MBE questions

Question 1

Q 25

Motions for SJ should be granted when

Answer 1

there is no dispute of material fact

Question 2

are third party D claims against a P complusory?

Answer 2

no

Question 3

wil fed ct hear a child custody case when there is diversity + AICover$75k

Answer 3

No, because federal courts will not exercise subject matter jurisdiction over child support and other domestic relations claims even if the requirements for diversity of citizenship jurisdiction are met.

Question 4

Venue in this case (a diversity case) would be proper in a judicial district in which

Answer 4

1. (i) any defendant resides, if all reside in the same state or
2. a substantial part of the events or omissions giving rise to the claim occurred

Question 5

Absent a court order or stipulation to the contrary, what is the maximum amount of time that one deposition may take?

Answer 5

One seven-hour day

Question 6

In an in rem action, persons whose interests are known to be affected and whose addresses are known must be notified at least by ordinary mail

Question 7

If a case filed in state court contains a claim that would arise under federal law, and it is joined with state law claims that do not invoke diversity or supplemental jurisdiction, the entire case can be removed to federal court.

Once that is done, the state law claims are:

Answer 7

severed and remanded to state court by the federal court.

Question 8

Federal question jurisdiction arises merely from the fact that a corporate party was incorporated by Congress if the United States owns __________ the corporation’s capital stock.

Answer 8

more than 50%

Question 9

In state court and frequently in federal court (absent consent or waiver), personal jurisdiction is limited by:

Answer 9

State statutes and DPC

Question 10

An admission made pursuant to a request for admissions is an admission for the purpose of the pending action only; it may not be used against the party who made it in any other proceedin

Question 11

No time limit on when a supplemental pleading can be filed.

Question 12

Service need not comply with state law…

meaning that if a State law restricts who can be served, service may still be proper under FRC

Question 13

A third-party defendant may assert a claim against the original plaintiff only if the claim arises from the same transaction or occurrence that is the subject of the plaintiff’s original claims

Question 14

The entry of the default cuts off the defendant’s right to contest the case on the merits. Although the defendant may appear at the hearing for the default judgment to contest damages, he may not contest liability until the entry of default is vacated.

Question 15

right to demand a jury trial will expire 14 days after P is served with D’s answer

There is no timing specified in the federal rules for withdrawing a jury demand, but a jury demand can be withdrawn only with the consent of all the parties. The 14-day period represents the general time period for initially demanding a jury.

Question 16

a trial judge cannot order a new trial merely for disagreeing with the jury’s award; she must believe it is so excessive as to shock the conscience.

Question 17

In federal court, an amendment to a complaint “relates back” to the date the complaint was filed when the new claim arises from the same transaction or occurrence as the original claim.

Question 18

a United States citizen without a state citizenship is NOT AN ALIEN.

A United States citizen may become a citizen of a foreign country by renouncing her United States citizenship and acquiring the citizenship or nationality of the foreign country by a formal process called naturalization.

Question 19

A party may request a physical or mental exam only of another party …. (so this means no witnesses)

….when that party’s physical or mental condition is in controversy. The exam must be ordered by the court on a showing of good cause.

Question 20

The court on motion may permit a plaintiff to file a supplemental pleading that relates to matters occurring after the date of the original pleading.

Question 21

A party is under a duty to amend a prior response/interrogatory if he knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

Question 22

Discovery

An employee filed an employment discrimination action against her employer in federal district court. The employee alleges that she has not been promoted because of her gender. She intends to call a co-worker as a witness at trial. The co-worker will testify that a senior manager of the employer told the co-worker that the employee would not be promoted because the employer deemed women to be poor managers.

Is the identity of the co-worker subject to discovery by the employer?

A Yes, the employee must disclose the identity of the co-worker, but only if the employer asks for the information in appropriate discovery requests.

B Yes, the employee must disclose the identity of the co-worker, but only as a pretrial disclosure 30 days before trial.

C Yes, the employee must disclose the identity of the co-worker even without any request from the employer.

D No, the co-worker’s identity and her testimony consist of trial preparation materials and are subject to qualified immunity from discovery.

