MBE Simulator Exam 7
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?
A regional planning commission ordered a temporary cessation of all construction in a large planned residential development in order to formulate a comprehensive land-use plan, and to study the environmental impact on a large natural lake adjoining the property. After some 24 months the moratorium still existed, and real estate developers sued, alleging that the moratorium constituted a taking of their property without due compensation in violation of the Fifth and Fourteenth Amendments. A lower federal court held a hearing, heard evidence, and ruled that the delay under these facts was not unreasonable and no taking occurred. How would the federal court of appeals most likely decide the issue?
A man and a woman got in the man’s car to go visit friends. The man had a few martinis during the preceding hour. It was lightly raining but he insisted on driving. When approaching a slippery curve on a winding roadway he lost control and crashed the car into a tree. He was traveling 10 miles above the speed limit. His passenger died and he was charged with involuntary manslaughter while driving DUI. The police took his blood sample at the hospital and his blood alcohol level was .07, right below the threshold level of .08 used for determining sobriety. He had passed a field sobriety test at the scene. He was also cited for speeding and driving too fast for conditions. Which of the following will the prosecution most likely be able to prove beyond a reasonable doubt?
A buyer and seller agreed on terms to transfer a property to buyer. They wrote up a contract themselves that said: Seller is selling the Old Wilson property to the Buyer, for a value they have agreed on, and the sale should be finished and done in thirty days by cash payment by buyer, or in installments if buyer cannot get a mortgage. The seller changed his mind and filed suit, asking for rescission of the document, on the basis that it was not a contract due to ambiguity and leaving out basic required information. Will the court likely order rescission?
A criminal defendant was prosecuted for theft of tons of steel casings piled up on a vacant rural parcel of land. After taking the material, the authorities arrested him and told him that the land and the steel on it were owned by the state government. He defended on the basis that he did not have any criminal intent to steal because he reasonably believed that the steel casings were abandoned and rusting away needlessly. The judge instructed the jury that a man intends the natural consequences of his actions, and that if the defendant took the casings intentionally, then there was a presumption of sufficient mens rea to establish criminal intent. The act of taking in itself established a legal presumption of felonious intent. The defendant was convicted and he appealed on the basis that the judge’s applying of a presumption of criminal intent was erroneous. What is the likely decision on appeal?
Two parties entered into an agreement of sale for a residential property. The title insurance company called the seller’s attorney to advise that one of the owners in the seller’s prior chain of title over 40 years ago had neglected to get a first mortgage with a private lender satisfied. It was likely that the mortgage was paid but that someone neglected to file a satisfaction notice with the recorder. If the problem had been corrected back then there was no evidence of it on the record. As such, the open mortgage now constituted a cloud on title. The title company required that the seller take action to clear title before final closing could be approved. Which of the following is the most likely way for the seller to clear title so that conveyance can be made.
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?
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?
Two businesses were involved in litigation concerning an alleged breach of contract. The plaintiff financial consulting business sued the defendant construction business claiming that the defendant breached the contract by not constructing a small office building properly as promised for the financial company’s specified needs. The construction business is accused of not following the professional engineering and architectural plans, and not getting environmental approvals as promised prior to beginning construction. The defendant offered into evidence a series of letters that were highly supportive of the defendant’s position but which were made and sent to various entities after the dispute with the plaintiff had already mushroomed and within 30 days of the scheduled trial. The material included one in-house memorandum made on the eve of trial which purported to give the “history and background of the transaction.” The plaintiff filed a motion in limine to exclude from the trial these items as being hearsay. Will the trial court likely exclude these alleged business records?
A lessor leased real estate with a gas station business on it to a lessee for two-year terms that were renewable every two years until the tenth year. The property was described as being “located at 1900 Superpower Highway, fronting on the highway 100 feet and extending in depth of equal width 150 feet, as described in Deed Vol. 22, Page 10, with the privilege of using additional adjoining grounds for the general use of the business and the parking of customer's cars.” The lessor granted an option to purchase the “demised premises” at the “current market value at the end of the final term.” The lessee exercised the option (for property at Deed Vol. 22, Page 10) as provided, but the lessor refused to perform. Lessee brought an action for specific performance, to which the lessor responded that the price was indefinite and subject to debate, and that it was unclear if the option included the “additional adjoining grounds,” making specific performance unavailable. Will the court grant the complaint for specific performance and order that the plaintiff’s exercise of the option be enforced?
