Bar Prep Questions: Black Letter Law Thread Forum

[Calvin Murphy]

There's no right of the defendant to choose be in federal court over state court unless it's a claim for which the state court has no subject matter jurisdiction. The only right of the defendant is to not be in a forum state that's not fair to the defendant. If you're in D's home state, then whether you're in state court or federal court shouldn't matter to him in terms of fairness.

If the matter is one that could have been brought in either federal or state court, and D has an opinion about which court he'd like the matter to be brought in, then he should anticipate the lawsuit and file first.

If Plaintiff Pete from State P files a $100,000 tort suit against Defendant Dan from state D for a car accident that occurred in state P, and Pete files in a state court in State P (not friendly to Dan), Dan remove to federal court in State P, right??

Yes. This is diversity jurisdiction in its simplest form.

Thanks. I just wanted to make sure that my attempts to understand more complex fact patterns hadn't ruined my understanding of the basics.

[squiggle]

I just finished listening to the video to the answer pf the simluated MBE of BARBRI . I took down the notes in conlaw. In my notes, the lecturer said that STATE ACTION: not necessarily a state action if a private school was funded by state or accredited by state"

Now Here comes the adaptibar MPQ

A state accredits both public and private schools, licenses their teachers, and supplies textbooks on secular subjects to all such schools. A private school that offers elementary and secondary education in the state denies admission to all non-Caucasians. In a suit to enjoin as unconstitutional the continued racially exclusionary admissions policy of the school, which of the following is the strongest argument AGAINST the school?
A. Because education is a public function, the school may not discriminate on racial grounds.
B. The state is so involved in school regulation and support that the equal protection clause of the Fourteenth Amendment is applicable to the school.
C. The state is constitutionally obligated to eliminate segregation in all public and private educational institutions within the state.
D. Any school with teachers who are licensed by the state is forbidden to discriminate on racial grounds.


B is the correct answer. The Constitution prohibits the state from encouraging, authorizing, or participating in racial discrimination. However, this prohibition only applies to private parties in specific situations, such as the performance of a traditionally exclusive public function or where there is significant state involvement in the private action.

^ just got confused because it seems in Adaptibar the explanation, if I understand it correctly, private schools that are accredited by the state is considered a significant involvement, thus, State Action. Whereas in the barbri lecture after the simulated MBE, it was emphasized that mere funding and accreditation of private school by the state doesnt necessarily have to be considered a state action.

thats all thank you =)

Make sure you understand this type of question. I think you understand the law (that there must be state action) but when you saw that there was no state action in this fact pattern you assumed they would lose the case on constitutional grounds and so you went ahead and searched for some sort of duty that would make the school liable for discrimination. The question is simply asking what argument helps, it doesn't ultimately have to "win" the case. In fact, without more it's very likely the school will win. However, answer choice B made the case against the school "stronger." That's all you need (also all other answer choices misstate the law).

As correctly stated in the Barbri lecture, accreditation alone does not necessarily constitute state action, but accreditation is an important factor when evaluating state involvement. However, here the state was also licensing the teachers and supplying textbooks. That level of involvement definitely borders on state involvement with the school.

[ellewoods123]

can anyone clarify - is the default rule that judgment credits ARE protected by recording statutes? I've gotten a handful of questions on Adaptibar that state that since judgment creditors are not purchasers for value they are not BFPs and therefore are not protected. But I thought I read in Barbri somewhere that they generally are protected.

[blueapple08]

Can anyone clarify when federal courts have the authority to create a federal common law, despite the Erie doctrine? Adaptibar indicated that if there is a peculiarly strong interest, federal courts are allowed to create federal common law. But can't ANYTHING be considered an area of strong interest? How does one determine what is considered a strong interest for federal courts?

[georgia2016]

quick question-when is truth a complete defense to defamation? When 1)public figure/public matter; 2) private figure over public matter; or 3) private figure over private matter? Thanks!

[BVest]

Can anyone clarify when federal courts have the authority to create a federal common law, despite the Erie doctrine? Adaptibar indicated that if there is a peculiarly strong interest, federal courts are allowed to create federal common law. But can't ANYTHING be considered an area of strong interest? How does one determine what is considered a strong interest for federal courts?

There has to be some essential related federal issue in which the feds have an strong interest -- more along the lines of a pecuniary or legal interest. The main (and founding) example is Clearfield Trust, which dealt with checks issued from the US Treasury which otherwise would have been controlled by the diverse commercial paper law of the various states in which suit might be brought.

(The other situation is a federal statute permitting its development (e.g. under FELA/Jones Act, bankruptcy law, etc.), especially where states have concurrent jurisdiction. Often in those cases, the state courts will have to do a reverse-Erie analysis, applying substantive federal common law and state procedural law.)

