OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

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MrSparkle
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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby MrSparkle » Wed Dec 05, 2012 11:13 pm

noleknight16 wrote:How does this look in response to a really basic Personal Jurisdiction brief hypo??

"F buys a car from Little Rock Cars-R-Us, telling the salesman, S, that he needs the car to get back home to Florida. S sells him a very used car. After crossing the border into Florida, F adjusts his seat back and the engine ejects into Wakullah Springs. F sues Little Rock Cars-R-Us in Florida. Does the court have personal jurisdiction over Little Rock Cars-R Us?"

The first step in a personal jurisdiction analysis is to determine whether or not there is a proper state long-arm statute that allows the defendant to be subject to jurisdiction. If there is a proper long arm statute, then the statutory inquiry is met and we move onto the Due Process test and if not, then there is no personal jurisdiction No; if there is a long-arm statute, that's what you have to follow. If there is not, or the long-arm statue simply goes to the constitutional limits, then you move onto a constitutional analysis anyway; it doesn't mean there's no PJ.

Assuming a proper long arm statute exists, the next step is to look at the Constitutional Due Process test. There is no indication of the traditional basis in Pennoyer being metthe Holding in Shaffer was that ALL PJ questions are done with Int'l Shoe (that's what our prof told us I think). A Pennoyer-like personal service question came up in Burnham, and SCOTUS just re-affirmed in a plurality that in-forum personal service always works, so we then turn to the minimum contacts test set forth in International Shoe. In determining if there was a contact, we must determine whether or not Little Rock Cars R Us purposefully availed themselves of the forum state (FL) and whether or not a lawsuit being brought in the Florida was foreseeable. Here, there is no indication that Little Rock Cars R Us deliberately reached out to and targeted Florida residents to buy cars from them through methods such as advertising. With respect to foreseeability, Little Rock Cars R Us likely reasonably foresaw itself being brought in a lawsuit in the state of Florida No, a "wandering plaintiff" does not count as foreseeability - it's not foreseeability just because you know your product will end up there, because the dealer didn't purposefully avail himself through his own affirmative act (check Denckla). Also check World-Wide Volkswagon (wandering plaintiff) and McIntyre v. Nicastro (stream of commerce/foreseeability). This is because F explicitly told the salesman that he needed to get back to his home in Florida and that the specific use of the car was to bring it back home to Florida.

Because Little Rock Cars R Us did not purposefully avail themselves of the forum state, it likely did not establish minimum contacts and therefore Florida does not have personal jurisdiction over them


Since this is a pretty obvious hypo, I don't continue onto type of jurisdiction (general or specific) and Fairness, correct? You should bring everything else up and dispose of it quickly, like "No general jursidiction b/c no continuous and systematic contacts with FL" but if it were grey whether or not it counted as purposeful availment, I'd move onto those final 2 steps?


I'd say you should double-check your BLL steps/outline to make sure you got those cases down. Also, personal jurisdiction is probably the only area of civ pro where knowing the cases really helps - you have facts to compare to and use, and cite for bonus points. Do whatever it is your prof whats you to say though; mine's likely just wanting me to say things in a different way.

Also feel free to correct me if I'm wrong; I ain't no Ginsburg.

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby swimmer11 » Wed Dec 05, 2012 11:29 pm

For those of you who have taken your first 1L final already ( :shock: ) what was it like? What was the aura in the room? So curious!

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby Lacepiece23 » Wed Dec 05, 2012 11:37 pm

swimmer11 wrote:For those of you who have taken your first 1L final already ( :shock: ) what was it like? What was the aura in the room? So curious!


very anticlimactic. I was nervous for the first minute. After I read through the first question it was just another practice test. Typed 5.5k words in three hours on a con law issue spotter. Beat my previous best word count wise. I know I missed some issues, but think I hit the broad strokes. Hard to know though I have a strict policy against talking about the content of the exam after.

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby Unagi » Wed Dec 05, 2012 11:46 pm

First exam tomorrow... :shock:

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby gaud » Wed Dec 05, 2012 11:48 pm

Unagi wrote:First exam tomorrow... :shock:


Godspeed

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby gobuffs10 » Wed Dec 05, 2012 11:49 pm

Unagi wrote:First exam tomorrow... :shock:


Quit studying and watch a movie. Let your brain mellow. You'll be fine.

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby noleknight16 » Wed Dec 05, 2012 11:49 pm

MrSparkle wrote:
noleknight16 wrote:How does this look in response to a really basic Personal Jurisdiction brief hypo??

