1L Exam Prep and Motivation Thread

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ph14
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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sun Dec 04, 2011 10:58 pm

rocon7383 wrote:civ pro question.

P is someone who got hit by a car, owned by a DE(inc)/MA(PPb) corporation, in CA. P lived in CA at the time of the accident. The corporation also has offices and most of its lower level offices and customers in Miami(which is what i thought were minimum contacts?). P moves to Miami permanently and THEN sues over the action, based on diversity, and in MIA. Corp. moves to dismiss for lack of subject matter jurisdiction. My book says their motion ahould be denied because diversity exists.

Can someone explain why minimum contacts and purposeful availment in Fl are irrelevant?

The book says: P is deemed a citizen of the state where she resides at the time the suit is filed, (so FL). So do they just completely ignore the minimum contacts? Why is this not being tried in DE or MA then?


A corporation is a citizen of where they are incorporated (can only be 1 place) and their principal place of business (can only be 1 place). Even Wal-Mart, which has significant business in every state still only has 1 principal place of business. Diversity is determined based on citizenship at the time of the suit. So it looks like this:

P (FL) v. D (DE & MA)

Complete diversity? No P has the same citizenship as any D, so yes complete diversity. If the amount in controversy requirement is met, there will be diversity jurisdiction under 28 U.S.C. Sec. 1332.

Minimum contacts analysis is only used for personal jurisdiction. Here it sounds like D is a candidate for general jurisdiction, since they appear to have both systemic and continuous contacts there, but it is a pretty high bar to raise so you should be careful in your analysis.

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ph14
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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sun Dec 04, 2011 11:00 pm

Civ pro question: 28 USC 1391(c) says that corporations are deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time action is commenced. It goes on to say that "if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts."

What would be an example of this situation occurring? How could a corporation be subject to personal jurisdiction in a state but not in any of the districts?

sknight323
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Re: 1L Exam Prep and Motivation Thread

Postby sknight323 » Sun Dec 04, 2011 11:03 pm

I'll give it another shot: If I create an option contract/firm offer, and by keeping that option open for someone, I suffer foreseeable consequential damages (ex: keep land sale open on an option K. Offeree ends up not buying; I turned away many bidders). What happens? Is this just a risk I take by creating the option K?

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$peppercorn
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Re: 1L Exam Prep and Motivation Thread

Postby $peppercorn » Sun Dec 04, 2011 11:03 pm

thegrayman wrote:
$peppercorn wrote:The Supreme Court in Hertz said that the Principle place of business is the Nerve Center. No more two tests for "muscle" and "Nerve". So its basically only the place where the top executives and administration and and stuff takes place


hmm we never covered Hertz, didn't know that though

I guess that makes civpro .0001% less confusing :D


Haha yeah its a recent case. My Civ Pro professor seemed a little disappointed to tell us we were the first class that wouldnt have to discuss it.

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Hannibal
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Re: 1L Exam Prep and Motivation Thread

Postby Hannibal » Sun Dec 04, 2011 11:04 pm

ph14 wrote:Civ pro question: 28 USC 1391(c) says that corporations are deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time action is commenced. It goes on to say that "if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts."

What would be an example of this situation occurring? How could a corporation be subject to personal jurisdiction in a state but not in any of the districts?


A company could advertise online to a state as a whole.

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Hannibal
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Re: 1L Exam Prep and Motivation Thread

Postby Hannibal » Sun Dec 04, 2011 11:04 pm

sknight323 wrote:I'll give it another shot: If I create an option contract/firm offer, and by keeping that option open for someone, I suffer foreseeable consequential damages (ex: keep land sale open on an option K. Offeree ends up not buying; I turned away many bidders). What happens? Is this just a risk I take by creating the option K?


Yes. If the buyer was bound to purchase then it wouldn't be an option K.

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Re: 1L Exam Prep and Motivation Thread

Postby thegrayman » Sun Dec 04, 2011 11:05 pm

sknight323 wrote:I'll give it another shot: If I create an option contract/firm offer, and by keeping that option open for someone, I suffer foreseeable consequential damages (ex: keep land sale open on an option K. Offeree ends up not buying; I turned away many bidders). What happens? Is this just a risk I take by creating the option K?


I think that it is a risk you take due to options being supported by consideration. you bargained for the option to remain open, so that is an inherent risk in bargaining for that option. (sleep deprived + off the top of my head fair warning)

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ph14
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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sun Dec 04, 2011 11:05 pm

Hannibal wrote:
ph14 wrote:Civ pro question: 28 USC 1391(c) says that corporations are deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time action is commenced. It goes on to say that "if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts."