[alicen]

quick question-when is truth a complete defense to defamation? When 1)public figure/public matter; 2) private figure over public matter; or 3) private figure over private matter? Thanks!

i believe truth is always a complete defense to defamation. If not a public figure or public matter, it is an affirmative defense. Truth is generally not a defense to privacy torts.

I have a question about juries and choice of law because my bar prep materials are quite conflicting... Is the right to a jury for legal claims (damages) governed by federal law in federal court sitting in diversity, even if state law would deny the right? Also, are judge-jury allocations considered procedural (so a federal court sitting in diversity must apply state law)? Thank you!!

[goden]

Supplemental Jx Question:

Barbri says that a rule coming out of Exxon Mobil v. Allapatah is that supplemental jx can't be used where exercising it would destroy complete diversity. Does this apply to the following situations?

Situation 1
P (state A) sues D (state B), who then impleads X (state B). Why is this impleader allowed? It seems like D, by impleading X, is destroying complete diversity between D and X.

Situation 2
P (state A) sues D (state B), who then impleads X (state A). Can X then sue P? It would think not, because then exercising supplemental jx would destroy complete diversity. (I know that P can't sue X under §1367)

I know supplemental jx was addressed earlier in the thread, and I saw an explanation by whitecollar23 that said this: 13(a) and 13(g) claims get in under SJ without concern for destroying complete diversity (or reaching AIC). With 13(b) claims, the courts are split in that regard (probably not relevant for Bar exam purposes, though).

^If that's true, are 13(a) and 13(g), and possibly 13(b) claims the only claims that could get in without concern for destroying complete diversity?

[mvp99]

Supplemental Jx Question:

Barbri says that a rule coming out of Exxon Mobil v. Allapatah is that supplemental jx can't be used where exercising it would destroy complete diversity. Does this apply to the following situations?

Situation 1
P (state A) sues D (state B), who then impleads X (state B). Why is this impleader allowed? It seems like D, by impleading X, is destroying complete diversity between D and X.

Situation 2
P (state A) sues D (state B), who then impleads X (state A). Can X then sue P? It would think not, because then exercising supplemental jx would destroy complete diversity. (I know that P can't sue X under §1367)

I know supplemental jx was addressed earlier in the thread, and I saw an explanation by whitecollar23 that said this: 13(a) and 13(g) claims get in under SJ without concern for destroying complete diversity (or reaching AIC). With 13(b) claims, the courts are split in that regard (probably not relevant for Bar exam purposes, though).

^If that's true, are 13(a) and 13(g), and possibly 13(b) claims the only claims that could get in without concern for destroying complete diversity?

There is no need for diversity between TPP and TPD, that its why we use supplemental jx, it's good as long as it arises out of the T/O (really always the case with impleader because it's based on indemnity). The diversity limitation I think it's only imposed on the original plaintiff for parties joinder under R14 19 20 24. P can't use supplemental to overcome lack of diversity but it can if the parties are diverse but the amount in controversy is less than 75k. The reason I believe is to avoid fabrication of jurisdiction.

[wwwcol]

A drummer filed a lawsuit against a violinist in state court in State A challenging an easement on the drummer's property that the violinist had claimed. Pursuant to a special verdict, a jury found that the violinist's easement was valid. The drummer then sold her property to guitarist. The guitarist sued the violinist in a jurisdictionally valid diversity lawsuit in federal court in State A, challenging the validity of the violinist's easement on the same grounds that the drummer had previously brought.

A. The guitarist will be precluded from relitigating the easement's validity, even though she was not a party in the first lawsuit.
B. The guitarist will not be precluded from relitigating the easement's validity, because she was not a party in the first lawsuit.
C. The guitarist's lawsuit will be dismissed on grounds of claim preclusion, even though she was not a party in the first lawsuit.
D. The guitarist's lawsuit will not be dismissed on grounds of claim preclusion, because she was not a party in the first lawsuit.

A is apparently the right answer. can anyone explain why C (claim preclusion) is wrong here?

[mvp99]

A drummer filed a lawsuit against a violinist in state court in State A challenging an easement on the drummer's property that the violinist had claimed. Pursuant to a special verdict, a jury found that the violinist's easement was valid. The drummer then sold her property to guitarist. The guitarist sued the violinist in a jurisdictionally valid diversity lawsuit in federal court in State A, challenging the validity of the violinist's easement on the same grounds that the drummer had previously brought.

A. The guitarist will be precluded from relitigating the easement's validity, even though she was not a party in the first lawsuit.
B. The guitarist will not be precluded from relitigating the easement's validity, because she was not a party in the first lawsuit.
C. The guitarist's lawsuit will be dismissed on grounds of claim preclusion, even though she was not a party in the first lawsuit.
D. The guitarist's lawsuit will not be dismissed on grounds of claim preclusion, because she was not a party in the first lawsuit.

A is apparently the right answer. can anyone explain why C (claim preclusion) is wrong here?

I think it's because claim preclusion only applies when you have the same claimant and the same defendant. Here, the guitarist is a different claimant even if a successor in interest to the drummer and therefore only issue preclusion could apply.

edit: it seems that it should be C, because claim preclusion applies to parties who are successor in interest... the only other difference I see is that one was brought in state court and the other in federal court but I can't see how that would matter here.

[apricot]

Prior inconsistent statements
- can be used to impeach
- can be used for the truth of contents - but only if witness on stand to be cross -examined?

Is this correct? Thanks!

[raptors_delight]

Prior inconsistent statements
- can be used to impeach
- can be used for the truth of contents - but only if witness on stand to be cross -examined?

Is this correct? Thanks!

For something to be a prior inconsistent statement of a witness, remember that it usually has to be the case that the witness said something in the past, and now is on the stand saying something different. If the prior inconsistent statement was made under oath, it's defined not to be hearsay, so it comes in as substantive evidence. If it wasn't made under oath, it can still be used to impeach as a contradiction, but it doesn't fall under the PIS hearsay exclusion, so it doesn't come in as substantive evidence unless it qualifies under another exclusion or exception.

[goden]

Supplemental Jx Question:

Barbri says that a rule coming out of Exxon Mobil v. Allapatah is that supplemental jx can't be used where exercising it would destroy complete diversity. Does this apply to the following situations?

Situation 1
P (state A) sues D (state B), who then impleads X (state B). Why is this impleader allowed? It seems like D, by impleading X, is destroying complete diversity between D and X.

Situation 2
P (state A) sues D (state B), who then impleads X (state A). Can X then sue P? It would think not, because then exercising supplemental jx would destroy complete diversity. (I know that P can't sue X under §1367)

I know supplemental jx was addressed earlier in the thread, and I saw an explanation by whitecollar23 that said this: 13(a) and 13(g) claims get in under SJ without concern for destroying complete diversity (or reaching AIC). With 13(b) claims, the courts are split in that regard (probably not relevant for Bar exam purposes, though).

^If that's true, are 13(a) and 13(g), and possibly 13(b) claims the only claims that could get in without concern for destroying complete diversity?

There is no need for diversity between TPP and TPD, that its why we use supplemental jx, it's good as long as it arises out of the T/O (really always the case with impleader because it's based on indemnity). The diversity limitation I think it's only imposed on the original plaintiff for parties joinder under R14 19 20 24. P can't use supplemental to overcome lack of diversity but it can if the parties are diverse but the amount in controversy is less than 75k. The reason I believe is to avoid fabrication of jurisdiction.

Thanks. Does that mean both situations 1 and 2 are allowed then? I am aware of the statutory limitations from Section 1367 against plaintiffs involving rules 14, 19, 20, 24. I am referring here to the (separate) rule in Allapatah that says not to use supplemental jx when it would destroy complete diversity.

For example, normally if you have P1 (state A) against D (state B) that meets AIC, you can bring in a P2 (state A) who does not meet AIC.

However, Barbri gives the example where again you have P1 (state A) against D (state B) that meets AIC, but this time you cannot bring in P2 (state B) because doing so would ruin complete diversity. Barbri cites to Allapatah, not the statute, for this result.

[mvp99]

Prior inconsistent statements
- can be used to impeach
- can be used for the truth of contents - but only if witness on stand to be cross -examined?

Is this correct? Thanks!

For something to be a prior inconsistent statement of a witness, remember that it usually has to be the case that the witness said something in the past, and now is on the stand saying something different. If the prior inconsistent statement was made under oath, it's defined not to be hearsay, so it comes in as substantive evidence. If it wasn't made under oath, it can still be used to impeach as a contradiction, but it doesn't fall under the PIS hearsay exclusion, so it doesn't come in as substantive evidence unless it qualifies under another exclusion or exception.

I think it's you're right in that the W is available to be examined in PIS as substantive evidence. FRE "admits inconsistent statements of witnesses [as evidence] because the dangers against which the hearsay rule is designed to protect are largely nonexistent. The declarant is in court and may be examined and cross-examined in regard to his statements and their subject matter."

compare to former testimony W is unavailable so courts only admit former testimony if it was under oath and the party offered against had an opportunity to examine the witness. Only depositions and hearings qualify, so no grand jury testimony or affidavits.