A married couple had an agreement to purchase land from a developer. The couple at the same time signed a contract with a builder to build a home on the land, construction to start immediately after closing on the land purchase. When the developer learned of the contract with the builder, he told the couple that he would not sell them the land. The developer told the couple that he would sell the land only if they contracted with him to build the home, and based on his experience and knowledge of the codes, inspections, permits and other requirements, the job would be done far quicker than the builder. He drew up a contract for the same specifications, but the price was 10% less than the one with the builder. Can the builder successfully sue the developer for his losses?
The police were called to a domestic dispute. The wife told police that her husband was abusive and that he was a heavy cocaine user. The husband was present and denied the allegation. Police asked for permission to search the premises for drugs, which was consented to by the wife. The husband, however, refused to consent to the search. The police went ahead anyway and found drugs in the husband’s belongings. After being arrested on drug charges, the husband filed a motion for suppression of the evidence based on lack of consent. What should be the likely decision of the trial court?
A member of a drug ring was arrested for murder and drug dealing. It was alleged that he killed a rival drug dealer in a hit ordered by his drug lord superiors. At trial, the prosecution called another member of the gang to testify that he had observed the defendant killing someone in an uncharged crime that occurred several years earlier. The witness was allowed to describe the prior circumstances to the jury. However, specific reasons why the evidence of past acts should be allowed were not elucidated by the prosecution, nor by the trial court in its decision to admit the uncharged homicide evidence. The defense objected to the evidence on appeal claiming that it was highly prejudicial. Under the circumstances, will the appellate court order a new trial because the evidence of an uncharged murder was presented to the jury?
A grower based in one state grew and marketed corn nationwide. The U.S. Congress passed a law attempting to stabilize the price of corn by limiting the volume of corn produced by growers to a specified volume per each cubic acre, on a semi-annual basis. The Department of Agriculture fined the grower for exceeding the production volume. He only intended to use the excess for feeding his livestock and domestic purposes, but he was ordered to destroy it. The grower brought an action claiming that his substantive due process rights had been illegally interfered with. He asked for an injunction and reparations. What would be the most likely decision of the court?
Plaintiff was a lifeguard at a summer day camp. The camp maintenance crew placed the lifeguard chair at the shallow end of the pool. They also carelessly set the water level slightly below its normal capacity. Plaintiff decided to help a swimmer by recklessly jumping from the lifeguard chair into the most shallow point of the pool. He suffered spinal cord damage and paralysis. He sued the camp owners for negligence and substantial damages. Plaintiff admitted that he knew the relative depths of the water at all points in the pool, and that he was an experienced and knowledgeable swimmer and diver, when he engaged in the unwise action of jumping into the shallow end. The camp proved through forensic engineering testimony that the lower water level caused by the maintenance crew was not a key factor in the accident or the injury. The camp filed a motion for summary judgment, claiming that the claim was precluded as a matter of law, and thus nothing for the jury to decide. What is the likely decision of the court on the motion?
A civil case for damages depended on whether the defendant was actually the man driving the identified vehicle at the time of the accident. It was established that others had access to the vehicle so that it was important to identify the person driving at that time. The plaintiff’s attorney asked a witness on direct examination if he saw the driver in the courtroom, and while saying that he pointed, almost instinctively, to the defendant’s table and to the defendant. The witness agreed with the pointing, and said, “Yes, that’s him!” The defendant vehemently objected and called for a mistrial, claiming that this was unfair leading of the witness into answering the ultimate issue of identity. The trial court denied the objections. The defendant appealed. Will the appellate court likely order a new trial?
A single mother and her two children received welfare benefits, including cash grants, medical assistance and other programs. The state welfare agency sent a letter of notification of cessation of benefits. The letter said that the family was no longer eligible but did not say why. The mother filed an action in federal court asking for an injunction against the state agency for taking their benefits without due process of law. They argued that a pre-termination hearing at the least was necessary under procedural due process requirements. What will be the court’s likely ruling?
A woman was injured when her motorcycle crashed after it failed to handle a sharp turn in the roadway. She had been traveling on a state highway in another state. She suffered grievous injuries. There were no warning signs about the dangerous curve, and visibility was difficult due to overgrown tree branches. She sued the state and its director of highways, claiming negligent maintenance and failure to warn of a dangerous roadway. She claimed that the defendants’ negligence caused her grievous injuries. A jury awarded her a modest sum after a trial. The plaintiff then sued the same defendants in federal court due to diversity jurisdiction and claimed the same injuries from the accident, but alleged that they had gotten much worse since then. The defendants requested dismissal of the second case. Will the federal court judge likely grant the request of the defendants and why?
