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

Federal diversity jurisdiction requires complete diversity, meaning no plaintiff can be a citizen of the same state as any defendant. In this case, the plaintiff and one of the car drivers are both residents of the same state. This lack of complete diversity, despite the amount in controversy being met and other parties being diverse, destroys federal subject matter jurisdiction, requiring dismissal.

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

Federal Rule of Civil Procedure 60(b) allows a party to seek relief from a final judgment. Motions alleging fraud (Rule 60(b)(3)) must be made within a reasonable time, but no later than one year after the entry of judgment. Although the sheriff's sale was set for 'well over one year' from judgment, the homeowner's attorney filed the motion for relief on the same day the bank requested the sale, which the question implies was still within the one-year period for filing such a motion. Therefore, the motion is likely considered timely under Rule 60(b).

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

Federal Rule of Civil Procedure 15(c)(1)(C) allows an amendment changing a party to relate back to the date of the original pleading if certain conditions are met. Here, Power Cruises, Inc. received notice of the action through its fictitious name, Dreamland Cruise Ships, within the Rule 4(m) period for service, and knew or should have known it was the intended defendant. Since the claim arises from the same occurrence and Power Cruises was not prejudiced, all conditions for relation back are satisfied, making the amended complaint timely.

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

The defense of assumption of the risk requires that the plaintiff voluntarily and knowingly encountered a known danger. However, the wife's actions were not voluntary in the legal sense, as she was disoriented and reacting to a sudden emergency upon seeing her husband injured. In such a crisis, a person does not have a reasonable time or opportunity to intelligently elect whether to encounter the danger, thus negating the voluntariness required for assumption of the risk.

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

After a district court enters a final judgment, a plaintiff cannot simply amend their complaint as a matter of right under Rule 15(a) or request leave to amend for the first time on appeal. To amend after judgment, the plaintiff must first move in the district court to alter or set aside the judgment under Rule 59(e) or Rule 60(b). Since the plaintiff failed to take this necessary procedural step, the appellate court will not grant the request to amend.

Multistate Bar Exam Practice Test

Multistate Bar Exam Practice Test

Civil Procedure MBE Practice Test 2017