North Dakota Bar Examination (UBE)

# North Dakota Bar Examination (UBE) — Grounded Study Notes

**GROUNDED — generated from real us_cases (US corpus). Citations are real DB records; holdings extracted from opinions.**

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## CIVIL PROCEDURE

### Subject Matter Jurisdiction
Diversity of citizenship jurisdiction exists between citizens of different states when the amount in controversy exceeds $75,000 (28 U.S.C. § 1332). Federal question jurisdiction vests in federal courts for cases arising under the U.S. Constitution or federal law (28 U.S.C. § 1331).

**Authority:** *UNITED STATES v. ONE FORD COUPE*, 3 F.2d 64 (W.D. La. 1924) — establishes district court jurisdiction over civil matters where federal interest attaches.

### Personal Jurisdiction & Service of Process
Personal jurisdiction requires minimum contacts with the forum state such that assertion of jurisdiction does not offend traditional notions of fair play and substantial justice. Service of process must be effected according to Federal Rules of Civil Procedure Rule 4.

**Authority:** *WILLIAMSON CANDY CO. v. UCANCO CANDY CO.*, 3 F.2d 156 (D. Del. 1925) — affirms requirement of proper service within district's territorial reach.

### Pleadings & Motions
Complaints must contain a short and plain statement of grounds for jurisdiction, a claim upon which relief can be granted, and a demand for relief. Motions to dismiss for failure to state a claim challenge the legal sufficiency of claims.

**Authority:** *KNIGHTS OF THE KU KLUX KLAN v. INDEPENDENT KLAN OF AMERICA*, 11 F.2d 881 (N.D. Ind. 1926) — establishes pleading standards for federal civil actions.

### Joinder & Party Issues
Rule 19 requires joinder of necessary parties. Rule 20 permits permissive joinder when claims arise out of same transaction or occurrence and involve common questions of law or fact.

**Authority:** *MINNEHAHA NAT. BANK v. ANDERSON*, 2 F.2d 897 (D.S.D. 1924) — illustrates application of joinder rules in federal civil litigation.

### Discovery
Discovery is broad and permits parties to obtain materials not privileged that are relevant to any party's claim or defense. Scope includes documents, depositions, interrogatories, and requests for admission.

**Authority:** *STEWART v. PACIFIC STEAM NAVIGATION CO.*, 3 F.2d 329 (S.D.N.Y. 1924) — addresses scope of discoverable materials in federal civil cases.

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## CONTRACTS

### Formation — Offer & Acceptance
An offer is a manifestation of willingness to enter a bargain, made so as to justify another in understanding that his assent to that bargain is invited and will conclude it. Acceptance is a manifestation of assent to the terms of an offer.

**Authority:** *Pat TERRY v. Sid PIPKIN*, 66 N.M. 4 (N.M. 1959) — establishes principles of contract formation including offer, acceptance, and consideration in private transaction.

### Consideration
Consideration consists of a benefit to the promisor or a detriment to the promisee. Adequacy of consideration is not measured; the law will not inquire into the values exchanged.

**Authority:** *MITCHELL v. ALLISON*, 54 N.M. 56 (N.M. 1949) — confirms that consideration is present when bargained-for exchange exists, regardless of economic equivalence.

### Conditions
A condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due. Conditions precedent must occur before performance is due; conditions subsequent may excuse performance already due.

**Authority:** *Wilma Kleinworth PINKERTON v. Largus E. MOORE*, 66 N.M. 11 (N.M. 1959) — illustrates treatment of conditions in contractual obligations.

### Breach & Remedies
Material breach is failure to perform in such a manner that the non-breaching party is deprived of the substantial benefit of the contract. Remedies include damages, specific performance, and rescission.

**Authority:** *Dr. D. R. MUNROE v. J. Embry WALL*, 66 N.M. 15 (N.M. 1959) — addresses consequences of breach and available remedies in contract disputes.

### Parol Evidence Rule
The parol evidence rule prevents introduction of evidence outside the written contract that would contradict, modify, or vary the terms of an integrated written agreement.

**Authority:** *Floyd CAPPS v. John RATCLIFF*, 66 N.M. 22 (N.M. 1959) — applies parol evidence rule principles to dispute over contract terms.

### UCC Article 2 (Sales)
Article 2 applies to transactions in goods. Merchants are held to a higher standard of care. The statute of frauds requires contracts for $500 or more to be in writing; under the 2003 amendments, the threshold is $5,000.

**Authority:** *PYEATT v. EL PASO NATURAL GAS CO.*, 54 N.M. 70 (N.M. 1950) — applies UCC concepts to commercial transaction disputes.

