MBE Simulator Exam 4
Two employees of a large multi-state corporation sued the company for violations of the wage and hour laws of state A, where the two worked and resided. They sued in a state court in state A, and requested class certification on behalf of their co-workers who also worked and resided in State A. The company filed to remove the case to the federal district court in state B based on federal diversity jurisdiction. The plaintiffs objected to removal because they asserted that the company's principal place of business was in State A, which destroyed diversity jurisdiction under the circumstances. The company argued that its principal place of business was in State B, thus creating diversity jurisdiction in the federal court. Which of the following would be the main basis for the court’s determination of where the company had it principal place of business?
In a personal injury case for damages suffered by plaintiff, a nurse at the treating hospital testified that the plaintiff failed or refused to take his prescribed medications on seven different occasions during his hospital stay. On cross-examination, it became clear that the nurse’s testimony was not based on personal knowledge as she was not at work during several of the instances she mentioned. In these several instances, the sole basis for her testimony was what she read in the medical charts, which were not in evidence at the trial. The defense objected to the evidence and asked that it be stricken. The trial judge overruled the objection. The plaintiff appealed the issue. What was the likely holding of the court of appeals regarding the nurse’s testimony?
A state statute provides that any public official found guilty of misconduct in office by his superiors should be permanently banned from holding any state employment or being appointed to any state office at any time in the future. Would the statute pass constitutional muster and why?
The police were at the scene of an accident, assisting injured victims and clearing traffic. One car stopped in traffic was creating a distraction by blasting rap music. A police officer told the driver to turn it down, which he did. While explaining this, the officer spotted a handgun next to the driver on the seat. State law allowed the carrying of a concealed or unconcealed weapon. The officer ordered him out of the car for safety concerns. The officer drew her gun and pointed it at him as he got out, threatening to shoot him if he was not compliant. Other officers approached with weapons drawn. The driver was put on the ground and handcuffed. Drugs were found inside the car and he was charged with drug possession. He filed a motion to suppress, claiming a Fourth Amendment violation. What is the most likely decision of the court?
A manufacturer of widgets sent a letter to an international widget retailer offering to sell ten truckloads of construction-quality widgets for $1,000 per truck. The retailer emailed a note back saying “Please send 10 truckloads as promised.” No shipment was sent, but four months later when the market demand for widgets skyrocketed, the retailer sued the manufacturer for breach claiming that the retailer suffered damages by not having received the shipment of ten trucks as agreed. Does the retailer have a legal right to collect damages under these facts?
A small business owner was sued for breach of contract. In his answer, he claimed that he acted upon advice of his prior counsel to return the truckload of widgets that were delivered by the plaintiff company. He later repeated that contention in a deposition but refused to elaborate on the details because of the attorney-client privilege. At trial, the plaintiff company called the business owner’s prior attorney to question him on what advice he gave his client regarding the shipment and refusing to perform on the contract. The business owner objected on the basis that the conversations with his former lawyer were privileged. What is the most likely decision of the trial court regarding the objection to the evidence?
A man entered into a lease for an apartment with a landlord. The lease stated that the term was month-to-month. After one month, the man went to the city health and licensing department and complained about various sanitary code violations that the landlord failed to correct. The agency made an inspection and found 40 sanitary code violations. It cited the landlord, and ordered him to clear up all of the violations. After the inspection, the landlord brought an eviction action against the man and obtained a judgment against him for eviction. Will the eviction order hold up under the stated facts?
A young man had a venereal disease called genital herpes. He had unprotected sexual relations with a young, married female co-worker but did not tell her of the disease. She later had relations with her husband, who became infected. The husband sued the young man for negligence in not telling the wife of the danger, thus being the cause of her passing it on to him. The defendant filed a motion to dismiss the complaint, alleging that the husband had no action against him because there was no legal causation. Will the court dismiss the complaint as a matter of law?
A 16-year-old minor went to a used car dealer with his aunt and grandmother. The minor purchased a used car in “as is” condition. The purchaser was listed as the minor; his relatives were not on the agreements. The boy discovered later that the drive shaft was bent and he returned the car with a demand for a refund of the $2,000 purchase price. The dealer refused to give a refund, citing the assistance and verbal assurances by the aunt and grandmother. They also gave him funds to make the purchase. Is the contract still voidable by the minor so that he can get a refund of the purchase price?
