Missed MBE Question 2 Flashcards
Ten months after surgery in a hospital, a patient who had suffered complications from the surgery sued the surgeon and the hospital in federal court for medical malpractice, seeking $750,000 in damages. Timely personal service was made on the surgeon and the hospital. Three months later, during discovery, the patient learned that the hospital was owned by a national health-care company and moved to amend the complaint to substitute the company for the hospital.
The company moved to dismiss, arguing that the forum state had enacted a one-year statute of limitations for medical malpractice actions and that the company had been served after the limitations period had expired. The company also noted that the state’s highest court has interpreted the limitations statute as forbidding any relation back of amendments adding parties in medical malpractice actions. The patient argued that the Federal Rules of Civil Procedure control, and that they allow relation back under the circumstances of this case.
Which law governs whether relation back will be permitted under these circumstances?
Federal law, because the Federal Rules of Civil Procedure govern over conflicting state rules that deny relation back.
Federal law, because the state law on relation back is common law and federal courts are bound only by state statutory law.
State law, because statutes of limitation are substantive and state law controls substantive matters.
Answer option A is correct. The Supreme Court has held that the Federal Rules of Civil Procedure govern over conflicting state rules unless it can be found that the Federal Rule at issue was promulgated in violation of the Rules Enabling Act. Hanna v. Plumer, 380 U.S. 460 (1965). The Act authorizes the Supreme Court to prescribe federal procedural rules so long as they do not “abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b). To date, no Federal Rule has been found to be in violation of the Act.
Answer option B is incorrect. The Supreme Court has held that federal courts sitting in diversity are bound by both state common law and state statutory law under the Rules of Decision Act. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
Answer option C is incorrect. The Supreme Court has held that state statutes of limitation are outcome-determinative and therefore controlling in federal diversity actions. Guaranty Trust Co. v. York, 326 U.S. 99 (1945). However, the questions posed here are whether an amended pleading may be allowed to relate back to avoid the expiration of the limitations statute and whether the Federal Rules or state law controls the standards for deciding relation-back issues. Thus, the fact that the state limitations statute applies does not answer the question whether the court should allow relation back to avoid the consequences of missing the applicable statute-of-limitations deadline
A drug dealer agreed with a supplier to purchase heroin from the supplier in order to sell it on a city street corner. Unbeknownst to the dealer, the supplier was an undercover police officer whose only purpose was to arrest drug dealers. The dealer made a down payment for the purchase of the heroin and agreed to pay the remainder after he sold it on the street. As soon as the dealer received the heroin, other officers moved in and arrested the dealer.
The jurisdiction follows the common law approach to conspiracy.
Could the dealer properly be convicted of conspiring to distribute drugs?
No, because there was no bilateral agreement. ***
No, because there was no overt act.
Yes, because neither an overt act nor a bilateral agreement is required at common law.
Yes, because the dealer believed that all the elements of conspiracy were present and cannot take advantage of a mistake of fact or law
The common law requires a bilateral agreement and does not criminalize “unilateral” conspiracy where one person actually agrees to commit the crime and the other person only feigns agreement. See People v. Hill, 439 N.E.2d 549, 550 (App. Ct. Ill. 1982) (“The ‘bilateral’ theory of conspiracy is the traditional concept of the offense. Under that theory, in order for a conspiracy to exist, at least two people must intend to agree to the commission of an offense.”). Accordingly, the dealer could not properly be convicted of conspiring with the undercover officer.
A party may move for summary judgment at any time until 30 days after the close of all discovery. See Fed. R. Civ. P. 56(b). Here, the company’s motion for summary judgment was timely because it was made 20 days after discovery closed.
A woman promised to pay $10,000 to a hit man if he would kill her neighbor in any manner that could not be traced back to her. The hit man bought a gun and watched the neighbor’s house for an opportunity to shoot the neighbor. One evening, unaware of the hit man’s presence, the neighbor tripped as he was walking toward his house, falling and hitting his head against the front steps. Believing that the neighbor was unconscious, the hit man ran over to him and shot him twice in the chest.
