1L Substantive Law Questions (c/o 2017) Forum

[pancakes3]

Civ Pro

Question for clarification: Under §1332, if there's multiple Ps asserting the same claim against D (non-class action suit), can you aggregate the amount in-controversy?

No. And if it's a single P filing many claims against a D that won't get in via supplemental, each claim has to be >75k to get in.

[BVest]

Civ Pro

Question for clarification: Under §1332, if there's multiple Ps asserting the same claim against D (non-class action suit), can you aggregate the amount in-controversy?

No. And if it's a single P filing many claims against a D that won't get in via supplemental, each claim has to be >75k to get in.

Unless things have changed since fall 2012 (admittedly possible), I don't think the second part of your answer is correct.

• Aggregation rules
o P → D
• Add multiple claims; add, but don’t double count
• (e.g. 50k claim for assault and 50k claim for product liability = 100k AIC; but claims for Design Defect and for Manufacturing Defect in a products liability suit where P had a total of 50k damages = only 50k claim)

o P1 & P2 → D
• Don’t add multiple Ps

o P → D1 & D2
• Don’t add Multiple Ds

o P1 (100k) & P2 (50k) → D
• Can piggyback P2 with P1’s claim (common nucleus of operative fact)

[hdunlop]

ugh tag.

[pancakes3]

Civ Pro

Question for clarification: Under §1332, if there's multiple Ps asserting the same claim against D (non-class action suit), can you aggregate the amount in-controversy?

No. And if it's a single P filing many claims against a D that won't get in via supplemental, each claim has to be >75k to get in.

Unless things have changed since fall 2012 (admittedly possible), I don't think the second part of your answer is correct.

• Aggregation rules
o P → D
• Add multiple claims; add, but don’t double count
• (e.g. 50k claim for assault and 50k claim for product liability = 100k AIC; but claims for Design Defect and for Manufacturing Defect in a products liability suit where P had a total of 50k damages = only 50k claim)

o P1 & P2 → D
• Don’t add multiple Ps

o P → D1 & D2
• Don’t add Multiple Ds

o P1 (100k) & P2 (50k) → D
• Can piggyback P2 with P1’s claim (common nucleus of operative fact)

Mea culpa. This is correct. Just got clarified from Civpro Prof.

[foundingfather]

tag

it's time to get down to it

[03152016]

Civ Pro

Question for clarification: Under §1332, if there's multiple Ps asserting the same claim against D (non-class action suit), can you aggregate the amount in-controversy?

No. And if it's a single P filing many claims against a D that won't get in via supplemental, each claim has to be >75k to get in.

Unless things have changed since fall 2012 (admittedly possible), I don't think the second part of your answer is correct.

• Aggregation rules
o P → D
• Add multiple claims; add, but don’t double count
• (e.g. 50k claim for assault and 50k claim for product liability = 100k AIC; but claims for Design Defect and for Manufacturing Defect in a products liability suit where P had a total of 50k damages = only 50k claim)

o P1 & P2 → D
• Don’t add multiple Ps

o P → D1 & D2
• Don’t add Multiple Ds

o P1 (100k) & P2 (50k) → D
• Can piggyback P2 with P1’s claim (common nucleus of operative fact)

Mea culpa. This is correct. Just got clarified from Civpro Prof.

don't forget the "common and undivided interest" exception to aggregating the claims of multiple Ps

[03152016]

this isn't a substantive law Q, but seems like a good place to ask

my civ pro prof often explains some standard analysis
but also explains that he has his own working rules of analysis that are completely different

for example, when we were doing pleading, the prof taught twombly as limited to antitrust and iqbal as limited to qualified immunity
over break a bunch of students approached him, confused because that's not the way the courts have applied it
and when class came back the prof explained that he was just articulating his personal analysis of the pleading rules, the courts have gone the other way
this kind of stuff happens all the time

so on the exam, do i only apply his analysis?
or do i apply both his analysis and the standard analysis? ("Another view of the rule is...")

[BVest]

this isn't a substantive law Q, but seems like a good place to ask

my civ pro prof often explains some standard analysis
but also explains that he has his own working rules of analysis that are completely different

for example, when we were doing pleading, the prof taught twombly as limited to antitrust and iqbal as limited to qualified immunity
over break a bunch of students approached him, confused because that's not the way the courts have applied it
and when class came back the prof explained that he was just articulating his personal analysis of the pleading rules, the courts have gone the other way
this kind of stuff happens all the time

so on the exam, do i only apply his analysis?
or do i apply both his analysis and the standard analysis? ("Another view of the rule is...")