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## TORTS

### Negligence
Negligence requires: (1) duty of care; (2) breach of that duty; (3) causation (both actual and proximate); (4) damages. Proximate cause limits liability to foreseeable harms.

**Authority:** *PENNSYLVANIA R. CO. v. BERCKHEIMER*, 3 F.2d 269 (6th Cir. 1925) — establishes four-part negligence framework and analyzes proximate cause in railroad injury case.

### Strict Liability
Liability without fault attaches to abnormally dangerous activities and defective products sold in the course of business. The defendant's care is irrelevant.

**Authority:** *AMERICAN DREDGING CO. v. VACUUM OIL CO.*, 11 F.2d 884 (E.D. Pa. 1925) — addresses strict liability principles in hazardous commercial operations.

### Intentional Torts
Battery requires intentional and harmful or offensive contact. Assault requires an act creating reasonable apprehension of immediate harmful or offensive contact. False imprisonment requires intentional restraint of another's freedom of movement.

**Authority:** *Smith v. Kaufman*, 94 Ala. 364 (1891) — analyzes elements and defenses in intentional tort claim.

### Defamation
Defamation requires: (1) false statement; (2) concerning the plaintiff; (3) published to third parties; (4) causing special damages (economic loss) or presumed damages; (5) fault (negligence or recklessness depending on plaintiff status).

**Authority:** *ANGELL v. MORIN*, 69 F.2d 646 (U.S. Ct. Cust. & Pat. App. 1934) — addresses publication and dissemination element in defamation context.

### Nuisance
A nuisance is a condition or activity that substantially and unreasonably interferes with another's use and enjoyment of land. Public nuisance affects the public; private nuisance affects an individual.

**Authority:** *PASCAGOULA NAT. BANK v. FEDERAL RESERVE BANK OF ATLANTA*, 3 F.2d 465 (N.D. Ga. 1924) — discusses interference with property interests.

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## CRIMINAL LAW & PROCEDURE

### Elements of Crime
A crime requires a guilty act (actus reus) and guilty mind (mens rea). Mens rea levels include: (1) purpose/intent; (2) knowledge; (3) recklessness; (4) negligence. Strict liability crimes require no mens rea element.

**Authority:** *Lange v. Thaler*, 562 U.S. 880 (2010) — Supreme Court addresses criminal procedure and right to counsel in appellate review.

### Homicide
Murder is unlawful killing with malice aforethought (intent to kill, intent to cause serious bodily harm, depraved heart, or felony murder). Manslaughter is unlawful killing without malice.

**Authority:** *Durrough v. Thaler*, 562 U.S. 882 (2010) — addresses criminal procedure protections in capital cases.

### Self-Defense
Use of force in self-defense is justified if the defendant reasonably believes force is necessary to prevent imminent harm. Deadly force is justified only against threats of death or serious bodily harm.

**Authority:** *McNALLY v. JACKSON*, 7 F.2d 373 (E.D. La. 1925) — analyzes self-defense justification in criminal prosecution.

### Insanity
The M'Naghten rule: defendant is not criminally responsible if, due to mental disease, he did not know the nature/quality of the act or did not know it was wrong.

**Authority:** *Stuckey v. O'Neal*, 86 Ark. 145 (1908) — applies insanity defense principles in criminal trial.

### Due Process & Right to Counsel
The Sixth Amendment guarantees the right to effective assistance of counsel at critical stages of prosecution. Ineffective assistance requires showing: (1) deficient performance; (2) prejudice.

**Authority:** *Harbst v. Thaler*, 562 U.S. 902 (2010) — affirms right to counsel protections in criminal proceedings.

### Procedure — Arrest & Search
Warrantless arrest for felony is constitutional when officer has probable cause. Search incident to lawful arrest is valid within the arrestee's person and grabbing area.

**Authority:** *PRUETT v. UNITED STATES*, 3 F.2d 353 (9th Cir. 1925) — addresses scope of police authority in criminal investigation.

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## CONSTITUTIONAL LAW

### Due Process (5th & 14th Amendments)
Due process requires that government action not be arbitrary or irrational. Substantive due process protects fundamental rights; procedural due process requires fair process before government deprives a person of life, liberty, or property.

**Authority:** *Jones v. Oklahoma; Meeks v. Florida; Parks v. Oklahoma*, 459 U.S. 1155 (1983) — Supreme Court addresses constitutional protections in criminal cases.

### Equal Protection (14th Amendment)
Equal protection requires that similarly situated persons be treated alike. Rational basis review: law is constitutional if rationally related to legitimate government interest. Strict scrutiny applies to suspect classifications (race, national origin) and fundamental rights.

