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

[pancakes3]

Civ pro question on the 12B defenses that are "lost" if not raised prior. Does that include answers, or only motions? For example, could I raise the improper service defense in a pre-trial motion if I hadn't raised it in an answer?

IIRC you can only make one 12b pre-trial motion, so you've got to lump all the motions you want to make there but you technically get a second whack at it by adding it to your answer. You can also add a 12b motion to your answer that the judge already dismissed in the pre-trial motion but that's at your discretion. The waiving comes post-answer.

[BVest]

Civ pro question on the 12B defenses that are "lost" if not raised prior. Does that include answers, or only motions? For example, could I raise the improper service defense in a pre-trial motion if I hadn't raised it in an answer?

I'm not sure why this question comes up on Dec 23, but here goes:
That includes answers. If you answer and fail to raise a 12(b)(2-5) objection, those are waived. (Unless you amend your answer as a matter of course and include the objection in that amended answer).

IIRC you can only make one 12b pre-trial motion, so you've got to lump all the motions you want to make there but you technically get a second whack at it by adding it to your answer. You can also add a 12b motion to your answer that the judge already dismissed in the pre-trial motion but that's at your discretion. The waiving comes post-answer.

You don't get a second whack by adding it to your answer for disfavored motions. If you make a pre-answer motion and fail to raise any of the disfavored motions (PJ, Venue, Process/Service), you may not raise those omitted from the pre-answer motion in your answer. See comments to the 1966 amendments to Rule 12, specifically the first two paragraphs regarding (h).

The only times you get a second whack for disfavored motions are (1) when the motions are made as part of your answer as opposed to a pre-answer motion and your are amending as a matter of course within 21 days of filing the answer, or (2) (and this will be extremely rare) is when the objection/defense was unavailable at the time of the original pre-answer motion or answer.

An example of the latter might be if the P establishes venue by suing D1 and D2 where venue is only established in D2's state under the catch-all provision (i.e. the events occur outside the US and D1 and D2 reside in different states, but there is PJ for both in D2's state). If P then drops D2 from the suit, or D2 successfully raises an objection to get themselves dismissed from the case, D1 may raise a venue objection at that point because there is now a venue objection available to them that was unavailable before. Even then, I'm not sure that motion gets to go forward.

[TheSpanishMain]

Civ pro question on the 12B defenses that are "lost" if not raised prior. Does that include answers, or only motions? For example, could I raise the improper service defense in a pre-trial motion if I hadn't raised it in an answer?

I'm not sure why this question comes up on Dec 23, but here goes

It's a long story involving brain tumors and Guantanamo bay

[foundingfather]

Civ pro question on the 12B defenses that are "lost" if not raised prior. Does that include answers, or only motions? For example, could I raise the improper service defense in a pre-trial motion if I hadn't raised it in an answer?

i believe it has to be your first response to a pleading, period. but i'm not 100% sure

[jphiggo]

Civ pro question on the 12B defenses that are "lost" if not raised prior. Does that include answers, or only motions? For example, could I raise the improper service defense in a pre-trial motion if I hadn't raised it in an answer?

i believe it has to be your first response to a pleading, period. but i'm not 100% sure

You are correct. A disfavored must be in the first responsive pleading-- either PAM or Answer (but not in both). If you file a PAM, you cannot include another disfavored defense in your answer as it would have been waived if not included with the other in the PAM.

[runthetrap1990]

Hey 1Ls,

Question here: I was working on a practice question for my civpro class, and I ran across a situation that I was hoping TLS would be able to answer. The question was was regarding supplemental jurisdiction, and specifically §1367(b)'s prohibition on a plaintiff bring a claim against an opposing party joined under one of the enumerated Rules (14,19,20,24) or a plaintiff joined under R.19 or 24. One of the plaintiffs brings a cross claim under 13(g), and that party is the same residency as the other plaintiff. Under the answers, it appears that the 13(g) cross claim is prohibited, and I wanted to know why? Is it because co-parties are assumed to be joined under R.19? Otherwise I'm not sure why the 13(g) cross claim would be prohibited.

If it helps, you have 1 defendant on the otherside who impleaded a party under R.14 (not the same party who brought the cross claim), but I didn't think that played any part in the calculus for why 13(g) wouldn't be allowed.

Any insight would be great.