[apricot]

Helpful thank you

Prior inconsistent statements
- can be used to impeach
- can be used for the truth of contents - but only if witness on stand to be cross -examined?

Is this correct? Thanks!

For something to be a prior inconsistent statement of a witness, remember that it usually has to be the case that the witness said something in the past, and now is on the stand saying something different. If the prior inconsistent statement was made under oath, it's defined not to be hearsay, so it comes in as substantive evidence. If it wasn't made under oath, it can still be used to impeach as a contradiction, but it doesn't fall under the PIS hearsay exclusion, so it doesn't come in as substantive evidence unless it qualifies under another exclusion or exception.

I think it's you're right in that the W is available to be examined in PIS as substantive evidence. FRE "admits inconsistent statements of witnesses [as evidence] because the dangers against which the hearsay rule is designed to protect are largely nonexistent. The declarant is in court and may be examined and cross-examined in regard to his statements and their subject matter."

compare to former testimony W is unavailable so courts only admit former testimony if it was under oath and the party offered against had an opportunity to examine the witness. Only depositions and hearings qualify, so no grand jury testimony or affidavits.

[apricot]

I'm a little confused on this.

If P sues D in diversity jurisdiction
D impleads X (so D=TPP, X=TPD)

D and X can lack diversity as to each other, because D-X claim is in supplemental jurisdiction, and this will not "break" the diversity jurisdiction required for P-D

TPD can now add claims against P.

What if TPD is non-diverse to P? Can P answer TPD/X claims? Can P counter-claim?

Supplemental Jx Question:

Barbri says that a rule coming out of Exxon Mobil v. Allapatah is that supplemental jx can't be used where exercising it would destroy complete diversity. Does this apply to the following situations?

Situation 1
P (state A) sues D (state B), who then impleads X (state B). Why is this impleader allowed? It seems like D, by impleading X, is destroying complete diversity between D and X.

Situation 2
P (state A) sues D (state B), who then impleads X (state A). Can X then sue P? It would think not, because then exercising supplemental jx would destroy complete diversity. (I know that P can't sue X under §1367)

I know supplemental jx was addressed earlier in the thread, and I saw an explanation by whitecollar23 that said this: 13(a) and 13(g) claims get in under SJ without concern for destroying complete diversity (or reaching AIC). With 13(b) claims, the courts are split in that regard (probably not relevant for Bar exam purposes, though).

^If that's true, are 13(a) and 13(g), and possibly 13(b) claims the only claims that could get in without concern for destroying complete diversity?

There is no need for diversity between TPP and TPD, that its why we use supplemental jx, it's good as long as it arises out of the T/O (really always the case with impleader because it's based on indemnity). The diversity limitation I think it's only imposed on the original plaintiff for parties joinder under R14 19 20 24. P can't use supplemental to overcome lack of diversity but it can if the parties are diverse but the amount in controversy is less than 75k. The reason I believe is to avoid fabrication of jurisdiction.

Thanks. Does that mean both situations 1 and 2 are allowed then? I am aware of the statutory limitations from Section 1367 against plaintiffs involving rules 14, 19, 20, 24. I am referring here to the (separate) rule in Allapatah that says not to use supplemental jx when it would destroy complete diversity.

For example, normally if you have P1 (state A) against D (state B) that meets AIC, you can bring in a P2 (state A) who does not meet AIC.

However, Barbri gives the example where again you have P1 (state A) against D (state B) that meets AIC, but this time you cannot bring in P2 (state B) because doing so would ruin complete diversity. Barbri cites to Allapatah, not the statute, for this result.

[mvp99]

I'm a little confused on this.

If P sues D in diversity jurisdiction
D impleads X (so D=TPP, X=TPD)

D and X can lack diversity as to each other, because D-X claim is in supplemental jurisdiction, and this will not "break" the diversity jurisdiction required for P-D

TPD can now add claims against P.

What if TPD is non-diverse to P? Can P answer TPD/X claims? Can P counter-claim?

Supplemental Jx Question:

Barbri says that a rule coming out of Exxon Mobil v. Allapatah is that supplemental jx can't be used where exercising it would destroy complete diversity. Does this apply to the following situations?

Situation 1
P (state A) sues D (state B), who then impleads X (state B). Why is this impleader allowed? It seems like D, by impleading X, is destroying complete diversity between D and X.

