MBE Simulator Exam 4

Question 1

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

Federal Rule of Civil Procedure 14(a)(1) allows a defendant to serve a third-party complaint within 14 days after serving its original answer without needing court permission. If more than 14 days have passed, the defendant must obtain leave of court to file the third-party complaint. Here, the university filed its third-party complaint two months after its answer, exceeding the 14-day window and failing to seek leave of court, making the filing untimely.

Question 2

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?

Accepted Answer

When the witness being examined on direct is an adverse party or a hostile witness.

Answer

Federal Rule of Evidence 611(c) generally prohibits the use of leading questions on direct examination, as they suggest the desired answer to the witness. However, a well-established exception allows leading questions when examining a hostile witness, an adverse party, or a witness identified with an adverse party. This exception is crucial for allowing the examiner to effectively elicit testimony from uncooperative or biased witnesses.

Question 3

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?

Accepted Answer

The statute is unconstitutional because it is does not meet a compelling state interest that would allow for restrictions on free speech.

Answer

In *Brown v. Entertainment Merchants Association* (2011), the Supreme Court held that video games are a form of speech protected by the First Amendment. To restrict such speech, the state must demonstrate a compelling government interest and that the law is narrowly tailored. Since the state failed to present evidence showing a causal link between violent video games and violence in children, it could not meet the compelling interest standard, rendering the statute unconstitutional.

Question 4

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?

Accepted Answer

The customer, because the terms of the advertisement were definite enough to constitute an offer and the offer was duly accepted.

Answer

While advertisements are typically invitations to negotiate, this advertisement was sufficiently definite and explicit to constitute a binding offer. It specified a limited quantity ('Only 3 cashmere sweaters'), a specific price ($5.00 each), and a clear method of acceptance ('first-come, first-served'). The customer's immediate action of being first, picking up the sweaters, and tendering payment constituted a valid acceptance of this unilateral offer.

Question 5

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?

Accepted Answer

No, because the landlord’s action is a retaliatory eviction, which cannot be used against a tenant who reports code violations and is a defense that the tenant may raise.

Answer

Most jurisdictions recognize the defense of retaliatory eviction, which prohibits landlords from evicting tenants for exercising their legal rights, such as reporting housing code violations. The landlord's eviction action immediately following the tenant's complaint and the subsequent citation for 40 violations strongly indicates a retaliatory motive. Therefore, the eviction order will likely not hold up as it is an unlawful retaliatory act.

Multistate Bar Exam Practice Test

Multistate Bar Exam Practice Test

MBE Simulator Exam 4