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Independence - Integrity - Fairness - Quality Service

Bar Examination Sample Q&A - July 2010


The answers that you see below are actual candidate answers that are unedited.

Questions and Sample Answers

July 2010

Civil Procedure
Constitutional Law


College Town, New Jersey is home to a university with 10,000 students, most of whom come from out of state and live during the school year in residential neighborhoods near campus. College Town residents complain frequently to the Town Council about loud parties, the number of cars parked on the streets, and trash strewn about their neighborhoods. Ninety percent of complaints come from residents on streets with rental properties housing solely male students. In an effort to alleviate these problems, the College Town Council has recently passed the following ordinances:

1) Prohibiting more than 2 males between the ages of 18 and 30 from residing together without a parent or guardian also residing in the home;

2) Prohibiting parking overnight on College Town streets by cars not registered in New Jersey; and

3) Prohibiting anyone from registering to vote in College Town who has not been a resident of the town for at least one year prior to registration.

You are a junior associate at a law firm in College Town. The managing partner informs you that the firm is representing three 21-year-old men (two of whom are twin brothers), who are residents of Pennsylvania but attend the university in College Town and reside in off-campus rental housing during the school year. They want to be able to continue to reside in their rental property with their other 3 male roommates and park their cars (lawfully registered in Pennsylvania) out front. They also want to register to vote in College Town so they can vote against the current Council members.

The managing partner has instructed you to prepare a memorandum identifying all of your new clients’ potential arguments against these ordinances, the opposing arguments likely to be made by College Town, and the likelihood of success of your clients’ case.




To:       Managing Partner
From:  Candidate
Re:      Challenges to College Town Ordinance


Our clients have standing to challenge this ordinaces. Standing requires injury in fact, the injury must be fairly traceable to the government's conduct, and the court must be able to redress the injury. Here our clients live in Colelge Town and the ordinace forbid them from continuing to live together with other males, forbid them to park on the street, and forbid them from voting. Thus our clients will suffer injury. The injury is traceable to the ordinaces and the court is likely to redress the injury by invalidating the ordinances. Further, the case is ripe because the ordinaces have been enacted and will be enforced.

Ordinance Number One

The first ordinance prohibits more than 2 males between the age of 18 and 30 from residing together without a parent or guardian. This ordinance can be challenged under the 14th Amendment Equal Protection Clause and under the 14th Amendment Substantive Due Process clause. The challenge is likely to be successfull.

Under the 14th Amendment Equal Protection clause, generally, a state is prohibited from discriminating between classes of people under its laws. If the state discriminates with regard to a suspect class, such as on the basis of race or national origin, then the state must show that the discrimination is neccessary to achieve a compelling government objective (strict scrutiny). If the state discriminates between classes of people who are members of a quasi suspect class, such as gender or a child's legitimacy, it must show that the discrimination is narrowly tailored to achieveing an important government objective (intermediate scrutiny). Finally, if the state law does not discriminate with respect to a protected class, then the person challenging the ordinance has the burden to show that the discrimination is not rationally related to a legitimate government interest.

Here College Town (Town), a state for the purposes of the 14th Amendment, has enacted an ordinance that discriminates on the basis of sex, age, and family status. The college town ordinance discriminates on the basis of sex because it forbids two or more males, but not females, from living together. Thus, because this discrimination is on the basis of gender the state must show that it is narrowly tailored to achieving an important government objective. The second basis of the the discrimination is age, however, age is not a protected class and thus our clients (two 21 year old twin brothers who live in college town) will have to prove that the ordinance is not rationally related to an important government interest. Finally, the brothers can argue that the ordinance discriminates between those college students having parents and guardians and those whose parents and guardians do not reside with them. However, this discrimination is also not on the basis of a suspect class and thus our clients will have to prove that the ordinance is not rationally related to a legitimate government purpose.

The Town will argue that its ordinance is a response to the frequent complaints of town residents about loud parties and trash strewn across the street 90% of which is caused by housing properties caused by male college students. Thus the Town will try to meet its burden of showing that the sex based discrimination is narrowly tailored to achieving an important government interest. The town will argue that this ordinance is narrowly tailored because it applies to males only, which are 90% of the problem, and it serves the important government objective of keeping its streets clean and preventing its residents from being disturbed by loud parties. This justification will not survive intermediate scrutiny because the law sweeps too broad. Although it seems to be targeted at college students only- those who are between 18 and 30 and without parents- at the same time it could sweep in other male residents of the town. Thus, the ordinance will not survive the intermediate scrutiny review because it is not narrowly tailored enough. Finally, as for the other basis of discrimination, our clients arguments are not likely to show that the ordinance is not rationally related to a legitimate government purpose because it is a legitimate government purpose of a town to prevent its streets from being strewn with litter and its residents disturbed by noise at all hours, which is primarily caused by male college students. Therefore, our best approach is to challenge the ordinance on the basis that it unconstitutionally discriminates on the basis of gender.

Our clients could also challenge this ordinance on the ground that it violates their substantive due process rights under the 14th Amendment because it may force families such as more than two brothers attending the college to split up. The Supreme Court has recognized a fundamental right to keep the family together and if the state violates this right it must meet the requirements of strict scrutiny. Here our clients are twin brothers who want to live together. However, because the law only applies to more than two males living together, our clients will not be likely to be able to pursue this argument. Additionally, they could assert a Contract Clause argument. However, we will have to determine whether the brothers have leases that will be impaired by this new ordinace. Overall, our based approach is to challenge the ordinance on equal protection grounds.

Ordinance Two

Ordinance two prohibits any vehicle that is not registered in the state from parking on public streets in the Town overnight. This ordinance should be challenged under the Privileges and Immunities clause of Article IV, the Equal Protection clause under the 14th Amendment, and the Dormant Commerce clause because the ordinance discriminates against out of state residents in favor of in state residents.

Under the 14th Amendment if a state discriminates between people with respect to fudamental rights the state must show that the discrimination is neccessary to achieve an important government interest. The Supreme Court has recognized that people have a fundamental right to travel between states. Here our clients should argue that the ordinace discriminates against out of staters in favor of in-staters because it burdens the right of travel of out of staters by not allowing them to park their cars on the Town's streets. However, the Supreme Court has upheld parking restrictions as not violating a fundamental right to travel. Therefore, this might not be the strongest argument.

Our clients can also challenge the ordinance on the ground that it violates the privileges and immunities clause of Article IV and the Dormant Commerce Clause of Article I sec. 8 of the US Constitution. Under the privileges and immunities clause and the dormant commerce clause the first issue is whether the state is discriminating against out of staters in favor of its instaters. Here, Town clearly is discriminating against out of staters because only in-staters whose vehicle is registered in New Jersey can park their vehicles on the towns streets. Under Article IV, our clients must then show that the discrimination is with respect to economic liberties and civil rights. If or clients make this showing then the Town will have to show that the ordinance is neccessary to achieve a substantial government interest ( amixed intermediate-strict scrutiny showing). Under the Commerce Clause our clients must show that the ordinance discriminates against out of staters and in doing so substantially burdens interstate commerce. Interstate commerce under Article I sec. 8 is broad and includes the channels, instrumentalities, and things in interstate commerce. If our clients make this showing the government must then show that the discrimination is neccessary to achieve a substantial government objective.

Here our clients can argue that the ordinance violates Article IV because it discriminates on the basis of an economic or civil right, the right to have and use a vehicle. The Town will argue that this is not an economic right or civil right because it does not affect a person's ability to pursue their livelihood. Here our clients will argue that they need a vehicle to attend college. However, the government will probably wi this argument. If they did not however, the government will not be able to show that prohibiting overnight parking by cars not registered in New Jersey is neccessary to achieve an importnat government interest because the Town's only interest is responding to its citizen's complaints about the number of cars parked on the street.

Our clients can also argue that ordinance is unlawful under the Commerce clause because it discrimates against out of staters in favor of in staters and in doing so burdens commerce. Here our clients will assert that commerce is burdened because the ordinace concerns vehicles- which are instrumentalities of commerce- and streets- which are channels of commerce. However, the Town is likely to argue that regulating parking on local roads does not burden interstate commerce and it is likely to win this claim. Therefore, this ordinace will probably be upheld.


Ordinance 3.

The last ordinace prohibits anyone who has not been a resident of the town for more than one year from registering to vote. This is probably an unconstitutional durational residency requirement under the 14th Amendment. The 14th Amendment and the Privileges or Immunities clause (of the 14th Amendment) prohibits a state from treating new residents differently from long-time residents. The Supreme Court has held that once a person becomes a resident of the state thye should be entitled to the same privileges of long-time residents of the state. Further, a state cannot discriminate against new-residents in favor of old residents under the 14th Amendment Equal Protection clause. Although residency is not a suspect class, the privileges or immunities clause of the 14th Amendment does protect against discrimination between former and new-residents. The government must show that any law that discriminates in this manner meets the requirements of strict scrutiny- neccessary to achieve a compelling government objective. Finally, the 14th Amendment substantive due-process clause also protects the right to vote as a fundamental right. Thus, if the government infringes the right to vote by imposing a durational residency requirement it must meet strict scrutiny review.

Here the Town is requiring new residents to reside in the state for at least one year in order to register to vote. Thus this ordinace will likely violate the 14th Amendment. The Supreme Court has upheld certain durational residency requirements but usually for no more than 30 days. Here this ordiance requires a year of residency. Further, the Town cannot show that a year long residency requirement is neccessary to achieve a compelling government interest. Any interest in ensuring only true and not transient residents can vote and have a say in the political decisions in the Town is likely to be served by a shorter residency requirement. Thus, this ordinace will most likely be struck down. 


To: Managing Partner
From: Applicant
Re: Challenge to College Town Council's Ordinances Regulating College Students

(1) Gender-Based Occupancy Ordinance:

Our clients will be able to successfully challenge the housing prohibition because it violates the Equal Protection Clause of the Fourteenth Amendment.  The issue is whether a town ordinance that prohibits only one gender from residing together without a parent or guardian violates Equal Protection.

Under the Constitution, every person has a right to the equal protection of the laws, which is a textual right grounded in the Fourteenth Amendment.  The Supreme Court has stated that treating classes of people differently based on their gender requires a court to review the state action under intermediate scrutiny.  This level of scrutiny requires the government to bear the burden of proving that the ordinance is substantially related to an important state interest.  In practice, this means that the ordinance must have a exceedingly persuasive justification to survive court review.

In this case, the Ordinance prohibits only males between the ages of 18 and 30 from living together iwthout a parent or guardian in the home if those males are more than three in number.  This Ordinance therefore classifies on the basis of gender because the ordinance only applies to males, not to females.  And since this ordinance facially classifies on the basis of gender, no intent need be shown to trigger intermediate scrutiny.

Our clients should argue that because of this facial classification, the Equal Protection Clause applies, and the Council will have the burden to prove that the ordinance is substantially related to an important state interest.  Here, the residents have complained about loud parties, the number of cars parked on the street and trash in the neighborhood.  It was also stated that ninety percent of the complaints are about male students. This, however, will fail the immediate scrutiny standard.

While the evidence shows that the complaints are about males, there is no actual evidence that males are responsible for the Town's problems.  Furthermore, the classification choice of prohibiting more than 2 males from living together has no evidence backing it up as a number.  It seems arbitrary, and will not meet the Town's burden.  Also, there is no restriction to only rental units for this ordinance, and it would seem that it would apply to prevent three males from living together in their own home.  This shows that the statute is overbroad and not substantially related to the state interest.

The Town asserts that they have a good reason to do it because ninety percent of the complaints are about male students.  The Council's argument will fail, however, because there is a more tailored way to attack their problems, such as enacting noise ordinances, or increasing the fines for littering.

Therefore, our clients will likely prevail in challenging gender-based occupancy Ordinance:

Substantive Due Process
There also might be a valid claim under the Substantive Due Process Clause of the Fourteenth Amendment, which protects a person's right to live together as a family unit.  Although out clients are two brothers, if it could be shown that a third brother wanted to live with them, or three males that are related in the age range, a Substantive Due Process Challenge would prevail because that provision compels strict scrutiny, which requires the city to prove the ordinance is narrowly tailored to acheive a compelling governmental purpose, a fatal standard.

(2) Parking Ordinance:

Our clients will not be able to successfully challenge the parking prohibition.  The issue is whether a town ordinance that prohibits non-residents from parking on the street overnight can be challenged on the basis of the Privileges and Immunities Clause of Article IV.

 Privileges and Immunities Clause ("PI") of Article IV protects non-residents from discrimination on the basis of their non-residency.  State action under the PI clause only compels rational basis review when the discrimination is about a matter that does not involve a fundamental right, such as the right to earn a living.  When the state is regulating other matters, such as parking, then the challenger, here our clients, will have the burden to prove that the ordinance is not rationally related to an legitimate state interest.  Courts are extremely deferential to Ordinances under rational basis review, and uphold the regulation if there is any conceivable rational basis for the ordinance.

In this case, the Ordinance prohibits only non-residents from parking overnight on the street in College Town.  This ordinance is within the Town's "police powers," defined as the core right of the state to regulate for the health, safety, and welfare of its residents.  Although facially discriminatory, the Ordinance does not impact the right of the students to earn a living; rather, it is just an inconvenience.

The Town will assert that reducing the number of cars on the street is a legitimate state interest, and a reviewing court would agree.  In addition, our clients will bear the burden on this issue, which makes our claim even tougher.  There is a solid causal link between banning overnight parking and the problem of car congestion and parking issues.

Thus, our clients will not prevail on the challenge to the Ordinance under the PI clause.

Dormant Commerce Clause 
Under Federal Constitutional Law, the "dormant commerce clause" (also described as the negative implications of the Commerce Clause) applies to situations where the state is discriminating against non-residents. Where a law discriminates in a manner that affects interstate commerce, such as a state law that regulates trucking, an instrumentality of commerce, strict scrutiny would apply.

However, any claim that the parking ordinance violates the dormant commerce clause would also fail because this ordinance does not affect interstate commerce in any way; it is a solely local matter.  Thus, strict scrutiny could not be triggered and our clients should not pursue this argument

(3) Voting Ordinance

Our clients will be able to successfully challenge the voting prohibition because it violates the Fourteenth Amendment.  The issue is whether a town ordinance that places a one year durational residency requirement on voting violates the Fourteenth Amendment.

The Fourteenth Amendment protects the right to vote, which has been held to be a fundamental right.  Fundamental rights are those that are either textually supported, or have been found to be necessary to exercise other fundamental rights.  The right to vote has been held by the Supreme Court as being a fundamental right.  Because of this, the Council would have the burden of proving that the Ordinance is narrowly tailored to acheive a compelling governmental purpose.  This is often a fatal standard.

