Civil Procedure MBE Practice Test 2017

Question 1

Plaintiff was injured in an accident on an interstate highway in his county of residence.
The accident involved a truck and three cars in addition to plaintiff's car.
Plaintiff brought suit in the federal district court in his district pursuant to diversity jurisdiction.
He sued the truck driver and the truck owner, who were from another state.
He also included a driver of one of the cars who resided in another state, and the driver of another car who resided in the same state as plaintiff.
The amount in damages demanded by plaintiff was over $100,000.
The truck company filed a motion to dismiss, claiming that plaintiff did not have diversity jurisdiction.
Will the district court judge likely dismiss the complaint, and why or why not?

Accepted Answer

Yes, the plaintiff and one of the defendants are from the same state, which destroys federal diversity jurisdiction.

Answer

Yes, because there is no federal subject matter jurisdiction, which must also be present in diversity cases.

Answer

No, because the plaintiff and most of the defendants are from different states, thus conferring proper diversity jurisdiction.

Answer

No, diversity is perfectly proper as long as the amount in controversy is over $75,000 and the plaintiff and at least one defendant are from different states.

Question 2

A bank sues a homeowner in a civil foreclosure action. The homeowner does not respond and a judgment is entered in favor of the bank. Several months later, the bank files to execute on the judgment and set a date for a sheriff's sale. Due to backlogs, the sale will take place in six months, which will be well over one year from the date of entering the judgment. The homeowner hires an attorney on the same day that the request for sheriff's sale is filed by the bank. The attorney immediately files a motion for relief from the Order under Rule 60(b). The homeowner alleges as grounds for relief that the bank committed fraud and used "robo-signing" methods whereby the person allegedly signing the foreclosure papers did not actually sign them, making the judgment void. The defendant objects on the basis that the motion was not filed within a reasonable time. Will the court likely rule that the motion was filed too late?

Accepted Answer

No, because the computation of time shows that the motion for relief was filed under one year from the date of entering the judgment.

Answer

Yes, because the motion for relief from the order was filed over a year after judgment was entered.

Answer

No, because the allegation of fraud can be considered at any time by the court.

Answer

Yes, because the homeowner never responded to the original complaint in foreclosure.

Question 3

An elderly woman was vacationing on a cruise ship when she slipped and fell on a slippery substance negligently allowed to build up on a hallway floor. She broke her hip and had to have several operations. The ship's ticket and advertising material used the name Dreamland Cruise Ships. She turned the materials over to her counsel, who filed a lawsuit against Dreamland one month prior to the expiration of the statute of limitations. Notice was sent to the address listed by Dreamland on the ticket, and received by its agents prior to the expiration of the statute. The attorney later received a letter from a company called Power Cruises, Inc., stating that Dreamland did not exist, was a mere unregistered fictitious name, and that the owner was Power Cruises, Inc. The attorney filed an amended complaint 180 days after the expiration of the limitations period, pursuant to FRCP 15(c), listing the correct name. Power Cruises objected, claiming that the statute of limitation had expired and it did not receive notice with the two-year period. What will the court do and why?

Accepted Answer

The court will allow the amended complaint to relate back because all of the conditions of Rule 15(c)(1) were met and satisfied.

Answer

The court will not allow the amendment because Dreamland received notice prior to the expiration of the statute but Power Cruise did not receive such notice, as required by Rule 15(c)(1).

Answer

The court will not allow the amendment because the new complaint does not arise out of the occurrences alleged in the first complaint, whose allegations were against an unrelated and nonexistent entity.

Answer

The court will allow the amendment to be filed under Rule 15(c), but it will, upon motion, dismiss the case due to the fact that it was not served within 120 days after the expiration of the original two-year statute of limitations.

Question 4

An elderly married couple were shopping in a large retail super center. The husband fell on a yellow sticky substance resembling floor wax. Wife saw that there was some kind of hazardous condition ahead, but was quickly disoriented by seeing her husband on the floor in pain several yards ahead. She stepped forward onto the substance and immediately fell on her side, breaking her hip. After extensive rehabilitation and complex hip replacement surgery, the wife sued the retailer. The complaint alleged negligence in maintaining the premises. After these and other facts were pinned down in discovery, the store filed a motion for summary judgment, alleging that the wife voluntarily assumed the risk of the dangerous condition by knowing that it was there and voluntarily proceeding into it anyway. Will the store likely win the motion for summary judgment under these facts?

Accepted Answer

No, because the wife found herself in a sudden emergency and she did not have a reasonable time and opportunity to elect intelligently whether to take another step.

Answer

Yes, there is no material fact that is under dispute because the wife proceeded to encounter a known danger voluntarily, thereby assuming the risk of injury.

Answer

Yes, even taking the facts in the light most favorable to the non-moving party, i.e., the wife, it is clear that there is no dispute that she voluntarily assumed the risk.

Answer

No, the store generally has an absolute duty to keep the floors cleaned and a breach of that duty will result in the imposition of strict liability

Question 5

An investor filed a federal securities fraud complaint against a large public corporation. The defendant filed a motion to dismiss under Rule 12(b)(6) alleging that the complaint failed to state a claim upon which relief could be granted. Due to the need to plead fraud with specificity under Rule 9(b), the district court granted the the dismissal and entered final judgment. Instead of filing an amended complaint as a matter of right under Rule 15(a), the plaintiff had answered the motion by stating that it had “filed all of the facts" that it knew. The plaintiff duly filed a notice of appeal. On appeal, the plaintiff stated that it found the detailed facts that it needed and requested permission to file an amended complaint. Will the court grant the request to amend and what will be its reason?