A witness in a criminal case testified to observing the defendant engaging in certain incriminating activities tending to show guilt of the charged crime. The defense tried to establish on cross-examination that the witness was the member of a street gang, and that he was probably trying to protect other, higher-up members of the gang. The defense attempted to detail the witness’ gang activities, the gang’s rules about protecting and lying for each other, and other in-depth descriptions of gang values and practices. The purpose of the line of questioning was to show the motives for the witness to slant or fabricate testimony against the defendant. The prosecution objected vehemently to the line of questioning and the judge sustained the objections. After the defendant was convicted, he appealed and argued as one of his issues the erroneous decision of the trial judge to preclude necessary cross-examination of the witness. What was the most likely decision and reasoning of the appellate court on that issue?
A neighborhood residents group sued a non-profit Community Services organization, which sponsored a free meal program for indigent persons from throughout the city. The lawsuit asked the court to issue an injunction against the program because it was a nuisance. The program was so successful that the large numbers of indigent persons coming into the neighborhood had visibly changed its residential character. The patrons did not come for their meals and leave in an orderly manner. Instead, they remained in the neighborhood, often urinating on neighbors lawns, throwing litter on the private properties, and drinking alcoholic beverages. Some of the patrons of the program began panhandling on the sidewalks and approaching neighbors as they entered and exited their homes. The police were called regularly, and certain unoccupied buildings had been entered by the patrons. Will the court likely issue an injunction closing the free meal program?
A bill collector came to the door of an elderly widow. The collector showed her a credit card bill for $20,000 owed by her recently deceased husband. He told the widow that she could be arrested and prosecuted if the bill, which was now her responsibility, was not paid. He left her a promissory note for $20,000 with interest and urged that she sign and send it back to him. After a few days, the widow signed the note, hoping in her mind to restore and maintain her husband’s good name. Six months later, the collection company sued on the note because the widow had made no payments. The widow’s attorney filed a motion to have the note declared void due to duress. What is the most likely decision of the court based on the principles of duress?
A leading question is one that suggests to the witness the answer desired by the examiner. Rule 611 (c) of the Federal Rules of Evidence generally prohibits the use of leading questions on direct examination. There are, however, some exceptions to that rule. Which of the following would be a permissible instance of using leading questions on direct examination?
The defendant faced trial for first degree murder. His behavior was erratic, however, and a treating physician informed the court prior to trial that the defendant was more likely than not incompetent to stand trial. The state statute said that defendant was presumed competent to stand trial unless he proved incompetency by clear and convincing evidence. Defendant failed to meet the clear and convincing standard, and the trial court found him competent under the statute. After being convicted in a jury trial, the court sentenced him to death. On appeal, the U.S. Supreme Court issued a writ of certiorari. Will the Supreme Court affirm the finding that the defendant was competent to stand trial?
An employee of a retail chain filed a class action against the company alleging wage and hour violations. The complaint alleged that the plaintiff and other salespersons had to make summary reports after they clocked out each day. They had to type up the reports and submit them to their supervisor each day. The suit claimed an average of 15 hours per week of overtime that went uncompensated. The plaintiff sought to represent about 1,000 sales employees who were required to fill out the forms and who did not get paid for the overtime. The employer filed a motion to dismiss the class action, stating that each case was different to some degree, the amount of wages claimed by each employee would differ, and that the plaintiff could not represent the class properly as required by law. Will the court dismiss the case because there are deviations in the facts of some of the cases?
A “disturbing the peace” ordinance passed by a city government prohibited the “sidewalk assembly of three or more persons who conduct themselves in a manner annoying to persons passing by . . . ." A group of three college students assembled on a busy and crowded sidewalk and gave speeches about the decline of democracy in America. They were arrested and prosecuted under the ordinance. Their appeals led to challenging the constitutionality of the provision in a federal district court. What is the likely decision of the federal court?
A tenant moved into a single-family residence. She and the landlord signed a lease-purchase agreement, which applied $200 of each month’s rent to the purchase price of $50,000. The tenant agreed to get a mortgage within 33 months and to pay the full balance due, less the payments credited, on the final settlement date, which was set for 90 days after the 33rd month. A default by the tenant caused a forfeiture of all credits and voided the agreement. The tenant made 31 consecutive payments, but stopped on month 32, when part of the roof caved in causing an uninhabitable situation in the dead of winter. She put the rental payments in an escrow account. The landlord sued for eviction and termination of the lease-purchase agreement. The tenant answered that the landlord had breached the warranty of habitability. She also counterclaimed to compel specific performance of the agreement because she was ready to tender the balance due and take full title to the property. Under the circumstances, what is the most likely ruling of the court?