Regarding voting rights, certain limited durational residency requirements have been upheld based on the compelling need of the state to run an efficient, organized, and lawful election process.  However, Courts have ruled that the maximum duration residency requirement is 40 days.  This time, courts have held, sufficiently recognizes the state's need to control their elections and does not unduly burden the resident's rights to travel both intrastate and interstate.

A court would invalidate this durational residency requirement under strict scrutiny for two reasons.  First, the one year time period is not narrowly tailored to achieve a compelling governmental purpose because it is overbroad.  Surely, a smaller time period would address the Council's concerns.  Also, there is no reason to restrict the voting rights of the eligible voters. 

Second, courts have ruled that controlling voting is a compelling governmental purpose. No evidence has been presented as to the Town's need to control voting, or that there have been problems at the polls due to recently registered students.  The Town could try to argue this point, and may succeed only to establish that controlling elections is a compelling governmental interest.  But the lack of narrow tailoring is certainly fatal to this claim.
It should be noted that our clients have standing to challenge this claim, which is a constitutional prerequsite to all claims.  They can present evidence that there are university students who are 21 and elgible to vote and who live in the town.  This will establish their standing, because they have incurred an injury (the inability to vote), the ordinance is the cause of the injury, and the injury will be redressed (or cured) if the ordinance were to be declared unconstituional.

Therefore, our clients will likely prevail on a constitutional challenge to the voting ordinance.

Right to Travel 
Our clients could also bring a challenge based on the right to travel which is protected by the Equal Protection Clause of the Fourteenth Amendment.  This right has been deemed fundamental if it could serve to prevent persons from out of state from moving into the state and exercising their rights.  Here, however, there is a plausible claim to be made but there is no evidence that our clients have been so impaced.  Thus, we should not assert a right to travel claim.

For the foregoing reasons, our clients should seek to challenge provisions one and three of the Ordinance.

Yours truly,




A was returning to her car after a business meeting. She placed her briefcase on the hood of her car while she unlocked its trunk. B suddenly emerged from an alleyway, grabbed the briefcase and began running down the block. A shouted out, “Stop!” and B responded, “Don’t try to follow me, I have a gun.”

A called the police from her cell phone, and Officer responded. A could only give Officer a brief and general description of B. Officer entered a nearby apartment building seeking B. He knocked on several doors without a response until he came to the door of B’s apartment. He knocked on B’s door, and B answered.

B was startled to see Officer and slightly backed away from the door. Officer immediately put his foot in the doorway, preventing B from closing the door. B, angered by Officer’s actions, pushed him out of the doorway and into the hallway of the building. Officer subdued B, handcuffed him, and told B, “You are under arrest.” Officer searched B’s clothing and found an envelope containing cocaine.

B’s wife, C, heard the commotion in the hallway, came to the doorway of the apartment and witnessed her husband handcuffed on the ground. Officer looked at her and said, “You want to let me search your apartment or are you going to be a problem like him?” C allowed Officer to enter the apartment where Officer located A’s briefcase under the bed.

You are a clerk in the county prosecutor’s office. Your superior has asked you for a memo detailing all crimes that could be charged as a result of the above incident as well as all anticipated defenses.




To:       Assistant Prosecutor
From:   Clerk
Re:       State v. B

The following criminal charges could be brought against defendant, B, in the State of New Jersey : (1) theft. (2) robbery, (3) assault of A, (4) Battery of Officer, (5) possession of a controlled substance (cocaine); and (6) possession of a controlled substance with intent to distribute.

(1)  Theft
Defendant, B, could be charged with the crime of Theft.  Under NJ law, theft is the unlawful taking of another's property with the intent to deprive him/her of that property.  Here. the defendant "grabbed the briefcase" of A and "began running down the block" with it. e had no right to possession of the briefcase evidence by the fact that A shouted "Stop" (showing that A had not given B permission to take the briefcase).  Plus, A called the police to report the crime, which provides further evidence that B did not have consent to take the briefcase.  B's actions will clearly satisfy the elements of the crime of theft.

The defendant will also likely make a Motion to Supress the Physical Evidence (the briefcase) due to an unlawful search under the 4th Amendment of the US and NJ Constitutions.  Under the 4th Amendment, an individual has the right to be free from unlawful searches and seizures.  The general rule is that an Officer needs a search warrant to search an individual's home for evidence of a crime.  An exception to the Search Warrant requirement exists though when consent is given.  Where an individual has possession and control over a space, that person may give an Officer informed consent to search that area without a warrant.  Such consent however must be informed, where the individual is aware that such consent is not required.  The defense will argue that under the circumstances, C (B's wife) did not give informed consent because she did not think she had a choice.  however, the law does not require an Officer to inform an individual of their right not to consent.  Therefore, C's consent will most likely be deemed valid under the 4th Amendment of the US Constitution.  The NJ Constitution however provides its citizens with greater rights under the 4th Amendment.  Thus, a court could find that under NJ constitutional analysis, the Officer did not receive "informed consent" from C; therefore, the search of B's apartment would be found unlawful and the briefcase would be excluded under the Exclusionary Rule.  On the other hand, if the Court finds that infomred consent was given (under both US and NJ constitutional analysis) then the search will be deemed lawful and the briefcase will be admissible.

Therefore, B's actions satisfy the elements of the crime of theft and the Prosecution will be successful in such a conviction, as long as the Defense's motion to suppress the physical evidence is denied.

(2)  Robbery
Defendant, B, can also be charged with robbery of the briefcase.  Under NJ law, robbery is the unlawful taking of another's property by force, or by threat of force.  B unlawfully took the briefcase of A (shown in theft analysis) and did so by threat of force when B told A, "Don't try to follow me.  I have a gun."  B's comment that he had a "gun" will satisfy the element "by threat of force" to constitute a robbery.

Defendant may raise the defense however, that his comment after the crime had been committed and while he was a significant distance running away from A does not satisfy the "threat of force" element for robbery.  If this defense is raised, the Trial Judge will have to decide the issue of whether it is still in "commission of a crime" when a defendant who is running away from a victim, and shouts a threat to that victim,

A trial judge will most likely rule that a victim most likely still feel threatened by the defendant, even though the defendant is running away, because the defendant could easily turn around and shoot the victim if the victim were to begin chasing the defendant.  Therefore, the elements of robbery are satisfied and B can be charged with robbery.

(3)  Assault
Defendant, B, can also be charged with assault of A. Under NJ law, an assault occurs when the defendant places the victim in fear or apprehension of harmful or offensive bodily contact. When B yelled at A that be "had a gun" he placed A in reasonable apprehension of being shot (harmful bodily contact) of A chased after B.  Therefore, B can be charged with assault of A.

(4)  Battery
Defendant, B, can be charged with Battery of the Officer.  Under NJ law, Battery is committed by a defendant when the commits a harmful of offensive bodily contact against another.  B committed battery on the Officer when B "pushed him out of the doorway and into the hallway of the building."  B's pushing constitutes a harmful touching of the Officer.

B can raise a defense that B's right to be free from unlawful seizures provided by the 4th Amendment of the US and NJ constitutions was violated.  B may argue that Officer had no right to prevent B from closing his apartment door by the Officer placing his foot inside B's home.  B can argue that the Officer's foot (preventing B from closing the door, and hence preventing B from leaving the Officer's presence) constituted unlawful seizure violating the 4th Amendment of the US and NJ Constitution.  Because B "was not free to leave" the scene (Officer preventing B from shutting the door) B wastechnically seized by the Officer with no probable cause of such seizure. 

However, the Prosecutor may argue that the officer did not "seize" B, but rather had grounds to conduct an investigatory detention which only requires reasonable suspicion by the Officer.  The Officer had reasonable suspicion bceause of of B's startled demeanor and B began to back away from the door when he saw the Officer.  Therefore, the Officer had reasonable suspicion to conduct an investigatory detention.  However, before the Officer had time to conduct such an Investigatory detention, B pushed the Officer (thus, committing Battery in the Officer's presence).  Once B committed a crime in the presence of OIfficer, Officer had probable cause to arrest B for such offense.

B will next argue that it was an unlawful arrest because Officer lacked an arrest warrant.  Under NJ law, the general rule is that an arrest does not require an arrest warrant unless the arrest occurs in the defendant's home.  The issue here is whether the hallway of the defendant's apartment building will constitute the "home" of the defendant, therefore, requiring an arrest warrant for a lawful arrest by Officer.  The court will most likely rule that the hallway in an apartment building is not the "home" of the defendant, therefore, Officer's arrest of B in the hallway was lawful.

(5)  Possession of a controlled Substance
Defendant, B, will be charged with the possession of a controlled substance, Cocaine.  This crime merely requires possession of the controlled substance.  Here, Officer found cocaine in an envelope in B's pocket.  Therefore, B may be rightfully charged with this crime.

B will most likley make a Motion to Suppress the cocaine and claim that he was unlawfully searched thereby violating his right to unlawful searches and seizures provided under the 4th amendment of the US and NJ constitutions.  The general rule is that an Officer must have a search warrant in order to search the person/property of an individual.  However, an exception ot the rule exists when the an Officer may conduct a search of the person incident to an arrest.  When a defendant is arrested the Officer may search the defendant's person and immediate grabbable area (usually wing-span) to ensure the officer's safety.  Here, the Officer conducted a lawful arrest of B once B committed the criminal offense of Battery in the Officer's presence.  Once the Officer placed B under arrest, Officer was permitted to search B's person in order to secure the Officer's own personal safety at the scene.  Therefore, the cocaine was lawfully seized without a warrant, and will be admissible.

Therefore, the Prosecution will likely convict B of possession of a controlled substance, Cocaine.

(6) Possession with Intent to Distribute
Depending on how much cocaine the defendant, B, possession he could also be charged with possession with intent to distribute (or deal) the drug.  If the amount of cocaine seized saitsfies the statutorily prescribed weight, then B can also be charged with this crime.



TO: Superior in county prosecutor's office
FROM: clerk in county prosecutor's office
RE: Possible charges and anticipated defenses in the matter of County v. B

In response to your request for a memorandum outlining the possible charges and anticipated defenses in the matter of County v. B, I have prepared the following document including all relevant possible charges and anticipated defense that may be asserted by B in the matter of County v. B:

Charge #1: Larceny:

B may be charged with larceny, a specific intent property crime.  At issue is whether B's action constiuted an intentional carrying away of A's briefcase with the intent to permanently deprive A of her briefcase.  Larceny requires the intentional act of carrying away another's rightful property with the intent to permanently deprive them of it. In this instance, A

Anticipated defenses to Charge #1: Lack of intent to permanently depriveand lack of knowledge that the briefcase belonged to A:

B may assert the defense of lack of intent to permanently deprive A of the briefcase that begloned to A.  At issue would be whether B knew that the briefcase belonged to another, or whether he simply thought it was abandoned property.  Specific intent required in a larceny crime involves knowingly taking the property of another with the intention of depriving of it permanently.  If B could demonstrate that he did not know the briefcase belonged to someone, and simply thought it was abandeoned property, B could demonstrate successfully that he did not intend to take the property of another.  However, given that A did not fully abandon her property, but simply placed it on the roof of her car for a temporary instant (and it was the roof of her car - which was also her personal property, which further inticates continued control and ownership of the briefcase), it is highly unlikley that a court would find that B lacked knowledge that the briefcase belonged to another and was instead appearing to be abandoned property.

B may also assert the defense of lack of intent to permanently deprive the owner of the briefcase of their property.  At issue is whether B intended to permanently deprive A of the briefcase, or if he was simply borrowing it (without permission) for a limited period of time.  If B was only temporarily depriving A of the briefcase, instead of larceny it becomes a lesser crime because there is not adequate specific intent and evidence to satisfy the elements of the larceny crime.  However, based on the given facts, there is no indication (nor is there an assertion by B) that he ever intended to return the briefcase.  The fact that it was hidden under his bed, instead of returned to A, and the fact that he threatened A with his gun in lieu of simply telling her 'I'll be right back, just borrowing this for a little while!" all go towards the inference that there will be sufficient evidence to demonstrate an intent to permanently deprive A of the briefcase.

Charge #2: Assault (threat of battery)

The second charge that may be brought against B is the charge of assult.  At issue is whether B's threat to A of "Don't try to follow me, I have a gun" constitutes an assault.  An assault is a threat of an immediate battery - e.g. a threat of immediate unwanted physical contact that would create sufficient apprehension in a reasonable person, based on an objective standard.  Here, B did not specifically say "I will shoot you," or show A the gun in a threatening manner, however the simply assertion that he had a gun and that therefore A shouldn't try to follow him could reasonably indicate to the average reasonable person that the logical result of A following B would be B brandishing his gun in a threatening manner and possibly using it in a theatening battery-type force.  Therefore, the prosecutor's office could satisfy the elements of assault based on the facts at hand assuming the court believes the inference that a reasonable person would view the statement made by B to constitute an adequate threat under the elements of assault.

Anticipated defense to Charge #2: Lack of sufficient proof to prove assault: relevance of "mere words":

In response to Charge #2, B could assert - and would successfully assert - that mere words cannot constitute an assault, without further evidence of the threat suggested by the verbal comments.  At issue is whether mere words can create a threat, or if they satifactorily serve as a defense to a charge of assault.  Although an assault is premised on the idea of the victim maintaining a reasonable apprehension of imemdiate battery, courts have held that such a reasonable apprehension cannot be sourced from a mere verbal threat, unless that threat is coupled with other actions.  B could suggest that beyond his statement about the gun, A had no other reason to believe he possessed a weapon, and therefore there was not a reasonable standard at which to base A's level of apprehension.  Additionaly, there is no indication in the facts provided that suggest whether A did not follow specifically due to her apprehension of an immediate battery risk, or whether she simply decided it was better to call the police in to assist her in retrieving her briefcase.  As such, B's assertion of this defense will likely succeed in defeating the charge of assault

Charge #3: Battery of a police officer (aggravated assault)

The third charge that we may bring against B is battery in regards to his physical interaction with Officer, which is considered aggravated assault.  At issue is whether B's pushing of the officer constituted an a battery.  Battery is the unwanted physical contact with another.  In terms of a police officer, who is a public individual, this can also be considered aggravated assault. Here, B pushed Officer without any indication of provocation thereby warranting such physical contact due to self defense, and without permission from the Officer allowing such contact.  As a result, B's actions satisfy the battery argument.