Situation 2
P (state A) sues D (state B), who then impleads X (state A). Can X then sue P? It would think not, because then exercising supplemental jx would destroy complete diversity. (I know that P can't sue X under §1367)

I know supplemental jx was addressed earlier in the thread, and I saw an explanation by whitecollar23 that said this: 13(a) and 13(g) claims get in under SJ without concern for destroying complete diversity (or reaching AIC). With 13(b) claims, the courts are split in that regard (probably not relevant for Bar exam purposes, though).

^If that's true, are 13(a) and 13(g), and possibly 13(b) claims the only claims that could get in without concern for destroying complete diversity?

There is no need for diversity between TPP and TPD, that its why we use supplemental jx, it's good as long as it arises out of the T/O (really always the case with impleader because it's based on indemnity). The diversity limitation I think it's only imposed on the original plaintiff for parties joinder under R14 19 20 24. P can't use supplemental to overcome lack of diversity but it can if the parties are diverse but the amount in controversy is less than 75k. The reason I believe is to avoid fabrication of jurisdiction.

Thanks. Does that mean both situations 1 and 2 are allowed then? I am aware of the statutory limitations from Section 1367 against plaintiffs involving rules 14, 19, 20, 24. I am referring here to the (separate) rule in Allapatah that says not to use supplemental jx when it would destroy complete diversity.

For example, normally if you have P1 (state A) against D (state B) that meets AIC, you can bring in a P2 (state A) who does not meet AIC.

However, Barbri gives the example where again you have P1 (state A) against D (state B) that meets AIC, but this time you cannot bring in P2 (state B) because doing so would ruin complete diversity. Barbri cites to Allapatah, not the statute, for this result.

Nothing happens if P and TPD are from the same state. You analyze jurisdiction based on each claim and the parties involved. The jx question is only between TPP and TPD. P can't assert supplemental jx over TPD to overcome lack of diversity.

[apricot]

But then what happens if the TPD, now in the action, wants to make some claim against P? Can that be based in SJ, and the reason it doesn't break the P-D DiversityJ is that it's separate claims (that's perhaps what you meant)

Same reason
- joinder of defs by P can break diversity
- impleader by D of TPD can't break diversity - simply not same claim

[mvp99]

But then what happens if the TPD, now in the action, wants to make some claim against P? Can that be based in SJ, and the reason it doesn't break the P-D DiversityJ is that it's separate claims (that's perhaps what you meant)

Same reason
- joinder of defs by P can break diversity
- impleader by D of TPD can't break diversity - simply not same claim

I think I read somewhere that this is an unintended consequence of poor drafting of 1367. TPD should be able to assert a claim against non-diverse P as along as it arises out of the same T/O. There's no prohibition. But what happens to P? Shouldn't there be any compulsory counterclaim? Yes. There's probably a split on this. Let us know if you find the answer.

[apricot]

Class action in diversity jurisdiction - does the representative of the class need to have claim >75k or is it across class members - seem to get conflicting answers in multiple choice

[ellewoods123]

holdover residential tenant = held to monthly period tenancy
holdover commercial tenant = held to yearly periodic tenancy ONLY if lease was for more than a year? or held to a yearly periodic tenancy automatically if commercial tenant?

[LionelHutzJD]

holdover residential tenant = held to monthly period tenancy
holdover commercial tenant = held to yearly periodic tenancy ONLY if lease was for more than a year? or held to a yearly periodic tenancy automatically if commercial tenant?

commercial tenant = yearly periodic if prior lease was year to year. monthly periodic if prior lease was month to month (although I still havent seen this in a question, nothing indicates to the contrary).

residential tenant = regardless of prior lease, month to month tenancy.

[ellewoods123]

holdover residential tenant = held to monthly period tenancy
holdover commercial tenant = held to yearly periodic tenancy ONLY if lease was for more than a year? or held to a yearly periodic tenancy automatically if commercial tenant?

commercial tenant = yearly periodic if prior lease was year to year. monthly periodic if prior lease was month to month (although I still havent seen this in a question, nothing indicates to the contrary).

residential tenant = regardless of prior lease, month to month tenancy.

thanks!

[Calvin Murphy]

holdover residential tenant = held to monthly period tenancy
holdover commercial tenant = held to yearly periodic tenancy ONLY if lease was for more than a year? or held to a yearly periodic tenancy automatically if commercial tenant?

commercial tenant = yearly periodic if prior lease was year to year. monthly periodic if prior lease was month to month (although I still havent seen this in a question, nothing indicates to the contrary).

residential tenant = regardless of prior lease, month to month tenancy.

thanks!

I think the rule on commercial tenants is that they have a new tenancy for years for the original length, not to exceed one year. So like...if they had an 8-month tenancy, they will have a new 8-month tenancy. If they had a 5-year tenancy, they will have a new 1-year tenancy.