"F buys a car from Little Rock Cars-R-Us, telling the salesman, S, that he needs the car to get back home to Florida. S sells him a very used car. After crossing the border into Florida, F adjusts his seat back and the engine ejects into Wakullah Springs. F sues Little Rock Cars-R-Us in Florida. Does the court have personal jurisdiction over Little Rock Cars-R Us?"

The first step in a personal jurisdiction analysis is to determine whether or not there is a proper state long-arm statute that allows the defendant to be subject to jurisdiction. If there is a proper long arm statute, then the statutory inquiry is met and we move onto the Due Process test and if not, then there is no personal jurisdiction No; if there is a long-arm statute, that's what you have to follow. If there is not, or the long-arm statue simply goes to the constitutional limits, then you move onto a constitutional analysis anyway; it doesn't mean there's no PJ.

Assuming a proper long arm statute exists, the next step is to look at the Constitutional Due Process test. There is no indication of the traditional basis in Pennoyer being metthe Holding in Shaffer was that ALL PJ questions are done with Int'l Shoe (that's what our prof told us I think). A Pennoyer-like personal service question came up in Burnham, and SCOTUS just re-affirmed in a plurality that in-forum personal service always works, so we then turn to the minimum contacts test set forth in International Shoe. In determining if there was a contact, we must determine whether or not Little Rock Cars R Us purposefully availed themselves of the forum state (FL) and whether or not a lawsuit being brought in the Florida was foreseeable. Here, there is no indication that Little Rock Cars R Us deliberately reached out to and targeted Florida residents to buy cars from them through methods such as advertising. With respect to foreseeability, Little Rock Cars R Us likely reasonably foresaw itself being brought in a lawsuit in the state of Florida No, a "wandering plaintiff" does not count as foreseeability - it's not foreseeability just because you know your product will end up there, because the dealer didn't purposefully avail himself through his own affirmative act (check Denckla). Also check World-Wide Volkswagon (wandering plaintiff) and McIntyre v. Nicastro (stream of commerce/foreseeability). This is because F explicitly told the salesman that he needed to get back to his home in Florida and that the specific use of the car was to bring it back home to Florida.

Because Little Rock Cars R Us did not purposefully avail themselves of the forum state, it likely did not establish minimum contacts and therefore Florida does not have personal jurisdiction over them


Since this is a pretty obvious hypo, I don't continue onto type of jurisdiction (general or specific) and Fairness, correct? You should bring everything else up and dispose of it quickly, like "No general jursidiction b/c no continuous and systematic contacts with FL" but if it were grey whether or not it counted as purposeful availment, I'd move onto those final 2 steps?


I'd say you should double-check your BLL steps/outline to make sure you got those cases down. Also, personal jurisdiction is probably the only area of civ pro where knowing the cases really helps - you have facts to compare to and use, and cite for bonus points. Do whatever it is your prof whats you to say though; mine's likely just wanting me to say things in a different way.

Also feel free to correct me if I'm wrong; I ain't no Ginsburg.


Thanks for the response!!!

1. My understanding is that once we know the state long arm statute applies properly, it's not over at that point. We then look at traditional basis in Pennoyer, which are defendant domiciled, served physically in the forum, consent, agent served in the forum). If there is a traditional basis (most likely going to be presence while processed), then you go into the Burnham case, talking about the Scalia (presence while served good enough) and Brennan (need presence of service + intl shoe standard) approaches. Then you go into shoe analysis for a Brennan approach. If minimum contacts is met, then you go into whether the jurisdiction is specific v general. Then you discuss fairness.

2. I'm confused. The hypo said the plaintiff explicitly told the defendant he needed the car to go home to Florida. I could be completely wrong, but I don't think that counts as wandering when the defendant knew exactly where and why the product was going rather than just knowing it might end up in the state.

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby SportsFan » Wed Dec 05, 2012 11:58 pm

noleknight16 wrote:
MrSparkle wrote:
noleknight16 wrote:How does this look in response to a really basic Personal Jurisdiction brief hypo??

"F buys a car from Little Rock Cars-R-Us, telling the salesman, S, that he needs the car to get back home to Florida. S sells him a very used car. After crossing the border into Florida, F adjusts his seat back and the engine ejects into Wakullah Springs. F sues Little Rock Cars-R-Us in Florida. Does the court have personal jurisdiction over Little Rock Cars-R Us?"