When the woman learned of the neighbor’s death, she paid the hit man $10,000. A medical examiner determined that the neighbor was already dead when the hit man shot him.
The crimes below are listed in descending order of seriousness.
What is the most serious crime of which the woman could properly be convicted?
Murder.
Attempted murder.
Answer option B is correct. The woman cannot be found guilty of murder, because the hit man did not cause the neighbor’s death, but she can be convicted of attempted murder. See People v. Dlugash, 363 N.E.2d 1155, 1158 (N.Y. 1977).
After being forcibly ejected from a casino, a tourist brought a federal diversity action against the casino, seeking $105,000 in damages. The tourist claimed that the casino’s security guard had used excessive force when ejecting him from the casino, causing severe personal injuries.
At trial, the tourist’s attorney attempted to introduce testimony of the security guard’s ex-wife, who had filed several complaints of spousal abuse against the security guard. The casino’s attorney objected that the evidence was irrelevant and unfairly prejudicial. The court overruled the objection, and the ex-wife testified. The jury returned a verdict for the tourist, awarding him $82,000 in damages.
The casino’s attorney believes that the ex-wife’s testimony was unfairly prejudicial and should not have been admitted.
What is the best way for the casino’s attorney to attack the verdict?
Appeal, arguing that the trial court erred in admitting the testimony, which was so prejudicial that the judgment should be reversed.
Move for a new trial, arguing that the court erred in admitting the testimony and that a new trial without the testimony is necessary.
Answer option B is correct. If the testimony was improperly admitted, that is an error that can most immediately be urged on the trial court via a motion for a new trial.
Answer option A is incorrect. Although the erroneous admission of testimony could be a basis for an appeal, the most immediate way to obtain the desired relief is to move for a new trial at the trial-court level. Preserved evidentiary objections may be raised as a ground for a new trial
A man decided to steal an unlocked car that he saw parked on a hill with the keys still in the ignition. After he got into the car and started the engine, the car began rolling down the hill. The man quickly discovered that the car’s brakes did not work. He crashed through the window of a store located at the bottom of the hill.
The man was charged in federal court with larceny of the car and with the crime of malicious damage to property. At trial, the judge instructed the jury that if the jury found both that the man was guilty of larceny of the car and that the damage to the store was the result of that larceny, then it should also find the man guilty of malicious damage to property.
The man was convicted on both counts. On appeal, he argues that the conviction for malicious damage to property should be reversed because the instruction was not a correct statement of the law.
Should the man’s conviction be reversed?
No, because he was committing a felony at the time the damage occurred.
No, because his intent to steal the car provides the necessary mental element.
Yes, because it would violate the double jeopardy prohibition to convict the man of two crimes for a single act.
Yes, because the instruction incorrectly described the necessary mental state
Answer option D is correct. The instruction was incorrect, because to have acted knowingly with respect to the malicious damage charge, the man must have been practically certain that his conduct would cause damage to the store. See State v. Bryant, 447 S.E.2d 852, 854 (S.C. 1994) (discussing the mens rea requirement for malicious damage and noting that it excludes accidental injuries).
A builder brought a federal diversity action against a homeowner for breach of contract, seeking $115,000 in damages. The homeowner answered and counterclaimed for $93,000 in damages for breach of warranty. Four weeks later, when the homeowner had not received any responsive pleading from the builder, the homeowner moved for entry of default and a default judgment on the counterclaim. After the clerk entered default, the homeowner asked the clerk to enter a default judgment.
May the clerk enter a default judgment?
No, because only the court can enter a default judgment under these circumstances.
No, because the builder’s time to respond has not expired.
Yes, because the builder has failed to defend himself against the counterclaim.