A state started conducting random vehicle stops at highway roadblocks to look for drugs. A young man was driving alone when he was pulled over with 12 other cars for a narcotics detection search. About 30 officers were involved in conducting the drug searches. After the stop, officers walked drug-sniffing dogs around the young man’s car and the other cars. An officer advised each motorist that this was a brief stop for a drug checkpoint, and asked the young man and the other drivers to produce a license and registration. The officer looked over the young man for signs of drug impairment and conducted an open -view examination of the car from the driver’s side window and the other windows. The young man was not arrested but he later filed an injunctive action in a United States District Court, demanding the police be prohibited from continuing the random drug searches. The lawsuit claimed Fourth Amendment violations based on unreasonable searches and seizures. The district court dismissed the case, but on appeal, the U.S. Circuit Court of Appeals reversed and ordered issuance of an injunction. On appeal to the U.S. Supreme Court, did the plaintiff prevail in his assertion that the procedure was unconstitutional?
A private organization applied annually for a parade permit to march in the Italian section of the city to celebrate Italian-American Immigration Day. A group of gay, lesbian and bisexual Italian-Americans applied for a permit to join in the parade. The state, pursuant to its public accommodations law, ordered the organization to allow the group in the parade. The organization filed suit, arguing that its right to free speech and expression would be interfered with by having a group with a message different from its own. Because the group was formed to celebrate the members’ sexual orientation, the organization objected to having that message included. What is the most likely decision of the court based on U.S. Supreme Court precedent?
A defendant was charged and convicted of felony murder as a participant in a robbery in which the store clerk was murdered by his accomplice. The authorities then indicted and convicted him of robbery with a firearm. The two prosecutions were not the same offense because felony murder could be proved by proof of any felony, not just robbery, and robbery with a firearm did not require proof of a death. However, the prosecution acknowledged that it was necessary for all the ingredients of the underlying felony of robbery with a firearm to be proved in the felony-murder trial. Will the defendant prevail on appeal in getting the robbery with a firearm conviction dismissed with prejudice on the basis of a double jeopardy violation?
Local police received an anonymous letter that contained statements that a married couple was engaged in drug trafficking and were storing large amounts of contraband in their basement. The letter did not say how the writer personally knew that there were drugs or where they were stored. The investigating detective drew up an affidavit of probable cause based on the statements in the letter and presented the request for a search warrant and the affidavit to a magistrate judge. The magistrate judge signed a search warrant based on the affidavit. The police raided the home and found several pounds of cocaine in the basement. The defendants filed a motion to suppress the evidence based on insufficient cause to issue a warrant. The state courts rejected the suppression motion. What would the U.S. Supreme Court most likely decide?
A broker and a seller of residential real estate entered into an “exclusive right to sell” contract (an exclusive listing agreement) in which the broker had the exclusive right to sell the property for the period of nine months and would receive 6% of the sales price if the property was put under agreement during that nine-month period. The agreement also stated that “if the property is withdrawn from sale, transferred, conveyed, leased without the consent of Broker, or made unmarketable by the owner's voluntary act during the term hereof or any extension thereof," the broker would receive 6% of the selling price of the property as set forth in the listing agreement.” The broker began performing all of its duties in aggressively trying to sell the property, but shortly after the agreement, the seller advised that it didn’t want to sell anymore, and it thwarted all efforts of the broker to take further action to sell the property. The broker demanded the 6% amount set forth in the withdrawal of sale provision, but the seller claimed a right to change his mind. Will the court likely enforce the broker’s claim for 6% of the listed price?
A 35-year-old married man who worked for many years as a roofing and siding installer for a contractor was rear-ended by an 18-wheeler while stopped at a stop light. He sustained multiple fractures and lesions along his spinal cord and was declared by his doctors and the trucking company’s doctors to be totally and permanently disabled. In his suit against the trucking company, the damages include a demand for compensation for the permanent loss of earnings of the plaintiff for the remainder of his work life. How does the plaintiff best prove what amount he is entitled to receive for future lost wages, i.e., permanent and total loss of earning capacity?
A man was visiting his investment counselor on the 20th floor of an office building. After the meeting, he got on the elevator going down and pressed the button for the lobby. When the elevator got to the second floor it lost its momentum to stop and instead went into a freefall to the basement. The man sustained a broken back and is permanently disabled. Assume that the injured man was unable to uncover any evidence proving what caused the collapse of the elevator. He sues the building owner on a negligence theory. In order to survive a motion for summary judgment, what legal principle can he turn to for assistance?
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