Answer 22

C Yes, the employee must disclose the identity of the co-worker even without any request from the employer.

As an initial disclosure, a party must provide the names of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses

Question 23

Venue

A plaintiff filed a negligence action against two defendants in federal district court, invoking the court’s diversity of citizenship jurisdiction. Prior to serving their answers, the defendants filed a motion to dismiss for lack of subject matter jurisdiction. The court denied the motion, concluding that subject matter jurisdiction was proper. The defendants then filed their answers responding to the merits of the complaint and denying negligence. The defendants’ answers also contained motions to dismiss the action for lack of personal jurisdiction. Five weeks later, the defendants filed a motion to dismiss the action for improper venue.

If the court determines that venue in fact is improper, how should the court rule on the defendants’ venue motion?

A The court should dismiss the action for improper venue.

B The court should deny the venue motion, because objections to venue are waived if a defendant objects to personal jurisdiction without at the same time objecting to venue, since personal jurisdiction and venue are closely related.

C The court should deny the venue motion, because the defendants waived any objection to venue when they did not raise the objection in their pre-answer motion objecting to subject matter jurisdiction.

D The court should deny the venue motion, because the defendants waived any objection to venue when they did not raise the objection in their answers.

Answer 23

C The court should deny the venue motion, because the defendants waived any objection to venue when they did not raise the objection in their pre-answer motion objecting to subject matter jurisdiction.

Objections to venue are waived if not asserted in the defendants’ first response to the complaint-whether that first response is the answer or a Rule 12(b) pre-answer motion

A defendant does not have to object to personal jurisdiction and venue together.

Question 24

AIC

A seller entered a written contract to sell certain equipment to a buyer in another state for $110,000. The seller purposely breached the contract because someone else offered more money for the equipment. The buyer was able to buy similar equipment from another source, but the price was $170,000. The buyer filed a breach of contract action against the seller in federal district court. The complaint seeks $60,000 in compensatory damages and an additional $60,000 in punitive damages on grounds that the breach was purposeful. Applicable state law is well established that punitive damages may not be awarded for breach of contract.

Does the federal court have subject matter jurisdiction over the action?

A No, because punitive damage claims are not counted in evaluating the amount in controversy requirement.

B No, because it is clear to a legal certainty that the amount recoverable does not exceed $75,000.

C Yes, because the amounts of all the seller’s claims are aggregated for purposes of the amount in controversy requirement, so his claims exceed $75,000.

D Yes, because the transaction is between citizens of different states and involves interstate commerce.

Answer 24

B No, because it is clear to a legal certainty that the amount recoverable does not exceed $75,000.

Here, state law definitively establishes that punitive damages may not be awarded in breach of contract cases. Thus, there is no legal tenable basis for claiming $60,000 in punitive damages, making the true amount in controversy $60,000, below the $75,000 AIC requirement.

Question 25

# Diversity A sales representative working for a manufacturing company had an employment contract under which the representative agreed to work exclusively for the company for three years. The representative resides in State A. The manufacturing company is incorporated in State B and has its principal place of business in State C. Six months before expiration of the contract, the representative left the manufacturing company and went to work for a competitor of the company. The competitor is incorporated in State C and has its principal place of business in State A. The manufacturing company files an action in federal district court against the representative and the competitor, alleging breach of contract and tortious interference with contractual relations. Does complete diversity exist among the parties? A Yes, because the representative is a citizen of State A, the manufacturing company is a citizen of State B, and the competitor is a citizen of State C. B Yes, because the representative is a citizen of State A, the manufacturing company is a citizen of State C, and the competitor is a citizen of State A. C No, because the manufacturing company and the competitor are both citizens of State C. D No, because the representative and the competitor are both citizens of State A.

Answer 25

C No, because the manufacturing company and the competitor are both citizens of State C. (A) is incorrect because that choice considers only the states of incorporation for the corporations. The principal place of business of each also must be considered when determining whether **complete diversity exists.**

Question 26

Objections to personal jurisdiction may be asserted by pre-answer motion or in the answer-provided that the objection is asserted in the defendant's first response.

