PCCE Paralegal cheat sheet

Rule 12(b)(1)-(5) defenses - lack of personal jurisdiction, improper venue, insufficient process, and insufficient service - must be raised in the first Rule 12 motion or the answer, or they are waived; failure to state a claim and failure to join a necessary party are not waived.

Answer deadline is 21 days after service of the summons and complaint, or 60 days if the defendant returned the waiver of service form under Rule 4(d).

Rule 26(a)(1) initial disclosures are due within 14 days after the parties' Rule 26(f) discovery planning conference.

Presumptive discovery caps: 25 interrogatories including subparts (Rule 33(a)), 10 depositions per side (Rule 30(a)(2)), and no numerical limit on requests for admission under Rule 36.

A jury demand must be served within 14 days after service of the last pleading raising a jury-triable issue (Rule 38(b)); failure to demand waives the right.

Summary judgment under Rule 56 requires no genuine dispute of material fact and entitlement to judgment as a matter of law; the nonmovant receives all reasonable inferences.

Claim preclusion requires a final judgment on the merits, the same claim, and the same parties or their privies; issue preclusion requires an issue actually litigated and necessarily decided.

A notice of removal must be filed within 30 days of receiving the initial pleading (28 U.S.C. 1446(b)); diversity removal requires complete diversity and no properly joined in-state defendant.

A limitations period generally accrues when the claim is discovered or reasonably should be; tolling for minority or incapacity is set by state statute, not by the federal rules.

Statute of Frauds writing categories (MYLEGS): Marriage, Year (not performable within one year), Land, Executor promises to pay estate debts, Goods of $500 or more, Suretyship.

UCC 2-201 requires a writing for goods of $500 or more, but a signed confirmatory memo between merchants satisfies it unless the recipient objects within 10 days.

Under the common law mailbox rule, acceptance is effective on dispatch; a revocation of an offer is effective only on receipt by the offeree.

UCC 2-207: a definite and seasonable expression of acceptance forms a contract even with additional terms; different terms cancel out under the knockout rule in most jurisdictions.

Expectation damages = loss in value + incidental and consequential loss - cost avoided - loss avoided.

Substantial performance discharges the duty of the other party subject to offset for the cost to cure; a material breach excuses the other party's remaining duties.

UCC 2-601 perfect tender allows a buyer to reject nonconforming goods, but UCC 2-508 gives the seller a right to cure within the contract time or, with notice, beyond it.

The parol evidence rule bars prior or contemporaneous statements that contradict a fully integrated writing; consistent additional terms may be shown only if the writing is partially integrated.

Impracticability excuses performance when an unforeseen event makes performance extremely burdensome; frustration of purpose excuses when the event defeats the contract's principal purpose.

Agency authority types: actual (express or implied from the principal's manifestations), apparent (principal's manifestations to a third party), and ratification of an unauthorized act by accepting its benefits.

The business judgment rule presumes directors acted on an informed basis, in good faith, and in the honest belief the action served the corporation; plaintiffs must rebut it with self-dealing, bad faith, or gross negligence.

The duty of loyalty bars self-dealing, usurping a corporate opportunity, and competing with the corporation absent disclosure and approval by disinterested directors or shareholders.

Veil-piercing factors: alter ego or unity of interest, undercapitalization, failure to observe formalities, and fraud or injustice; courts apply the remedy narrowly, often favoring tort creditors.

LLC members are generally not personally liable for company debts, and a charging order is frequently the exclusive remedy a personal creditor has against a membership interest.

A derivative suit requires contemporaneous stock ownership at the time of the wrong and either a demand on the board or a showing that demand would be futile.

Dissolution order: wind up affairs, pay creditors (including employee and tax claims), then distribute the remainder to shareholders per the articles or pro rata.

Under UPA default rules partners share profits and losses equally, ordinary business decisions require a majority, and fundamental changes such as admitting a partner require unanimity.

Corporate formation: articles of incorporation filed with the state create the entity, and the board adopts bylaws governing internal operations.

Fourth Amendment warrant requirements: probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or things to be seized.

Warrant exceptions include search incident to lawful arrest, exigent circumstances, the automobile exception, consent, plain view, inventory searches, and Terry stop-and-frisk on reasonable suspicion.

Miranda warnings are required only for custodial interrogation; the prosecution may not use a suspect's post-warning silence to imply guilt.

The Sixth Amendment right to counsel attaches when formal judicial proceedings begin (indictment, information, or initial appearance) and covers all critical stages, including plea bargaining.

Double jeopardy attaches when the jury is sworn or, in a bench trial, when the first witness is sworn; it bars retrial after acquittal but not after a mistrial for manifest necessity.

Federal Speedy Trial Act: indictment or information within 30 days of arrest and trial within 70 days of indictment or first appearance, excluding statutorily excludable periods.

MPC mens rea levels in descending order: purposely, knowingly, recklessly, negligently; each element must be proved at the level the offense specifies.

Attempt requires specific intent to commit the target offense plus a substantial step beyond mere preparation.