Yes, because the damages the homeowner seeks are a sum certain
Answer option A is correct. A clerk may enter default judgment only when the amount sought is a sum certain and the defaulting party has failed to appear. Fed. R. Civ. P. 55(b)(1). Here, because the defaulting party—the builder—is the original plaintiff in the action and thus appeared when filing the complaint, the clerk is precluded from entering a default judgment.
A defendant is on trial for tax evasion. The prosecutor, seeking to establish the defendant’s income by showing his expenditures, has asked the defendant’s attorney to produce records showing only how much the defendant has paid his attorney in fees. The defendant objects.
Should the court uphold the prosecutor’s demand for the attorney’s fee records?
No, because the records are protected by the attorney-client privilege.
No, because the records are protected by the attorney work-product doctrine.
Yes, because it calls for relevant information not within the attorney-client privilege.
Yes, because the attorney-client privilege cannot be invoked to conceal evidence of a crime.
. The attorney-client privilege applies only to confidential communications made for the purpose of facilitating legal representation of a client. The amount the client paid in attorney’s fees does not qualify as such a communication. Fee arrangements and payments are generally outside the protection of the attorney-client privilege. This information is considered to be an “incident of the representation” as distinguished from communications about the client’s legal problem
A seller and a buyer entered into a written agreement providing that the seller was to deliver 1,000 cases of candy bars to the buyer in May. Under the agreement, the buyer promised to make a selection by March 1 of the quantities of the various candy bars to be delivered under the contract. The buyer did not make the selection by March 1, and on March 2, the seller notified the buyer that because of the buyer’s failure to select, the seller would not deliver the candy bars. The seller had all the necessary candy bars on hand on March 1 and made no additional sales or purchases on March 1 or March 2. On March 2, after receiving the seller’s notice that it would not perform, the buyer notified the seller of its selection and insisted that the seller perform. The seller refused.
If the buyer sues the seller for breach of contract, is the buyer likely to prevail?
No, because a contract did not exist until the buyer selected the candy bars, and the seller withdrew its offer before the buyer made a selection.
No, because the buyer’s selection of the candy bars by March 1 was an express condition to the seller’s duty to perform.
Yes, because the delay of one day in making the selection of candy bars did not have a material impact on the seller’s performance.
Yes, because upon the buyer’s failure to make a selection by March 1, the seller had a duty to make a reasonable selection.
A seller can treat a buyer’s failure to select the assortment of goods to be delivered as a breach only if the buyer’s failure materially impacts the seller’s performance. Here, the seller had an available supply of candy bars and had entered into no new contracts. These facts support the conclusion that the buyer’s failure to select did not materially impact the seller’s performance. Therefore, the seller unjustifiably refused to accept the buyer’s selection of goods on March 2. See UCC § 2-311.
Answer option A is incorrect. UCC § 2-311(1) specifically rejects the notion that a contract that is otherwise sufficiently definite is invalid because it fails to specify the assortment of goods to be delivered to the buyer.
Answer option B is incorrect. The buyer’s selection of candy bars was not an express condition but was instead a promise. Performance of the promise could be seen as a constructive condition to the seller’s performance obligation. However, the buyer’s delay of one day in making the selection did not invalidate the contract, because it did not have a material impact on the seller’s performance.
An accounting firm brought a federal diversity action against a former client for failing to pay for the firm’s audit of the client’s financial statements. After the client answered, the parties settled, and the court dismissed the action with prejudice. The client subsequently sued the firm for negligently performing the audit. The firm moved to dismiss the negligence action on the basis of res judicata (claim preclusion).
Is the court likely to grant the motion?
No, because the firm’s negligence was never raised or decided in the first action.
No, because the first action was resolved by settlement.
Yes, because the court dismissed the first action with prejudice.
Yes, because the negligence claim was transactionally related to the claim in the first action and should have been asserted as a counterclaim.