However, a lack of any  belief that B poses a threat to Ofifcer could go against the ability to assert such a charge because the Officer might have clearly known that B was of zero danger to him.  However, the facts available do not go towards the existence or lack of any such potential threat of danger, and therefore this area is undetemrinative at the moment.

Anticipated defense to Charge #3: Illegal entry onto B's property, or Self Defense

In response to charge #3, B can assert that he did not assault or commit battery against Officer so much as protect his property from illegal entry without a valid warrant, warrantless exception, or consent of owner or occupier of the premises.  At issue is whether Officer's conduct was sufficient indication of trespass of property to warrant B's effort to restrict entry.  In general, the owner or occupier of a premises has the right to restrict the access of others to the property, absent a valid warrant, a valid warrantless exception permitted entry and search, or consent of an owner of occupier.  In response to unauthorized entry (which constitutes trespass of property if there is a showing of the intent to be where the perpetrated is located and there is no permission express or implied to be there), an owner or occupier is allowed to use reasonable force to protect his/her property.  Under the facts at hand, B was not shown a warrant, Officer did not assert a valid warrantless entry, and B did not consent to entry.  Instead, Officer prevented B from closing the door by entering his foot into the doorway.  B could contend that this constituted unauthorized entry onto B's property (the doorway), as well as an indication that Officer intended to fully enter the premises, despite B's efforts to turn him away.  B's response could be warranted becuase it did not involve deadly force.  Deadly force is not permitted to generally restrict access to one's property (it is only permitted in self defense of one's person, not self defense of one's property, unless provoked by deadly force threatened by the trespasser).  In this instance, the Officer did not threaten deadly force, nor did B use deadly force to remove Officer from his premises.  On those facts, B's assertion of this defense is strong, however the idea that the doorway constitutes entry on teh property is weaker and teh court may instead view that as the threshold to the property and not adequate to warrant the battery of the Officer, especially since B did not verbally warn him not to enter prior to pushing him. 

In response to charge #3, B can also assert self defense based on the anticipation that the Officer was going to physical enforce himself upon B.  At issue is whether Officer's step into the doorway constitutes a forward action indicating threat of physical force sufficient to warrant physical response from B in teh form of "self defense."  Sefl defense generally requires an act on the part of the other party which warrants the response from the individual asserting self defense.  Under these terms, the self defnese must only be to a level sufficiently reasonable in response to the initial act - e.g. the individual asserting self defense cannot use more force than is reasonably necessary to counteract the intiial action.  Additionally, there is a general duty to retreat, unless the events occur on one's own property or at one's place of work in relation to a non-coworker.  IN this instance, the events transpired at B's home, so there is no duty to retreat applicable.  However, given that Officer's action was not a phsycial action upon B's body, there is the appearance of unreasonable and unnecessary use of force by asserting a self defense tha tinvolved such physical contact upon Officer's body.  As a result, B may not succeed in asserting such a defense.

Charge #4: Possession of a controlled substance in the form of cocaine

The fourth charge possible against B is possession of a controlled substance (in the form of cocaine).  At issue is whether there is sufficient evidence to satisfy the elements of the possession charge, namely that B possessed the cocaine.  Possession of an illegal substance involves the knowing or reckless possession of a controlled substance.  On the facts at hand, the envelope of cocaine was located in B's closing, presumably in one of his pockets.  Given its close proximity to his body, and the logical indication that he either placed it in his pockets or knew it was placed there (absent any evidence indicating that it was planted on him without his knoweldge), possession of the cocaine is adequately demonstrated by the facts.  In terms of B's level of mental awareness of the cocaine, there must be an indication that B either knew he was holding cocaine, or recklessly did not know he was holding cocaine due to his decision to remain in the dark about the controlled substance he was carrying (e.g. there were indications that he was carrying someone suspect and possibly controlled, but to avoid liability B intentionally avoided finding out what he was carrying).  Whiel the facts do not conclusively indicate whether or not B knew he was carrying the cocaine, absent an indication otherwise the court will presume that B knew what he was carrying in his pocket, or at the very least exercised an intention to avoid knowing due to the suspect nature and strong likelihood that it was  illegal. 

Anticipated defense to Charge #4: Illegal Search and Seizure

In response to charge #4, B will probably assert illegal search and seizure, and therefore the cocaine serves as fruit of the poinsonous (read: illegal) search and seizure, and thus should not be admitted into evidence at trial or serve as the probable cause for the charge of possession.  At issue is whether Officer's search of B's clothing was an illegal search under the constitution (therefore being a violation of the 4th amendment right to protection from unwarranted search and seizure).  A search generally requires a warrant specifically stating what the officer is searching for, where the officer is looking, specific facts ot indicate probable cause that the item will be found where they want to look, and the approval of a neutral magistrate.  Without a warrant, a search is generally deemed illegal, unless the search satisfies an exception to teh warrant requirement under the constitution.  However, this search in the facts at hand may satisfy the exception of search incident to arrest.  Search incident to arrest permits a warrantless search of a person's body (or area within close proximity within their car if they are not yet handcuffed), based on the fact that it is in the officer's interest to make sure the arrestee is not carrying any weapons.  Therefore, a search of the person is permitted, usually involving a pat down of the person in an effor tot search for weapons or dangerous items of any kind.  There is no indication in the facts as to how invasive Officer's search of B's person was, but if it was simply the result of a pat down of B's clothing which indicated an unidentifiable suspicious item in the pocket, it could be deemed reasonable for the officer to require the removal of the item from the pocket.  However, if the Officer could clearly tell based on the feeling outside the clothing that the item was IN NO WAY SHAPE OR FORM a weapon, then the officer's further investigation of the contents of the clothing and teh resulting cocaine evidence may be considered the fruit of an illegally invasive search and therefore not permitted into evidence due to the illegal warrantless search and seizure.

Charge #5: Possession of stolen property in connection with the charge of larceny

The fifth charge that can be asserted against B is the charge of possession of stolen property.  At issue is whether there is adequate permissible evidence to indicate that B possessed the stolen property.  Possession of stolen proeprty requires physical possession of property that the alleged perpetrator knows is stolen.  In the matter at hand, if the prosecutor's office can demonstrate that the briefcase is in fact A's briefcase, and that B was present at the theft of the briefcase (see Larceny charge above), then this is further possession of the stolen good.  The breifcase can serve as further evidence for the Larceny charge as an indicator of intent to permanently deprive A of her property, as well as evidence of knowing possession of the stolen property.  It is unreasonable and unlikley that the briefcase just "happened" to wind up under B's bede, and the placement of the breifcase under the bed suggests further knowledge on the part of B that the briefcase is illegal proeprty that he wants to hide.  As a result, this is a possibel charge to be asserted against B.

Anticipated defense to Charge $5: Illegal Search and Seizure without valid consent

However, in response to the fifth charge, B will likely assert a defense of illegal search and seizure, premised on the contention that the search of B's apartment was illegal due to C's ineffective consent to the search.  An officer may search a property without a valid warrant upon obtaining consent from an owner or occupier of the property.  Such consent must be made knowingly and voluntarily - e.g. with the consenting party knowing they are consenting to a search and voluntarily providing such consent.  However, consent to a warrantless search is restricted by, as is relevant here, a few issues: (1) whether the consent was made under duress, and/or (2) whether the consent was made in direct opposition to the known objection of the other owner/occupier.  A consent issued under duress is not considered fully voluntary to permit such a warrantless search.  In the facts at hand, the Officer may be considered to have made a threat to C that if C did not permit Officer to enter and search teh apartment, C would wind up arrested, as well.  In an effort to avoid arrest, C may have permitted under duress teh Officer to enter and search teh apartment.  While the Officer is not required by law to inform C of her right to refuse entry, he may not use the threat of illegal arrest as a way to gain entry and intimidate the owenr/occupier into letting him enter and search the premises.  Additionally, in a multi-person household, various owners and occupiers retain the right to consent personally to teh search.  For example, in teh absence of a resident husband, a wife may consent to the search, and vice versa, evne though consent it not obtained by the other resident owner/occupier.  However, if the police know of the other occupier's lack of consent, they cannot simply show up at a different time and request the other owner/occupier consent instead (much like a child going from one parent to the other with a request until someone says yes, without knowing the other said no!).  Here, the Officer was maintaining a clear awareness that B did not want him entering the premises, but instead, in teh presence of B, requested permission from C to enter the premises in opposition to B's lack of permission.  As a result, B could assert on either of these possible grounds that the search was illegal because there was a lack of a warrant, and a lack of a warrantless search requirement satisfied due to incomplete consent to the warrantless search.



On February 1, 2010, Employee, a local police officer, filed a Complaint in New Jersey State court against Employer, the City Police Department, and Weiler, a fellow police officer who works in the City Police Department’s Internal Affairs Bureau (“IA”). The Complaint seeks $500,000 in damages and alleges sexual discrimination by Employer under both federal statutes and a New Jersey statute, the New Jersey Law Against Discrimination (“NJLAD”). The Complaint states these acts of discrimination started on February 1, 2008, and continue to the present. The Complaint also alleges retaliation by Weiler, in violation of NJLAD, for failing to investigate Employee’s allegations and grievances about Employer’s discriminatory conduct. Employee and Weiler live in the City.

On February 1, 2010, Employee served the Complaint and a Request for Admissions on both Employer and Weiler, and neither Defendant has answered or otherwise responded.

On May 15, 2010, Employer hires your firm. Employer wants to defend the case and to file a Counterclaim for $35,000 against Employee for abusing Employee’s sick time (taking and getting paid for too many sick days) from May 1, 2004 to May 1, 2008. The Counterclaim will demand Employee pay back the “sick time” money Employer paid Employee. New Jersey has a six-year statute of limitations for such claims.

New Jersey courts have determined that, under NJLAD, an individual defendant must be a supervisor in order for liability for sexual harassment to attach. New Jersey has not yet ruled whether an IA officer is a supervisor for purposes of NJLAD. The duties of an IA officer include investigating complaints by and against police officers and recommending appropriate discipline.

1          May and should Employer seek to remove the case to federal court?

2          Whether in state or federal court, what can and should be done regarding Defendants’ failure to file a timely Answer to the Complaint and failure to respond to the Request for Admissions?

3          If the case were removed to federal court, how would the federal court handle the IA supervisor issue?

4          Whether in state or federal court, may the Employer file its Counterclaim?

Senior partner has asked you to prepare a memorandum addressing the issues Employer has raised, Employee’s likely responses, and, where applicable, the likelihood of success.



To:  Senior Partner
From: Associate
Date: 7/29/10
Re: Employee v. Employer & Weiler



Employer has hired Law Firm to represent it in a discrimination case against it by Employee.  Employer has asked Firm several questions.  Below, please find a discussion of each of the issues presented.

1. Removal

Although Employer could  seek to remove the case to federal court based on federal question jurisdiction, it is unlikely it will be successful if we have missed the deadline for removal.  A defendant can seek removal to the federal district court encompassing the state court where the plaintiff has filed his action if the plaintiff could have properly filed the action in federal court to begin with.  In order for a claim to be properly brought in federal court, that court must have subject matter jurisdiction.  Subject matter jurisdiction can be based either on diversity jurisdiction or on federal question jurisdiction. 

A court has diversity jurisdiction if the plaintiff and the defendants are citizens of different states and if the amount in controversay is over $75,000.  The court will consider whatever amount the plaintiff asks for as long as that request is made in good faith and that there is nothing clearly preventing the plaintiff from recovering that much (such as a statutory cap on damages). Here, the amount in controversy is $500,000, and therefore, meets the requirements.  However, the parties are not diverse because they are all citizens of the forum state.  Further, a party cannot seek removal based on diversity jurisdiction if any defendant is a citizen of the forum state.  Here, both defendants are citizens of the forum state. Therefore, removal is not proper based on diversity jurisdiction.

Even though all of the parties are residents of New Jersey, the court may have federal question jurisdiction.  Federal courts have jurisdiction to hear all claims arising out of federal law.  Here, part of Employee's claim arises federal law, although part of it is also based on state law.  The court will have to decide if it has supplemental jurisdiction over the state law claim and if the interets of justice will allow the court to hear the state law claim.  Supplemental jurisdiction exists when a claim arises out of the same transaction or occurence as the federal claim and shares common questions of fact or law.  Here, because the New Jersey anti-discrimination laws will require similar proof and questions of fact and law as the federal anti-discrimination statute, the state claims meet the test for supplemental jurisdiction.  Therefore, the federal district court does have federal question jurisdiction over the federal and state law claims. 

In order to remove a case, the defendant must seek removal within 60 days of receiving the last pleading that gives rise to removal, and no later than 1 year after the complaint was filed.  Here, the defendant should have tried to remove the case within 60 days of receiving the complaint, which was on February 1.  Therefore, it is too late to remove. However, if we do file the answer and make a cross-claim, a new pleading that gives rise to removal might be filed by Employee, at which point we can seek to remove.

If we can remove, we should try to be because there are a number of things about New Jersey state courts, such as its liberal rules of civil procedure, its allowance for additur, and the ability of juries to reach non-unanimous verdicts, that can be seen as plaintiff friendly.  As such, we should try to remove.  One plus, however, if we cannot remove the case is that New Jersey courts allow for remittur. In the event we lose, we may be successful in bringing a motion to have damages reduced.


2. Failure to File an Answer and to Respond to the Request for Admissions

Generally, a defendant must file an answer to a complaint or motions within 21 days of receiving a complaint.  When a defendant fails to respond to an answer, a plaintiff can seek a default judgment against the defendant.  Before filing for default and before a default judgment can be granted, a number of procedural protections exist to notify the defendant that default judgment may be entered.  They do not seem to have motioned for default here becuase our client has not informed us that it has received any notice of default.  Further, if a party fails to respond to discovery tools, such as admissions, and does not make a motion for a protective order to allow it to fail to comply with the discovery tools, the party requesting discovery can file for sanctions.  The level of sanctions vary and are discretionary by the court.  They are determined in order to ensure that the party complies in the future.  Again, there are a number of procedural protections in place that prevent the opposing counsel from automatically obtaining sanctions.  Hopefully, Employee has not moved for default judgment or for sanctions.

Assuming that Employee has not moved for default or sanctions, we can petition the court for an extension of the period to respond.  The New Jersey Rules of Civil Procedure are to be construed liberally in the interests of justice, and the court has discretion to ignore minor procedural defects.  We should argue that Employer had good reason for not responding sooner, and that the defendant should be allowedto file an answer in the interests of substantial justice. Further, we should respond to their request for admissions as soon as possible.  We should be successful with these motions.