Murder is an unlawful killing with malice aforethought; voluntary manslaughter requires adequate provocation, and felony murder attributes a death occurring during an inherently dangerous felony.

Attested will formalities under the UPC: a writing, signature by the testator or by another at the testator's direction, and signatures of two witnesses within a reasonable time.

A holographic will must be in the testator's handwriting and signed; many states require the material provisions to be handwritten and do not require witnesses.

Revocation occurs by a later will or codicil, by physical act with intent to revoke (burning, tearing, canceling, obliterating), or by operation of law such as divorce in most states.

Intestate succession passes first to the surviving spouse and descendants; per stirpes divides a deceased heir's share among that heir's own descendants.

Nonprobate assets - joint tenancy property, POD/TOD accounts, life insurance, retirement plans, and trust property - pass outside the will and are not controlled by it.

Trust creation requires a settlor with capacity and intent, trust property (res), a trustee, and ascertainable beneficiaries; spendthrift clauses restrict creditors' access.

Probate sequence: admit the will, appoint the personal representative, give creditor notice, file the inventory, pay debts and taxes, distribute, and close the estate.

A surviving spouse may claim an elective share, commonly one-third to one-half of the estate, and an omitted spouse married after the will's execution may take a statutory share.

Federal estate tax applies to the taxable estate above the applicable exclusion amount; portability lets a surviving spouse use the deceased spouse's unused exclusion.

A valid marriage requires capacity (age, no undissolved prior marriage, no prohibited consanguinity), a license, and solemnization by an authorized officiant.

The best interests of the child standard governs custody and weighs stability, parental fitness, the child's needs, sibling unity, and a mature child's preference.

UCCJEA: the child's home state - where the child lived with a parent for at least six consecutive months before the proceeding - has priority jurisdiction over custody.

Child support guidelines commonly use the income shares model, adjusted for parenting time, other support obligations, and add-ons such as health insurance and childcare.

Community property states divide marital property equally at divorce; equitable distribution states divide it fairly, which need not mean a 50/50 split.

Premarital agreements under the UPAA are enforceable without consideration if in writing, voluntary, and with fair disclosure; unconscionability and lack of disclosure can defeat enforcement.

Alimony categories are temporary (pendente lite), rehabilitative, and permanent or long-term; duration and amount turn on need, ability to pay, and length of the marriage.

Adoption requires termination of existing parental rights or consent, a home study, and a best-interests finding; stepparent adoption usually needs the other parent's consent or an abandonment finding.

Paternity may be established by marital presumption, voluntary acknowledgment, or genetic testing ordered in a support or custody action.

A valid deed requires a writing, identification of grantor and grantee, words of grant, a description of the land, and the grantor's signature; delivery and acceptance are also required.

Warranty deed covenants are seisin, right to convey, against encumbrances, quiet enjoyment, warranty, and further assurances; a special warranty limits them to the grantor's own acts.

Recording acts: race (first to record wins), notice (first without notice wins), and race-notice (first to record without notice wins).

Adverse possession elements: actual, open and notorious, exclusive, hostile, and continuous possession for the statutory period, with some states adding color of title or tax payment.

An easement by prescription requires open, notorious, continuous, and hostile use for the statutory period; easements terminate by merger, release, abandonment, prescription, or estoppel.

Residential leases carry an implied warranty of habitability; a material breach supports rent withholding, repair and deduct, or a constructive eviction claim.

Leases exceeding one year fall within the Statute of Frauds; tenancy at will, periodic tenancy, and holdover tenancy carry different notice requirements.

Foreclosure is judicial (court-supervised) or nonjudicial (power of sale with statutory notice); a deficiency judgment may be sought when sale proceeds fall short of the debt.

Fixtures - items annexed to the realty with intent to become part of it - pass with the land; zoning relief includes variances, special use permits, and nonconforming use status.

Negligence elements: duty, breach, actual cause (but-for), proximate cause, and damages; the plaintiff bears the burden of proof on each element.

Common law landowner duties: trespassers are owed only a duty not to injure willfully or wantonly, licensees must be warned of known dangers, and invitees are owed reasonable care plus inspection.

Res ipsa loquitur permits an inference of negligence when the instrumentality was in the defendant's exclusive control and the injury ordinarily would not occur without negligence.

Negligence per se establishes breach when the plaintiff is in the class the statute protects and the harm is the type the statute was designed to prevent.

Comparative negligence reduces damages by the plaintiff's percentage of fault; modified versions bar recovery at 50 or 51 percent fault, while contributory negligence is a complete bar in a few states.

Strict liability applies to abnormally dangerous activities, wild animals, and defective products; the plaintiff need not prove negligence.

Products liability theories are manufacturing defect, design defect (risk-utility or consumer expectations), and failure to warn; the defendant must be in the business of selling the product.

Defamation elements: a defamatory statement of fact, publication to a third party, fault (negligence for private figures, actual malice for public figures), and damages or a per se category.

Proximate cause limits liability to harms within the risk that made the conduct negligent; an unforeseeable intervening act is a superseding cause that cuts off liability.