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Complete Diversity
There is complete diversity of citizenship, meaning that each plaintiff is a citizen of a different
state from every defendant; AND
□ Individual - the state citizenship of an individual is the state in which he has his permanent
home and to which he intends to return.
□ Corporation
® (1) a citizen of every state in which it is incorporated AND
® (2) the one state in which it has its principal place of business.
□ Partnership
® A partnership is a citizen of each state of which one of its partners is a citizen, both limited
and general.
□ For purposes of diversity of citizenship jurisdiction, complete diversity means that no plaintiff
may be a citizen of the same state as any defendant.
□ Diversity of citizenship is determined when the lawsuit is filed. The executor, or the
representative of the party is irrelevant, we look to the original party's citizenship.
Last Chance To Avoid the Accident
The doctrine of last clear chance is essentially plaintiff's rebuttal against the defense of
contributory negligence.
Independent Contractor (Vicarious Liability)
In general, a principal will not be vicariously liable for tortious acts of an independent contractor.
Exceptions: (i) the independent contractor is engaged in inherently dangerous activities, e.g.,
excavating next to a public sidewalk, blasting; or (ii) the duty, because of public policy
considerations, is simply nondelegable, e.g., the duty of a business to keep its premises safe for
customers.
,Federal Law Preemption
If the federal legislation does not address the issue of preemption, and a problem is uniquely
local, the local government is permitted to enact rules more strict than the federal standards.
The court has made it clear that for preemption, either the federal statute must expressly preempt
state measures, or it must be clear that the state law is impliedly preempted by the federal
measure, either because the state law poses a conflict that makes compliance with both measures
impossible, it prevents achievement of the federal objective, or the federal law "occupies the
field" being regulated.
Impeaching the credibility of a witness
For the purpose of impeaching the credibility of a witness, a party may show that the witness
has, on another occasion, made statements that are inconsistent with some material part of his
present testimony. This may be done by first questioning the witness as to the prior inconsistent
statement that he has made. If the witness denies having made the statement or fails to remember
it, the making of the statement may be proved by extrinsic evidence.
A proper foundation must be laid by giving the witness an opportunity to explain or deny the
statement.
As long as the witness is given an opportunity to explain or deny the statement, extrinsic proof of
a prior inconsistent statement is admissible to impeach the witness's testimony. If the prior
inconsistent statement was made under penalty of perjury at a prior trial or proceeding, or in a
deposition, it is admissible nonhearsay; i.e., it is admissible as substantie evidence.
Then-existing state of mind exception FRE 803(3)
Under 803(3), a statement of a declarant's then-existing state of mind is admissible as a basis for
a circumstantial inference that the declarant acted in accordance with his state of mind.
Termination after a Tenant's right to possession
When a tenant continues in possession after the termination of her right to possession, the
landlord has two choices of action: He may treat the lord-over tenant as a trespasser and evict her
,under an unlawful detainer statute, or he may, in his sole discretion, bind the tenant to a new
periodic tenancy, in which case the terms and conditions of the expired tenancy apply to the new
tenancy.
"Present Recollection Revived"
A witness may use any writing or thing for the purpose of refreshing her present recollection.
Under most circumstances, she may not read from the writing while she actually testifies because
the writing is neither authenticated nor in evidence.
Setting aside jury verdict
When a verdict shows on tis face that the jury failed to follow the court's instructions, the verdict
may be set aside, and either the jury will be asked to reconsider its verdict or a new trial will be
ordered.
Accomplice to criminal homicide
To be convicted as an accomplice, a person must have given aid, counsel, or encouragement with
the intent to assit the principal and the intent that the principal commit the crime.
Murder
Murder is the unlawful killing of a human being with malice aforethought.
Malice aforethought exists when the defendant has
(1) intent to kill
(2) intent to inflict great bodily injury
(3) reckless indifference to an unjustifiably high risk to human life ("abandoned and malignant
heart"), or
(4) intent to commit a felony (felony murder doctrine)
Criminal negligence
Criminal negligence requires negligence of a greater degree than the "reasonable person"
standard for torts.
Manslaughter
, Voluntary manslaughter invokes a killing after adequate provocation, and unlawful act
involuntary manslaughter requires a killing in the course of a felony or a malum in se
misdemeanor.
Double Jeopardy
Double jeopardy generally does not attach in civil proceedings, other than juvenile proceedings.
For purpose of the Double Jeopardy Clause, two crimes do not constitute the "same offense" if
each crime requires proof of an additional element that the other crime does not require, even
though some of the same facts may be necessary to prove both crimes.
Furthermore, a prosecution for conspiracy is not barred merely because some of the alleged overt
acts of that conspiracy have already been prosecuted.
Landlord/Tenant Privity
After the assignment, while the original tenant is no longer in privity of estate with the landlord
after assignment, the tenant can still be held liable on its original contractual obligation in the
lease, i.e., on privity of contract. This allows the landlord to sue the original tenant (under privity
of contract), or the assignee (under privity of estate).
Due Process (government employmenr)
The Due Process Clause requires a hearing only when a life, liberty, or property interest is at
stake. To have a property interest in continued government employment, there must be a statute,
regulation, contract right, or clear policy that the employee can be dismissed only for cause.
Absent such a right to employment, the employee is an at-will employee and may be terminated
without a hearing.
Bill of attainder
A bill of attainder (also known as an act of attainder or writ of attainder or bill of pains and
penalties) is an act of a legislature declaring a person or group of persons guilty of some crime
and punishing them, often without a trial.