Question 27

A district court's order granting or denying certification of a class action can be appealed within 14 days of entry of the order.

Question 28

# Class actions A group of employees brought a class action lawsuit in federal court against their employer, alleging employment discrimination and the violation of several labor laws. The court granted certification of the class action. Wanting to force each employee to litigate individually, the employer immediately files an appeal. Can the court of appeals hear this appeal? A Yes, because all trial court orders are reviewable on appeal. B Yes, because an order granting certification of a class action is immediately appealable. C No, because only final orders are reviewable on appeal. D No, because the employees' legal claims are still outstanding.

Answer 28

B Yes, because an order granting certification of a class action is immediately appealable. The court of appeals can hear this appeal because a district court's order granting or denying certification of a class action can be appealed within 14 days of entry of the order. D) is incorrect because, although the employees' legal claims are outstanding, the certification of the class action is immediately appealable.

Question 29

At a federal trial for breach of contract, the plaintiff presented evidence of both contractual and consequential damages amounting to $115,000. The jury, however, awarded the plaintiff $250,000 in damages. The defendant filed a motion for a new trial, arguing that the damage award was clearly excessive. If the court agrees that the award is excessive, the court may: A Deny the motion for a new trial but lower the damage award and require the plaintiff to accept the remittitur. B Deny the motion for a new trial contingent on the plaintiff accepting a remittitur. C Grant the motion for a new trial only because the jury award may not be changed. D Grant the motion for a new trial only because remittitur is not allowed in federal court.

Answer 29

B Deny the motion for a new trial contingent on the plaintiff accepting a remittitur. Judge may order a new trial or may offer the alternative of remittitur. When offered remittitur, the plaintiff is given the choice between accepting an award less than that awarded by the jury or submitting to a new trial.

Question 30

A property owner residing in State A owned a beach house in State B. The property owner ran an ad in State B and State C seeking to hire a caretaker for the property. A State C resident responded to the ad. The property owner interviewed and hired the State C resident at the house in State B and then returned to State A. The property owner returned to the house a few months later and fired the State C resident. The State C resident plans to file an action against the property owner pursuant to federal employment discrimination statutes, claiming that the property owner fired him on the basis of race and age. In which federal district court(s) is venue proper? A The District of State B only. B The District of State A only. C The District of State B and District of State C. D The District of State B and the District of State A

Answer 30

D The District of State B and the District of State A (C) is incorrect because the residency of the plaintiff is not a basis for venue. Claim did not arise in state C. Defendant lives in state A and thus, subj to cts PJ there If no transactional or residential venue, action may be brought in a judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

Question 31

A plaintiff filed a negligence action against a defendant in federal district court, seeking damages for personal injuries suffered in a traffic accident. The plaintiff timely served on the defendant a request for production of certain documents. The defendant objected to part of the request, claiming that it sought information beyond the scope of discovery. The defendant honestly believed this to be true, but case law clearly held to the contrary. After conferring with the defendant and not resolving the matter, the plaintiff filed a motion to compel the defendant to produce the documents. If the court orders the defendant to produce the documents, what sanctions may the court impose on the defendant at that time? A The court may enter a default judgment against the defendant. B The court may strike relevant pleadings of the defendant or enter an order precluding the defendant from offering evidence on certain claims or defenses. C The court may not impose sanctions at this time, but it must require the defendant to pay the reasonable expenses incurred by the plaintiff in making the motion to compel. D The court at this time may neither impose sanctions nor require the defendant to pay any expenses incurred by the plaintiff.

Answer 31

C The court may not impose sanctions at this time, but it must require the defendant to pay the reasonable expenses incurred by the plaintiff in making the motion to compel. (A) and (B) are incorrect because they describe possible sanctions for a party who fails to comply with an order to provide discovery. (D) is incorrect because the court may require the opposing party to pay the movant's expenses.