The first step in a personal jurisdiction analysis is to determine whether or not there is a proper state long-arm statute that allows the defendant to be subject to jurisdiction. If there is a proper long arm statute, then the statutory inquiry is met and we move onto the Due Process test and if not, then there is no personal jurisdiction No; if there is a long-arm statute, that's what you have to follow. If there is not, or the long-arm statue simply goes to the constitutional limits, then you move onto a constitutional analysis anyway; it doesn't mean there's no PJ.

Assuming a proper long arm statute exists, the next step is to look at the Constitutional Due Process test. There is no indication of the traditional basis in Pennoyer being metthe Holding in Shaffer was that ALL PJ questions are done with Int'l Shoe (that's what our prof told us I think). A Pennoyer-like personal service question came up in Burnham, and SCOTUS just re-affirmed in a plurality that in-forum personal service always works, so we then turn to the minimum contacts test set forth in International Shoe. In determining if there was a contact, we must determine whether or not Little Rock Cars R Us purposefully availed themselves of the forum state (FL) and whether or not a lawsuit being brought in the Florida was foreseeable. Here, there is no indication that Little Rock Cars R Us deliberately reached out to and targeted Florida residents to buy cars from them through methods such as advertising. With respect to foreseeability, Little Rock Cars R Us likely reasonably foresaw itself being brought in a lawsuit in the state of Florida No, a "wandering plaintiff" does not count as foreseeability - it's not foreseeability just because you know your product will end up there, because the dealer didn't purposefully avail himself through his own affirmative act (check Denckla). Also check World-Wide Volkswagon (wandering plaintiff) and McIntyre v. Nicastro (stream of commerce/foreseeability). This is because F explicitly told the salesman that he needed to get back to his home in Florida and that the specific use of the car was to bring it back home to Florida.

Because Little Rock Cars R Us did not purposefully avail themselves of the forum state, it likely did not establish minimum contacts and therefore Florida does not have personal jurisdiction over them


Since this is a pretty obvious hypo, I don't continue onto type of jurisdiction (general or specific) and Fairness, correct? You should bring everything else up and dispose of it quickly, like "No general jursidiction b/c no continuous and systematic contacts with FL" but if it were grey whether or not it counted as purposeful availment, I'd move onto those final 2 steps?


I'd say you should double-check your BLL steps/outline to make sure you got those cases down. Also, personal jurisdiction is probably the only area of civ pro where knowing the cases really helps - you have facts to compare to and use, and cite for bonus points. Do whatever it is your prof whats you to say though; mine's likely just wanting me to say things in a different way.

Also feel free to correct me if I'm wrong; I ain't no Ginsburg.


Thanks for the response!!!

1. My understanding is that once we know the state long arm statute applies properly, it's not over at that point. We then look at traditional basis in Pennoyer, which are defendant domiciled, served physically in the forum, consent, agent served in the forum). If there is a traditional basis (most likely going to be presence while processed), then you go into the Burnham case, talking about the Scalia (presence while served good enough) and Brennan (need presence of service + intl shoe standard) approaches. Then you go into shoe analysis for a Brennan approach. If minimum contacts is met, then you go into whether the jurisdiction is specific v general. Then you discuss fairness.

2. I'm confused. The hypo said the plaintiff explicitly told the defendant he needed the car to go home to Florida. I could be completely wrong, but I don't think that counts as wandering when the defendant knew exactly where and why the product was going rather than just knowing it might end up in the state.

The way we learned jurisdiction stuff is there are 2 questions to ask:
Has the government that set up this court system authorized the court to take territorial jurisdiction?
Is the exercise of territorial jurisdiction constitutional? (constitutional due process analysis)

If jurisdiction by in-state service of process is not allowed, then you turn to the states long arm statute. My professor pretty much always sets up her hypos so that the long arm statute goes to the full extent of the constitution, or whatever it is, so thats all I ever have to say here.