[Germaine]

Hey 1Ls,

Question here: I was working on a practice question for my civpro class, and I ran across a situation that I was hoping TLS would be able to answer. The question was was regarding supplemental jurisdiction, and specifically §1367(b)'s prohibition on a plaintiff bring a claim against an opposing party joined under one of the enumerated Rules (14,19,20,24) or a plaintiff joined under R.19 or 24. One of the plaintiffs brings a cross claim under 13(g), and that party is the same residency as the other plaintiff. Under the answers, it appears that the 13(g) cross claim is prohibited, and I wanted to know why? Is it because co-parties are assumed to be joined under R.19? Otherwise I'm not sure why the 13(g) cross claim would be prohibited.

If it helps, you have 1 defendant on the otherside who impleaded a party under R.14 (not the same party who brought the cross claim), but I didn't think that played any part in the calculus for why 13(g) wouldn't be allowed.

Any insight would be great.

See pp. 1508-9 of http://digitalcommons.lmu.edu/cgi/viewc ... ontext=llr. Basically in your example it kills complete diversity, and yes, the 13g crossclaim is technically hooked in through 19.

[runthetrap1990]

Hey 1Ls,

Question here: I was working on a practice question for my civpro class, and I ran across a situation that I was hoping TLS would be able to answer. The question was was regarding supplemental jurisdiction, and specifically §1367(b)'s prohibition on a plaintiff bring a claim against an opposing party joined under one of the enumerated Rules (14,19,20,24) or a plaintiff joined under R.19 or 24. One of the plaintiffs brings a cross claim under 13(g), and that party is the same residency as the other plaintiff. Under the answers, it appears that the 13(g) cross claim is prohibited, and I wanted to know why? Is it because co-parties are assumed to be joined under R.19? Otherwise I'm not sure why the 13(g) cross claim would be prohibited.

If it helps, you have 1 defendant on the otherside who impleaded a party under R.14 (not the same party who brought the cross claim), but I didn't think that played any part in the calculus for why 13(g) wouldn't be allowed.

Any insight would be great.

See pp. 1508-9 of http://digitalcommons.lmu.edu/cgi/viewc ... ontext=llr. Basically in your example it kills complete diversity, and yes, the 13g crossclaim is technically hooked in through 19.

Thanks! that was my hunch, but I didn't remember learning it at any point in my studies. I guess it was just implied. That clarifies a lot for me, though.

[LSATobsessed]

PROP: what is the difference between a covenant and an easement?

CRIM: what is the difference between larceny by trick/ embezzlement/ larceny by bailee/ false pretenses ...

thanks in advance

[EzraFitz]

PROP: what is the difference between a covenant and an easement?

[Disclaimer: The following is based on the 3rd Restatement of Servitudes. If your class covers privity, this probably won't be nearly as helpful]

At a very basic level, a covenant is a restriction placed on land that directly effects the use of the possessor. Covenants tend to be negative in nature, restricting a use e.g.

An easement on the other hand, creates a nonpossessory right to enter and use land in possession of another. This tends to be in the form of an affirmative right rather than a restriction.

Quick ways to distinguish: Intent of the parties (helpful, but not always dispositive), number of parties affected (covenants tend to affect the way one party uses land, while easements often involve interaction between the possessing party and another party), use restriction vs. use allowance (in general restrictions will be covenants, allowances will be easements.

Hope this helps at all.

[Manteca]

Anyone want to explain the merger doctrine for felony-murder?

[cannibal ox]

This is what I had in my notes, I take no responsibility for how correct/incorrect it is, since I approached Crim in an odd way and am not sure when I wrote this or if I checked the accuracy..

"The triggering felony must be independent of homicide. If not, the felony merges with the homicide and cannot serve as the basis for a felony-murder conviction.

If the intended felony is assaultive, it merges.

If assaultive elements only: Felony merges (can’t apply FMR)

If assaultive elements and non-assaultive elements: If independent, felonious purpose: doesn’t merge (apply FMR if someone dies), if not: felony merges (no FMR)"

[cyrilfiggis]

Con Law question:

How would you go about an analysis of whether Congress has authority to address the issue of food stamps? (extension- can congress make employers pay subsistence wages)

Commerce Clause? Economic liberties?

[whats an updog]

If you mean "living wage" the extension you pose seems easily covered under the Commerce Clause through Darby. Whether Congress has the authority to address the issue of food stamps is a tougher call for me (who hasn't touched conlaw in weeks and has been studying evidence all day), but if you mean federal food stamps that sounds like general welfare under the tax and spending clause. If you mean what authority Congress has to regulate state food stamp schemes, I don't know.