What would be an example of this situation occurring? How could a corporation be subject to personal jurisdiction in a state but not in any of the districts?


A company could advertise online to a state as a whole.


Ah I see. But still, wouldn't the advertisement have its effect in the judicial district where the person buys the product or whatever? And so they would have specific jurisdiction in that judicial district?

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Hannibal
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Re: 1L Exam Prep and Motivation Thread

Postby Hannibal » Sun Dec 04, 2011 11:10 pm

ph14 wrote:
Hannibal wrote:
ph14 wrote:Civ pro question: 28 USC 1391(c) says that corporations are deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time action is commenced. It goes on to say that "if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts."

What would be an example of this situation occurring? How could a corporation be subject to personal jurisdiction in a state but not in any of the districts?


A company could advertise online to a state as a whole.


Ah I see. But still, wouldn't the advertisement have its effect in the judicial district where the person buys the product or whatever? And so they would have specific jurisdiction in that judicial district?


It's the text between the two quotes that's important. It pretends that each district is a separate state for minimum contacts purposes. So you'd need to purposefully avail yourself to the district specifically. So like if it was an online advertisement to watch something on TV, they wouldn't have minimum contacts with a specific district if it were a separate state.

Edit: Worst writer evar

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ph14
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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sun Dec 04, 2011 11:15 pm

Hannibal wrote:
ph14 wrote:
Hannibal wrote:
ph14 wrote:Civ pro question: 28 USC 1391(c) says that corporations are deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time action is commenced. It goes on to say that "if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts."

What would be an example of this situation occurring? How could a corporation be subject to personal jurisdiction in a state but not in any of the districts?


A company could advertise online to a state as a whole.


Ah I see. But still, wouldn't the advertisement have its effect in the judicial district where the person buys the product or whatever? And so they would have specific jurisdiction in that judicial district?


It's the text between the two quotes that's important. It pretends that each district is a separate state for minimum contacts purposes. So you'd need to purposefully avail yourself to the district specifically. So like if it was an online advertisement to watch something on TV, they wouldn't have minimum contacts with a specific district if it were a separate state.


In that situation they probably wouldn't have minimum contacts at all though because it is a passive website according to the Zippo test. But if it was an active website, I guess you could be purposefully availing yourself of the state (maybe by promoting a special Kentucky discount or something), but not necessary a judicial district. So in that case you would have to go to where they have the most contacts and that would be where the person who interacted with the website and brought the product or whatever was.

So I guess that narrow situation is when that would apply. Is there anything else anyone can think of?

Edit: Although that situation you might be able to argue the website is more on the active scale on the spectrum I suppose by saying it was actively soliciting sales.

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Hannibal
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Re: 1L Exam Prep and Motivation Thread

Postby Hannibal » Sun Dec 04, 2011 11:32 pm

Sorry, maybe that was a bad example. Another possibility: making machinery for a company you know only sells in Tennessee (would get 5 votes in the Supreme Court, at least)

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ph14
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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Mon Dec 05, 2011 12:53 am

Civ Pro question: would an action to enforce a prior judgment in another state be brought under the full faith and credit clause? and if so, would that be sufficient for federal question jurisdiction under Sec. 1331?

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Re: 1L Exam Prep and Motivation Thread

Postby ocplaytime » Mon Dec 05, 2011 4:36 am

easy K question:

different between undue influence and unconscionability? I mean if you are trying to defend against K formation and you get a hypo that's close to both (ex: mother of 4 pressured into signing refinance to keep home but the K isn't really substantively unconscionable) what to do? bring up both defenses and tie undue influence into uncon? or keep them separate?

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Extension_Cord
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Re: 1L Exam Prep and Motivation Thread

Postby Extension_Cord » Mon Dec 05, 2011 4:47 am

ocplaytime wrote:easy K question:

different between undue influence and unconscionability? I mean if you are trying to defend against K formation and you get a hypo that's close to both (ex: mother of 4 pressured into signing refinance to keep home but the K isn't really substantively unconscionable) what to do? bring up both defenses and tie undue influence into uncon? or keep them separate?


Undue influence requires someone of authority to exert their influence over the person seeking to void the K, and that influence amounts to a level that they actually agree to when they normally wouldn't.

Unconscionability requires the K to be both procedurally and substantively unconscionable, though some courts will say extreme substantive unconscionability is sufficient without the procedural. Procedural = unconscionable in the way the K was signed, substantive is with the contents, if its something completely ridiculous that they wouldn't agree to if they knew of it, its substantively unconscionable. An example of procedural unconscionability is if we come to an agreement, and the contracts are laid out. You read it and as you are about to sign it I kick you in the knee and as you react I replace the contract with another that is more favorable to my terms without your knowledge, which you end up signing.