For the due process analysis, I'll just copy what I have in my attack outline... (civ pro is my last final so I've barely started this, so someone call me out if this is just wrong hah)


The Supreme Court has held that for territorial jurisdiction to meet the 14th amendment due process clause, the party must have minimum contacts with the forum state (International Shoe) and the exercise of jurisdiction must be reasonable. (World-Wide Volkswagen).
Under traditional doctrine, the physical presence when the process is served was determinative (Pennoyer v. Neff). Burnham shows that physical presence when the process is served could still be important according to the Scalia opinion. Brennan’s opinion wrote that physical presence didn’t matter, and it’s all about minimum contacts and reasonableness.
If company has no officers or agents in the state, then no general jurisdiction under International Shoe. Would have to establish specific jurisdiction, which is permissible if suit arises out of ∆’s contacts with the state.
Exercise of jurisdiction must also be “reasonable” under the 5 factor WWVW test. The factors are (1) burden on the defendant, (2) interest of the plaintiff, (3) interest of the forum state, (4) interest of the several States in substantive social policy, and (5) interest of the judicial system in efficient resolution of conflicts.

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby LetsGoLAW » Thu Dec 06, 2012 12:04 am

Checkin' in squad... Burn out. Getting a good night's rest and pounding away tomorrow. Good luck, team!

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby smaug_ » Thu Dec 06, 2012 12:24 am

A lot of this stuff seems…off. First, you should probably go through the traditional tests as they're an easy way to establish that the court has PJ. Then, you should consider if you need specific PJ or general PJ. Then you should go through the statute at hand and see if case fits in the statute and then go through constitutional tests to make sure that the long arm statute isn't overreaching its bounds. If it is like the Cali rule you can skip the last check.

Perhaps more importantly, most of the PJ stuff that's on the edge is totally unclear and will rest on 4-1-4 decisions and shit like that. It's probably more important for you to argue both sides than to think it neatly falls one way or the other. Even on "obvious" hypos you're missing a lot of chances to go through relevant substantive analysis if you just blindly apply doctrine. In this case, do the facts line up completely with WWVW? Could ∆ have reasonably expected suit in Florida? How relevant is it that he specifically told ∆ that he was going to Florida? are all good questions and I think you did a decent job at bringing them up, but the red text analysis goes through the counter arguments. (Though if you're talking about claims against someone from another state, you're going to need to check the statute. There will be some statutory analysis if it doesn't meet the traditional test. Guarantee it.)

In short, while the red text brings up many good points, I wouldn't totally rest on Burnham/WWVW/McIntyre (especially McIntryre) without someone wrangling in the dissent as well as the majority opinion.

And yes, you're unlikely to get to fairness concerns unless everything else is met and even then the bar is really high.

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby splittermcsplit88 » Thu Dec 06, 2012 12:26 am

QUESTION about negligence. If the hypo gives a criminal statute, I know you look at what type of harm it is intended to prevent and the class it is intended to protect. If it does fall under this, is it negligence per se? And then, should I talk about the different jurisdictions which may look at it in three different ways? (per se, prima facie, some evidence)

If it's negligence per se (arising from violation of statute), I don't need to talk about whether a duty was owed (cardozo and andrews) right? This is confusing, I wouldn't even need to talk about how the D was supposed to act!

Urgent!

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby smaug_ » Thu Dec 06, 2012 12:35 am

splittermcsplit88 wrote:QUESTION about negligence. If the hypo gives a criminal statute, I know you look at what type of harm it is intended to prevent and the class it is intended to protect. If it does fall under this, is it negligence per se? And then, should I talk about the different jurisdictions which may look at it in three different ways? (per se, prima facie, some evidence)

If it's negligence per se (arising from violation of statute), I don't need to talk about whether a duty was owed (cardozo and andrews) right? This is confusing, I wouldn't even need to talk about how the D was supposed to act!

Urgent!


Deep breaths. So, you have a statute that someone violated, the accident/act was of the type the statute was intended to prevent, and you know that the π was in the class of people intended to be protected by it, right? Are there defenses of necessity, incapacity or emergency? Was the negligence still causal? It isn't a strict liability claim; rather it is a negligence claim where the negligence is stipulated under particular circumstances.

(I think.)

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby splittermcsplit88 » Thu Dec 06, 2012 12:41 am

Hmmm, so D violates the criminal statute, and we're in a prima facie jurisdiction, I could provide some argument that it was an emergency, disability, custom, youth, etc?

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby swimmer11 » Thu Dec 06, 2012 12:46 am

splittermcsplit88 wrote:Hmmm, so D violates the criminal statute, and we're in a prima facie jurisdiction, I could provide some argument that it was an emergency, disability, custom, youth, etc?


I think the excuses for violating a statute are when the D does not know of his need to comply with the statute, when compying with the statute would produce a greater harm than non-compliance, when it is an emergency situation, if for some reason the D is unable to comply with the statute, and there are probably a few others.