Accepted Answer

No, the plaintiff failed to first file to alter or set aside the judgment in the district court under Rule 59 or Rule 60; it is too late to ask for leave to amend on appeal.

Answer

Yes, because amendments must be granted freely under Rule 15(a).

Answer

Yes, because the interests of justice require that the appellate court honor substance over form.

Answer

No, the plaintiff will be held to its original position that it had pleaded all of the facts that it knew, thus making an amendment futile.

Question 6

A retail salesperson was driving her car at lunch when a man driving an SUV drove through a red light and struck her. The salesperson resided in State A and the accident occurred in State A. The driver of the SUV was employed by a company that was located in State B. The company allowed the employee to take its SUV, which was used most of the time for business purposes, to go home to State A every night and return to work in State B in the morning. The injured retail salesperson sued both the company and the driver in a State A court. The company filed a motion to dismiss claiming that the State A court did not have personal jurisdiction over the company, despite having over its employee. The trial court dismissed the case against the company for lack of personal jurisdiction. Will that decision likely survive on appeal and why or why not?

Accepted Answer

No, the company benefited from having its employee commute from State A to State B and it is responsible for the acts of its agent.

Answer

Yes, because the company did not benefit from giving the employee a car to commute with, thus it had no minimum contacts with the forum state.

Answer

Yes, because the company was not doing busines in State A and therefore it had no contact with the state.

Answer

No, the mere act of the company's car being in State A was enough to establish personal jurisdiction over the company.

Question 7

A security guard sued his former employer for terminating his employment in violation of age discrimination laws under the state law where guard resided and the termination took place. The defendant files to remove the case to federal court based on the primacy of the federal Age Discrimination Enforcement Act. Will the district court allow the removal or remand the case back?

Accepted Answer

If a plaintiff has a viable state law claim, he may depend on it alone and thereby defeat attempts at removal.

Answer

The court wil exercise federal jurisdiction because the federal civil rights legislation always supercedes and preempts state law.

Answer

The court will allow the removal because the relief granted by federal law is broader and more complete than what is provided in the state law.

Answer

Federal law preempts state law and therefore removal is always preferred when there is a federal law on the precise issue sued on.

Question 8

A former regional manager of a life insurance company sued the parent company for terminating him without cause. He asked the attorney to make sure that he got a jury trial. If a proper demand is not made, the trial will be presided over by the judge without a jury. At the last pretrial conference, well after discovery had closed, the attorney filed for a jury trial. Did the attorney properly preserve the right to jury trial and why or why not? Yes, the plaintiff does not have to ask for a jury trial until the discovery is completed and the last pretrial conference is held.

Accepted Answer

No, the plaintiff can best assure a jury trial by including the demand in the complaint under Rule 38(b)(1). The right can also be assured at later times under the Rule but not as late as after the completion of discovery.

Answer

Yes, the plaintiff does not have to ask for a jury trial until the discovery is completed and the last pretrial conference is held.

Answer

Yes, the plaintiff may make a jury trial demand up until the last pretrial conference before trial is scheduled.

Answer

No, the plaintiff must notify the defendant of a jury trial demand in the summons that is served with the complaint. Otherwise, the court will set the matter as a non-jury trial.

Question 9

A student sued his university for failing to deliver the quality of education promised in its catalogue. There is a count also for fraudulent misrepresentation of the quality, content, and accuracy of the courses offered, along with fraud regarding the qualifications of the teachers. The university filed an answer denying responsibility and listing various affirmative defenses. Two months later, the university filed a third-party complaint against a private benefactor who had pledged $20 million for the current and last two operating years, but who had not lived up to her pledge. The university, as the third-party plaintiff, claimed that the benefactor is or may be liable to it for all or part of the claim. The benefactor filed a motion to dismiss the third-party complaint. What will the court likely do and why?

Accepted Answer

Dismiss the third-party complaint due to it being late and filed without leave of court.

Answer

Dismiss the third-party complaint as a frivolous pleading.

Answer

Allow the third-party complaint and order the benefactor to file an answer.

Answer

Allow the third-party complaint based on the rule of indispensable joinder of a necessary third-party benefactor.

Question 10

A man has a residence and is domiciled in State A. He sues a former friend who is a resident and domiciliary of State B in a federal district court in State A on the grounds of a civil assault that occurred in State A. The plaintiff is a U.S. citizen and the defendant is a citizen of France who is lawfully admitted for permanent residence in the United States. The man claims damages in excess of $100,000. Does he have federal diversity jurisdiction under Section 1332(a) in State A to bring the civil assault complaint, and why or why not?

Accepted Answer

Yes, because the defendant is a citizen of France and a permanent resident who is domiciled in another state.

Answer

No, because the defendant is a citizen of another country and not subject to diversity jurisdiction.

Answer

No, because as a permanent resident the defendant is not subject to diversity jurisdiction.

Answer

Yes, because the two live in different states and that is all that is required for diversity jurisdiction.