If Employee did successfully get default judgment entered in his favor, we have one year to get the judgment set aside, which can be done by showing good cause for our failure to answer and that we had a meritorious defense.

In the interests of fairness and substantial justice, the court should allow Employer to file an answer.

3. IA Supervisor Issue

Because New Jersey courts have not yet ruled on whether an IA officer is a supervisor for purposes of NJLAD, and that is a state question based on state law, the court will either try to use New Jersey substnative law to try to determine what the New Jersey state courts would do, or it will refer the case to the New Jersey Supreme Court for interpretation of its laws.  Here, although New Jersey case law has determined that an individual defendant must be a supervisor to be liable under the NJLAD, the courts have yet to determine whether an IA officer is considered a supervisor for purposes of liability. This requires the interpretation of state law.  Federal courts applying state law will either use the caselaw of the state to try to determine how the state court would rule if presented with the question.  The court can also refer the matter to the State Supreme Court to allow it to issue an opinion on the appropriate interpretation of the state law.  Further, the court may find that issue is severable and should be brought on its own in state court.  Because the retaliaiton claim is sufficiently separate from teh sexual discrimination claim, the court may sever the cases to be tried seperately. 

4. Employer Counterclaim

In both federal and state court, the Employer can file his counterclaim.  Employer wants to file a counterclaim for $35,000 against hte employee for abusing sick time between May 1, 2004 and May 1, 2008.  First, part of this claim will be barred by the statute of limitations.  The statute of limitations is a statutory bar to claims that occurred over a specified amount of time in the past.  Here, the statute of limitations is six years for these types of claims.  As a result, Employer will be time barred from bringing a claim for causes of action for abuse of sick time occurring more than 6 years ago.  We should file the counterclaim as soon as possible to toll the statute of limitations for the remaining causes of action. 

In New Jersey state courts, the entire controversy doctrine dictates that all parties joined in an action should bring all other causes of action against the other parties.  The New Jersey courts like to hear the entire controversy.  If they are transactionally related, this has the effect of making counterclaims compulsory for res judicata purposes.  Here, the sick time claims only overlap with the discrimination claims by three months (February 1, 2008 through May 1, 2008).  There will be some common questions of fact because the abuse of sick time might be a defense to the charge discrimination.  Additionally, policy dictates in favor of allowing counterclaims because they help foster settlement and judicial efficiency.  Therefore, the court will allow the counterclaim to be brought.

In federal court, counterclaims are permissive.  Although Employer's counterclaim is only for $35,000, these claims do not need to meet the amount in controversy for diversity jurisdiction when they are brought by the defendant.  As discussed above, the counterclaim contains at least some common issues of law or fact and arises out of some of hte same transactions and occurrences. Therefore, it should be allowed in federal court.




TO:     Senior Partner
FROM:     Associate
DATE:     7/29/2010
RE:     Employer's Claims Under NJLAD

I.  Introduction
We represent Employer to defend the case against Employee for alleged violations of sexual discrimination under federal statutes and the New Jersey Law Aaginst Discrimination ("NJLAD").  The four questions answered by this memorandum are 1) may and should we seek to remove the case to federal court; 2) what can and should be done regarding Employer's failure to file timely Answer to the Complaint and failure to respond to the Request for Admissions; 3) how the federal court would handle the Internal Affairs Bureau ("IA") supervisor issue; and 4) whether Employer may file its counterlcaim.  As a brief statement, I would like to include that New Jersey state trial courts have general jurisdiction over all types of claims, including the types of claims here.  Therefore, the New Jersey state trial court would be proper to hear both the state discrimination and federal discrimination claims, provided the federal courts have not been granted exclusive jurisdiction in those areas.

II.  Analysis
Removal to Federal Court
Employer may remove the case to federal court.  The issue is whether the federal court has jurisdiction.  Removal is proper when the plaintiff could have originally brought the suit in a federal court if the plaintiff wished to.  A federal court is a court of limited jurisdiction.  This means that in order to have a case brought before a federal court, there either must be subject matter jurisdiction, which is either 1) diversity jurisdiction or 2) federal question jurisdiction.  Diversity jurisdiction is where no plaintiff and no defendant are from the same state and the amount in controversy is over $75,000.  Although the amount being sought is over the $75,000 threshold, this would not apply in this case as all of the parties are from the City. 

The suit could also be removed for federal question jurisdiction.  This does not require any diversity nor does it require any amount in controversy.  This occurs when a plaintiff is asserting a federal right provided under federal law.  In this case, the Employee is asserting a federal right under the federal anti-discrimination statutes.  Therefore, this would be proper in federal court and could be removed. 

It is also immaterial that the plaintiff is also bringing state law claims.  The issue is whether these claims could also be brought in federal court.  Supplemental jurisdiction acts as a way to get a claim into federal court that could not originally be brought into federal court.  Supplemental jurisdiction applies when the events arise from the same transaction or occurrence.  Here, the state sexual discrimination claims arise from the same transaction or occurrence as does the federal sexual discrimination claims.  Therefore, supplemental jurisdiction would allow the entire suit to go into federal court and would not bar removal.

Removal would be beneficial in this case.  Removal would be beneficial because federal courts have a rule of unanimity among all of the jurors (as oppsoed to the 5/6 in New Jersey).  Also, the discovery rules are more defendant friendly in federal court than in New Jersey state court.  Therefore, we should seek removal and would likely be successful.

Defendant's Failure to File a Timely Answer to the Complaint and Failure to Respond to the Request for Admissions
Because the defendants did not timely file an Answer or respond to the Request for Admissions, there could be sanctions against them.  When a Complaint is not responded to, the court will enter a default againt the defendants for not answering.  When default is entered, the court could also award, at the same time, a "default judgment," which is essentially saying that the plaintiff wins on the merits and can enforce the judgment against the defendants.  This is not always the case, however.  If the defendants can show good cause for why they failed to respond to the Complaint, then the court could potentially set aside the default judgment.  This is especially true if the defendants can show that they had a defense on the merits of the case that they could have presented at the time of the trial.  Here, however, there is nothing in the facts to say that there was good cause for the failure to answer to the complaint.  Therefore, whether in state or federal court, there is a chance that a default judgment could be entered against our client for the failure to respond to the Complaint.

For the failure to respond to the request for admissions, in both state and federal court, the court may impose sanctions upon the defendants for not responding.  The first step for these sanctions would be to motion the court for a motion to compel answers.  This would be to force our clients to answer the admissions.  Employee will also be able to recoup costs associated with bringing that motion.  If our clients still do not answer, which I would not recommend, then there could be heavy sanctions, including fines, judgment against our clients, or admissions on certain facts.  Therefore, I would recommend immediately that we answer the request for admissions and show the court good case as to why we did not originally answer the Complaint.

Federal Court's Handling of the IA Supervisor Issue
The federal court will handle the IA supervisor issue by making a prediction as to how the Supreme Court of New Jersey will decide the issue, if presented with it.  When a federal court has to decide an issue of state law that has not yet been determined, it will make a prediction as to how the highest court in the state would decide the issue.  Here, the facts state that New Jersey has not yet determined whether an IA officer is a supervisor (which is required for liability under the NJLAD).  Because of that, when the federal court will be forced to answer this, it will have to make a prediction, using other New Jersey law, as to how the New Jersey Supreme Court would rule on this issue.

Alternatively, if it is pivotal, the District Court for the District of New Jersey could certify the question to the New Jersey Supreme Court.  That way, the New Jersey Supreme Court will answer the question and then the federal court will be able to determine the case using the exact way that the New Jersey Supreme Court would.  This would be the safer method becuase the federal court would not have to guess or make a prediction.

Whether Employer May File Counterclaim
Employer could file the counterclaim against Employee in New Jersey state court, but not in federal court.  The New Jersey state court has general jurisdiction over all types of cases, including the one that would be brought here.  Therefore, there would not be any issue with subject matter jurisdiction over this type of counterclaim.  Also, New Jersey allows for permissive counterclaims.  These are counterclaims that while they are not associated, or in other words are from the same transaction or occurrence, they can otherwise be brought against the other party in the same lawsuit.  Here, while this counterclaim did not arise from the same transaction or occurrence as the sexual discrimination suits, Employer may bring the permissive counterclaim.  There is one problem, however, and that is the statute of limitations.  The facts state that the alleged wronged period was May 1, 2004 to May 1, 2008.  Moreover, New Jersey has a six year statute of limitations.  Using today's date of July 27, 2010, this would already eliminate all of the "sick days" that Employee took from May 1, 2004 to July 27, 2004.  Therefore, to stop this from happening to more dates, I would immediately file the counterclaim to preserve our right to collect for as many of the sick days as we could.

     Employer could not file the counterclaim against Employee in federal court, however.  In federal court, for every single claim, there must be subject matter jurisdiction.  While there was subject matter jurisdiction for the underlying claim of sexual discrimination under the federal statute, there still must be independent subject matter jurisdiction for the counterclaim.  Here, there is none.  There is no diversity, the amount of controversy is less than $75,000, and there is no federal question for this type of counterclaim.  Also, to invoke supplemental jurisdiction, it must have arisen from the same transaction or occurrence.  In this case, it did not, as the sick days had nothing to do with the sexual discrimination.  Therefore, there could be no counterclaim in federal court.  Also, if we do decide to remove the case to federal court, I would still recommend to file a suit against Employee in state court as soon as possible to preserve our claim and stop the statute of limitations on that claim.

III.  Conclusion

In conclusion, we would be able to remove the case to federal court because it could originally have been brought there under federal question jurisdiction.  I would also recommend it, as federal courts are better for defendants.  Second, I would immediately give the court good cause for why we did not file an Answer to the Complaint and immediately respond to the Request for Admissions so we are not sanctioned for the failure to do so.  Third, if the federal court had to answer the IA supervisor issue, then it would either predict how the New Jersey Supreme Court would answer the question or it would certify the question to the New Jersey Supreme Court to answer for it.  Last, the Employer may file its counterclaim in state court, but not in federal court.  If we do remove to federal court, I recommend filing a separate claim against Employee in state court.  Moreoever, I would do so as soon as possible to stop the statute of limitations from affecting our claim.



Dr. Jones performed surgery on Sarah at City Hospital using the same surgical instruments that had been used that morning during Jim’s surgery. Shortly thereafter, Bob, an operating room nurse, told Dr. Jones that the surgical instruments had not been properly sterilized after Jim’s surgery because they had been removed from the operating room autoclave before the sterilization cycle was completed.

Sarah’s surgical incision became infected, and she was left with a large, disfiguring scar. In addition, three months after the procedure, Sarah tested positive for Hepatitis C, a virus transmitted by contact with contaminated blood or bodily fluids, which can cause severe liver damage. Sarah sued Dr. Jones and City Hospital, and both defendants were found liable for negligence. Dr. Jones and City Hospital appealed, challenging several evidentiary rulings issued over the timely objections of their attorney.

At trial, the judge admitted the testimony of Bob that Dr. Jones told him City Hospital was “having trouble” with its autoclaves and was replacing them with “better” equipment. She also allowed into evidence a copy of Sarah’s post-operative report in which Dr. Jones omitted the fact he had learned the surgical instruments used in Sarah’s surgery had not been properly sterilized. Finally, the judge admitted a copy of a notice the autoclave manufacturer sent to City Hospital one week prior to Sarah’s surgery stating the manufacturer had received reports from various hospitals of post-operative infections and reminding hospitals to properly calibrate the autoclave prior to each use.

The judge denied the defendants’ request to admit the testimony of Dr. Smith, a family physician, that he had seen “a lot of scars that looked worse” than Sarah’s and he didn’t think the infection “had anything to do with it.” Based on Sarah’s objection, the judge also refused to admit the testimony of Steven, Sarah’s former husband, that Sarah admitted to him she had used heroin in the past and even shared needles with other drug users. Finally, the judge ruled inadmissible the medical record of Jim indicating that Jim had tested negative for Hepatitis C on a previous admission to City Hospital six months before his surgery.

You are the appellate judge’s clerk and are assigned to prepare a memorandum advising the court how to rule on the evidentiary issues raised by the appellants.



Bench Memorandum
Sarah v. Jones and City Hospital

This memorandum will address the various evidentiary issues that arose during the Sarah v. Jones and City Hospital trial, and whether such rulings should be affirmed on review by this court.  In general, an appellate court reviews mixed issues of fact and law de novo, or from scratch.  However, evidentiary rulings are generally considered discretionary in that the trial judge has the sole discretion to determine admissibility of evidence.  The standard of review for this court on evidentiary, discretionary rulings is to determine whether the trial judge abused her discretion.  Therefore, the trial court's decisions may only be overturned if this Court finds the trial judge abused her discretion in ruling the way she did.

Testimony of Bob: 
The trial court was proper in allowing the tesimony of Bob.  In general, all relevant evidence is admissible if it tends to make a fact in issue more likely to be true or false.  All hearsay evidence is inadmissible unless it falls into one of the exceptions or exclusions provided for by the New Jersey Rules of Evidence.  Hearsay is an out-of-court statement that is introduced to prove the truth of the matter asserted therein.  Here, Bob's testimony regarding what Dr. Jones said to him was hearsay.  However, it was properly admitted because it was an admission and therefore excluded from the hearsay doctrine.

An admission is a statement of fault made by a person or his lawful agent.  An admission is non-hearsay and can be admitted against an employer if it was made by an employee acting within the scope of his employment.  Here, Dr. Jones admitted to Bob that the Hospital has having trouble with the autoclaves that failed to properly sterilize the instruments used to injure Sarah.  This statement was relevant, made within the scope of Dr. Jones' employment, and constituted an admission of fault.  Therefore, it was properly admitted against Dr. Jones and against City Hospital and this Court should affirm the ruling.

Dr. Jones' statement can also be seen as the statement of a party-opponent, which is excepted from the hearsay rule.  Dr. Jones is an opposing party and Sarah used his statement against him.  This is properly allowed under the Rules of Evidence.

Although evidence of subsequent remedial measures is excluded from admission, it does not appear here that Dr. Jones' statement was made after Sarah's surgery in an effort to remedy the negligence that caused Sarah's injury.  Therefore, this provision should not have excluded the evidence from being presented at trial and this Court should affirm the ruling.