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby uvabro » Thu Dec 06, 2012 1:22 am

I gotta get my game up. Been doing all study groups and typijg at 2500 words per hr. getting too confident. Should be stressed. Goal is above median, and aside from memorizing my outlines dont know what else to do.

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby uvabro » Thu Dec 06, 2012 1:32 am

Chill my brother. It's just a statute - if p falls under the statute and was harmed in that way then you got the whole case. When u speed thru a cripped people sign its foreseeable ull deck some crips. If it's some evidence it's still strong ev of negligence and u can look at thebrest of the bhavior itself.



hibiki wrote:
splittermcsplit88 wrote:QUESTION about negligence. If the hypo gives a criminal statute, I know you look at what type of harm it is intended to prevent and the class it is intended to protect. If it does fall under this, is it negligence per se? And then, should I talk about the different jurisdictions which may look at it in three different ways? (per se, prima facie, some evidence)

If it's negligence per se (arising from violation of statute), I don't need to talk about whether a duty was owed (cardozo and andrews) right? This is confusing, I wouldn't even need to talk about how the D was supposed to act!

Urgent!


Deep breaths. So, you have a statute that someone violated, the accident/act was of the type the statute was intended to prevent, and you know that the π was in the class of people intended to be protected by it, right? Are there defenses of necessity, incapacity or emergency? Was the negligence still causal? It isn't a strict liability claim; rather it is a negligence claim where the negligence is stipulated under particular circumstances.

(I think.)

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby swimmer11 » Thu Dec 06, 2012 1:36 am

uvabro wrote:Chill my brother. It's just a statute - if p falls under the statute and was harmed in that way then you got the whole case. When u speed thru a cripped people sign its foreseeable ull deck some crips. If it's some evidence it's still strong ev of negligence and u can look at thebrest of the bhavior itself.



hibiki wrote:
splittermcsplit88 wrote:QUESTION about negligence. If the hypo gives a criminal statute, I know you look at what type of harm it is intended to prevent and the class it is intended to protect. If it does fall under this, is it negligence per se? And then, should I talk about the different jurisdictions which may look at it in three different ways? (per se, prima facie, some evidence)

If it's negligence per se (arising from violation of statute), I don't need to talk about whether a duty was owed (cardozo and andrews) right? This is confusing, I wouldn't even need to talk about how the D was supposed to act!

Urgent!


Deep breaths. So, you have a statute that someone violated, the accident/act was of the type the statute was intended to prevent, and you know that the π was in the class of people intended to be protected by it, right? Are there defenses of necessity, incapacity or emergency? Was the negligence still causal? It isn't a strict liability claim; rather it is a negligence claim where the negligence is stipulated under particular circumstances.

(I think.)


There is also negligence per se where the D would be liable if that happened without excuse, and then there is rebuttable presumption, and then there is it is an inference of negligence. A statute can be used in three different ways.

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby noleknight16 » Thu Dec 06, 2012 1:37 am

Let's say a defendant files a 12(b)(6) motion to dismiss for failure to state a claim right after reading over the complaint. The judge denies the motion. Then the defendant files an answer that contains a 12(b)(2) defense for lack of personal jurisdiction. That 12(b)(2) defense would be thrown out by the court because it was waived when the defendant filed the 12(b)(6) motion (as in Rule 12(b)(2)-(5) were waived at this time). Would it be waived by the court automatically or does the plaintiff need to point it out?

That correct? I HATE Civil Procedure

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby uvabro » Thu Dec 06, 2012 1:49 am

noleknight16 wrote:Let's say a defendant files a 12(b)(6) motion to dismiss for failure to state a claim right after reading over the complaint. The judge denies the motion. Then the defendant files an answer that contains a 12(b)(2) defense for lack of personal jurisdiction. That 12(b)(2) defense would be thrown out by the court because it was waived when the defendant filed the 12(b)(6) motion (as in Rule 12(b)(2)-(5) were waived at this time). Would it be waived by the court automatically or does the plaintiff need to point it out?

That correct? I HATE Civil Procedure

I think hed raise the motion and the court would just say no?

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby noleknight16 » Thu Dec 06, 2012 2:05 am

uvabro wrote:
noleknight16 wrote:Let's say a defendant files a 12(b)(6) motion to dismiss for failure to state a claim right after reading over the complaint. The judge denies the motion. Then the defendant files an answer that contains a 12(b)(2) defense for lack of personal jurisdiction. That 12(b)(2) defense would be thrown out by the court because it was waived when the defendant filed the 12(b)(6) motion (as in Rule 12(b)(2)-(5) were waived at this time). Would it be waived by the court automatically or does the plaintiff need to point it out?