If both are applicable mention both, even if they are close to applicable mention both if you have time and explain which is more likely and why or why not.

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Re: 1L Exam Prep and Motivation Thread

Postby crossarmant » Mon Dec 05, 2011 3:12 pm

Extension_Cord wrote:
ocplaytime wrote:easy K question:

different between undue influence and unconscionability? I mean if you are trying to defend against K formation and you get a hypo that's close to both (ex: mother of 4 pressured into signing refinance to keep home but the K isn't really substantively unconscionable) what to do? bring up both defenses and tie undue influence into uncon? or keep them separate?


Undue influence requires someone of authority to exert their influence over the person seeking to void the K, and that influence amounts to a level that they actually agree to when they normally wouldn't.

Unconscionability requires the K to be both procedurally and substantively unconscionable, though some courts will say extreme substantive unconscionability is sufficient without the procedural. Procedural = unconscionable in the way the K was signed, substantive is with the contents, if its something completely ridiculous that they wouldn't agree to if they knew of it, its substantively unconscionable. An example of procedural unconscionability is if we come to an agreement, and the contracts are laid out. You read it and as you are about to sign it I kick you in the knee and as you react I replace the contract with another that is more favorable to my terms without your knowledge, which you end up signing.

If both are applicable mention both, even if they are close to applicable mention both if you have time and explain which is more likely and why or why not.


+1

However, your hypo of the woman being forced to refinance or lose her home seems less like either Undue Influence (lack of relationship) or Unconscionability (Lacks substantive unconscionability, though still possible in extreme situations to have unconscionability without substance), it seems more like a case of Economic Duress. Assuming the party pushing her to sign knew of her economic issues, it seems to me like they're utilizing her poor fortune to make a deal advantageous to themselves.

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istara
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Re: 1L Exam Prep and Motivation Thread

Postby istara » Mon Dec 05, 2011 3:13 pm

15 minutes until first exam.. civ pro.. sitting in the classroom just waiting for the proctors... ugh!

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crossarmant
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Re: 1L Exam Prep and Motivation Thread

Postby crossarmant » Mon Dec 05, 2011 3:17 pm

istara wrote:15 minutes until first exam.. civ pro.. sitting in the classroom just waiting for the proctors... ugh!


Best of luck to you!

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bostonlawchick
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Re: 1L Exam Prep and Motivation Thread

Postby bostonlawchick » Mon Dec 05, 2011 3:21 pm

istara wrote:15 minutes until first exam.. civ pro.. sitting in the classroom just waiting for the proctors... ugh!


good luck!

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Re: 1L Exam Prep and Motivation Thread

Postby alicrimson » Mon Dec 05, 2011 3:51 pm

Crim law mania. Have been kicking these MC hypos around and thought I'd consult the wisdom of TLS. Any ideas?


1. Stinneford sees his worst enemy 50 yards away. S mistakenly believes that WE is wearing a bullet-proof vest, and that S can therefore shoot WE without causing WE any harm other than “a little scare.” S shoots at WE (who is not wearing a vest) and hits him in the head, killing him instantly. Under the MODEL PENAL CODE, of what crime can S be convicted?
A.Murder (i.e. purposeful or knowing homicide)
B.Reckless Homicide
C.Negligent Homicide
D.Assault
E.None of the above.


2. Stinneford sees his worst enemy and wants to kill him. He douses an arrow in gasoline and lights it on fire, except that Human Shield (“HS”) is standing between Stinneford and WE. Stinneford shoots the arrow, hoping that it will pass harmlessly through the chest of HS and kill WE. Stinneford’s mens rea with respect to HS?
a.Purposeful
b.Knowing
c.Reckless
d.Negligent
e.None of the above

3. Same facts as before, except WE is standing in front of a big bulls-eye target, and Stinneford is engaging in target practice. Stinneford shoots the flaming arrow, hoping that it will pass harmlessly through the chest of WE and hit the target. Stinneford’s mens rea regarding WE?
a.Purposeful
b.Knowing
c.Reckless
d.Negligent
e.None of the above

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alicrimson
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Re: 1L Exam Prep and Motivation Thread

Postby alicrimson » Mon Dec 05, 2011 4:20 pm

Also, sorry to monopolize the board.
4. Stinneford thinks it would be really cool to own a flamethrower, since they’re not only useful for scaring worst enemies, but can also help start campfires, barbecues, etc. He has never read (or even heard of) the federal Flamethrower Registration Act, which makes it a felony to “possess an unregistered flamethrower,” and so he doesn’t register the flamethrower. Can S be convicted of violating the act?