Post-Operation Report 
The trial court properly admitted this report into evidence under the business records exception to the hearsay rule.  As described above, the post-operative report was hearsay in that it included various out-of-court statements and facts that were used to prove the truth of the details of Sarah's surgery.  However, records made in the regular course of a business, that were prepared by individuals acting out of a duty to properly report, and that were made contemporaneously or shortly after an event in question will be excepted from hearsay unless there is evidence the record is untrustworthy.  Business records need to be certified or authenticated by an employee who prepared it, which could be satisfied by Dr. Jones' testimony during trial.  Here, Dr. Jones made the report shortly after Sarah's operation, while acting in the scope of his employment, and as a matter of regular business procedure.  Although a fact was omitted from the report, either party was also entitled under the Rules of Evidence to draw a negative or positive inference from the omission of a record that is regularly made, such as Bob's statement to Dr. Jones.  Therefore, the post-operative report was properly considered as a business record and admitted as an exception to hearsay and this Court should affirm the ruling.

Notice from Manufacturer 
The notice was properly admitted into evidence.  Although the notice is hearsay in that it contains out of court statements, the notice was not introduced for the truth of the matters asserted therein.  A party may introduce hearsay evidence for purposes other than to prove the truth, such as notice to the Defendant.  Here, the manufacturer's letter was not introduced to prove that other autoclaves had caused infections, but merely to show that the hospital was on notice of the need to calibrate the autoclave to prevent injury.  The evidence of notice is relevent because Sarah suffered a similar infection.  Therefore, the letter was properly admitted for the non-hearsay purpose of showing notice to the hospital and this Court should affirm the ruling.

The notice could have also been properly admitted as a business record if the above-mentioned requirements were met.

Testimony of Dr. Smith: 
The trial court may have improperly excluded the opinion testimony of Dr. Smith.  In general, a layperson may offer an opinion on an issue where that opinion is based on personal knowledge and will be helpful to the jury's understanding of the facts.  If viewed as a layperson, Dr. Smith's opinion may have been helpful to the jury because he is a physician with knowledge of scars, injuries, and infection, and was based on personal knowledge because he personally examined Sarah.  Therefore, the trial court could have allowed Dr. Smith to testify to his opinion as a layperson with personal knowledge and this Court may choose to reverse this ruling if there was an abuse of discretion.

However, Dr. Smith may also have offered his opinion as an expert witness.  Expert testimony is admissible where it is reliable and based on specialized knowledge.  An expert witness will be qualified to testify to his opinions where such opinions will be helpful to the jury's understanding of the facts, is based on specialized knowledge, and has been formed based on recognized practices and materials used by others in the field.  Here, Dr. Smith is a physician and can be assumed to have based his opinion on the medical training that doctors around the country receive in the course of their education and certification. As mentioned, Dr. Smith's opinion was helpful to the jury's understanding of how Sarah's scars were caused.  Finally, Dr. Smith has personal knowledge of Sarah's injury, which gives his opinion added reliability.  Therefore, the trial court could properly have allowed Dr. Smith's testimony as an expert witness, and this Court may choose to reverse the ruling if there was an abuse of discretion.

Steven's Testimony: 
The trial court properly excluded the testimony of Steven based on spousal privilege.  The New Jersey Rules of Court recognize both spousal privilege and spousal immunity.  Spousal privilege protects from disclosure any confidential communications that were made between spouses during the course of a marriage.  The privilege cannot be waived by either party.  Spousal immunity requires that no spouse be compelled to testify against another spouse if the pair are currently married.  Spousal immunity can be waived, however, by any one spouse that chooses to testify.  Here, Steven chose to testify against Sarah, but testified regarding a confidential communication that occurred during the course of their marriage.  Therefore, although spousal immunity did not apply, spousal privilege applied and Steven was not permitted to disclose Sarah's statements over Sarah's objections.

Although Sarah's statements could alternatively be viewed as either an admission, a statement against interest, or the statement of a party-opponent, spousal privilege trumps hearsay exceptions and therefore the evidence was properly excluded.

Medical Record of Jim: 
The trial court could have properly admitted the medical record of Jim.  The record of Jim was relevant to Appellants' case here because it made it less likely that Sarah contracted Hepititis from the instruments used by Dr. Jones.  As mentioned above, the medical record is hearsay because it contains out-of-court statements that were being introduced to prove that Jim didn't have Hepatitis.  However, this record could potentially have been excluded as hearsay because it constituted a statement made for the purpose of medical treatment.  In general, when a declarant (the individual making the out-of-court statement) makes a statement in an effort to get medical care, the statement is assumed to be truthful because the declarant has an interest in getting proper medical care.  The medical record here can be seen as a statement for the purpose of treating Jim because it contains statements that will help Jim's doctors give him proper care.  Therefore, the medical record could have been excluded from hearsay as a statement for medical treatment.

In the alternative, if the above-mentioned rules were satisfied, the medical record could have been introduced as a business record, considering Dr. Jones or another hospital employee could have verified its authenticity.  Therefore, the trial court could have admitted the medical record and this Court may reverse this ruling if it finds there was an abuse of discretion involved.


To: Judge
From: Clerk
Date: July 29, 2010
Re: Sarah v. Dr. Jones--evidentiary rulings from trial

You have asked me to advise you on how to rule on the evidentiary issues raised by the appellants at trial.  My analysis and recommendations are below.

1. Bob's Testimony 
Bob's testimony should be admitted as the admission of a party opponent, which is non-hearsay.  At issue is whether Bob's testimony is hearsay.

All relevant evidence is admissible.  Evidence is relevant if it tends to make a material fact mroe or less likely.  Hearsay evidence, even if relevant, is inadmissible because the declarant is not available at trial to be cross-examined. Hearsay is an out of court statement offered for the truth of the matter asserted.  Evidence is not considered hearsay if it is an admission of a party opponent.  The admissions of a defendant in a medical malpractice or negligence case are considered the admissions of a party-opponent.  Further, the admissions of a party-opponent's employee, agent, or servant are imputed to the party-opponent as his own adopted admissions.

Here, Bob's testimony concerns Dr. Jones' statements about the condition of the autoclave machine, and therefore it is relevant because it makes it more likely that the hospital used faulty equipment to sterilize the surgical instruments, which led to Sarah's infection.  Because the testimony is relevant, it is admissible.  Defendants may have objected on the grounds of hearsay, but this is non-hearsay because it is the admission of Dr. Jones, who is a defendant, that the equipment was not in proper condition.  Also, because Dr. Jones is presumably an employee of City Hospital, his admission is adopted by and imputed to City Hospital, who is the other defendant.  Therefore, Bob's testimony is admissble and can be used against both defendants.

2.  Sarah's post-op report

Sarah's post-operative report is admissible.  At issue is the hearsay exception for absence of an entry in a business record. 

All relevant evidence is admissible.  Evidence is relevant if it tends to make a material fact mroe or less likely.  Hearsay is an out of court statement offered for the truth of the matter asserted. Hearsay evidence, even if relevant, is inadmissible because the declarant is not available at trial to be cross-examined. A writing that was prepared out of court is considered hearsay.  However, there is a hearsay exception for business records if they were made in the ordinary course of a business' usual conduct, if made by a person with a duty to record, and if they are authenticated as what they purport to be.  The person making the record need not have personal, first-hand knowledge of what he records.   The absence of an entry in a business record meeting the above requirements is also admissible as a hearsay exception.

Here, the report is relevant because it makes it more likely that Dr. Jones knew the instruments were not properly cleaned and sought to cover up that fact.  However, the record represents hearsay because it was made out of court.  The business record exception applies because the record was made in the ordinary course of the hospital's conduct.  Every patient who comes out of surgery had a post-operative report in which their condition, vital signs, and other relevant information about the surgery is recorded as a matter of course.  Further, Dr. Jones was under a business duty to report his observations in that report.  He also had firsthand knowledge of the contents of the report, although that's not necessary.  The absence of the entry regarding the improperly sterilized instruments qualifies as the absence of an entry in a business record, and is admissible as a hearsay exception.

3. Notice from autoclave manufacturer

The notice is admissible as non-hearsay.  At issue is whether the notice should be admitted not for its truth, but as evidence that the hospital had notice and knowledge of the autoclave problems, and to show the effect on the listener.

All relevant evidence is admissible.  Evidence is relevant if it tends to make a material fact mroe or less likely.  Hearsay is an out of court statement offered for the truth of the matter asserted. However, if evidence is not asserted for its truth, it is not hearsay and may be admissible.  Evidence that would normally be hearsay may be admitted to show the effect of the statement upon a listener.  It may also be admitted to show that a listener had knowledge or notice of certain information.

Here, the notice is not being offered for the truth of the matter asserted, i.e. that the manufacturer had received reports of faulty autoclave machines.  Instead, the notice is offered to show its effect on the listener (City Hospital).  When the hospital received the notice, it should have recalibrated its autoclave even if it didn't beleive the truth of the contents of the note.  Further, the notice can be asserted to prove that the Hospital was on notice and had knoweldge that the manufacturer claimed to receive reports of autoclave problems.  It doesn't matter whether the Hospital believes that the reports of machine malfunctions were true, only that the notice should have put the Hospital on notice that there was a possibility of such malfunctions.  In such circumstances, a reasonable hospital with that knowledge might have taken certain steps to ensure 100% patient safety.  Therefore, the notice is admissible over hearsay objections because it is offered not for the truth, but as circumstantial evidence of the effect on the reader and as circumstantial evidence of Hospital's knowledge.

4.  Testimony of Dr. Smith

Dr. Smith's testimony should not be admitted unless he is properly qualified as an expert in the field of surgical procedure and infection.  At issue are Dr. Smith's qualifications to give expert testimony.

Expert testimony is admissible when the subject matter of the trial involves highly complex scientific, technical, or other issues that are not within the purview and understanding of a layperson.  An expert must be qualified in the field in which he is to testify by experience, training, or education.  The testimony is admissible if it is helpful to the trier of fact.  The expert must give his or her opinion to a reasonable certainty.  The expert is permitted to give an opinion as to the ultimate fact to be decided.

Here, the facts do not indicate whether Dr. Smith has been qualified to give expert testimony.  The subject matter about which he sought to testify is highly complex and scientific, because he wanted to testify about the appearance of scars and whether Sarah's had originated as a result of a post-surgical infection.  Dr. Smith must therefore be qualified as an expert, due to the complex subject matter.  However, Smith's background as a family physician hardly qualifies him to give an expert opinion on the appearance of a post-surgical scar and whether the scar came from a post-surgical infection.  Therefore, he appears unqualified.  Even if he may be permitted to testify on the basis of his general medical knowledge, his testimony is not helpful to the trier of fact, nor is it stated with sufficient certainty.  His claim that "he's seen a lot of scars that look worse" is not helpful to the jury because that statement has no bearing on whether this particular scar arose from the negligence of the defendants.  Additionally, his statement that he doesnt think the infection "had anything to do with it" is not stated to a sufficient degree of medical certainty.  Therefore, Dr. Smith's testimony was properly excluded.

5. Steven's testimony

Steven's testimony is inadmissible as improper character testimony, and may be privileged as a confidential marital communication.  At issue is whether evidence of a party's bad acts is admissible in a civil trial, and whether Sarah made her admissions to Steven while married in a confidential setting.

As an initial matter, Sarah's admission to Steven might overcome hearsay objections because it is a party admission, as discussed above in Issue #1.  However, policy considerations arise that might still prevent the testimony from coming in because of it's nature as character evidence or a marital privilege.

Character testimony is generally inadmissible in a civil trial to prove conformity to that character trait on the occasion in question.  Evidence of character can be offered through opinion, reputation, or specifc act testimony.  Neither of these is admissible in a civil trial if offered to show that a party acted in conformity with that trait or behavior during the time at issue in the litigation.  Confidential marital communications are privileged if made while the persons were married, and in confidence to each other.  The privilege is held by both spouses, and survives divorce.  It is lost to a spouse who later discloses the communication to a third party.

Here, the Steven's testimony about Sarah's prior acts of using heroin and sharing needles is inadmisibsle to prove that she got the infection from engaging in that type of behavior.  Further, if she made her admission to him while they were still married and in confidence, she may prevent Steven from revealing that information at trial under the confidential marital communicaiton privilege, so long as she hasn't told it to anyone else.

6. Jim's medical record

Jim's record was properly excluded.  At issue is the admisibility of hospital records due to privacy issues.

All relevant evidence is admissible.  Evidence is relevant if it tends to make a material fact mroe or less likely.  Hearsay is an out of court statement offered for the truth of the matter asserted. Hearsay evidence, even if relevant, is inadmissible because the declarant is not available at trial to be cross-examined. A writing that was prepared out of court is considered hearsay.  However, there is a hearsay exception for business records if they were made in the ordinary course of a business' usual conduct, if made by a person with a duty to record, and if they are authenticated as what they purport to be.  The person making the record need not have personal, first-hand knowledge of what he records.  a medical report may be offered as a business record, but it may not be offered if the patient protests due to privacy concerns.

Here, the medical record is relevant because it makes it less likely that the surgical tools used on Jim gave Sarah Hepatitis C.  The record is hearsay, but meets the business record exception because it was made by someone with a duty to record & in the ordinary course of business.  However the relevancy can be challenged because Jim may have contracted Hepatitis C in the 6 month interval between his negative test and his surgery.  Also, the medical record might be excluded because a patient's personal medical records are considered private.  Sarah's records were admisisble above due to her consent, because she needed them as a party to this case.   Jim has no such interest in the case, and therefore may protest at the disclosure of his private medical information.  Therefore, the medical records should be excluded.




Alan owns adjoining Lots 1 and 2. Alan sells Lot 2 to Bill, giving Bill a deed which includes the following provision: “Alan and all future owners of Lot 1 shall have the right to use the dirt road on Lot 2 to access Main Street.” The deed is duly recorded. Alan takes back a note and a mortgage from Bill as payment of the purchase price for Lot 2.

Several months after the sale closes, Bill cannot make the required mortgage payment to Alan. As a result, Alan agrees to accept a deed from Bill for Lot 2 in lieu of foreclosing on Lot 2. One year later Alan sells Lot 2 to Carolyn. The deed given to Carolyn includes no language relating to use of the dirt road on Lot 2 by the owner of Lot 1. After closing, Carolyn erects a fence effectively blocking Lot 1’s access to the dirt road on Lot 2.

Alan agrees to sell Lot 1 to David. The contract provides that the closing date is a “time is of the essence” date. Just prior to this closing date, David discovers that the apartment building on Lot 1 violates the city’s zoning set back requirements and that no variance was ever obtained for this violation. David refuses to close on the purchase.

Trish, a tenant who resides in the apartment building on Lot 1 under a written lease, reports to Alan during the winter that she has no heat and that she cannot remain in the apartment without heat. Alan ignores Trish’s complaints. With ten months remaining on her lease, Trish moves out of the apartment and stops paying rent.