Question 32

A driver, domiciled in State B, struck a car driven by a father domiciled in State A and his young daughter, who was living with her mother in State B. The father commenced an action in federal court against the driver in his own right and on behalf of his daughter, seeking $80,000 for his injuries, which were severe, and $5,000 for his daughter's injuries, which were minor. Does the court have subject matter jurisdiction of the claim for the daughter's injuries? A Yes, because the claims brought by the father in his own right and on behalf of his daughter may be aggregated. B Yes, because the two claims are so related that they form part of the same case or controversy. C No, because the daughter seeks damages of only $5,000. D No, because the daughter is a citizen of State B.

Answer 32

D No, because the daughter is a citizen of State B. There is no subject matter jurisdiction for the daughter's claim because both she and the defendant driver are citizens of State B. Supplemental jurisdiction is not available here because supplemental jurisdiction cannot be used to override the complete diversity rule. A) is incorrect because plaintiffs can aggregate their claims only where they are seeking to enforce a single title or right in which they have a common or undivided interest. The father's and daughter's claims are separate and distinct claims and may not be aggregated, even though the daughter's claim is asserted by the father on her behalf.

Question 33

A motion for judgment as a matter of law (formerly known as a motion for directed verdict) may be made by any party any time ***before*** submission of the case to the jury.

Question 34

A liquor store owner sued a woman for negligence in federal court after she drove her car through the front of his store. At trial, the store owner did not present any evidence on the issue of causation. No motions were filed during the trial, and the jury returned a general verdict for the plaintiff. Immediately after the verdict was read, the defendant filed a motion for judgment as a matter of law and a motion for a new trial. The court may: A Deny the motion for a new trial, but grant the motion for judgment as a matter of law. B Deny both the motion for a new trial and the motion for judgment as a matter of law. C Grant either the motion for judgment as a matter of law or the motion for a new trial, but not both. D Grant the motion for a new trial, but not the motion for judgment as a matter of law.

Answer 34

D Grant the motion for a new trial, but not the motion for judgment as a matter of law. The court cannot grant the motion for judgment as a matter of law because it was filed ***after*** the case was submitted to the jury, so it was too late for such a motion.

Question 35

Review under the Interlocutory Appeals Act is discretionary with the court and may be available when:

Answer 35

1. the trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and an appeal would materially advance the conclusion of the case, and 2. at least two appellate court judges agree to hear the appeal.

Question 36

Interlocutory (i.e., nonfinal) orders that may be immediately appealed include:

Answer 36

1. (an order granting an injunction (or continuing, modifying, dissolving, or refusing to dissolve an injunction), 2. an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships, 3. decrees in admiralty cases that find liability but leave damages to be assessed later, 4. a patent infringement order where only an accounting is wanting, and 5. an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like.

Question 37

When an action involves multiple claims or parties, and a judgment is entered that disposes of only **some** of the parties or claims, the judgment:

Answer 37

is immediately appealable only to the extent that the court makes an express determination that there is no just reason for delay

Question 38

When an appellate court reviews a trial court's ruling on a **post-trial motion for judgment as a matter of law** (including a renewed one), it employs a *de novo* standard. It does so because the issue is one of law. In contrast, when an appellate court reviews a trial court's **denial of a motion for new trial,** it employs a more deferential standard, reversing the trial court's denial only when there is a clear showing of an abuse of discretion. Note that when a renewed motion for judgment as a matter of law and a motion for a new trial are made in the alternative and the renewed motion is granted, the court rules hypothetically on the new trial motion so that no remand is required if the ruling on the judgment as a matter of law is subsequently reversed on appeal.

Question 39

Under Rule 56(c), a party asserting that a fact is genuinely disputed must support the assertion by citing particular parts of the record, including affidavits or declarations, stipulations, or discovery materials.

Question 40

identity of witness must be disclosed in response to an interrogatory. initial disclosure requires names and contact info of individuals **likely to have discoverable info** and would disclosing party **may use to support his claim or defense** ***AFTER*** initial disclosures are made, discovery proceeds, they parties may continue with discovery of non-privileged info that is relevant to any parties claim or defense include names and contact info of any person who knows of any discoverable matter.