MBE Simulator Exam 8
A subcontractor submitted an offer to a general contractor for proposed drywall work on a small office building being constructed. The bid was for $20,000 for all drywall supplies and labor. The contractor factored the experienced subcontractor’s bid into its final bid and was awarded the contract. A few days later the subcontractor informed the contractor that it had worked on the figures and realized that it underestimated the cost of the project. The subcontractor refused to do the job for less than $35,000. The contractor hired another subcontractor to do the work for $30,000 and sued the first subcontractor for the $10,000 difference over the original bid of $20,000. Will the court likely award the $10,000 to the contractor and against the first subcontractor?
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?
A defendant charged with homicide had a long and tortured history of mental illness. He related several outrageous paranoid fantasies to the authorities and was sent to a mental hospital for evaluation of his ability to stand trial. The doctors reported that the only hope to restore the defendant to relative normalcy where he could stand trial was to administer widely-used anti-psychotic medicine. The man was also a danger to himself and others, and the medicine was in his medical best interests. The defendant asserted that the administration of drugs against his will would violate his liberty interest to substantive due process. Will the court likely order that the defendant should be involuntarily administered the anti-psychotic medications?
A church located in a western state was a branch of a church originating in a South American country. It received a large shipment from its home church of a special hallucinogenic tea that is used in the church’s sacramental religious services. The federal government seized the shipment, preventing the religious use of the tea. The church filed for an injunction requesting permission to import the tea for religious purposes and to prohibit any federal prosecutions. The government presented no evidence as to the dangers of the tea or reasons to outlaw it other than an analysis of its ingredients contained a natural chemical compound that was listed as a Schedule I prohibited substance. What is the most likely decision of the federal district court to the petition of the church?
A consumer purchases a lawn mower from a retail store. It contains a tag that says the purchaser should read the instruction book that is included. He reads the book, which contains a warning not to use the mower over gravel or stones or grassy areas mixed with rock or stone. The consumer remembers the warning but when he sees how smoothly the mower operates and how effortlessly it goes over a few small stones mixed in the grass, he decides to continue using the mower in areas filled with loose stones and rocks. One day a rock flies up and shatters the consumers face, causing him to lose an eye and suffer a broken nose and jawbone. He sues the manufacturer for putting out a defective product unreasonably dangerous to the consumer. What defense may give the manufacturer the best chance of having the case dismissed?
A woman conveyed by deed her farm to her nephew, for the nephew’s life. The nephew died prior to his aunt. The deed was silent on what happens on the nephew’s death. The nephew’s heirs tried to assert control and ownership of the property. The aunt sued them to assert her claimed superior interest in the property. Will the court return the property to the aunt?
A woman gets a phone call from a man representing himself to be a disabled veteran, asking for funding for the charitable group, “Veterans Welfare United,” that contributes its funds to disabled veterans of the Iraq and Afghanistan wars. He tells her that it is an established and respected national organization that has helped thousands of veterans. He tells her that a good 80% of the funds collected go directly to disabled veterans. She agrees to enter a program for automatic payments from her checking account of $500 per month. After one year, she discovers that the organization is only 20 months old, it provides 40% of its funds directly to disabled veterans and it has helped no more than a few dozen people since it started its operation. She sues the organization for misrepresentation, and includes the foregoing facts in the complaint. The organization files a motion to dismiss, arguing that the complaint fails to allege the elements of misrepresentation and the case should be dismissed as a matter of law. Will the court likely dismiss the action for failing to state a legal claim? No, because the organization made material misstatements of fact in an attempt to mislead the woman into making an investment. No, because the tort of misrepresentation is based on negligence, and the organization was negligent in making the claims that it made. Yes, the organization was merely engaging in “puffing” and exaggerating its claims for general effect. Yes, the telemarketer who called her was exercising his first amendment right to express an opinion; it is always up to the buyer to research a telephone solicitation for accuracy and truthfulness.
A customer was shopping at a large retail mall. She slipped and broke her hip on a patch of clear oily residue. It had accumulated over a two-day period in front of a massage kiosk, and spread several feet onto the main walking area for customers. There was a small sign as a part of the massage kiosk display on the front counter that said, “Beware of slippery floors.” The customer had been looking ahead and walking when her feet slid wildly off of the floor and sent her body somersaulting into the air and down onto the concrete foundation. After learning that she would be disabled permanently, she sued the mall and the massage company. Will she likely prevail in her negligence claim against the mall?
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?