Melissa, another tenant who resides in the apartment building under a written lease, has pets living with her. When Alan learns of this, Alan reminds Melissa that the lease forbids pets being kept anywhere in the building. Melissa, however, persists in keeping her pets and Alan locks her out of her apartment. Melissa threatens to sue Alan.

Several years ago Alan gave Lot 3 to his nephew Edward. The deed given to Edward provides that Edward is not to sell Lot 3 without Alan’s permission. Alan has just learned that Edward has contracted to sell Lot 3 without his permission and that the closing date has been scheduled.

Alan comes to your law firm with the following issues:

(1) he wants Carolyn to remove the fence on Lot 2;

(2) he wants to know what his rights are concerning the aborted sale of Lot 1 to David;

(3) he wants to know what his rights are with respect to Trish; (4) he wants to know what his rights are with respect to Melissa; and

(5) he wants to stop Edward from closing on the sale of Lot 3.

You are asked to prepare a memorandum outlining all of Alan’s potential rights, obligations, and liabilities with respect to these issues.




Re: Alan's rights, obligations, and liabilities


(1)  Carolyn must remove the fence on Lot one because it interferes with Lot 2's valid easement.  The issue is whether an express easement is extinguished by a reconveyance of the parcel to the original owner.

An easement is a property interest that permits the holder of the easement limited use and enjoyment of the land of another.  Easements may be appurtenant (attached to the easement holders parcel) or in gross (not connected to use or enjoyment of the holder's land).  In an easement appurtenant, the "servient tenement" is burdened and the "dominant tenement" is benefited by the easement.  Easements can be created by prescription, by implication, by necessity, or by grant.  An easement by necessary arises when a common grantor owns two parcels of land and later conveys one parcel to another with the intent and understanding that the grantee has an easement over the grantor's property that is reasonably necessary to the grantee's use and enjoyment of his own property, for example, when crossing over the grantor's remaining land is the only viable route to a public road from the grantee's land.  An easement by necessity is extinguished if the two properties are ever held again by the same owner, i.e., if the grantor repurchases the granted land.  A subsequent reconveyance would  automatically lose the right to use the former easement.  An easement can also be created by an express grant, which must be in a signed writing.  An easement created by grant is not extinguished if the parcels are united under a common owner and subsequently redivided, provided the easement runs with the land.

Here, Alan was the common owner of Lot 1 and Lot 2.  Alan sold Lot 2 to Bill, subject to an express easement giving Alan the grantor and all future owners of Lot 1 the right to use a dirt road on Lot 2 to access Main Street.  Because it was included in the deed, it was an express easement, and because it touches and concerns that land, it will run with it, provided future takers have notice (see below).  An easement by necessity does not arise, because it is unnecessary where an express easement is granted, whatever the conditions creating the need for the express easement may be.  Thus, when Lot 2 is subsequently reconveyed to Alan as a result of Bill's mortgage default, this does not serve to extinguish the express easement automatically.

Under the common law, the easement may be extinguished in several ways, including by agreement, by prescription for the statutory period, or by abandonment.  There is no indication that either of those occurred here either, and the easement continues in force when Alan retakes.

The second issue is whether Carolyn is bound by the express easement, when it was not included in her deed.

For an easement to be enforceable against the owner of the servient tenement (the burdened land), it must touch and concern the land, i.e., be related to the dominent land owner's use and enjoyment of his property and not just as a member of the communitiy, and the owner of the servient land must have notice of the burden, whether actual, implied, or record notice.  This would permit the enforcement as an equitable servitude, such that the owner would be entitled to equitable relief, including injunctions.

Here, the easement touches and concerns the land because it relates to Lot 1's owner's enjoyment of his land in that it permits him access to the roads.  In addition, although Carolyn did not have actual notice of easement via a provision in her deed, she was on record notice of the easement, because the condition was recorded in her chain of title in the conveyance to Bill.  Thus, the easement can be enforced as an equitable servitude against Carolyn, and she can be enjoined from keeping her fence on Lot 2, because it does not permit Alan to access the easement. 

(2)  Alan cannot compel David to perform under the contract and is in breach himself.  The issue is whether a zoning violation is a breach of a land contract.

In every land sale contract, absent a provision to the contrary, is implied a warranty of marketability in favor of the buyer.  Under the warranty, the seller promises that the land is free from all doubts about the quality of the title that may subject the purchaser to a suit in the future regarding the land, including claims of by those with higher priority interests in teh land.  A buyer is not required to purchase a lawsuit.  However, the seller warrants only that the title will be marketable at closing and has until that time to remove any clouds from the title.  In addition, the closing date is may generally be delayed for a reasonable period of time to permit the seller to clear the title and provide marketable title at closing.  The exception to this rule is when closing date  is a "time is of the essence" date in the sale contract.  If that is the case, title must be marketable by that actual date.

Here, Alan and David have entered into a contract, and Alan has impliedly warranted to David that he has marketable title, free from any doubt or potential claims against it.  Alan has also promised to have this marketable title by the specified closing date in the contract, and not a day later, because time is of the essence in this contract.  However, just prior to the closing date, David discovered a zoning violation of the property that is violation of the set-back requirements for which no variance has ever been obtained.  A zoning violation is sufficiently serious that it makes title unwarrantable, because it subjects the owner to suit by the government to comply with the zoning requirements.  In addition, Alan will not have time to obtain a variance before closing, and closing may not be pushed back without breaching the contract, so Alan is in breach on the date of closing.  Because Alan cannot provide marketable title and has breached the sale contract, David is not required to complete the purchase and can walk away.  In addition, he may be able to sue Alan for breach of contract and obtain any damages necessary to put him in the position he otherwise would have been in, including any expenses he incurred in entering into the contract.

(3)  Trish may move out and sue Alan for any damages, and Alan has no cause of action against Trish.  The issue is whether a failure to heat an apartment constitutes a breach of the lease agreement.

Under landlord-tenant law, every residential lease has an implied warranty of habitability that may not be waived by any party.  The landlord warrants that the apartment will meet the requirements for basic human necessities, including bathroom facilities, heat, and water.  A breach of the warranty of habitability gives the tenant several options, including the right to repair and reduce her rent according to the cost of repairs; to stop paying rent until the repairs are made; or to move out of the apartment and terminate the lease.

Here, Alan is Trish's landlord in a residential lease, and as such, is subject to an implied warranty of habilitability.  Alan in effect has promised Trish that her apartment will be fit for human occupancy.  An apartment in New Jersey that is not heated in the winter is not fit for human occupancy, because it would get very cold and extreme cold can cause illness and even death.  Because Trish has no heat, and particularly since Trish has given notice to Alan of the deficiency, Alan has breached his duty to provide a habitability apartment and Trish is within her right to move out a stop paying rent.  In addition, Alan may be liable to Trish for any damages or expenses she has incurred as a result of his breach.

It should also be noted that this may also be a breach of quiet enjoyment, which occurs when a landlord substantially interferes with the tenant's ability to use and enjoy the premises, when the landlord receives notice of the problem, and when the tenant leaves as a result of the interference.  These elements appear to be met here as well, but because the warranty of habitability is stronger, it is probably a greater source of liability for Alan.

(4)  Melissa is in breach of her lease agreement, but Alan may not evict her himself.

A tenant's right to use and enjoy the leased property as subject to the terms of the lease agreement with the landlord, and a failure to abide by those terms is a breach.  If the agreement is breached by either party, the other party is liable for damages for the breach.  In addition, the landlord may seek to evict the tenant if the breach is material, but he must do so using a judicial eviction action and must not ever engage in self-help eviction.  The only viable means of evicting a tenant (absent the tenant's consent) is through the judicial process.

Here, Trish is in breach of her lease agrement, because she has a pet on the premises that is prohibited under the terms of the lease agreement.  Because of her breach and her refusal to comply with the terms by persisting in keeping her pets, which is likely a material breach, Alan may evict Trish and sue her for any damages he has incurred.  However, Alan must use judicial processes to evict her, which he did not here, because he did so by locking her out of her apartment.  Thus, Alan has acted wrongfully and may be liable for his wrongful conduct to Melissa and has not succeeded in evicting her.  Alan must seek the court's assistance in evicting Melissa.

(5)  Edward may sell the land, because the restriction on alienation is not reasonable.  The issue is whether a restriction on alienation of property is enforceable when it is permanent and subject to permission that may be withheld for any reason.

Restrictions on the alienation of land must be reasonable and time-limited.  That is, they cannot be indefinite in duration and cannot be subject to unreasonable conditions, or they are void as an unreasoanble restraint on alienation and may not be enforced. 

Here, Edward may not sell Lot 3 without Alan's permission.  The restriction on Edward's alienation is indefinite in duration, and there is not restriction on Alan's ability to withhold his permission to sell, even if Alan withholds his approval unreasonably or even capriciously or in bad faith.  Because this limitation is neither time-limited nor reasonable, it is not enforceable, and Edward may sell his land without Alan's permission.



TO: Alan
FROM: Law Firm
RE: Rights, Obligations, and Liabilities

Dear Alan:

You have requested that I advise you on the multitude of issues that you have described to me. I will discuss each issue seperately, in turn.

Carolyn's Fence

Carolyn may build a fence on Lot 2 that blocks Lot 1's access to the dirt road on Lot 2. The issue is whether the easement granted to Bill has been extinguished.

An easement is a non-possessory right in the land of another for the use and enjoyment of the easement holder. Easements may be created via prescription, implication, necessity, or grant. Easements give the dominent parcel the right to use and enjoyment of some portion of the servient parcel. Easements may only be extinguished on a limited number of grounds. These include estoppel, necessity, destruction, condemnation, release, abandonement, merger, and prescription. Merger extinguishes easements when the dominant and servient parcels of land become joined together under common ownership of one party. The easement will cease to exist when the two lands become united in the hands of one common owner. To become valid again, the easement must start from scratch and be created in one of the ways mentioned above. An easement is created by necessity when one land is divided into two or more lands and one of the now-divided lands does not have access to "a way out."

Here, Alan owned Lot 1 and Lot 2. Alan sold Lot 2 to Bill and granted Bill and Lot 2 an express easement for use of the dirt road across Lot 1. When Bill could not make the required mortgage payments, he deeded Lot 2 back to Alan. Alan owned both the dominant and servient lands involved in the express easement. This united ownership caused the lands to merge and extinguished the express easement. Alan subsequently sold Lot 2 to Carolyn without creating a new easement relating to use of the dirt road on Lot 2 by the owner of Lot 1. Because the easement was extinguished by merger, Lot 2 was no longer encumbered with the original express easement grant. The only argument that Alan can make is that an easement by necessity has arisen because Lot 1 no longer has access to the dirt road and therefore does not have a "way out" to Main Street. Thus, although the original easement has been extinguished, we may argue that a new easement by necessity has arisen.

Aborted Sale to David

David has the right to terminate the sale because Alan cannot convey marketable title to Lot 1. The issue is whether the zoning ordinance violation causes unmarketable title on Lot 1.

In any sale or purchase of land the seller impliedly warrants to convey marketable title to the buyer at closing. Normally, the seller has until the closing date to fix any problems that might cause the land to fail the marketable title test. Marketable title is essentially the freedom from any future doubts or potential lawsuits. In essence, the buyer should not have to "buy a lawsuit" when he purchases the land. Zoning ordinance violations can render land unmarketable. A buyer has the right to void a land sale contract if the seller is unable to convey marketable title at closing.

Here, David has agreed to purchase Lot 1 from Alan. The contract states that "time is of the essence" and so the closing must take place at the scheduled time or the contract will be voided. David has discovered that the apartment building on Lot violates the city zoning set back requirements and no variance was obtained for this violation. By selling David Lot 1, Alan has impliedly agreed to convey marketable title to David at closing. The zoning violation will not allow Alan to do so because David will essentially be "buying a lawsuit." The zoning violation creates the potential for future litigation and/or other future doubts about the land. Thus, David is entitled to void the land sale contract because Alan is unable to convey marketable title to David with regard to Lot 1. Further, "time is of the essence" and Alan will not likely be able to get a variance before the rapidly approaching closing date. If Alan is able to receive a variance, then he will be able to convey marketable title at closing and David will be forced to purchase the land according to the contract.

Trish, the Tenant

Trish will likely have a cause of action against Alan for constructive eviction. The issue is whether Trish will have to pay for the rent on the months she has failed to pay.

Constructive eviction allows the tenant to stop making payments to the landlord because the landlord has interfered with the implied covenant of quiet enjoyment that is found in every valid landlord-tenant contract. Constructive eviction occurs when three elements are met: (1) a substantial interference with the use and enjoyment of the apartment; (2) the tenant notifies the landlord and gives the landlord a reasonable time and opportunity to fix the interference; and, (3) the tenant leaves the apartment within a reasonable time after the landlord fails to fix the interference. The tenant is then entitled to stop making payments to the landlord and is not liable for any missed rent payments during the time that she was constructively evicted.

Here, Trish is one of Alan's tenants under a written lease. As such, Trish is entitled to the implied covenant of quiet enjoyment. Trish's apartment has been without heat during the winter. The courts have consistently held that no heat during winter months amounts to a substantial interefernce with the tenant's use and enjoyment of the property. Trish notified Alan and Alan has ignored Trish's complaints. Trish has now moved out the apartment and has stopped paying rent. Trish has given Alan a reasonable time to correct the substantial interference (not having heat) and Alan has failed to fix the heat within a reasonable time. Thus, all of the elements of constructive eviction are present and Trish has the right to leave the apartment and stop paying rent.

Melissa and Her Pet

Melissa can make a claim of interference with the implied covenant of quiet enjoyment. The issue is whether Alan has evicted Melissa under proper circumstances.

Every valid contract that creates a landlord-tenant relationship includes the implied covenant of quiet enjoyment. The landlord may not take any actions to interfere with the tenant's use and enjoyment of the apartment. The tenant has the obligation to adhere to all written terms found in a valid lease. A landlord may not resort to self-help techniques to evict a tenant regardless of whether the tenant is in breach of a valid written lease contract. The landlord must use proper legal procedures to evict the tenant.          Here, there is a valid written lease contract between Alan and Melissa. The lease therefore includes the implied covenant of quiet enjoyment. Alan may not interfere with Melissa's use and enjoyment of the apartment. The lease also includes a "no pet" restriction. Melissa is required to conform to this restriction because it is included in the valid written lease agreement. Alan has resorted to self-help by locking Melissa out of her apartment. Alan may have the right to evict Melissa but he must use the proper legal procedures to evict her. Resorting to self-help is against public policy and may lead to civil liabilities and even criminal charges. Thus, it is my advice to allow Melissa to return to her apartment and never resort to self-help methods of eviction ever again so as to avoid any potential civil or criminal charges. We should use the proper legal procedures to evict Melissa by filing a claim in court.