That correct? I HATE Civil Procedure

I think hed raise the motion and the court would just say no?


In the hypo, the 12(b)(2) motion for lack of personal jurisdiction was filed in an answer, not a motion. I'd assume you're right though, the court should strike it down. I don't think the plaintiff needs to bring it up but I don't remember.

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby splittermcsplit88 » Thu Dec 06, 2012 2:09 am

Okay, if D falls under the criminal statute, what would I write for "did he owe a duty?" How would I analyze...would I still talk about Cardozo and Andrews?

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby laxbrah420 » Thu Dec 06, 2012 2:12 am

splittermcsplit88 wrote:Okay, if D falls under the criminal statute, what would I write for "did he owe a duty?" How would I analyze...would I still talk about Cardozo and Andrews?

No. The thought is that the legislature has spoken to the level of care needed and to whom, so the court has no business discussing t

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby noleknight16 » Thu Dec 06, 2012 2:14 am

splittermcsplit88 wrote:Okay, if D falls under the criminal statute, what would I write for "did he owe a duty?" How would I analyze...would I still talk about Cardozo and Andrews?


My tort teacher taught us to put the Andrews/Cardozo in the proximate cause argument. Depends on where you teacher wants it I guess. However, Palsgraf wasn't a statute violation so I doubt I'd even bring it up in this case even if your professor did want it there.

For breach, I would list out the three ways of establishing it: reasonable person standard, negligence per se, and res ipsa loquitur. Shoot down the ones dont apply quickly and then discuss the rule behind negligence per se. Apply fact to law with deep analysis. Then finally a brief open ended conclusion.

***Negligence per se establishes breach AND duty. You owe a duty by virtue of the statute being there

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby 005618502 » Thu Dec 06, 2012 2:31 am

noleknight16 wrote:
splittermcsplit88 wrote:Okay, if D falls under the criminal statute, what would I write for "did he owe a duty?" How would I analyze...would I still talk about Cardozo and Andrews?


My tort teacher taught us to put the Andrews/Cardozo in the proximate cause argument. Depends on where you teacher wants it I guess. However, Palsgraf wasn't a statute violation so I doubt I'd even bring it up in this case even if your professor did want it there.

For breach, I would list out the three ways of establishing it: reasonable person standard, negligence per se, and res ipsa loquitur. Shoot down the ones dont apply quickly and then discuss the rule behind negligence per se. Apply fact to law with deep analysis. Then finally a brief open ended conclusion.

***Negligence per se establishes breach AND duty. You owe a duty by virtue of the statute being there


I dont think duty will be a big issue on most tests, usually you will either use the reasonable man standard or negligence per se (maybe res ipsa if necessary)

Here ismy question. When people talk about "deep" analysis I dont know if I am sure of what they mean.... Anyone have a question where they think they hit the ultimate level of analysis they would want to post?

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Re: OFFICIAL 1L Exam Prep & Motivation Thread (CSWS)

Postby splittermcsplit88 » Thu Dec 06, 2012 2:36 am

Okay, guys thanks a lot!! My exam is tomorrow, I have all the stuff memorized but I'm just not clear on how to organize. So, this is how I imagine my essays to go.

If the essay gives me a criminal statute -- I analyze: 1) meant to prevent harm in question? 2) meant to protect class of ppl in q?
If yes, I say this is the standard of care AND duty. It is negligence per se, but different jurisdictions have differing views -- negligence per se, prima facie negligence, and some evidence of negligence. I analyze under these jurisdictions. I shoot down RPP and Res Ipsa Loquitur. I might throw in an argument about excused violations of statutes -- incapacity, greater risk, emergency.

If the essay gives me no statute and a typical fact pattern -- 1) did he owe duty? (cardozo & andrews)
2) how was he supposed to act? (take into account: child, superior
abilities, custom, mental/physical disability).
Then, look at Breach -- evidence -- any direct? circumstantial? (custom/notice)

If the essay tells me -- flowerpot hit pedestrian walking by building. I go for RIL -- 1) would not have occured in absence of neg.
2) D conduct more likely than not caused it.


Is there anything you guys would add anywhere? defenses, etc. Where could I talk about the learned hand?




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