MBE Miscellaneous II

Question 1

Civil Procedure: Removal - Timing for Removing Based on SMJ v. Any Other Reason

Answer 1

SMJ - Can be brought ANY TIME

Any other reason - Within 30 days of removal

Question 2

Civil Procedure: 26(f) Conference - Purposes + Consequences of Not Attending

Answer 2

A Rule 26(f) Conference can have multiple purposes including a variety of reasons as necessary to expedite trial and foster settlement.

Consequences: A party or counsel may be sanctioned for failure to attend a conference or obey an order entered pursuant to the conference, including paying opposing party’s expenses for travel.

Question 3

Civil Procedure: Permissive Counterclaims - Do they have to arise out of same T/O?

Answer 3

Does not arise from same T/O as P’s claim. Permissive means you are not required to file it in this case. You may sue on it in a separate case.

Question 4

Civil Procedure: Motion for Summary Judgment - What happens when a plaintiff supplies affidavits to prove case and defendant only denies allegations with no proof or affidavits?

Answer 4

If a party fails to support an assertion of fact or fails to properly address another party’s assertion of fact, the court may consider the fact undisputed for purposes of the motion, grant summary judgment if appropriate, give the party an opportunity to address the fact, or issue any other appropriate order.

Question 5

Civil Procedure: Right to Jury Trial - What happens if a party seeks both legal and equitable claims? + Procedurally, which questions are tried first?

Answer 5

When a case presents both legal and equitable claims, the right to a jury is preserved for all legal claims, but not for equitable claims. Instead, the legal claim should be tried first to the jury, and the equitable claim will go to the court

If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court.

Question 6

Civil Procedure: Judgment as a Matter of Law - What must happen to raise this after a trial? + Time Limit

Answer 6

To be valid, the party making the renewed motion must have moved for judgment as a matter of law at some time during the trial.

Time: No later than 28 days after judgment is entered

Question 7

Civil Procedure: Enforcement of Judgments - When can a judgment begin to be enforced?

Answer 7

No execution on judgments is allowed for 30 days after entry except for injunctions or receiverships.

Question 8

Tort: NIED v. IIED - Which one needs proof of physical harm?

Answer 8

Only negligent infliction of emotional distress requires proof of physical harm, monetary damages will suffice for IIED

Question 9

Tort: Good Samaritan Law - What negligence is required to be found liable as a rescuer? (Ordinary Person v. Medical Responder)

Answer 9

Ordinary Person: As a good samaritan rescuing a bystander, you can be liable for acting ORDINARILY NEGLIGENT in performing the rescue

Medical Responder: These types of people can only be liable for acting GROSSLY NEGLIGENT in performing a rescue

Question 10

Criminal Law: Voluntary Intoxication - What happens if someone willingly intoxicates themselves in order to commit a specific intent crime?

Answer 10

A court would probably find that the intent at the time he began drinking would apply to his later conduct, thus not negating the voluntary intoxication

Question 11

Criminal Procedure: If a suspect asks for an attorney, isn’t provided one, and then police begin asking about a different crime, would statements about the second crime be admissible?

Answer 11

No, if the accused invokes this right, all questioning must cease until the accused is provided with an attorney or initiates further questioning himself.

Question 12

Constitution: Spending Power - What are the elements to allowing government to holdback funds to require state conduct?

Answer 12

Congress may “regulate” states through the spending power by imposing conditions on the grant of money to state or local governments.

Such conditions will not violate the Tenth Amendment merely because Congress lacked the power to directly regulate the activity that is the subject of the spending program if the conditions (i) are CLEARLY stated; (ii) RELATE TO THE PURPOSE of the program; and (iii) are NOT UNDULY COERCIVE.

Question 13

Constitutional Law: Creating Commissions - Can Congress appoint its own members to a commission?

Answer 13

No, the Appointment Clause of the Constitution permits Congress to vest appointments of inferior officers ONLY IN THE PRESIDENT, the COURTS, or the HEADS OF DEPARTMENTS.

Enforcement is an executive act; therefore, Congress cannot appoint its own members to the commission to exercise enforcement powers.

Question 14

Contracts/UCC: Assignment of K - When does assignment of third party rights to a K become a mandatory obligation of performance for the obligor?