Edward's Sale of Lot 3

Edward may sell Lot 3 because the restraint on alienation is void. The issue is whether Edward may sell Lot 3 without Alan's permission.

In general, the courts strongly favor free alienability of land. Invalid restraints on alienation of land will usually be held invalid and be stricken from land agreements. The holder of the property with the improper restraint on alienation will instead hold the property in fee simple and be entitled to take any action with the land that he so chooses so long as the action comports with the law.

Here, Alan gave Lot 3 to his nephew Edward. It appears that this was a gift. The deed given to Edward provides that he may not sell the lot without Alan's permission. This is likely an improper restraint on alienability and will likely be held invalid. Again, court's favor free alienability of land and Alan's requirement imposes a nearly complete restraint. Thus, a court will likely hold that Edward owns the land in fee simple without the restriction and can sell that land without Alan's permission. The only argument that we can make is that the restriction is only a partial restraint because Edward is still able to sell the land if he gets Alan's permission. While this is a viable argument, it is likely that the court will hold that the restraint is impermissible because Alan can choose to not give permission to Edward for any reason and may forever forbid the sale or transfer of Lot 3.



On January 1, 2010, Seller, the owner of several oil drilling platforms in the Gulf of Mexico, contracted with Buyer, an oil refinery company in Florida, to “supply all of its sweet crude oil needs for the entire year, minimum, 10,000 barrels per day at a cost of $70 per barrel.”

During the negotiations, Buyer never informed Seller of its plan to expand the refinery, doubling its production capacity by June 2010. Unbeknownst to Buyer, Seller’s ability to provide Buyer with more than 20,000 barrels per day was dependent on the completion of a new oil drilling platform in the Gulf of Mexico by mid-year 2010 that would produce an additional 1,000,000 barrels per year.

From January through May 2010, Buyer requested and Seller supplied 10,000 barrels per day. As per the contract, on May 1, 2010, Buyer gave 30 days’ notice for an additional order of 20,000 barrels per day for the remainder of the year.

On June 1, 2010, the first day of operation of Seller’s new oil drilling platform, the main pipe completely ruptured and began continuously spilling oil into the ocean without any hope of stoppage for at least six months. Due to the massive spill, the price of sweet crude oil on the U.S. market increased from $70 to $110 per barrel. 

As a result of the spill, Seller offered to supply from its inventory and Buyer agreed to accept an additional 15,000 barrels per day of “dirty crude” at a cost of $60 per barrel. Dirty crude is more costly to refine ($15 per barrel more) and has fewer uses than sweet crude and sells on the U.S. market for $70 per barrel.

Subsequently, Buyer became unsatisfied with the higher refinery costs and limited uses of dirty crude, and on July 1, 2010, Buyer notified Seller to cease all oil deliveries. Thereafter, Buyer entered into a contract with Third-Party-Supplier for 30,000 barrels per day of Nigerian sweet crude at $95 per barrel. It takes one to two weeks to deliver oil from Nigeria to Florida. The delay in receipt of the sweet crude caused Buyer’s refinery to be shut down for ten days, at a loss of $10,500,000 in profits.

You are an associate at the firm representing Seller and have been assigned to prepare a memorandum discussing the claims and defenses of the Seller and Buyer.




To: Partner
From: Associate 
Re: claims of Buyer (B) and Seller (S)

Supply Requirement Contract 

B may claim that by failing to provide the 20,000 barrels agreed upon in May, S breached the contract. S may defend this claim first of by claiming that the supply requirements contract made between S and B was not treated properly, in that B's increase in supply requirement was either unreasonable or not in good faith.

Supply requirements contracts are deals which require a seller to supply to a buyer. They are enforceable as long as there is a valid offer, acceptance, and consideration, as any contract would require. When an increase in supply is demanded pursuant to the contract, such a demand must be reasonable and in good faith.

Here, S may argue that doubling supply requirements from 10,000 to 20,000 constitued an unreasonable increase in supply requirements. This of course will depend on what is reasonable given the industry standards, etc. Also, S may claim that because B never informed B of its plans to expand the refinery, the increase in demand was not made in good faith, since the lack of information regarding the refinery, and thus the belief that 10000 would be the usual request, ultimaetly induced S to enter in to the contract.

Misrepresentation / Nondisclosure claims

S may make a claim of misrepresentation regarding B's failure to inform S of its plans to expand the refinery. In turn, B can make an equal claim, arguing that S never told B about S's dependency on the platform, a fact which greatly affected S's performance under the contract. The issue is whether the dealings between the two parties constituted material misrepresentations, and whether such assertions or lack thereof ultimately induced their assent. If a misrepresentation is established, it will allow that party to rescind the contract.

One reason for not enforcing a contract is because the contract was formed through a misrepresentation. A misrepresentation is a false statement, which creates reliance by the other party, ultimately inducing them to assent to a contract. Damages must also be shown. One type of misrepresentation is called nondisclosure, which deals with the failure to disclose a material fact. However, liability for nondisclosure depends on wrongful conduct, as opposed to liability for misrepresentation which only requires neglgience.

As such, S may claim that B misrepresented its refining capabilities by not telling S about its future plans to expand the refinery, and the terms in the contract requiring at least 10000 barrells may have induced S to enter into it. However, B can claim that it never really misrepresented the refinery capabilities, rather it simply failed to disclose them. Because there is no evidence tha B purposefull and thus, wrongfully, failed to disclose this information, B is unlikely to be held liable, and S will not be able to rescind the contract in this manner.

B may also put forth a claim that S misrepresented its depdendence on the oil platform that was slated to be completed. Conveyance of such information may have dissuaded B from entering into the contract. However, S will be able to assert the same argument as B above, in that no misrepresenation took place, but rather a nondisclosure. Since there is no evidence of purposeful nondisclosure, S will therefore not be liable.

Commercial Impractability

S may seek to excuse the contract between itself and B by claiming that the ruptured pipe made the performance of the contract commercially impractible, and that as such performance is excused. This argument will likely fail

Commerical impractability is an excuse for nonperformance. A party must show that some event occurred during the course of performance of the contract that was 1) unforeseeable by either party at the time of contract formation, 2) not the fault of either party, and 3) made the performance of the contract commercially impracticable for anyone, not just that party.

Here, the contract at issue is for the supply of oil. Pipes are part of this business and therfore, it is likely that the bursting or rupturing of oil pipes, or other problems of the sort, is foreseeable at the time of contract creation. Furthermore, the rupturing may indeed be the fault of S. While there is no evidence either way, The pipes were S's property, and under S's control, so any fault is likely to be apportioned to S. Of course, if S can get around these issues, it can makes the claim that the production under the original contract is commercially impractible, because the rupture caused the price of this particular oil to skyrocket not only for S, but for every oil supplier.

Accord and Satisfaction/ Substitute Agreement

Finally, If B tries to sue S for lost profits, S can avoid this liability by claiming the two parties formed an accord, or alternatively, a substitute agreement.

When a seller breaches a contract, a buyer may collect lost profits. However, nonperformance may be excused if an accord is established. An accord is a new agreement formed. While the old agreement is also preserved, a party may satisfy the contract by satisfying the accord. If the party fails to perform either the accord or the original agreement, it can be held liable. Alternatively, a substitute agreement exists when the parties dispense with the old requirements of a contract and create new ones. As such, a party breach may only be established if the substitute agreement is breached.

Here, S may claim that the supply arrangement regarding the dirty crude oil represented an accord, which it satisfied by providing the oil to B. Because B agreed to this accord, it is not S's fault if B does not like this particular oil. By seising the agreement S may actually be able to sue B. B cannot sue S for failing to provide the oil originally contracted for, because this new accord was created between the two parties. Alternatively, S may claim that the crude oil agreement represented a substitute agreement, which nullified the original agreement. If this is the case, B's claims to lost profits pursuant to the old agreement are not applicable. S may want to pursue this theory in leiu of the accord theory, since accords require consideration for formation, and no such consideration is apparent from the facts given.



To: Partner
From: Associate
Re: Oil sale case
Date: July 29, 2010

After analysis of the issues, I found that S has a valid cause of action against B for breach of contract.

The original contract

The contract between B (our client) and S that was signed on January 1, 2010, is a valid requirements contract.

Oil is a transportable good and therefore its sale is governed under the UCC. The UCC recognizes a requirement contract between two merchants as a valid contract. In requirements contract, the seller agrees to sell to the extent that buyer's requires, and buyer accepts to pay a certain price to the seller. Moreover, the court will imply a good faith duty on the buyer to make every order in good faith and fair dealing.

In this case, S agreed to supply all of B's oil requirements which must be minimum 10,000 barrels per day. S agreed to supply B's requirements, and B agreed that it would buy at least 10,000 barrels plus whatever it needs from S. The contract price seems to be fair under the circumstances, which is $70 p/barrel. Therefore, the contract is a valid requirements contract under the UCC.

Seller's silence as to a new refinery

Contrary to possible claims from B, S's silence as to its new refinery expansion is not a fraudulent misrepresentation and will not invalidate the contract. Fraudulent misrepresentation occurs when (1) one party conceals or misrepresents a material fact, (2) with intent to induce the other party into contractual relationship, (3) the other party actually relies on misrepresentation, and (4) it is damaged thereby.

In this case, at the time of the negotations, S owned several plants in the Gulf of Mexico. It had ability to supply the Buyer's needs for 10,0000. S should argue that it never made any misrepresentation of concealment of material fact and that B's intention to enter into the contract was independent from S's ability to perform at a level above 20,000 p/d. Also, B never informed the buyer that it was actually intending to expand the refinery, so S had no reason to know that B would need more than 20,000 per/day. Furthermore, S can present evidence of business practice in this area which might show that no buyer in B's position would buy more than 20,000 a day. Therefore, there was no inducement to enter into the contract and no subsequent reliance thereon Consequently, there could be no damages for the alleged misrepresentation.

In response, B is likely to argue that the concealment was misrepresentation. S should have told B that it could not supply more than 20,000. B would argue that but for S's concealment of that fact, B entered into the contract believing that S would supply any demand that B may have, even if the supply is above 20,000. However, the flaw in B's argument would be that B never told S about its actual demands and its pland to expand the refinery, so S had no reason to know thereof.

Therefore, although it will be up to the court, it is unlikely that S's silence as to its inability to supply more than 20,000 was a fraudulent misrepresentaiton.

Sudden change in B's requirements

B's sudden change in requirement is unlikely to constitute an unreasonable change of needs under the requirements contract.

As a general, seller has a duty to supply the buyer to the extent that buyer requires. However, when a change in the buyer's needs is great and was unforeseeable by the Seller at the time it entered the contract, the court may excuse the seller's performance. However, if the seller agrees to a sudden change, its right to challenge that change is waived.

In this case, Buyer's order on May 1 for twice as bigger as his previous orders. S may argue that it was unreasonable to expect S to supplement such a great change in demand. However, the reasonableness argument needs to be addressed  with additional evidence concerning the parties' business practice. In addition, the problems with S's possible unreasonableness argument is that S never objected to the change. The facts show S agreed to that term by not making a timely objection. Therefore, it is likely that S waived its right to challenge the sudden change in B's requirement.

Impossibility defense

S's possible impossibility defense is not going to succeed because the ruptured pipe did not make it performance under the contract impossible.

Under the UCC, an impossibility defense exists when the circumstances make a party's performance absolutely impossible. The UCC requires that "impossibility" must be decided on objective factor; that is, whether there was no objective possibility for the party to perform.

Here, the impossibility defense will not work because S was still objective in position to perform. S could have purchase the same type of oil from third-party suppliers and resell it to buyer. There were alternative sources of oil and even though the oil price went up in the US, the facts show that S could have purchased the same type of oil from Nigeria. Finally, S's performance was never conditioned on its ability complete or succesffuly operate its new refinery. Therefore, the impossibility defense is not going to be upheld as valid in this case.

Subsequent modification of the Contract

When S realized that it was unable to provide B with the additional 20,000 barrels of oil requested by the buyer, the agreement to supply 15,000 of "dirty crude" instead was a valid modification under the contract.

Under the UCC, no consideration is required to make a modification to existing contract. The only requriement imposed under the UCC is "good faith".

In this case, S was not able to supply B's rising demand of oil for unforeseeable circumstances. The facts show that parties acted in good faith and both agreed that 15,000 "dirty crude" would be a valid substitution. In addition, the facts show that S acted in good faith when it decided to sell the "dirty crude" for $15 cheaper than the actual market price. Therefore, the modification made by the parties to the contract is vaid and should be enforced.


Since S's had a valid modification with B and B subsequently cancelled its orders from S, S can sue for breach of conract. The issue is what would be S's recovery from B.

Under the contract law, a breached party is entitled to any "expectation" damages. Those damages inclue lost profits, incidental expenses, and consequential damages. In sum, expectation damages are all damages that would put the breached party in position where it would be if the contract had not been breached.

In this case, S can have a claim for "expectation" damages. However, if S finds a better client and sells at a higher price the oil that it would have otherwise sold to B, then it would probably recover nothing because S would be better off as a result of the breach.

In contrast, if the court finds for B, which seems unlikely under the circumstances, S will have to pay B only $25 per barrel and incidental damages related to the purchase of oil from the Nigerian source. That $25 dollars amount represents the difference between the contract price between S and B and the contract price of the contract at which B purchases the Nigerian oil. 

Finally, S should not be liable for consequential damages as a result of the refinery's stop. Consequential damages arise only if they are foreseeable and the breaching party had reason to know about them when the contract was signed.

In this case, B never notified S of its plans to expand the refinery. Therefore, S could not have foreseen that its inability to perform would cause such a vast financial damage to the interests of B. Therefore, S will not be liable for the damages related to the refinery.



YoYo Motors issued a recall for all 2010 model cars due to a design defect in the software that controls the anti-skid brake system. The brake pedal would begin vibrating and then fail. YoYo provided notice and instructions on repair to all its dealers. Chace needed a new car and, after reading about the recall problem and remedy, decided to buy a YoYo. He thought he could get a good deal due to the recall and that the last day of the month was a good day to get the best price. He went to Yocal Motors, an authorized dealer, determined to buy a car that day.