If it's a case to which the courts would apply twiqbal, "Though the court shouldn't apply Twombly or Iqbal to the case at hand since it is not an antitrust or qualified immunity case, respectively, it likely will do so. . . ."

[Kratos]

this isn't a substantive law Q, but seems like a good place to ask

my civ pro prof often explains some standard analysis
but also explains that he has his own working rules of analysis that are completely different

for example, when we were doing pleading, the prof taught twombly as limited to antitrust and iqbal as limited to qualified immunity
over break a bunch of students approached him, confused because that's not the way the courts have applied it
and when class came back the prof explained that he was just articulating his personal analysis of the pleading rules, the courts have gone the other way
this kind of stuff happens all the time

so on the exam, do i only apply his analysis?
or do i apply both his analysis and the standard analysis? ("Another view of the rule is...")

Id probably do both just to stroke prof's ego. So, "if it is only applicable to antitrust, blah blah blah. However, most courts have applied it as blah blah blah." Sounds like a really shitty teacher.

[jayessbee]

Civ Pro


No. And if it's a single P filing many claims against a D that won't get in via supplemental, each claim has to be >75k to get in.

Unless things have changed since fall 2012 (admittedly possible), I don't think the second part of your answer is correct.

• Aggregation rules
o P → D
• Add multiple claims; add, but don’t double count
• (e.g. 50k claim for assault and 50k claim for product liability = 100k AIC; but claims for Design Defect and for Manufacturing Defect in a products liability suit where P had a total of 50k damages = only 50k claim)

o P1 & P2 → D
• Don’t add multiple Ps

o P → D1 & D2
• Don’t add Multiple Ds

o P1 (100k) & P2 (50k) → D
• Can piggyback P2 with P1’s claim (common nucleus of operative fact)

Mea culpa. This is correct. Just got clarified from Civpro Prof.

don't forget the "common and undivided interest" exception to aggregating the claims of multiple Ps

Also, if D's are joint and severally liable you can aggregate the claims for a single P.

[Manteca]

Torts

What role does malice of the defendant towards plaintiff play into private nuisance?

[rahulg91]

Torts

What role does malice of the defendant towards plaintiff play into private nuisance?

WARNING: 1L

But I can start you off. The "spite fence" doctrine basically says that if you have a nuisance that is there just to annoy someone else, it's actionable (under strict liability I think). The name comes from a case (or maybe a hypo) where a neighbor builds a really tall fence to block out his neighbor's sunlight out of malice (not cool breh).

[rahulg91]

this isn't a substantive law Q, but seems like a good place to ask

my civ pro prof often explains some standard analysis
but also explains that he has his own working rules of analysis that are completely different

for example, when we were doing pleading, the prof taught twombly as limited to antitrust and iqbal as limited to qualified immunity
over break a bunch of students approached him, confused because that's not the way the courts have applied it
and when class came back the prof explained that he was just articulating his personal analysis of the pleading rules, the courts have gone the other way
this kind of stuff happens all the time

so on the exam, do i only apply his analysis?
or do i apply both his analysis and the standard analysis? ("Another view of the rule is...")

WTF are they smoking at NYU

[apples89]

what exactly is going on with 2-207?

(1) is basically saying that any writing that can be an acceptance, will be, unless someone states it wont be.
(2) then goes on to say that if terms in the acceptance from (1) are different, they will be proposals (what?), and then, (the confusing part) if its between merchants they are in the K, unless blahblahblah expressly stated, or material alteration, or rejected within a reasonable time (which could be whatever, trade usage)
(3) is then saying that conduct can be an acceptance, and then terms are what parties agree to + any default rules.

is that relatively correct? how do you determine what are terms they agreed to? would it be in parol evidence/memo of agreement, or what they performed or in past performance?

seems like the two parts of (2) are saying two different things and should be split in the next restatement....

K's is my worst subject by far.

[cannibal ox]

what exactly is going on with 2-207?

(1) is basically saying that any writing that can be an acceptance, will be, unless someone states it wont be.
(2) then goes on to say that if terms in the acceptance from (1) are different, they will be proposals (what?), and then, (the confusing part) if its between merchants they are in the K, unless blahblahblah expressly stated, or material alteration, or rejected within a reasonable time (which could be whatever, trade usage)
(3) is then saying that conduct can be an acceptance, and then terms are what parties agree to + any default rules.

is that relatively correct? how do you determine what are terms they agreed to? would it be in parol evidence/memo of agreement, or what they performed or in past performance?

seems like the two parts of (2) are saying two different things and should be split in the next restatement....