Answer 14

Once the assignment is effective, the assignee becomes the real party in interest, and he alone is entitled to performance under the contract. (The assignor has been replaced by the assignee.) Once the obligor HAS KNOWLEDGE of the assignment, he is bound to render performance to the assignee.

Question 15

Property: Fixtures - What is a constructive annexation of a fixture?

Answer 15

Constructive annexation occurs when an article of personal property (an “accession”) becomes an integral part of the property, even though it is not physically annexed to the property, in the same sense that a fixture becomes an integral part of the realty

Question 16

Property: Present Interests - If a life tenant takes out a mortgage on a property, does the mortgagee have rights to the land?

Answer 16

No, a life tenant has no right to put a mortgage on a land, the mortgage attaches only to the life estate.

Question 17

Property: Equitable Servitude - Can homeowners claim equitable servitude if one lot in a common scheme area wasn’t meant to be held to the covenant?

Answer 17

Yes, despite there not being any writing in one lot of a multiple lot common scheme development, other homeowners can hold that one lot to inquiry notice.

Question 18

Torts: Parent’s Liability of Children Rule + Exceptions

Answer 18

At common law, parents are NOT VICARIOUSLY LIABLE for the torts of their child.

Parents can be liable, however, for their own negligence, i.e., in not exercising due care under the circumstances. Thus, if the parents know their child may be violent, they could be negligent if they do not take precautions to prevent that behavior or injury from that behavior.

Question 19

Civil Procedure: May a trial judge call a witness? + What does this entitle the parties to do?

Answer 19

The judge may call and examine the witness, but the parties are entitled to cross-examine the witness.

Question 20

Constitutional Law: Federal Postal Monopoly Rule

Answer 20

The Constitution grants Congress the power to establish post offices and post roads. This power grants Congress a monopoly over the delivery of mail. No other system for delivering mail-public or private-can be established absent Congress’s consent.

Question 21

Civil Procedure: Federal Interpleader Act - How can a claim for interpleader be brought under SMJ of a federal court?

Answer 21

The Federal Interpleader Act provides special rules for dealing with subject matter jurisdiction, personal jurisdiction, and venue. Under the act, interpleader can be brought if ANY TWO CLAIMANTS are citizens of different states AND the amount in controversy is $500 OR MORE. Complete diversity is NOT REQUIRED

Question 22

Civil Procedure: SMJ - How can a party to an action have no citizenship? + What does this mean for SMJ?

Answer 22

In order for diversity jurisdiction to exist with respect to an individual who is a party to an action, the party must either be a citizen of a state or a citizen (or subject) of a foreign country. State citizenship of a party turns on whether the party is domiciled in the state. If the party is no longer domiciled in the neighboring state, but instead is domiciled in a foreign country where she currently lives and has the intent to remain permanently, the question is whether she is legally a citizen of that country. Unlike state citizenship, citizenship in a foreign country generally does not depend on domicile but on whether the individual has taken the necessary steps to become a citizen.

Therefore, she would not have SMJ in federal court.

Question 23

Evidence: 5A Self-Incrimination Protection - Do Companies have this protection?

Answer 23

The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. A person means an individual. Artificial entities such as corporations, partnerships, and labor unions may not assert the privilege, nor does the privilege extend to the custodian of corporate records, even if production would incriminate the custodian individually.

Question 24

Civil Procedure: Improper Venue - When must a motion to remand a case back to a federal or state court be filed? + What are the consequences of not filing it on time?

Answer 24

A motion to remand back to federal or state court must be filed within 30 days of removal.

If not filed on time, even though the initial notice of removal was untimely the second motion will fail.

Question 25

Civil Procedure: Discovery - Is a defendant’s insurance policy discoverable in any case?

Answer 25

The defendant’s insurance policy is subject to discovery by the plaintiff. As part of its initial disclosures, a party MUST PROVIDE to other parties copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.

Question 26

Constitutional Law: What is the scope of the President’s power to enter into executive agreements?

Answer 26

The Supreme Court has long accepted that the President has broad power to enter into executive agreements with foreign states, and this would be true especially where Congress has authorized the agreement

Question 27

Constitutional Law: Freedom of Religion - What can a court consider when a person claims he is being punished for his religious beliefs?