Sam, the Yocal Motors salesman, needed to meet his month-end quota in order to get his bonus. Chace picked out the car he wanted from the lot and agreed to the price Sam quoted. Sam told Chace the car “is ready to go today.” Chace assumed the recall repair was done. Sam knew the car Chace wanted had not yet been repaired, but he needed to make the sale. Sam did not follow the procedure of getting manager approval and took care of the paper-work himself. Chace paid for the car and then headed onto the expressway for his 45 minute ride back home.

After driving about 10 minutes, Chace felt the brakes vibrating each time he slowed down, but kept driving. As he approached his exit he was in the right lane. He saw a car being driven by Larry begin moving into his lane. Chace swerved and stepped on his brakes to try to avoid hitting Larry. Unfortunately, Chace crashed into the guardrail and was seriously injured.

Chace comes to your law firm wanting to file a lawsuit for his injuries. Your senior partner asks you to prepare a memorandum discussing any claims Chace can bring and any defenses that can be raised.



To: Senior Partner, Law Firm
From: Associate, Law Firm
Re: Chace's Claims

Claim One: Strict Liability Against YoYo Motors and Yocal Motors
Chace may bring a claim in strict products liability against YoYo Motors, and Yocal Motors. Strict liability holds defendants absolutely liable, despite any claims of reasonableness on their behalf. Strict liability exists when there is a strict duty to foreseeable plaintiffs, a breach of that strict duty, and that breach is the actual and proximate causation of the plaintiff's injuries. In strict products liability actions, any merchant down the stream of distribution may be held strictly liable; not just the manufacturer. The plaintiff has the burden of asserting a valid design defect, meaning there was a better design that was not too much of a cost burden to impose. The plaintiff must prove that the goods were not altered from the time they were purchased out of the line of distribution. The plaintiff must also show that he was making a foreseeable use of the product at the time of injury. Furthermore, a plaintiff must prove that the design defect was the actual and proximate cause of his injury. A plaintiff may hold a manufacturer and a dsitributer jointly and severally liable. Then, it may be up to the retailer to indemnify itself from the manufacturer.

Here, Chace may have a valid prima facie claim in strict products liability against YoYo and Yocal. As a driver of one of YoYo's vehicles, Chace was a foreseeable plaintiff. Furthermore, the recall for the design defect was prima facie evidence that there was a strict breach of that duty. Also, Chace was making a foreseeable use of the product at the time the injury occured, because he was driving and his YoYo vehicle crashed.

YoYo may attempt to defend itself on the notion that the design defect was not the proximate cause of the crash and subsequent injuries sustained by Chace. The facts merely show that Chase was having trouble with his breaks, but there is no evidence that the breaks were the cause in fact, or the proximate cause, of the crash or the injuries sustained therefrom. It would be Chase's burden at trial to assert a prima facie case and produce other facts that show the design defect was the proximate cause of its injuries.

YoYo and Yocal could also contend that the goods were taken out of the stream of commerce and told not to be sold to anyone. Because of this, they both acted reasonably and should not be held liable. Sam's negligence was an intervening force, breaking the causal chain and holding him liable instead. However, in claims of strict products liability, reasonableness will not be considered. The cars still were present at the retailer, and were clearly not taken out of the stream of distribution by them being there and even having the capability to be sold.

YoYo and Local could also defend that Chace had assumed the risk by driving away in a vehicle of a brand that he knew was being recalled, and that he continued to drive once he felt the brakes giving way. A defendant may assert, as an affirmative defense, a claim of contributory negligence against the plaintiff. However, in New Jersey, a contribution of negligence will not absolve the defendants of any liability. The defendants will still be liable for their equitable share of fault. Therefore, contributory negligence for buying the car will not be a valid, or at least not a complete, defense, barring Chace's recovery.

Claim Two: Negligence Against Sam and Yocal Motors

Chace may assert a claim of negligence against Sam, individually, and against Sam's employer, unde rthe doctrine of respondeat superior. A defendant will be held liable for negligence when he has a duty to a foreseeable plaintiff, he breaches that duty, and the breach is the proximate cause of the plaintiff's injuries. A employer will be held liable for the negligence of its employees under the doctrine of respondeat superior, when there is a valid agency relationship between the parties, and the employee is acting within the scope of his employment at the time of his breach.

Chace will likely find success in asserting negligence claims against Sam and Yocal Motors. Sam and Yocal clearly had an existing agency relationship, based out of their employment relationship. Sam was acting within the scope of his employment by selling cars, as that was his job at the car dealership. Yocal, and its agents, owed a duty to Chace by selling him a car that would provide him with safety on the road. This duty was breached by Sam's tortuous conduct of selling Chace a car that had yet to be fixed. Chace will assert that this was the actual and proximate cause of his injuries, because but for the design defect in the brakes on his vehicle, he would have been able to stop his car when swerving. being sold this defective vehicle, he would not have gotten in an accident. Furthermore, the accident was a foreseeable consequence of selling a faulty vehicle. Lastly, it is clear that Chace was injured. Chace has asserted a valid prima facie case of negligence.

Yocal may argue that Chace was not acting within the scope of his employment when he sold the car to Chace, because he had not followed valid protocol in making the sale, and such actions were intentional. An employer will, at times, not be held liable for the intentional torts of its employees. However, if the intentional tort was committed in furtherance of serving the employer, the employer will likely still be held accountable for its agent's actions. Here, even if Yocal Motors can assert that Sam was engaging in intentionally tortuous activity by purposefully selling a defectively dangerous car to Chace, Sam was doing so in furtherance of his employment. He needed to make the sale for his numbers to be met. Accordingly, he was doing htis to serve his employer. Therefore, Yocal will not be able to escape negligence liability on behalf of its employee. Should it want to recover, it must seek contribution or indemnity directly from Sam.

Chace's Claim for Fraud against Sam

Chace may attempt to assert a claim of fraud against Sam. A person may be held liable for fraud if he makes an intenitonal misrepresentation of material fact; a person relies on that misreprsentation; the misrepresentation is made purposefully or intentionally; and the person suffers economic detriment in acting on the misrepresentation.

Here, Sam intentionally mispresented to Chace that the car had been fixed, in order to make the sale. He did this with the intention to induce Chace into making the purchase, based on the misrepresentation. Chace in fact relied on the misrepresentation, bought the car, and suffered economic detriment from both his personal injuries and any damage to the vehicle. 
Sam may attempt to assert that Chace knew he was getting a car that was recalled, and thus, he assumed the risk and did not "fall for" any misrepresentation. While it is true that Chace wanted to get a good deal on cars that were being recalled and fixed, there is nothing indicating that Chace assumed any risk by seeking to buy a car in which the defect was still present. Accordingly, this defense by Sam would fail.

Chace's Claim in Negligence Against Larry

Chace may attempt to assert a claim of negligence against Larry. Larry owed Sam a duty to take the care of a reasonably prudent person while driving on the road. Chace may assert that Larry breached that duty by swerving too quickly into the right lane, and that but for this breach, Chace's injury occurred. Futhermore, the injury of a car accident was foreseeable.

Larry may defend that there is no proof that he was the proximate cause of Larry's car accident, because the accident may have been entirely attributable to the defective brakes on Chace's vehicle. Should Chace attempt to join Larry in the claim against Yocal and YoYo, the burden would be on Larry to show that he is not jointly and severally liable, and that he was only a certain percentage at fault for the injuries to Chace and his car.


TO:      Senior Partner
FROM:            Applicant
RE:      Chace's potential claims and potential defenses.

The first issue is whether Chace has a strict products liability suit against YoYo Motors.

Strict products liability is available where a manufacturer places a product into the stream of commerce with a dangerous defect, the product is unaltered by the consumer, the product is used in a foreseeable manner by the consumer, and the product causes damage to the consumer because of the defect. The defect can be either a design or manufacturing deffect. A design defect is when their a defect in the design of a product that makes it dangerous. A manufacturing defect is when a problem with manufacuring caused the product to be dangerous.

In this case YoYo motors placed the product into the stream of commerce. A product is presumed to be unaltered if it flows in the normal stream of commerce to a consumer. Here Chace bought the product from Yocal Motors an authorized dealer of YoYo cars. The design defect was the actual cause of Chace's injury. Actual cause is the but for cause, but for the tortfeasor's actions, the plaintiff would not have been hurt. The design defect was the proximate cause of Chace's injury. Proximate cause occurs when it is fair and foreseeable that a tortofeasor's conduct would cause the type of injury that occured. It is foreseeable that Chace would drive his YoYo car on the road and that someone would cut him off. Because all of the elements of strict products liability are met Chace has an action against YoYo motors.

YoYo motors has various defenses they can bring up. The first one is that their was an independent intervening cause of Chace's injuries. Their are two avenues YoYo can explore here. First that the dealership failed to repair the car even though they had notice and instructions on how to repair the car. An independent intervening cause is something that intervenes and causes the injury to the plaintiff that breaks the chain of causation from defendant.

Notice and instructions may entitle YoYo to contribution from Yocal motors, but it does not break the chain of causation. But for the design defect there would be no need to repair it. Contribution is one of two claims for reimbursement by a contributing tortfeaser. It allows a tortfeasor to recover from a third party whose negligence contributedto the injury. The other action for reimbursement is indemnifcation. Indemnification occurs when one party is completely responsible for the injury. It allows the non-responsible party to recover all damages paid to the plaintiff. Here, Yocal's failure to repair the defect was contributorily negligent in causing Chance's accident. 

The second avenue with independent intervening cause or contributory negligence that YoYo can explore is that Larry was an independent intervening cause. While Larry was contributorily negligent in cutting Chace off, the chain of causation was not broken. Thus YoYo would have an action for contribution against Larry as well.

YoYo can also use the defense that Chace was contributorily negligent. Chace was aware of the recall and the design defect. He felt the brakes starting to vibrate and yet he continued to drive with the car. Under traditional contributory negligence, a tortfeasor was not allowed to collect if he was contributorily negligent. New Jersey has adopted a comparative negligence system. In a comparative negligence system a plaintiff's damages are reduced by the percentage that a jury finds plaintiff negligence caused the accident.

The second issue is what causes of action Chace has against Larry and what defenses Larry has.

Chace has a negligence cause of action against Larry. A negligence cause of action has the elements of duty, breach, actual causation, proximate causation, and damages.

In this case Larry had a duty to drive in the manner of a reasonably prudent person. This duty was owed to anyone who a breach of the duty could foreseeably injure, such as Chace. Larry breached the duty by cutting Chace off. But for Larry's negligence Chace would not have swerved around him and hit the guard rail. It is fair that Larry is responsible for Chace's injuries because it is foreseeable they would occur. Finally, Chace was seriously injured in the accident and thus incurred damages.

Larry will try to defend by stating that the defect was the actual cause. While it is true that but for the defect the brakes on Chace's car would have worked, it is also true that Larry's negligence cause Chace to swerve and need to use the brakes to avoid hitting Larry. Thus Larry is contributorily negligent in causing Chace's action.

Larry will be able to bring contributory negligence defense claims against YoYo, Yocal, Sam, and Chace. They were all negligent to some degree in causing Chace's accident.

The third issue is what actions Chace has against Sam and what defenses Sam has.

Chace has an action for negligence and an action for intentional misrepresentation/fraud against Sam.

As for the negligence claim, Sam had a duty to sell a safe product and to warn Chace of any problems. Same breached this duty by selling a deffective car he knew to be deffective and not warning Chace of the problem. But for Sam's actions Chace would not have been in the accident. It is fair to hold Sam responsible because it is foreseeable that someone in Chace's position would be hurt because of Sam's negligence. And finally Chace was injured and thus incurred damages.

The other cause of action Chace has against Sam is a fraud cause of action. The elements of a fraud cause of action are that defendant misrepresneted a material fact to plaintiff, defendant knew of the misrepresentation, defendant intended to induce plaintiffs reliance on that fact, plaintiff reasonably relied upon that fact, and plaintiff incurred damages because of the reliance.

In this case Sam represented that the car "is ready to go today" to Chace. This implies that it has no problems and the defect has been fixed. Sam knew that the car had not yet been repaired. He did this in order to make the sale and thus did this to induce Chace's reliance. Chace reasonably relied upon Sam's statement and was injured because of this reliance. Thus Chace has a claim of fraud against Sam.

Sam has a contributory negligence defense claim against Yocal, YoYo, Chace, and Larry.

The fourth issue is what actions Chace has against Yocal Motors and what defenses they have.

As with YoYo Motors, Yocal motors will be liable for strict products liability. However, they will be entitled to indemnification if they are not found to be at fault. This is unlikely for various reasons discussed below.

Chace has an action against Yocal Motors on negligence grounds and respondeat superior.

As stated above you need duty, breach, causation and damages for a negligence claim. Here, Yocal had a duty to sell safe products to its consumers, it breached that duty by failing to repair the defect, but for this negligence Chace's injury would not have happened, it is fair to hold them responsible for Chace's injury because it is foreseeable Chace could be hurt if they are negligent in the manner they were, and Chace incurred damages.

Yocal has the defense of contirbutory negligence against YoYo, Larry, Chace, and Sam. They were all negligent to some degree in causing Chace's accident.

Further, Chace has a claim against Yocal under the theory of respondeat superior. Respondeat superior is an agency theory of liability. It holds employer's liable for the negligence of their employees if the negligence was committed within ths cope of their employment. In this case Sam was negligent in not following procedure and getting manager approval and by misrepresenting a material fact that the car is ready to go today to Chace. Sam also defrauded Chace within the scope of his employment. Thus Yocal is liable to Chace under respondeat superior.

Yocal may be imnemnified by Sam for any damages it pays out due to respondeat suprior for the fraud claim. Fraud is an intentional tort and employers are entitled to be indemnified for damages paid due to an employee's intentional torts. Thus, Yocal will be fully reimbursed by Sam for damages paid due to respondeat superior and the fraud claim.

Finally, Chace has an action against Yocal for a breach of an implied warranty of merchantibility. The implied warranty of merchantability requires that products sold to consumers to be safe and operable for their normal foreseeable use. In this case it is foreseeable that Chace would drive the car on the road and someone would cut him off. Thus Yocal breached the implied warranty of merchantibility.

Yocal may have a claim against YoYo for contributory negligence in breaching the implied warranty of merchantibility.

The final issue is who is liable to pay the damages.

Under joint and several liability any one defendant is liable to pay out the entirity of the judgment to plaintiff. The tortfeasor is then able to bring claims against he other defendants to obtain reimbursement for the percentage of fault of each defendant. Also, the judgment will be reduced by the amount of the plaintiff's own comparative percentage of fault.


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