K's is my worst subject by far.

(1) asks if the acceptance is definite and seasonable (basically did the other party say they accepted, and was it within a reasonable amount of time/before the contract lapsed/etc). It also asks if the acceptance is made expressly conditional on the terms of the offer. Basically the language must be very clear and in an obvious position (look at the Dorton and Itoh cases for how courts have fallen on both sides of this issue, but pretty much quote the UCC and put it in a very clear spot in your contract, otherwise it's likely that the court will say it wasn't expressly conditional on assent).

(2) splits two different ways, depending on whether or not the parties are merchants.

If one of both parties is not a merchant, the additional terms are simply proposals (unlikely they make it into the contract).

If BOTH parties are merchants, than the terms will make it into the contract UNLESS
a) offeror has limited acceptance to the terms of the offer, or
b) the term materially alters the contract*, or
c) notice of objection has been given

* material alteration is somewhat subjective, but the UCC gives examples in comment 4. A disclaimer of warranties is the most common alteration that is material and will not make it into the contract.

However, 2-207(2) only talks about "additional" terms, not "different" terms, so how do you treat a different term (a term that conflicts with an existing term)?

3 approaches:

- The majority approach is the knockout rule. Both terms are knocked out of the contract, and the UCC fills the gap with the "gap filler" terms (provided somewhere in the UCC, not sure where, we aren't responsible for them).
- Ignore the term. The UCC only talks about additional terms, so if it's different, ignore it. This is the minority approach.
- Run the term through 2-207(2) the same way you would an additional term. I believe this is the California approach.



Looks like you've got 2-207(3) down pretty well. If there was not a definite and seasonable expression of acceptance, then a contract is still formed (because of conduct between the parties) and the terms of the contract are whatever the two parties agreed to, then use the UCC to fill the gaps.


This flow chart is pretty decent if you're a visual learner: https://blogs.washburnlaw.edu/barexam/f ... -Chart.pdf

[apples89]

awesome, looks like i can finally navigate 2-207...

can someone explain what exactly happened in Empro v BallCo and the memorandum part of Texaco v Pennzoil?

theyre both about written memorials of manifestations of intent, and i'm not sure what the holdings mean and what the takeaways are (for exam purposes). From what i gathered, in Empro, the wording wasnt strong enough, and thus that memo wasnt strong enough for mutual assent. after this im lost.

For Texaco, no language saying this is just preliminary negotiations, not enough time for partial performance, there was enough essential terms agreed to, and whatever wasnt there was just boilerplate stuff, and huge merger deal, thus K formed. takeaway being: 4 factors go into determining if a written manifestation of intention is binding, express reservation, partial performance, agreement on essential terms, and complexity + magnitude of K/deal (im not sure what this means)

am I on the right track?

[Nekrowizard]

Post removed.

[g3.sneaks]

I'm vaguely confused about the minimum contacts test. In order to establish specific jurisdiction, the claim must arise from the defendant's contacts with the state. But what if the claim arises from contacts in one state, and the defendant's contacts with another state are identical?

I was under the impression that those specific contacts have to give rise to the claim, and suit could only be brought in the state where the claim originated. But I tried the CALI lesson for personal jurisdiction, and it suggested in an example that if a person, say, bought defective shoes in Iowa, then traveled to Washington, where the defendant also sold shoes, he could sue them in Washington as well as Iowa. Is that right? The writer of the CALI lesson relies on Buckeye Boiler, a case we never read, to reach the result.

From what I know, you are correct. Maybe this is a technicality of the minimum contacts test that we were not taught and will not be on our exams. Chances are, if you didn't go over it in class, the prof. is not going to put it in a fact pattern.

Also consider whether P had general jxn. If D was "at home" in Washington, P could sue.

[BVest]

I'm vaguely confused about the minimum contacts test. In order to establish specific jurisdiction, the claim must arise from the defendant's contacts with the state. But what if the claim arises from contacts in one state, and the defendant's contacts with another state are identical?

I was under the impression that those specific contacts have to give rise to the claim, and suit could only be brought in the state where the claim originated. But I tried the CALI lesson for personal jurisdiction, and it suggested in an example that if a person, say, bought defective shoes in Iowa, then traveled to Washington, where the defendant also sold shoes, he could sue them in Washington as well as Iowa. Is that right? The writer of the CALI lesson relies on Buckeye Boiler, a case we never read, to reach the result.