Answer 27

Although the validity of religious beliefs cannot be questioned, the role a belief system plays in a person’s life can be examined to determine whether the beliefs are indeed religious.

The court may consider whether the person challenging the law sincerely holds those beliefs.

Question 28

Contract Law: Penalties v. Liquidated Damages Clause + Tip

Answer 28

Penalty clauses are NOT enforceable for a contract, however liquidated damages clauses are IF (i) damages are difficult to ascertain at the time the contract is formed, and (ii) the amount agreed on is a reasonable forecast of compensatory damages in the case of a breach.

Tip: Be careful on MBE questions, even if it is labeled “Penalty” it may operate as a liquidated damages clause

Question 29

Constitutional Law: Supreme Court Appellate Jurisdiction - What is Congress’s power in restricting SCOTUS appellate jurisdiction?

Answer 29

Article III explicitly gives Congress the power to make exceptions to the Supreme Court’s appellate jurisdiction

Question 30

Crim Pro: Miranda Warnings - How long does an invocation of Miranda rights last for right to remain silent?

Answer 30

The prohibition against questioning a detainee after invoking Miranda rights lasts THE ENTIRE TIME THE DETAINEE IS IN CUSTODY for interrogation purposes, PLUS 14 MORE DAYS after the detainee returns to his normal life (which can include his “normal life” in jail).

Question 31

Civil Procedure: TROs - Are TROs immediately appealable? + Are extended TROs immediately appealable?

Answer 31

Ordinarily, the granting or denying of a temporary restraining order is NOT IMMEDIATELY APPEALABLE because, as the name implies, a temporary restraining order is not an injunction that is appealable under 28 U.S.C. section 1292(a)(1).

A TRO is valid for 14 days, unless the TRO is extended for good cause for a like period. If an extension goes beyond the “like period,” courts have held that the TRO is EFFECTIVELY CONVERTED INTO A PRELIMINARY INJUNCTION and thus becomes immediately appealable under the statute.

Question 32

Contract: Consideration - Can extinguishing a claim constitute consideration?

Answer 32

The promise to refrain from suing on a claim may constitute consideration. EVEN IF THE CLAIM IS INVALID, in law or in fact, if the claimant reasonably and in good faith believes his claim to be valid, forbearance of the legal right to have the claim adjudicated constitutes a detriment and consideration

Question 33

Civil Procedure: Motion for Summary Judgment - Can a party avoid summary judgment even if they have no facts to counter opposing party?

Answer 33

Yes. Rule 56(d) authorizes a party to ask the court to defer action or deny the motion to allow time to obtain affidavits or declarations or to take discovery.

Question 34

Constitutional Law: Substantive Due Process - What scrutiny must the government show to allow a restriction on the right to travel?

Answer 34

Because the right to travel is a fundamental right, it cannot be interfered with merely because it is reasonable to do so. Likely, the state would have to show that the interference is necessary to achieve a compelling interest.

Question 35

Civil Procedure: Issue Preclusion - What effect does a judgment of an issue of Court 1 have on Court 2?

Answer 35

Generally speaking, when dealing with the preclusive effect of a judgment, the recognizing court SHOULD NOT give a judgment ANY GREATER effect than the rendering state would. (When “case one” has been decided in state court, the court in case two generally will apply the claim or issue preclusion of the jurisdiction that decided case one.)

Question 36

Constitutional Law: Right to a Jury - Can a jury be composed of less than 6 jurors?

Answer 36

A jury MUST be composed of AT LEAST SIX JURORS at the beginning of the trial. If the number drops below six (for example, as here, when jurors became ill), a mistrial results, UNLESS the parties agree to a lesser number of jurors.

Question 37

Evidence: Hearsay - Learned Treatise Exception - How can a learned treatise be offered into evidence?

Answer 37

There is a hearsay exception that allows portions of learned treatises to be read into evidence, BUT this exception applies only when the treatise is being used on DIRECT or CROSS-examination of an EXPERT WITNESS

Question 38

Evidence: Impeachment - How can a party rehabilitate a W?

Answer 38

Once a witness is impeached with evidence of his bad character for truthfulness, he may be rehabilitated with REPUTATION and OPINION evidence of his good character for truthfulness.