[chargers]

Property Question:

Bob owns a parcel of land called Blackacre. There is a dirt road that runs from the back of the property to a public highway that is in the front of the property. In 2005 Bob sells the back half to Jim. In the deed to Jim, Bob created an easement for Larry (who had an adjoining estate) so that Larry could use the dirt road on Jim’s property. In 2005, Bob sold his remaining parcel to Nick.

Nick immediately brings suit to prevent Larry from using the dirt road across Nick’s newly acquired property.

Does Larry have any rights against Nick?

I’m stumped. There wasn’t an express easement between Bob and Larry, so it can’t run with the land. And there wasn’t a severance of title between Blackacre and Larry’s adjoining estate so an easement can’t arise by implication or necessity. Would Larry have a prescriptive easement, assuming he had been using the dirt road across both properties long enough?

Maybe I'm just way off, wouldn't be a shocker.

[BVest]

Property Question:

Bob owns a parcel of land called Blackacre. There is a dirt road that runs from the back of the property to a public highway that is in the front of the property. In 2005 Bob sells the back half to Jim. In the deed to Jim, Bob created an easement for Larry (who had an adjoining estate) so that Larry could use the dirt road on Jim’s property. In 2005, Bob sold his remaining parcel to Nick.

Nick immediately brings suit to prevent Larry from using the dirt road across Nick’s newly acquired property.

Does Larry have any rights against Nick?

I’m stumped. There wasn’t an express easement between Bob and Larry, so it can’t run with the land. And there wasn’t a severance of title between Blackacre and Larry’s adjoining estate so an easement can’t arise by implication or necessity. Would Larry have a prescriptive easement, assuming he had been using the dirt road across both properties long enough?

Maybe I'm just way off, wouldn't be a shocker.

Disclosure: 3L (property was a little while ago)

Prescriptive easement probably fails due to lack of adverse/hostile use up until now. Larry had permission from Bob to use dirt road, making his use of the road when Bob owned the land a License, not an easement.

Larry could now seek to convert the license he had to use the road under bob into an easement by estoppel (Prior License plus Detrimental reliance). This may rise to the level necessary for an easement by estoppel, but that's a difficult bar to meet (see Henry v. Dalton: neighbor B using driveway by license builds garage behind house only accessible via driveway; neighbor A who owns driveway revokes license to use driveway; court finds no easement.)

As for an easement by necessity, one could certainly make an argument that there was a relevant severance. Let's call these lots L1, L2, and L3. L3 is always owned by Larry. L2 is owned by Bob and later sold to Jim, reserving an easement crossing L2 (E2) to Larry. L1 is also owned by Bob and is later (after the sale of L2) sold to Nick. I think I've restated the facts correctly. Here, Larry is not claiming an easement across L1 in order to reach L3, but rather is claiming an easement across L1 in order to reach his express easement E2 that crosses L2. There was previously unity of title between L1 and L2 and a severance when Bob -> L2 -> Jim and simultaneously Bob -> E2 -> Larry.

Nick's argument against there being an easement by necessity is (a) that Larry's novel argument for prior unity of title does not hold up, and (b) for the sake of determining whether the easement exists, the court should read the Bob -> Nick deed in context with the Bob -> Jim deed. The Bob -> Jim deed included an express easement, showing that the reservation of an easement had been contemplated when Bob was selling off parts of Blackacre, and therefore the failure to include such a reservation in the Bob -> Nick transaction was not a mere oversight.

[Germaine]

Property Question:

Bob owns a parcel of land called Blackacre. There is a dirt road that runs from the back of the property to a public highway that is in the front of the property. In 2005 Bob sells the back half to Jim. In the deed to Jim, Bob created an easement for Larry (who had an adjoining estate) so that Larry could use the dirt road on Jim’s property. In 2005, Bob sold his remaining parcel to Nick.

Nick immediately brings suit to prevent Larry from using the dirt road across Nick’s newly acquired property.

Does Larry have any rights against Nick?

I’m stumped. There wasn’t an express easement between Bob and Larry, so it can’t run with the land. And there wasn’t a severance of title between Blackacre and Larry’s adjoining estate so an easement can’t arise by implication or necessity. Would Larry have a prescriptive easement, assuming he had been using the dirt road across both properties long enough?

Maybe I'm just way off, wouldn't be a shocker.

BVest's answer seems solid but why can't this be easement by prior use?

[BVest]

Could be that too, but it still requires unity of title followed by a severance. The only real difference in the analysis between the two would be whether there's strict necessity (necessity) for for the easement in order to access to Larry's land or it's just reasonably necessary for use (prior use).

[chargers]

Thanks, BVest. That helps a lot!