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Verified Answers!!
Complete Diversity
There is complete diversity of citizenship, meaning that each plaintiff is a citizen of a different
state from every defendant; AND
□ Individual - the state citizenship of an individual is the state in which he has his permanent
home and to which he intends to return.
□ Corporation
® (1) a citizen of every state in which it is incorporated AND
® (2) the one state in which it has its principal place of business.
□ Partnership
® A partnership is a citizen of each state of which one of its partners is a citizen, both limited
and general.
□ For purposes of diversity of citizenship jurisdiction, complete diversity means that no plaintiff
may be a citizen of the same state as any defendant.
□ Diversity of citizenship is determined when the lawsuit is filed. The executor, or the
representative of the party is irrelevant, we look to the original party's citizenship.
Last Chance To Avoid the Accident
The doctrine of last clear chance is essentially plaintiff's rebuttal against the defense of
contributory negligence.
Independent Contractor (Vicarious Liability)
In general, a principal will not be vicariously liable for tortious acts of an independent contractor.
Exceptions: (i) the independent contractor is engaged in inherently dangerous activities, e.g.,
excavating next to a public sidewalk, blasting; or (ii) the duty, because of public policy
considerations, is simply nondelegable, e.g., the duty of a business to keep its premises safe for
customers.
,Federal Law Preemption
If the federal legislation does not address the issue of preemption, and a problem is uniquely
local, the local government is permitted to enact rules more strict than the federal standards.
The court has made it clear that for preemption, either the federal statute must expressly preempt
state measures, or it must be clear that the state law is impliedly preempted by the federal
measure, either because the state law poses a conflict that makes compliance with both measures
impossible, it prevents achievement of the federal objective, or the federal law "occupies the
field" being regulated.
Impeaching the credibility of a witness
For the purpose of impeaching the credibility of a witness, a party may show that the witness
has, on another occasion, made statements that are inconsistent with some material part of his
present testimony. This may be done by first questioning the witness as to the prior inconsistent
statement that he has made. If the witness denies having made the statement or fails to remember
it, the making of the statement may be proved by extrinsic evidence.
A proper foundation must be laid by giving the witness an opportunity to explain or deny the
statement.
As long as the witness is given an opportunity to explain or deny the statement, extrinsic proof of
a prior inconsistent statement is admissible to impeach the witness's testimony. If the prior
inconsistent statement was made under penalty of perjury at a prior trial or proceeding, or in a
deposition, it is admissible nonhearsay; i.e., it is admissible as substantie evidence.
Then-existing state of mind exception FRE 803(3)
Under 803(3), a statement of a declarant's then-existing state of mind is admissible as a basis for
a circumstantial inference that the declarant acted in accordance with his state of mind.
Termination after a Tenant's right to possession
When a tenant continues in possession after the termination of her right to possession, the
landlord has two choices of action: He may treat the lord-over tenant as a trespasser and evict her
,under an unlawful detainer statute, or he may, in his sole discretion, bind the tenant to a new
periodic tenancy, in which case the terms and conditions of the expired tenancy apply to the new
tenancy.
"Present Recollection Revived"
A witness may use any writing or thing for the purpose of refreshing her present recollection.
Under most circumstances, she may not read from the writing while she actually testifies because
the writing is neither authenticated nor in evidence.
Setting aside jury verdict
When a verdict shows on tis face that the jury failed to follow the court's instructions, the verdict
may be set aside, and either the jury will be asked to reconsider its verdict or a new trial will be
ordered.
Accomplice to criminal homicide
To be convicted as an accomplice, a person must have given aid, counsel, or encouragement with
the intent to assit the principal and the intent that the principal commit the crime.
Murder
Murder is the unlawful killing of a human being with malice aforethought.
Malice aforethought exists when the defendant has
(1) intent to kill
(2) intent to inflict great bodily injury
(3) reckless indifference to an unjustifiably high risk to human life ("abandoned and malignant
heart"), or
(4) intent to commit a felony (felony murder doctrine)
Criminal negligence
Criminal negligence requires negligence of a greater degree than the "reasonable person"
standard for torts.
Manslaughter
, Voluntary manslaughter invokes a killing after adequate provocation, and unlawful act
involuntary manslaughter requires a killing in the course of a felony or a malum in se
misdemeanor.
Double Jeopardy
Double jeopardy generally does not attach in civil proceedings, other than juvenile proceedings.
For purpose of the Double Jeopardy Clause, two crimes do not constitute the "same offense" if
each crime requires proof of an additional element that the other crime does not require, even
though some of the same facts may be necessary to prove both crimes.
Furthermore, a prosecution for conspiracy is not barred merely because some of the alleged overt
acts of that conspiracy have already been prosecuted.
Landlord/Tenant Privity
After the assignment, while the original tenant is no longer in privity of estate with the landlord
after assignment, the tenant can still be held liable on its original contractual obligation in the
lease, i.e., on privity of contract. This allows the landlord to sue the original tenant (under privity
of contract), or the assignee (under privity of estate).
Due Process (government employmenr)
The Due Process Clause requires a hearing only when a life, liberty, or property interest is at
stake. To have a property interest in continued government employment, there must be a statute,
regulation, contract right, or clear policy that the employee can be dismissed only for cause.
Absent such a right to employment, the employee is an at-will employee and may be terminated
without a hearing.
Bill of attainder
A bill of attainder (also known as an act of attainder or writ of attainder or bill of pains and
penalties) is an act of a legislature declaring a person or group of persons guilty of some crime
and punishing them, often without a trial.
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