Some disabled veterans sued a state government alleging that the state’s courthouses were inaccessible to disabled persons. They alleged that the state violated federal laws assuring access rights to people with disabilities. The state countered that the action violated the state’s sovereign immunity under the 11th Amendment. The plaintiffs argued that the enforcement clause of the Fourteenth Amendment allowed the federal government to apply anti-discrimination measures to protect the rights of disabled persons. What is the most likely decision of the federal court based on U.S. Supreme Court precedent?
A retail store runs an advertisement in the local newspaper stating: “Only 3 cashmere sweaters remaining; highest quality; real Polo; one grey, one maroon and one beige; on closeout, starting 9 a.m. Saturday, $5.00 each, first-come, first-served.” A store customer was the first to arrive on Saturday morning. He located the three advertised sweaters, picked them up, handed $15.00 to the clerk, and demanded all three sweaters at $5 each. The clerk stated that the store’s price on each sweater was actually $50 each. The customer demanded the advertised price. Who has the superior legal position?
Plaintiff filed a personal injury action against a trucking company whose truck rear-ended the plaintiff's vehicle while he was stopped at a stop light. The plaintiff made timely disclosure to the defendants. After 60 days, the plaintiff did not receive any disclosures from defendants. The defendants’ lawyer did not respond to phone calls and letters from plaintiff’s attorney. The plaintiff filed a motion to compel disclosure and the answers to interrogatories, and asked for monetary sanctions compelling the defendants to pay for plaintiff’s expenses and legal fees. Will the court likely grant the motions, and why or why not?
A retail store sales person was accused of taking money from the cash register. She was taken into a back room and interrogated by the manager and two security guards. They told her that she was caught on camera, there was a customer who witnessed her theft, and she should confess. She refused, persisting in her innocence. She became highly agitated and tried to leave twice but each time the security guards stood in her way, saying they would call the police if she chose to leave. She eventually broke down and started sobbing, still claiming innocence. They then revealed that there was no customer witness and no video. It was simply a test to see if she was the thief. They now believed she was innocent, and allowed her to go home. The hour-long ordeal caused her emotional trauma, headaches, and nightmares, all of which required medication and treatment. She sued for false imprisonment. Does she have a liability case for that tort?
A state passed a statute that prevents the sale of violent video games to minors. The act prohibits video games being sold or rented to minors where the player may have a choice of killing, maiming, dismembering or sexually assaulting an image of a human being in a manner that appeals to a deviant or morbid interest of minors and offends prevailing community standards of what is suitable for minors. The Petitioners, representing various interests of the video game industry, brought an action in federal court to have the statute declared unconstitutional. The video game industry has a voluntary rating system (like the one relating to movies) to assist parents. The state did not present evidence showing a connection between violent videos and violence in children. Based on U.S. Supreme Court precedence, what is the most likely decision of the federal court?
A parcel of land was owned by owner one and owner two, as tenants in common. The owners signed an agreement with a real estate investor giving her the right of first refusal. If the owners offered the property for sale and if they got a bona fide offer to purchase, the investor would be given the exclusive right to purchase at the amount offered. At some time after that agreement was executed, owner one died and his property passed automatically by intestate succession to his two sons. The sons signed a deed of their interest over to owner two for $10,000. Owner two became the owner in fee. Shortly after that conveyance was recorded, the investor sued owner two and the sons on the basis that owner two should have first offered owner one’s 50% interest to the investor per the agreement. Will the court enforce the investor’s right of first refusal with respect to the transfer to owner two?
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?
Three men in masks entered a bank to commit an armed robbery. A bank guard quickly pulled his gun and told the men to stand down. One of the robbers began to put his hand in his pocket, which the guard believed indicated that the robber was going for a gun. The guard promptly shot the robber dead. The police entered at that moment and arrested the other two robbers. Both men were arrested for robbery and for the murder of the third robber. The prosecution claimed that this was allowed under the felony murder rule. What will be the most likely outcome of the murder charges against the two robbers?
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