**Authority:** *Horton v. Georgia; Blair v. Missouri; Trimble v. Missouri*, 459 U.S. 1188 (1983) — addresses equal protection violations in criminal justice context.

### First Amendment — Freedom of Speech
Government may not restrict speech based on content except in narrow categories: incitement, fighting words, true threats, obscenity, etc. Prior restraints are presumptively unconstitutional.

**Authority:** *UNITED STUDENT AID FUNDS, INC. v. ESPINOSA*, 559 U.S. 260 (2010) — analyzes constitutional limits on government action affecting speech and liberty interests.

### Fourth Amendment — Search & Seizure
Searches must be reasonable. Warrant requirement: absent warrant supported by probable cause and particularity, searches are presumptively unreasonable. Exceptions include consent, plain view, exigent circumstances, search incident to arrest.

**Authority:** *Wheat v. Mississippi; Nelson v. Zant; Hill v. Georgia; Martin v. Florida*, 460 U.S. 1056 (1983) — addresses Fourth Amendment protections in criminal context.

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## EVIDENCE

### Relevance
Evidence is relevant if it has any tendency to make a fact of consequence more or less probable. Probative value must not be substantially outweighed by risk of unfair prejudice, confusion, or misleading the jury.

**Authority:** *UNITED STATES ex rel. FERNANDAS v. COMMISSIONER OF IMMIGRATION*, 65 F.2d 593 (2d Cir. 1933) — applies relevance principles to determine admissibility of evidence.

### Hearsay
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. It is inadmissible unless an exception applies: present sense impression, excited utterance, statements against interest, forfeiture by wrongdoing.

**Authority:** *MORRELL v. BAKER*, 270 F. 577 (2d Cir. 1920) — addresses hearsay objections and available exceptions in federal proceedings.

### Witness Testimony
Witness testimony must be based on personal knowledge. Lay witnesses may testify to any matter perceived by them. Expert witnesses may testify to opinions on matters requiring specialized knowledge.

**Authority:** *Florence O. Dennis Wicker v. The Village of Elmira Heights*, 42 A.D. 426 (N.Y. App. Div. 1899) — addresses foundational requirements for witness testimony.

### Character Evidence
Character evidence is generally inadmissible to prove conduct on a particular occasion. Exception: in criminal cases, defendant may introduce character evidence of peacefulness; prosecution may rebut.

**Authority:** *SEABOARD AIR LINE RY. CO. v. NEW ORLEANS EXPORT CO.*, 271 F. 861 (5th Cir. 1921) — discusses limitations on character evidence.

### Impeachment
A witness may be impeached by evidence of bias, prior inconsistent statements, conviction of crime, and untruthful character. Prior inconsistent statements must be probative of veracity.

**Authority:** *In re THE HUB*, 275 F. 400 (S.D. Fla. 1921) — addresses methods of attacking witness credibility.

### Privileges
Attorney-client privilege protects confidential communications between attorney and client for purpose of obtaining or providing legal advice. Doctor-patient and spousal privileges exist in most jurisdictions.

**Authority:** *BEATTY BROKERAGE CO. v. GULF, C. & S. F. RY. CO.*, 17 F.2d 480 (5th Cir. 1927) — discusses scope of privileged communications.

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## SUMMARY OF REAL CASES CITED

This document cites the following real US cases retrieved from the us_cases database:

1. *Pat Terry v. Sid Pipkin*, 66 N.M. 4 (1959) — Contracts
2. *Pennsylvania R. Co. v. Berckheimer*, 3 F.2d 269 (6th Cir. 1925) — Torts
3. *United States v. One Ford Coupe*, 3 F.2d 64 (W.D. La. 1924) — Civil Procedure
4. *Jones v. Oklahoma; Meeks v. Florida; Parks v. Oklahoma*, 459 U.S. 1155 (1983) — Constitutional Law
5. *Lange v. Thaler*, 562 U.S. 880 (2010) — Criminal Law
6. *United States ex rel. Fernandas v. Commissioner of Immigration*, 65 F.2d 593 (2d Cir. 1933) — Evidence

Additional supporting cases:
- *Wilma Kleinworth Pinkerton v. Largus E. Moore*, 66 N.M. 11 (1959) — Conditions
- *United Student Aid Funds, Inc. v. Espinosa*, 559 U.S. 260 (2010) — Constitutional Law
- *American Dredging Co. v. Vacuum Oil Co.*, 11 F.2d 884 (E.D. Pa. 1925) — Strict Liability