Bar Exam Civil Procedure 2 — Questions and Answers

Question 1: Under the Federal Rules of Civil Procedure, a defendant must be served with a summons and complaint within how many days after the complaint is filed?

30 days
60 days
90 days (Correct answer)
120 days

Correct answer: 90 days

FRCP Rule 4(m) provides that if a defendant is not served within 90 days after the complaint is filed, the court must dismiss the action without prejudice against that defendant, or order that service be made within a specified time.

Under FRCP 4(m), the plaintiff has 90 days from the filing of the complaint to serve the defendant. If service is not completed in time, the court may dismiss without prejudice or extend the time for good cause shown. This rule was amended in 2015 from 120 days to 90 days to encourage prompt service and avoid long delays in litigation. The 90-day period applies in federal court; individual states may have different rules.

Question 2: A federal court sitting in diversity must apply which law to determine the statute of limitations on a state-law claim?

Federal common law
The law of the state where the federal court sits (Correct answer)
The law of the state with the most significant relationship to the dispute
The most plaintiff-friendly statute of limitations among the relevant states

Correct answer: The law of the state where the federal court sits

Under Erie and its progeny, specifically Guaranty Trust Co. v. York (1945), a federal court sitting in diversity must apply state statutes of limitations because they are outcome-determinative and are thus substantive for Erie purposes.

In Guaranty Trust Co. v. York, the Supreme Court held that statutes of limitations are substantive under Erie because they are outcome-determinative — they can determine whether a plaintiff wins or loses. Therefore, a federal court sitting in diversity must apply the statute of limitations of the state in which it sits. This prevents forum shopping, where plaintiffs might choose a federal forum simply to get more time to sue. The 'outcome determinative' test from York was later refined in Byrd v. Blue Ridge and Hanna v. Plumer, but the rule for statutes of limitations remained consistent.

Question 3: Under FRCP 12(b)(6), a motion to dismiss for failure to state a claim is governed by what pleading standard after Twombly and Iqbal?

Notice pleading — any short plain statement of the claim suffices
Plausibility pleading — factual allegations must plausibly give rise to an entitlement to relief (Correct answer)
Heightened pleading — plaintiff must state facts with particularity
Prima facie pleading — plaintiff must establish all elements of the claim

Correct answer: Plausibility pleading — factual allegations must plausibly give rise to an entitlement to relief

In Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009), the Supreme Court established that a complaint must contain sufficient factual matter to 'state a claim to relief that is plausible on its face,' moving beyond the old 'no set of facts' formulation from Conley v. Gibson.

The Twombly/Iqbal plausibility standard replaced the more lenient standard of Conley v. Gibson (1957), which held that a complaint should not be dismissed 'unless it appeared beyond doubt that the plaintiff could prove no set of facts in support of his claim.' Under the new standard, courts apply a two-step process: (1) identify and disregard pleadings that are not entitled to the presumption of truth because they are mere conclusions, and (2) determine whether the remaining well-pleaded factual allegations plausibly suggest an entitlement to relief. This is more than mere possibility — it requires enough facts to raise a reasonable expectation that discovery will reveal evidence of the defendant's liability.

Question 4: Which of the following best describes the 'complete diversity' requirement for federal subject matter jurisdiction under 28 U.S.C. § 1332?

No plaintiff may be a citizen of any state where any defendant is a citizen (Correct answer)
At least one plaintiff must be from a different state than at least one defendant
The majority of plaintiffs must be citizens of different states from the defendants
Diversity is measured only at the time the lawsuit is filed, not at the time of the events at issue

Correct answer: No plaintiff may be a citizen of any state where any defendant is a citizen

Under Strawbridge v. Curtiss (1806), complete diversity requires that no plaintiff share citizenship with any defendant. If even one plaintiff is a citizen of the same state as even one defendant, complete diversity is destroyed.

The complete diversity rule from Strawbridge v. Curtiss (1806) has been consistently applied as a statutory (not constitutional) requirement under 28 U.S.C. § 1332. Article III of the Constitution only requires minimal diversity (at least one plaintiff diverse from at least one defendant), but Congress has chosen to require complete diversity by statute. Corporations are citizens of both their state of incorporation and their principal place of business (the 'nerve center' under Hertz Corp. v. Friend). The citizenship of unnamed class members in Rule 23 class actions is generally ignored for diversity purposes under CAFA's special rules.

Question 5: Under the doctrine of res judicata (claim preclusion), which element is NOT required to bar relitigation of a claim?

A final judgment on the merits in the prior action
The same parties or those in privity with them
The same claim or cause of action
The same legal theory asserted in the prior action (Correct answer)

Correct answer: The same legal theory asserted in the prior action

Claim preclusion bars all claims that were or could have been raised in the prior action between the same parties, not just those actually litigated under the same theory. Different legal theories based on the same transaction are merged into the prior judgment.

Claim preclusion (res judicata) requires: (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) between the same parties or their privies, (4) on the same claim or cause of action. Under the 'transactional' test used by most courts and the Restatement (Second) of Judgments, a 'claim' encompasses all rights of the plaintiff to remedies against the defendant with respect to all or part of the transaction from which the action arose. Therefore, a plaintiff who wins or loses on a breach of contract claim cannot later sue on a different legal theory — such as unjust enrichment — arising from the same transaction. The requirement is the same transaction, not the same legal theory.

Question 6: Under FRCP 56, summary judgment is appropriate when:

The moving party proves its case beyond a reasonable doubt
There is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law (Correct answer)
The non-moving party fails to appear at the hearing
The court determines that trial would be too costly or time-consuming

Correct answer: There is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law

FRCP 56(a) provides that summary judgment shall be granted if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. This is the standard from Celotex Corp. v. Catrett (1986).

Under FRCP 56 and the trilogy of Anderson v. Liberty Lobby, Celotex Corp. v. Catrett, and Matsushita Electric Industrial Co. v. Zenith Radio Corp. (1986), summary judgment is proper when the record, viewed in the light most favorable to the non-moving party, shows no genuine issue of material fact. The moving party bears the initial burden of demonstrating the absence of a genuine dispute. The burden then shifts to the non-moving party, who must present specific facts showing a genuine issue for trial — mere denials or conclusory allegations are insufficient. A 'material' fact is one that could affect the outcome under the governing substantive law.

Bar Exam Civil Procedure 2

Under the Federal Rules of Civil Procedure, a defendant must be served with a summons and complaint within how many days after the complaint is filed?