Question 39

Contracts: Assignment/Delegation - What is the effect of a K clause stating “K may not be assigned”?

Answer 39

A contract clause prohibiting the assignment of the contract will be construed as BARRING ONLY THE DELEGATION of the assignor’s duties.

Question 40

Contract: Conditions - How can a condition be waived? + What are the obligations of the party who waived the conduct? + Is consideration needed to waive a condition?

Answer 40

One having the benefit of a condition can waive that condition by indicating by words or conduct that he will not insist on that condition’s being met.

If the party waives the condition, that party must perform despite the condition’s failure.

Consideration is NOT REQUIRED for a valid waiver of condition

Question 41

Torts: Products Liability - Elements of Strict Liability to Find Defendant Liable

Answer 41

1) D was a commercial supplier (e.g. retailer, wholesaler, distributor)
2) D produced or sold product,
3) Defective product was a actual and proximate cause of the P’s injuries, and
4) D suffered damages

Question 42

Contracts and Sales: UCC - What can be offered as evidence to explain contract terms? + Remember if language needs to be ambiguous

Answer 42

The UCC provides that a written contract’s terms may be explained or supplemented by evidence of: (i) course of performance, (ii) course of dealing, and (iii) usage of trade

This is true REGARDLESS of whether the writing appears to be ambiguous.

Question 43

Civil Procedure: Dismissal by Notice - When is a P’s dismissal by notice with or without prejudice? (Two Dismissal Rule)

Answer 43

A dismissal by notice (voluntary dismissal) is WITHOUT prejudice UNLESS the plaintiff has previously dismissed any federal or state court action on the same claim, in which case the dismissal by notice is with prejudice. (This is known as the “two dismissal rule.”)

Question 44

Civil Procedure: Plain Error Rule - Can a plain error motion be made even if no objection was preserved at trial?

Answer 44

Under Federal Rule of Civil Procedure 51(d)(2), a court may consider a plain error in the jury instructions that has not been preserved by an objection IF the error affects a SUBSTANTIAL RIGHT

Question 45

Property: Warranty of Habitability - Can a contractor be liable to subsequent purchasers for WOH of quality or fitness?

Answer 45

Although the common law held that contracts of sale and deeds of real property carry no implied warranties of quality or fitness for the purpose intended, most courts NOW find an implied warranty of fitness or quality extends to the sale of ANY NEW HOUSE by the builder. The warranty implied is that the new house is DESIGNED and CONSTRUCTED in a reasonably workmanlike manner and suitable for human habitation. Some courts go further and extend the warranty to a subsequent purchaser

Question 46

Civil Procedure: Appeals - Can a grant or denial of personal jurisdiction be appealed before the end of a case?

Answer 46

With certain exceptions by rule or statute, ONLY FINAL JUDGMENTS may be appealed. A final judgment is one that disposes of the whole case on its merits. Since the case was still pending after the denial of a motion to dismiss on the basis of a lack of personal jurisdiction, the judgment here was not a final judgment and thus was not appealable.

Question 47

Property: Zoning Ordinances - Can a use operate within a zoning ordinance by being “grandfathered in”?

Answer 47

A use that exists at the time of passage of a zoning ordinance and that does not conform CANNOT BE ELIMINATED AT ONCE. Generally, the nonconforming use may continue indefinitely, but any change in the use must comply with the zoning ordinance

Question 48

Criminal Law: Felony Murder - Does an accidental killing during the commission of a felony count?

Answer 48

The felony murder doctrine states that a killing - EVEN AN ACCIDENTAL ONE - committed during the course of a felony is murder. The death must be a FORESEEABLE result of the commission of the felony.

Question 49

Property: Takings Clause - Does acquiring land to give to private owners constitute a government taking?

Answer 49

The Supreme Court has approved such transfers. So long as it appears it was reasonable for the government to believe the transfer to the private entity will benefit the public, such as by promoting economic development, the public use requirement is met.

Question 50

Criminal Law: Receipt of Stolen Property Definition

Answer 50

The crime of receipt of stolen property consists of receiving possession and control of stolen personal property KNOWN to have been obtained in a manner CONSTITUTING A CRIMINAL OFFENSE by another person with the INTENT TO PERMANENTLY DEPRIVE the owner of his interest in the property

Question 51

Criminal Procedure: Jury Selection - Is a defendant entitled to be present at jury selection?