A federal statute makes it a crime for anyone to “knowingly” use, transfer, acquire, alter, or possess food stamps in any manner not authorized by statute or federal regulations. A restaurant owner purchased food stamps from a undercover federal agent several times for a price below face value. At trial, the judge refused to charge the jury that this was a specific intent crime requiring proof that the defendant knew that he was acting illegally. The government urged that no mens rea, or "evil-meaning mind” had to be proved. The court simply told the jury that “knowingly” means that the Defendant realized what he was doing, and did not act through ignorance, mistake, or accident. The owner was convicted and appealed. What will the federal appellate court likely decide regarding the lower court’s interpretation of the criminal intent required under the statute?
In an employment law litigation, a former police officer sued a municipality for wrongful termination, alleging race discrimination and retaliation. The complaint was filed in a United States District Court. At trial, after the direct and cross-examination of the former officer was completed, the federal trial judge decided to clarify the plaintiff’s testimony for the jury. He asked about a dozen questions, taking the former officer through the procedures for reporting violations of office protocol, which was a key issue. Various details of the proper protocol were elicited by the judge’s questions. He ended the questioning and asked both counsel if they had anything further to add. They declined to add anything further. The jury came in with a substantial verdict in favor of the plaintiff. On appeal, the municipality argued that the judge’s questioning was in effect advocating on behalf of the plaintiff and prejudiced the jury against the defendant. What is the likely decision of the appellate court on that issue?
The plaintiff’s decedent was an executive who died while piloting a small-engine aircraft made and marketed by the defendant company. The aircraft had plunged to the ground after he reported autopilot irregularities and an icing problem. At trial, the plaintiff tried to present evidence of a fatal plane crash two years earlier involving the same make and model plane. The pilot in that crash called in to report icing problems but didn’t mention autopilot problems. In the present case, the decedent’s aircraft plunged nose-down into a field, whereas in the earlier crash the plane hit the trees at a slight angle only. The two planes had been flying at significantly different altitudes. The theories of causation are different in the two cases. The trial court disallowed the evidence because it had low probative value that was outweighed by a high danger of prejudicial effect. The jury decided against the plaintiff, who then appealed the evidentiary exclusion of the prior accident. What will the appellate court likely decide?
An owner of a small online startup company sued a competitor for copyright infringement and interference with contract. At trial, the owner's attorney questioned a juror who stated that she had worked for the competitor for 10 years in the past and still did regular part-time work for the company when it was extra busy. However, under questioning she stated that she could hear the case fairly and without prejudice. Can the attorney prevail in a motion to strike the juror for cause?
A business woman rented a second-floor office suite for her consulting business. It was located above a bank on the first floor, and partly on top of the bank vault. She obtained blueprints and brought drilling tools into the office. She studied bank activities and determined when at night she might be able to drill through to the vault. She inserted microscopic binoculars through the floor to explore the layout below. Before she started drilling, however, she noticed that more security persons appeared to be in the bank at night. Growing suspicious and losing the desire to take such a great risk, she hid the tools in her garage at home and did nothing further. A few weeks later, she was arrested by police based on reports regarding her suspicious nighttime activities. Does she have a viable defense to the attempted burglary charges?
A female driver approached an intersection and went through just as the yellow light appeared. She accelerated to make sure she made it through in time. She collided into a car driven by a male motorist coming from the intersecting street who was getting a jump on his red light that was in the process of turning green. The two cars collided, and the male motorist was seriously injured. He sued the other motorist for negligence. A jury assessed the man’s damages award at $100,000. It found that female driver was 40 percent at fault whereas the male driver was 60 percent at fault. What, if anything, can he collect from this verdict in a pure comparative negligence state?
An article appeared in a magazine dealing with public issues. The article discussed the author’s “personal theory” that a small group of industrial magnates, called the American Illuminati, controlled the government of the United States, regardless of the political party in power. The article mentioned names, and described how they generally aggrandized their economic power by keeping the poor down and concentrating all wealth at the top. The author believed that as long as these “fascist” individuals were ruling behind the scenes, that children here would continue to be deprived of food, a quality education and the right to true freedom. He called the group the “murderers” of the American spirit that once lived free. He concluded that if his “theory” was true, then the country must rise up and “bring down” this system of non-democratic governance. One of the individuals mentioned in the article, a well-known billionaire philanthropist who supported various political movements and candidates, brought a libel action against the author and the magazine. The defendants asked the court to dismiss the action because it failed to state a valid legal claim. Which of the following is the most likely ruling of the court under these circumstances?
