights a week.

lol @ the slackers who justify their slacking by convincing themselves all the hard-workers are burning out. and lol @ "supplemental"

lol @ loling @ others loling @ others who care what others are doing/have been doing

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[beach_terror]

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[stayway]

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[beach_terror]

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[stratocophic]

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lol @ all the kids who did "supplemental" reading the first month and a half of school and were the gunner of all gunners, whom are now burned out, and get hammed 4 nights a week.

lol @ the slackers who justify their slacking by convincing themselves all the hard-workers are burning out. and lol @ "supplemental"

[stayway]

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lol @ all the kids who did "supplemental" reading the first month and a half of school and were the gunner of all gunners, whom are now burned out, and get hammed 4 nights a week.

lol @ the slackers who justify their slacking by convincing themselves all the hard-workers are burning out. and lol @ "supplemental"

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[beach_terror]

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