Multistate Bar Exam Civil Procedure 4

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:

Accepted Answer

Affirmative defense

Answer

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?

Accepted Answer

Substantive issues such as elements of a claim, defenses, and statutes of limitations

Answer

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:

Accepted 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

Answer

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?

Accepted 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

Answer

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:

Accepted Answer

A gatekeeper who must assess whether the expert's testimony is based on sufficient facts, reliable methodology, and reliably applied to the facts

Answer

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.

Multistate Bar Exam Practice Test

Multistate Bar Exam Practice Test

Multistate Bar Exam Civil Procedure 4