[whats an updog]

Hopefully this will be a coherent question:

My casebook lists there as being different tests for finding that equitable servitudes and real covenants run with the land:

Real covenant: (1) intent, (2) horizontal privity, (3) vertical privity, (4) touch and concern
Equitable servitude: (1) intent, (2) notice, (3) touch and concern

But in American law, isn't the only difference between these ideas in the remedy? If that's true, then, is it possible that when analyzing a situation a court can find an equitable servitude but not a real covenant?

Example: I agree with all my neighbors to include a restriction in our deeds that no more than two unrelated people may live in the homes. We want this restriction to run with the land. There is no horizontal privity and no original common owner, but it seems like it would satisfy the requirements for an equitable servitude.

[Manteca]

piggybacking off above poster: what are the rules for a reciprocal negative easement? (i.e. sanborn v mclean)?

[whats an updog]

Even though I am struggling with this material, I will try my hand at answering while I wait for an answer to my own question. Please let me know if you think this is totally off base:

The rule from Sanborn was that there must have been a common owner who sold some lots with a restriction for the benefit of the remaining lots. In Sanborn the restriction was that the lots be residential, which benefited the remaining lots by keeping their value as residential lots high. But then the common owner also has the obligation to make all the remaining lots also carry the restriction, and that restriction (the reciprocal negative easement) is implied into all the future owners even if it is in't expressly written anywhere.

Court also seems to say that the McLeans had notice (could have just looked around), but I don't know how necessary this is.

[BVest]

Hopefully this will be a coherent question:

My casebook lists there as being different tests for finding that equitable servitudes and real covenants run with the land:

Real covenant: (1) intent, (2) horizontal privity, (3) vertical privity, (4) touch and concern
Equitable servitude: (1) intent, (2) notice, (3) touch and concern

But in American law, isn't the only difference between these ideas in the remedy? If that's true, then, is it possible that when analyzing a situation a court can find an equitable servitude but not a real covenant?

Example: I agree with all my neighbors to include a restriction in our deeds that no more than two unrelated people may live in the homes. We want this restriction to run with the land. There is no horizontal privity and no original common owner, but it seems like it would satisfy the requirements for an equitable servitude.

American law differs by jurisdiction as far as privity is concerned for a real covenant. Here's my chart from 2013. My property was closed book so I memorized this (as a tipped over chair) and reproduced it on scratch paper once the exam started.



I don't know the answer to your second question.

piggybacking off above poster: what are the rules for a reciprocal negative easement? (i.e. sanborn v mclean)?

In Sanborn it was an Implied Reciprocal Negative Easement resulting from the analysis given above, which is an exception to the writing requirement. This was the only rule that came out of Sanborn -- that it could be implied; if you have an express easement in your exam question, there is no need to analyze Sanborn. Intent was found in the scheme of the development, and Notice was both Inquiry Notice (due to the uniformity of construction all around) and Constrcuctive Notice as a result of the sale of other lots in the development with the restriction.

[whats an updog]

Thanks BVest - either your casebook or your lecture sounds so much more detailed than what we were provided with. Thanks for the guidance.

No idea on where equitable servitudes fit in?

[swampman]

Hopefully this will be a coherent question:

My casebook lists there as being different tests for finding that equitable servitudes and real covenants run with the land:

Real covenant: (1) intent, (2) horizontal privity, (3) vertical privity, (4) touch and concern
Equitable servitude: (1) intent, (2) notice, (3) touch and concern

But in American law, isn't the only difference between these ideas in the remedy? If that's true, then, is it possible that when analyzing a situation a court can find an equitable servitude but not a real covenant?

Example: I agree with all my neighbors to include a restriction in our deeds that no more than two unrelated people may live in the homes. We want this restriction to run with the land. There is no horizontal privity and no original common owner, but it seems like it would satisfy the requirements for an equitable servitude.

I think this is right. To nitpick your example though, you can't put a restriction into an already existing deed (that deed is a record of what the prior owner conveyed to you, you can't change that after the fact). You could put that restriction in your deed to a subsequent buyer, in which case there's a good chance a real covenant exists in addition to an equitable servitude (if notice is satisfied), and your neighbors could sue for an injunction OR damages. Or, you can create a written agreement with your neighbors restricting your land, which would create the equitable servitude but not a real covenant. The burden would then run with the land so long as the buyer took with actual, constructive, or inquiry notice of the servitude. You could probably record this agreement against your deed to provide that notice. Then yes, your neighbors could sue for an injunction, but not damages.