Answer option D is correct. The negligence claim arose out of the same audit that was the subject of the dispute in the first action. The parties in the second action were adversaries in the first action, and that action was resolved through a settlement and dismissal with prejudice. Therefore, the first action precludes the client from asserting any claims arising out of the transaction that was the subject of the first action, which would include the negligence claim. The client should have asserted the negligence claim in the first action as a compulsory counterclaim, and its failure to do so means that the court is likely to grant the motion to dismiss
After a federal trial in which the jury awarded the plaintiff $100,000 in compensatory damages and $7 million in punitive damages, the defendant moved for a new trial on the ground that the verdict was not supported by the evidence and also that the punitive damages award was unconstitutionally excessive. The trial court, after reviewing the evidence, denied the motion on the condition that the plaintiff accept a reduced punitive damages award of $1 million, which the plaintiff did.
The defendant wants to appeal.
Which of the following principles governs the appellate court’s review?
The trial court cannot weigh the evidence in ruling on a motion for a new trial.
The trial court must give the plaintiff the minimum amount that the jury could have awarded under the evidence.
The trial court’s decision to reduce the punitive damages award is reviewed de novo.
Answer option C is correct. When a trial court reduces a punitive damages award on the ground that it is unconstitutionally excessive, the appellate court reviews that determination de novo. See Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001).
A man and a woman went out on a date. At the end of the date, they went to the woman’s apartment for a drink. As the night progressed, the man and the woman became amorous. The man suggested that they move into the woman’s bedroom, and the two went into her dark bedroom and began to be sexually intimate. Unbeknownst to the man, the woman had a rare health condition that caused her to faint if her heart rate got too high. Prior to having intercourse, but before the woman gave her consent, the woman fainted. The man did not realize that the woman had fainted and, honestly believing that her lack of resistance indicated her consent, began having intercourse with her. A few moments later, the woman regained consciousness. When she realized what had happened, she reported the man to the police. The man was later arrested and charged with rape.
Is the man guilty of rape?
In most modern jurisdictions, rape is sexual intercourse with another without that person’s consent.* Rape is a general intent crime, which means that the defendant must consciously perform the unlawful act (Choice A). Mistake of fact is a defense to rape (and other general intent crimes) if the defendant’s honest, reasonable, but mistaken belief negated the requisite mental state. For rape, this means that the mistake must have negated the intent to engage in nonconsensual sexual intercourse with the victim.
Here, the woman fainted due to a health condition, leaving her unable to consent to sexual intercourse. However, the man honestly but mistakenly believed that the woman’s lack of resistance indicated her consent. That mistake was likely reasonable because (1) the woman had voluntarily accompanied the man to the dark bedroom where they became intimate and (2) the man was unaware of the woman’s health condition. Due to this mistake of fact, the man is not guilty of rape
When a judge presiding over a hearing or trial is unable to proceed (as seen here), another judge may take over so long as this successor judge: certifies that he/she is familiar with other redcord and determines that the case may be completed without prejudice to the parties.
A defendant must respond to a plaintiff’s complaint by filing an answer or a pre-answer motion. For example, under FRCP 12 a party may file a pre-answer motion to strike from an opposing party’s pleading any insufficient defense or any redundant, impertinent, scandalous, or immaterial matter—as the defendant did here.
When the defendant files a pre-answer motion, the omnibus motion rule requires that all FRCP 12 defenses be consolidated in a single motion for efficiency purposes. This means that the defendant cannot file a subsequent pre-answer motion raising an omitted FRCP 12 defense, except for lack of subject-matter jurisdiction, that was available when the initial motion was filed
A court may order a new trial on its own initiative (ie, sua sponte) only under Federal Rule of Civil Procedure (FRCP) 59 (Choice A). A court may do so on any ground that has previously provided a basis for a new trial in federal court. One such ground is when a juror (or a judge, attorney, or party) engaged in prejudicial misconduct.
Here, prejudicial misconduct occurred when a juror brought in, and the jury based its verdict on, evidence outside the record—the highway manual. However, FRCP 59 requires that a court’s sua sponte order (or a party’s motion) for a new trial be filed within 28 days after entry of the final judgment.