No, because he lacks mens rea.
Yes, because this is a public welfare statute.
Yes, because Stinneford should have been on notice


Same facts as above, except that the statute makes it a crime to “willfully possess an unregistered flamethrower.” Can Stinneford be convicted?

No, because he lacks mens rea.
Yes, because this is a public welfare statute.
Yes, because Stinneford should have been on notice.

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Extension_Cord
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Re: 1L Exam Prep and Motivation Thread

Postby Extension_Cord » Mon Dec 05, 2011 5:04 pm

If A makes says hes going to donate 5,000 to a charity and that charity has plans for that money, but doesn't actually act on it, is A held to the promise or can he claim there was no reliance?

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$peppercorn
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Re: 1L Exam Prep and Motivation Thread

Postby $peppercorn » Mon Dec 05, 2011 5:28 pm

alicrimson wrote:Crim law mania. Have been kicking these MC hypos around and thought I'd consult the wisdom of TLS. Any ideas?


1. Stinneford sees his worst enemy 50 yards away. S mistakenly believes that WE is wearing a bullet-proof vest, and that S can therefore shoot WE without causing WE any harm other than “a little scare.” S shoots at WE (who is not wearing a vest) and hits him in the head, killing him instantly. Under the MODEL PENAL CODE, of what crime can S be convicted?
A.Murder (i.e. purposeful or knowing homicide)
B.Reckless Homicide
C.Negligent Homicide
D.Assault
E.None of the above.


2. Stinneford sees his worst enemy and wants to kill him. He douses an arrow in gasoline and lights it on fire, except that Human Shield (“HS”) is standing between Stinneford and WE. Stinneford shoots the arrow, hoping that it will pass harmlessly through the chest of HS and kill WE. Stinneford’s mens rea with respect to HS?
a.Purposeful
b.Knowing
c.Reckless
d.Negligent
e.None of the above

3. Same facts as before, except WE is standing in front of a big bulls-eye target, and Stinneford is engaging in target practice. Stinneford shoots the flaming arrow, hoping that it will pass harmlessly through the chest of WE and hit the target. Stinneford’s mens rea regarding WE?
a.Purposeful
b.Knowing
c.Reckless
d.Negligent
e.None of the above


Here's my quick rundown of all the questions (also from your next post).
1. Murder- probably a second degree due to gross recklessness. A lot of times "malice" is inferred when you use a dangerous weapon like a gun so i think there is not a huge problem with murder here. But probably only if you include gross recklessness with indifference to human life as one of the murder categories. I know MPC does. Cant remember right now about C/L
2. not totally sure. It was his purpose for the arrow to go through, but not in respect to the killing. There is probably some issue about mistake of fact or something that also deals with reasonableness but we didnt cover it. Gut feeling is answer A.
3. dont know, similar to 2.
4. Mistake of governing law is never an excuse.
5. statutory interpretation. Depends on if "willfully" applies to "unregistered flamethrower" or only to "possess". PLain meaning usually would have it modify everything after I think. But then theres the argument that they only need to willfully possess it. And it goes on..

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crossarmant
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Re: 1L Exam Prep and Motivation Thread

Postby crossarmant » Mon Dec 05, 2011 5:31 pm

Extension_Cord wrote:If A makes says hes going to donate 5,000 to a charity and that charity has plans for that money, but doesn't actually act on it, is A held to the promise or can he claim there was no reliance?


He wouldn't be held to it unless the organization acted in reliance upon it. Merely saying "Oh, we have a plan on how to use that money" is not enough. If they started to act towards how they were going to spend it and then A reneges, it is then enforceable.

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$peppercorn
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Re: 1L Exam Prep and Motivation Thread

Postby $peppercorn » Mon Dec 05, 2011 5:32 pm

Extension_Cord wrote:If A makes says hes going to donate 5,000 to a charity and that charity has plans for that money, but doesn't actually act on it, is A held to the promise or can he claim there was no reliance?


gratuitous promise. Usually not enforceable. If they said they would use him name on something they built with the money then that would be sufficient consideration. If youre trying to use the Promissory estoppel reliance then they may have relied on it but I doubt the court will find they need to use promissory estoppel because its only to prevent injustice. Im sure everyone has plans for gifts people promise them but that doesnt make them enforceable. To the extent that they act on the promise may be a different story. But this doesnt say they acted on it in any way.

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ph14
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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Mon Dec 05, 2011 5:50 pm

Civ pro Q: For venue under where the D resides if they all reside in the same state. How does that work for corporations? If it's 1 corporation, and they are subject to PJ in 2 states, then are they really "residing in the same state"? And if it's multiple corporations with completely different INC/PPB but they happen to both be subject to PJ in a different state, would they both reside there?




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