The main witness against the defendant in a federal drug prosecution was an individual who was addicted to cocaine, had been hospitalized several times for psychotic experiences, and suffered from several mental illnesses. He arrived in court apparently lucid and ready to testify. The defendant objected to the testimony on the basis that the witness was incompetent to testify due to past mental illnesses. The judge questioned the witness, who stated that he understood the nature of the oath as a witness, that his memory of the events was clear, and he was not under the influence of any chemicals or alcohol. The defense was allowed to cross-examine the witness on his competency. The judge allowed the testimony, which was sufficient to convict the defendant. On appeal, the defendant raised the long mental history of the witness and argued that the judge should have held a detailed fact-finding hearing to determine the competency of the witness. What is the likely decision of the federal appellate court?
Two men discussed how to set up a drug network over the phone. The conversation was tape-recorded inadvertently by one of them. The one who did the recording said on the tape that he had already contacted his cocaine sources to ratchet up the pace for starting up the business. The conspiracy continued from that point and became a full-fledged drug trafficking player within a few years thereafter. The two conspirators were arrested for drug dealing and charged with conspiracy about five years after the initial taped conversation. The tape recording was found in the first man’s belongings. The authorities attempted to introduce the tape at the trial of the second man, who had never possessed or seen the tape. The second man objected that the tape was hearsay and should be excluded. Will the court most likely exclude the tape?
Two women are married in a state that recognizes same-sex marriages. One of them is driving home from work one day when a man in a pickup truck goes through a red light and rams into the woman’s car. She has to be extricated and is taken to the hospital. This puts a terrible strain on her spouse, and numerous functions in their life are disrupted. The injured woman sues the pickup driver for tort damages. Her spouse joins as a plaintiff. The defendant objects, arguing that there is no legal basis for allowing the marital partner to join in the case. Will the court order the spouse to be dismissed from the action?
An owner signed papers and a deed to sell a piece of property to buyer one, who held his deed and did not record it. The next month the original owner sold the same property to a second buyer. Buyer two had information that buyer one had bought the property, but he knew that buyer one had not yet recorded a deed. Buyer two recorded five days later. The next day after the deed was executed and delivered to the second buyer, the original owner conveyed a deed to the same property to a third buyer, who was a good faith purchaser for value and who recorded his deed the very same day. Which buyer has superior title under a race-notice recording statute?
The defendant was convicted under a criminal statute of raping a child under the age of 12. The court sentenced him to death pursuant to the permissible provisions of the criminal statute. The defendant appealed the death sentence, claiming that it violates the Eighth Amendment by imposing a sentence that is cruel and unusual based on the crime committed. Based on U.S. Supreme Court Eighth Amendment jurisprudence, what will be the most likely outcome?
A pedestrian found an elderly woman lying on the ground conscious but bruised from an attack and mugging that occurred a few minutes earlier. The woman related that the thugs who attacked her took her purse. However, she pulled out a money wallet and told him that they did not find the wallet, which had $2,000 cash in it. After calling 911 to get help for the woman, the pedestrian snatched the wallet from the woman’s hands and ran off. It happened so quickly that the woman had no time to react. The authorities caught him soon thereafter, and charged him with robbery and theft charges. What will be the most likely outcome of the robbery charge?
Some landowners had residential premises in a development called “The Lakes.” One owner’s property contained a small improved beach area that could be used for swimming. That owner gave oral permission to several neighbors to use the beachfront for swimming, as a friendly neighborly gesture. That owner sold her property to a new owner. The new owner erected fences and signs saying, “keep out.” The neighbors sued, claiming that they had an easement by implication through prior usage to use the beachfront. Will the court restore the use of the beachfront to the neighbors?
Immediately after a shooting incident, the police chased one of the shooters into an apartment where he was apprehended and arrested. While in the apartment, a detective noticed some antique furniture that seemed of collectors’ quality and was out of place in the squalidly furnished quarters. He moved and turned over the pieces to look for markings and insignia. He called headquarters, and was told that items with those markings and descriptions were stolen from a museum six months earlier. He seized the items and arrested another occupant, who claimed he owned the items, on charges of burglary. That suspect filed a motion to suppress based on there being a warrantless search without probable cause. The police relied on the plain view doctrine. Will the court likely suppress the evidence?
A woman was walking to a bus stop after leaving her workplace. A teen in a parked car waved a gun at her and asked in an obscene tone of voice if she would like a ride. She kept walking and he did not pursue, but she heard him yelling in her direction that maybe he should get out and teach her a lesson. The woman went straight to a police officer and reported the incident, stating that she was afraid. The police went to the car and found the teen, and the gun. The gun was unloaded. Will the police be able to successfully prosecute the man for simple assault?
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