Bar Exam Civil Procedure 2

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?

Accepted Answer

90 days

Answer

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.

Question 2

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

Accepted Answer

The law of the state where the federal court sits

Answer

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.

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?

Accepted Answer

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

Answer

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.

Question 4

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

Accepted Answer

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

Answer

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.

Question 5

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

Accepted Answer

The same legal theory asserted in the prior action

Answer

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.

Bar Exam Practice Test

Bar Exam Practice Test

Bar Exam Civil Procedure 2