Answer 51

Jury selection is a CRITICAL STAGE of trial at which the defendant is entitled to be present.

Question 52

Civil Procedure: Right to Demand Jury Trial - When must a demand for a jury trial be made?

Answer 52

A jury demand must be served WITHIN 14 DAYS after service of the LAST PLEADING DIRECTED TO THE ISSUE that is sought to be tried by a jury.

The 14-day countdown does not begin at the filing of the complaint, or at the filing of a motion. Rather, it begins after service of the last pleading directed to the issue.

Question 53

Civil Procedure: When can a final judgment be enforced? + What if there is a post-trial motion pending?

Answer 53

Judgments must be enforced NO LESS THAN 30 DAYS after trial.

The fact that a post-trial motion has been filed is IRRELEVANT to the automatic stay provision

Question 54

Constitutional Law: What does the Property Clause of Article IV Section 3 state?

Answer 54

Congress has the power “to make all needful rules and regulations respecting the territory or other property belonging to the United States.” (Military bases, D.C., etc.)

Question 55

Constitutional Law: Can a state government regulate foreign commerce?

Answer 55

No. Regulation of foreign commerce is exclusively a federal power because of the need for the federal government to speak with one voice when regulating commercial relations with foreign governments.

Question 56

Civil Procedure: Jury - What is the rule for unanimity of jurors in federal civil trials?

Answer 56

In federal civil cases, a verdict must be unanimous unless the parties agree to the contrary.

Question 57

Real Property: Implied Marketability - Do land sale contracts have different rules for the implied marketability doctrine?

Answer 57

Where an installment land contract is used, the seller’s obligation is to furnish marketable title WHEN DELIVERY IS TO OCCUR, e.g., when the buyer has made his final payment. Thus, a buyer CANNOT WITHHOLD payments or seek other remedies on grounds that the seller’s title is unmarketable prior to the date of promised delivery.

Question 58

Civil Procedure: Judicial Notice - Foreign Country Law

Answer 58

Most state courts WILL NOT take judicial notice of the law of a foreign country. Note that foreign law is a legislative fact and thus would not be covered by Federal Rule 201, which covers only adjudicative facts, even if the case were in federal court.

Question 59

Civil Procedure: When is a 12(b)(6) Motion filed?

Answer 59

A 12(b)(6) motion for failure to state a claim MUST be filed prior to filing the responsive pleadings (on the defendant’s first answer to the complaint) within 21 DAYS of receiving the complaint and summons.

Question 60

Evidence: Hearsay - Statements of Fact Concerning Personal or Family History (Does Declarant Need to Be Available + Types of Evidence)

Answer 60

Under Federal Rule 803(13), statements of fact concerning personal or family history contained in family Bibles, engravings on tombstones, etc., are admissible (regardless of whether the declarant is available).

Question 61

Evidence: How can a party prevent an opposing party from obtaining privileged discovery?

Answer 61

When a party claims that certain discoverable information is privileged trial preparation material, it must disclose the existence of the material in sufficient detail to the opposing party so that the opposing party may assess the claim of privilege

Question 62

Evidence: Expert Witnesses - Can a party question the credibility of an expert witness?

Answer 62

Even a witness qualified as an expert is subject to cross-examination as to his credibility or the weight of his testimony. This may include an attack of the adequacy of the expert’s general knowledge in their field of expertise as well as their specific knowledge of the facts underlying their testimony.

Question 63

Evidence: Use/Derivative Use Immunity v. Transactional Immunity + When can they be compelled to testify?

Answer 63

“Use and derivative-use” immunity only precludes the prosecution from using the WITNESS’S OWN TESTIMONY, or any evidence derived from the testimony, AGAINST THE WITNESS. The prosecution may compel incriminating testimony (including before a grand jury) if it grants immunity to the individual, in which case the individual must testify. Use and derivative use immunity sufficiently protects the constitutional privilege against self-incrimination in this situation.

In contrast, “transactional immunity” FULLY PROTECTS a witness from FUTURE PROSECUTION for crimes related to her testimony.