From what I know, you are correct. Maybe this is a technicality of the minimum contacts test that we were not taught and will not be on our exams. Chances are, if you didn't go over it in class, the prof. is not going to put it in a fact pattern.

Also consider whether P had general jxn. If D was "at home" in Washington, P could sue.

Yeah, that sounds like a General Jdxn issue if you're trying to sue in Washington. Systematic and continuous and all that jazz.

[Nekrowizard]

Post removed.

[Avian]

I'm vaguely confused about the minimum contacts test. In order to establish specific jurisdiction, the claim must arise from the defendant's contacts with the state. But what if the claim arises from contacts in one state, and the defendant's contacts with another state are identical?

I was under the impression that those specific contacts have to give rise to the claim, and suit could only be brought in the state where the claim originated. But I tried the CALI lesson for personal jurisdiction, and it suggested in an example that if a person, say, bought defective shoes in Iowa, then traveled to Washington, where the defendant also sold shoes, he could sue them in Washington as well as Iowa. Is that right? The writer of the CALI lesson relies on Buckeye Boiler, a case we never read, to reach the result.

From what I know, you are correct. Maybe this is a technicality of the minimum contacts test that we were not taught and will not be on our exams. Chances are, if you didn't go over it in class, the prof. is not going to put it in a fact pattern.

Also consider whether P had general jxn. If D was "at home" in Washington, P could sue.

Ok, thank you. It threw me for a little bit. Our prof said that in McIntyre, Nicastro would have no option but to sue in England--a result that seems doubtful if the CALI analysis were applied.

It's been a while since I took civil procedure, but this is not correct under my understanding. You could of course sue under general jurisdiction if they were domiciled in Washington, but you would not have specific jurisdiction over an injury in Iowa just because they sold shoes in Washington as well.

I just read Buckeye and it doesn't not seem to hold this at all.
Buckeye concerned an Ohio company which sold pressure tanks to a distributor who sold them in California. The Supreme Court of California held that the interests in justice for the plaintiff and inconvenience to the defendant had to be balanced and that the plaintiff had made out a prima facie showing that his injury arose from purposeful sales in California by Buckeye.

As I understand it, specific jurisdiction still requires that the claim arise out of the defendant's contact with the forum state. For instance if you slip and fell in a Walmart in Texas you don't have specific jurisdiction in almost every state just because Walmart does business in almost every state.

If someone remembers CivPro better than I do please correct me.

[CardozoLaw09]

No I don' think you would be able to sue in Iowa as well - there is no relationship between the cause of action and the contacts in Iowa. I think the above poster is correct in saying that you wouldn't be able to sue in any state just because Wal-Mart has sufficient contacts in every state - the claim that gives rise to your lawsuit has to be related to the contacts of the forum state ie) Washington

[g3.sneaks]

Yeah; to reiterate, I don't think you would be able to sue with specific jurisdiction. You would have to sue under general jurisdiction by showing systematic contact in Washington greater than any other state so as to make D "at home".

[03152016]

daimler narrows the scope of where a corp is at home
it's where corp is incorporated + principal place of business (defined in hertz as "the nerve center")
though yea, they do mention the possibility of a corp showing such extensive contacts as to make a corp at home, but they call that "exceptional"

[BVest]

As I understand it, specific jurisdiction still requires that the claim arise out of the defendant's contact with the forum state. For instance if you slip and fell in a Walmart in Texas you don't have specific jurisdiction in almost every state just because Walmart does business in almost every state.

If someone remembers CivPro better than I do please correct me.

You wouldn't have SPECIFIC jurisdiction in every state, but Walmart would be a case where you would have GENERAL jurisdiction in every state. You only need one in order to have personal jurisdiction.

Now, in your example, if you then sue in, say, California state court, Walmart would likely move to dismiss for forum non conveniens, and would have a good chance of winning; and if you sued in California Federal Court, Walmart would likely move for Change of Venue .

Remember the distinctions between jurisdiction, forum, and venue:

Jurisdiction: Power of the court to try the case in that state

Forum: System of which the court is a part has the jurisdiction to try the case, but there's another system that would be better (if you're in Federal Court, a forum motion is claiming another country's courts are more appropriate; if you're in state court, you're claiming that the proper forum is another state or country).

Venue: The court has jurisdiction, and you're in the proper court system, but another location would be more appropriate (e.g. one county over another within a state court system; one state/district over another in federal courts). As I recall, state cases that have been removed to federal court have some special venue issues, but I don't remember them.