Multistate Bar Exam Civil Procedure 4 — Questions and Answers
Question 1: A plaintiff files a complaint alleging breach of contract. The defendant's answer asserts that the plaintiff's own breach excuses the defendant's performance. This assertion is a:
- Counterclaim
- Crossclaim
- Affirmative defense (Correct answer)
- Third-party claim
Correct answer: Affirmative defense
An affirmative defense is new matter asserted by the defendant that, if proven, defeats the plaintiff's claim even if all of the plaintiff's allegations are true.
Question 2: Under the Erie doctrine, a federal court sitting in diversity must apply state law on which type of issue?
- All procedural matters governed by the Federal Rules of Civil Procedure
- Substantive issues such as elements of a claim, defenses, and statutes of limitations (Correct answer)
- The burdens and standards of proof applicable at trial
- The admissibility of evidence under the Federal Rules of Evidence
Correct answer: Substantive issues such as elements of a claim, defenses, and statutes of limitations
Under Erie Railroad Co. v. Tompkins, federal courts in diversity cases apply state substantive law, including elements of claims, defenses, and statutes of limitations, while federal procedural law governs the manner of litigation.
Question 3: A plaintiff sues in federal court and seeks to add a new defendant six months after the statute of limitations expired. Under FRCP 15(c), the amended complaint adding the new defendant 'relates back' to the original filing date if:
- The new defendant had actual notice of the lawsuit within the limitations period
- The new defendant received notice of the action within 90 days of filing, knew or should have known it would have been named, and the claim arises from the same transaction or occurrence (Correct answer)
- The plaintiff can show good cause for the late amendment
- The original defendant consents to the addition of the new party
Correct answer: The new defendant received notice of the action within 90 days of filing, knew or should have known it would have been named, and the claim arises from the same transaction or occurrence
Under FRCP 15(c)(1)(C), relation back requires that the new party received notice within the Rule 4(m) period, knew or should have known it would have been named but for a mistake, and the claim arises from the same transaction.
Question 4: A party seeks summary judgment under FRCP 56. The moving party does not bear the burden of proof at trial. What must the moving party show to obtain summary judgment?
- Affirmative evidence negating an essential element of the nonmoving party's case, or point to an absence of evidence to support the nonmoving party's case (Correct answer)
- Undisputed evidence that it would prevail at trial
- That the nonmoving party has produced no discovery materials whatsoever
- A preponderance of evidence in its favor on all issues
Correct answer: Affirmative evidence negating an essential element of the nonmoving party's case, or point to an absence of evidence to support the nonmoving party's case
When the moving party does not bear the burden of proof at trial, it may obtain summary judgment by either producing evidence negating an element of the opponent's case or showing the absence of evidence supporting that element.
Question 5: During trial, the plaintiff calls an expert witness who testifies about the cause of the plaintiff's injuries. The defendant challenges the expert's methodology. Under Daubert, the trial court acts as:
- A passive gatekeeper that defers to the jury on expert credibility
- A gatekeeper who must assess whether the expert's testimony is based on sufficient facts, reliable methodology, and reliably applied to the facts (Correct answer)
- An arbiter who must exclude any testimony not accepted by a majority of scientists in the field
- A reviewer limited to examining the expert's qualifications only
Correct answer: A gatekeeper who must assess whether the expert's testimony is based on sufficient facts, reliable methodology, and reliably applied to the facts
Under Daubert v. Merrell Dow Pharmaceuticals, the trial judge serves as a gatekeeper, examining whether expert testimony rests on sufficient facts, a reliable methodology, and reliable application of that methodology to the facts.
Question 6: A plaintiff files suit in State X federal court. The defendant is incorporated in State Y but has its principal place of business in State X. The plaintiff is a citizen of State X. Is diversity jurisdiction available?
- Yes, because the defendant is incorporated in State Y
- No, because the defendant is deemed a citizen of both State Y and State X, destroying complete diversity (Correct answer)
- Yes, because incorporation and principal place of business are considered separately
- No, because corporations cannot be sued in federal court under diversity
Correct answer: No, because the defendant is deemed a citizen of both State Y and State X, destroying complete diversity
Under 28 U.S.C. § 1332(c)(1), a corporation is deemed a citizen of every state where it is incorporated and the state where it has its principal place of business; since the defendant is a citizen of State X, complete diversity with the plaintiff (also State X) is destroyed.
Question 7: A defendant wants to implead a third party who may be liable to the defendant if the defendant is found liable to the plaintiff. Under FRCP 14, the defendant may implead a third party:
- Only with leave of court, regardless of when the motion is filed
- As of right within 14 days of serving the answer; thereafter, with leave of court (Correct answer)
- Only if the third party is jointly liable with the defendant to the plaintiff
- At any time before trial without restriction
Correct answer: As of right within 14 days of serving the answer; thereafter, with leave of court
Under FRCP 14(a)(1), a defending party may serve a third-party complaint as of right within 14 days of serving its original answer; after that, leave of court is required.
Multistate Bar Exam Civil Procedure 4
A plaintiff files a complaint alleging breach of contract.
The defendant's answer asserts that the plaintiff's own breach excuses the defendant's performance.
This assertion is a: