2020 National Conference of Bar Examiners (NCBE) Civil Procedure Sample MBE Questions

Question # 1

Two ranchers, both citizens of State A, brought an action in a state court in State A against a
developer, a citizen of State B. The ranchers alleged a state-law tort claim for water runoff damage to
their properties caused by construction on the developer's neighboring property. The first rancher
claimed $250,000 in damages and the second rancher claimed $50,000. In their complaint, the
ranchers cited federal law regarding the calculation of damages due to water runoff. The developer
timely removed the action to federal court.

Is removal proper?

A. No, because the ranchers are not diverse from each other.
B. No, because the second rancher's claim does not meet the amount-in-controversy requirement.
C. Yes, because the complaint includes a federal question.
D. Yes, because the ranchers are diverse from the developer and both ranchers' claims arise from
the same facts.

Solution: The correct answer is D.

Explanation: Answer option D is correct. The Supreme Court has held that the supplemental
jurisdiction statute, 28 U.S.C. § 1367, authorizes jurisdiction over claims that otherwise would not
meet the amount-in-controversy requirement for federal-diversity jurisdiction. See Exxon Mobil Corp.
v. Allapattah Services, 545 U.S. 546 (2005). The supplemental jurisdiction statute requires that the
insufficient claims be so related to claims in the action that are within the court’s original jurisdiction
that they form part of the “same case or controversy.” In this action, both ranchers’ claims arise from
water runoff caused by the same construction on the neighboring property and thus meet that
standard. Because the supplemental claim (the second rancher’s $50,000 claim) is being asserted by a
co-plaintiff joined under Federal Rule of Civil Procedure 20, 28 U.S.C. § 1367(b) does not operate to
withhold supplemental jurisdiction.

Answer option A is incorrect. Complete diversity is required between parties opposed in interest but
not between those aligned in interest. See 28 U.S.C. § 1332(a)(1); Strawbridge v. Curtiss, 7 U.S. 267
(1806). Thus, the fact that the two ranchers are both citizens of State A is irrelevant.

Answer option B is incorrect. Historically, multiple plaintiffs were not allowed to aggregate their
claims to satisfy the amount-in-controversy requirement for diversity jurisdiction unless their claims
shared a common and undivided interest. However, the Supreme Court has held that the enactment of
the supplemental jurisdiction statute, 28 U.S.C. § 1367, effectively changed that rule. See Exxon
Mobil Corp. v. Allapattah Services, 545 U.S. 546 (2005). Under that statute, the second rancher’s
$50,000 claim qualifies for supplemental jurisdiction because it arises from the same controversy over
the construction on the neighboring property as does the first rancher’s $250,000 claim.

Answer option C is incorrect. For federal-question jurisdiction to exist, the underlying claim for relief
must “arise under” federal law. 28 U.S.C. § 1331. Federal-question jurisdiction does not exist merely
because federal law is cited solely for the purpose of calculating damages. Federal law is not the law
that creates the ranchers’ tort claim, and therefore federal-question jurisdiction does not exist.
[From Civil Procedure outline:]

I.A. Jurisdiction and venue: federal subject-matter jurisdiction (federal question, diversity,
supplemental, and removal)
Question # 2

A beneficiary of a trust, who is a citizen of State A, has sued the trustee in federal court in State A for
failing to correctly distribute the income from the trust, seeking an accounting. The trustee was
personally served with process and the complaint by the beneficiary's attorney while the trustee was
vacationing in State A. The trustee is a citizen of State B, and the accounts that are the subject of the
trust are located in State B.

What is the trustee's best response to the complaint?

A. Answer the complaint and counterclaim for abuse of process.

B. File an action in a State B court and move to enjoin the State A action.
C. Move to dismiss for improper service by the attorney.
D. Move to dismiss for lack of personal jurisdiction.

Solution: The correct answer is D.

Explanation: Answer option D is correct. Although the trustee was served in State A, the facts show
no other contacts with State A, and the trust assets are in State B. The trustee was sued and served in
his representative capacity, but he was in State A on a personal vacation. Thus, the trustee can argue
that personal jurisdiction over him as a trustee was not obtained by the attorney’s service. Further, the
trustee has no minimum contacts as a trustee with State A to satisfy the requirements of fair play and
substantial justice. See Hanson v. Denkla, 78 S.Ct. 1228 (1958).

Answer option A is incorrect. There are two reasons why this option would not be the best response.
First, there was no abuse of process, since service by the attorney met the requirements of Federal
Rule of Civil Procedure 4(e)(2)(A). Second, answering the complaint means that the trustee will
litigate the conversion claim in State A, rather than in the trustee’s home state where the accounts and
evidence are located. Thus, it would be preferable to respond in a way that will force the beneficiary
to file the action in State B.

Answer option B is incorrect. There are two reasons why this option would not be the best response.
First, there is a question as to what claim the trustee could have against the beneficiary. If the trustee
simply seeks a declaratory judgment that there was no conversion of assets, thereby mirroring the
claim in the State A action, then the court will not enjoin the State A action because it was filed first,
and the first-filed action generally is allowed to proceed. Second, enjoining an action is disfavored
because it represents an interference with another tribunal. If the party seeking the injunction could
raise the same issues in the other tribunal, as it could here, then courts typically hold that the party has
an adequate alternative remedy and does not need injunctive relief. See 11A Wright, Miller & Kane,
Federal Practice & Procedure (3d ed.) § 2942.

Answer option C is incorrect. A motion to dismiss for improper service challenges the propriety of the
technique used for service. Rule 4(e)(2)(A) specifically authorizes service to be made by “delivering a
copy of the summons and of the complaint to the individual personally.” Further, service may be
made by “any person who is at least 18 years old and not a party.” Fed. R. Civ. P. 4(c)(2). Thus,
personal service on the trustee by the beneficiary’s attorney was proper under the Rules.

[From Civil Procedure outline:]

I.B. Jurisdiction and venue: personal jurisdiction
Question # 3

Before filing a federal civil action against a seller, a buyer's attorney unsuccessfully tried to settle with
the seller's attorney. Three days before the limitations period on the buyer's claim expired, the buyer's
attorney told the seller's attorney that she would file a complaint that day and asked the seller's
attorney whether he would accept service of the summons and complaint. The seller's attorney agreed
to do so. The buyer's attorney promptly filed the complaint but forgot to serve the seller's attorney.

Four months later, the buyer's attorney received a voicemail from the seller's attorney asking whether
she had ever filed the buyer's complaint. The buyer's attorney immediately mailed a copy of the
complaint to the seller's attorney.

The following week, the seller's attorney moved to dismiss the complaint for failure to effect timely
service of process.

Is the court likely to grant the seller's motion to dismiss?

A. No, because under the Federal Rules of Civil Procedure, the filing of the complaint
commences an action and the buyer’s complaint was timely filed.
B. No, because the seller's attorney had notice of the complaint and agreed to accept service.
C. Yes, because the buyer's attorney did not show good cause for her failure to effect timely
service.
D. Yes, because the limitations period expired without timely service.

Solution: The correct answer is C.

Explanation: Answer option C is correct. Because the buyer’s attorney did not effect timely service,
the only way to survive the seller’s motion to dismiss is for the buyer to demonstrate good cause for
failing to do so. Fed. R. Civ. P. 4(m). Forgetting to effect service is not good cause, which typically
includes something beyond the party’s control.

Answer option A is incorrect. Although Federal Rule of Civil Procedure 3 states that an action is
commenced when a complaint is filed, the Supreme Court has held that state law governs how and
when the statute of limitations runs. See Walker v. Armco Steel Corp., 100 S.Ct. 1978 (1980); Ragan
v. Merchants Transfer & Warehouse Co., 69 S.Ct. 1233 (1949).

Answer option B is incorrect. Informal notice of a possible complaint is insufficient to stop the statute
of limitations from running. Although the seller’s attorney agreed to accept service, the attorney did
not agree to accept untimely service and further was told by the buyer’s attorney that the complaint
would be filed “that day.” That statement would suggest that service would be made promptly, and
certainly within the 90-day window authorized by Federal Rule of Civil Procedure 4(m). The fact that
the seller’s attorney had to ask 120 days later whether the complaint had been filed underscores that
the attorney was not aware that the buyer had decided to go forward with the action.

Answer option D is incorrect. Although it is true that the limitations period expired before the seller’s
attorney was served, that fact alone would not require dismissal since the complaint was filed before
the expiration.
[From Civil Procedure outline:]

I.C. Jurisdiction and venue: service of process and notice

Question # 4

A woman domiciled in a foreign country brought a wrongful discharge action in federal court in State
A against her former employer. The employer is incorporated in State A and headquartered in State B.
The woman had worked at the employer's office in the foreign country. Her on-site manager, who had
sole discretion over personnel matters, had made the decision to discharge her. The manager has now
retired and continues to live in the foreign country.

Under the employment laws of the foreign country, if the woman succeeds in her action, her damages
would be limited to two years' salary. If the woman succeeds in her action under State A employment
law, her damages could be much greater and could include emotional distress and punitive damages.

The employer filed a motion to dismiss the action for insufficient service of process, which the court
denied. The employer then moved to dismiss the action for forum non conveniens.

Is the court likely to dismiss the action for forum non conveniens?

A. No, because the employer waived its right to challenge the forum by failing to include that
challenge in its first motion to dismiss.
B. No, because the remedies available to the woman under the foreign country's laws are less
favorable than those available under State A law.
C. Yes, because the foreign country is the more appropriate forum given that the discharge
occurred there and the evidence is located there.
D. Yes, because the woman is a foreign citizen and therefore her choice of forum is not entitled to
deference.

Solution: The correct answer is C.

Explanation: Answer option C is correct. In deciding whether to dismiss an action for forum non
conveniens, a court must weigh the private and public interests in keeping the action or dismissing it
so that it can be brought in the foreign country. Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).
Here, the conduct underlying the wrongful discharge claim took place in the foreign country, and the
plaintiff is a citizen of that country, giving that country an interest in the resolution of the dispute.
Additionally, all the evidence and witnesses, including the plaintiff and the retired manager, are
located in the foreign country, making it the most convenient place to try the action.

Answer option A is incorrect. Forum non conveniens is not one of the defenses listed in Federal Rules
of Civil Procedure 12(b)(2)–(5) that are waived if they are omitted from an earlier pretrial motion. See
Fed. R. Civ. P. 12(h)(1). In particular, the employer’s motion is not a motion to dismiss for improper
venue under Rule 12(b)(3) because the motion presumes that venue is proper but argues that there is a
much more convenient foreign forum in which the action should be tried. Thus, no waiver occurred.

Answer option B is incorrect. The Supreme Court has held that when deciding a forum non
conveniens motion, a court may consider the fact that the alternative forum is in a foreign country
whose law is not as favorable to the plaintiff as the law where the action was filed. Piper Aircraft Co.
v. Reyno, 454 U.S. 235 (1981). However, that fact alone is not determinative and must be weighed
against other factors suggesting why dismissal might or might not be appropriate.
Answer option D is incorrect. The Supreme Court has held that the typical deference given to the
plaintiff’s forum choice is not present when the plaintiff is a foreign citizen. Piper Aircraft Co. v.
Reyno, 454 U.S. 235 (1981). However, that fact alone does not determine whether dismissal is
warranted. Rather, the court must weigh the convenience of the parties and witnesses, as well as the
public interest in maintaining the action in the selected forum, before deciding whether to dismiss an
action for forum non conveniens.

[From Civil Procedure outline:]

I.D. Jurisdiction and venue: venue, forum non conveniens, and transfer
Question # 5

Ten months after surgery in a hospital, a patient who had suffered complications from the surgery
sued the surgeon and the hospital in federal court for medical malpractice, seeking $750,000 in
damages. Timely personal service was made on the surgeon and the hospital. Three months later,
during discovery, the patient learned that the hospital was owned by a national health-care company
and moved to amend the complaint to substitute the company for the hospital.

The company moved to dismiss, arguing that the forum state had enacted a one-year statute of
limitations for medical malpractice actions and that the company had been served after the limitations
period had expired. The company also noted that the state's highest court has interpreted the
limitations statute as forbidding any relation back of amendments adding parties in medical
malpractice actions. The patient argued that the Federal Rules of Civil Procedure control, and that
they allow relation back under the circumstances of this case.

Which law governs whether relation back will be permitted under these circumstances?

A. Federal law, because the Federal Rules of Civil Procedure govern over conflicting state rules
that deny relation back.
B. Federal law, because the state law on relation back is common law and federal courts are
bound only by state statutory law.
C. State law, because statutes of limitation are substantive and state law controls substantive
matters.
D. State law, because the Federal Rules of Civil Procedure authorize the use of state law for
relation back.

Solution: The correct answer is A.

Explanation: Answer option A is correct. The Supreme Court has held that the Federal Rules of Civil
Procedure govern over conflicting state rules unless it can be found that the Federal Rule at issue was
promulgated in violation of the Rules Enabling Act. Hanna v. Plumer, 380 U.S. 460 (1965). The Act
authorizes the Supreme Court to prescribe federal procedural rules so long as they do not “abridge,
enlarge or modify any substantive right.” 28 U.S.C. § 2072(b). To date, no Federal Rule has been
found to be in violation of the Act.

Answer option B is incorrect. The Supreme Court has held that federal courts sitting in diversity are
bound by both state common law and state statutory law under the Rules of Decision Act. Erie R.R.
Co. v. Tompkins, 304 U.S. 64 (1938).

Answer option C is incorrect. The Supreme Court has held that state statutes of limitation are
outcome-determinative and therefore controlling in federal diversity actions. Guaranty Trust Co. v.
York, 326 U.S. 99 (1945). However, the questions posed here are whether an amended pleading may
be allowed to relate back to avoid the expiration of the limitations statute and whether the Federal
Rules or state law controls the standards for deciding relation-back issues. Thus, the fact that the state
limitations statute applies does not answer the question whether the court should allow relation back
to avoid the consequences of missing the applicable statute-of-limitations deadline.
Answer option D is incorrect. Federal Rule of Civil Procedure 15(c)(1)(A) specifically provides that
federal courts sitting in diversity may use the state law that supplies the limitations statute when that
law “allows relation back.” This provision is designed to broaden the opportunity for actions to move
forward even when the other provisions of Rule 15(c) would not allow relation back. On these facts,
however, state law prohibits relation back, so the sole basis for determining whether relation back
applies are the standards set out in Rules 15(c)(1)(B) and (C).

[From Civil Procedure outline:]

II.A. Law applied by federal courts: state law in federal court

Question # 6

A plaintiff obtained an ex parte temporary restraining order (TRO) in a federal civil action and posted
a bond the same day. One day later, the plaintiff served the defendant with copies of the summons and
complaint, the TRO, and supporting documents. The court scheduled a hearing on the preliminary
injunction to occur 14 days after the TRO had been issued.

Two days before the hearing, the plaintiff moved to extend the TRO and postpone the hearing for one
week on the ground that its principal witness would be unavailable to testify on the scheduled day due
to a planned vacation. The defendant opposed the motion and moved to dissolve the TRO.

Is the court likely to grant the defendant's motion to dissolve the TRO?

A. No, because a TRO can be extended once for 14 days.

B. No, because the plaintiff posted a bond and its principal witness's testimony is critical to the
hearing.
C. Yes, because the plaintiff's principal witness's vacation is not good cause to extend the TRO.
D. Yes, because the TRO will expire before a rescheduled hearing can be held.

Solution: The correct answer is C.

Explanation: Answer option C is correct. Under Federal Rule of Civil Procedure 65(b), a TRO expires
after 14 days. An extension of the TRO before the hearing is dependent on a showing of good cause.
The plaintiff should have known the availability of its principal witness before seeking a TRO. The
witness’s vacation was planned, so there was no surprise in the witness’s unavailability. Therefore,
the plaintiff cannot show good cause for extending the TRO.

Answer option A is incorrect. While Rule 65(b)(2) provides that a TRO can be extended before its
initial 14-day period expires, the court can do so only for good cause or if the adverse party consents.
There is no right to or presumption of an automatic extension. Here, the defendant has objected, and
the plaintiff has not offered any explanation as to why it did not discover until just before the
preliminary injunction hearing that its principal witness would be on vacation.

Answer option B is incorrect. The posting of the bond has no bearing on whether to extend the TRO.
The bond is required under Rule 65(c) to provide security for any costs or losses the defendant may
sustain if it is later determined that the defendant was wrongfully restrained. The bond is separate
from the standard for obtaining, extending, or dissolving a TRO. In addition, the critical nature of the
principal witness’s testimony, standing alone, does not establish the good cause needed for an
extension of the TRO under Rule 65(b)(2). The plaintiff has the burden to explain why there was such
late notice of the witness’s vacation plans and how the plaintiff has tried otherwise to work within the
original timeline. Those explanations must be weighed against the prejudice to the defendant.

Answer option D is incorrect. If the court decided to grant the TRO extension, Rule 65(b)(2) provides
that the extension is to be for “a like period,” which would be 14 days. Because the requested hearing
date would be only one week after the grant of the extension, the TRO would still be in effect.

[From Civil Procedure outline:]

III.A. Pretrial procedures: preliminary injunctions and temporary restraining orders
Question # 7

A pedestrian was struck in a crosswalk by a truck and severely injured. The pedestrian brought a
federal diversity action against the driver of the truck, alleging the following in the complaint: "On
January 15, 2016, on Broad Street in City A, located in State B, the defendant negligently drove a
motor vehicle, striking the plaintiff. As a result, the plaintiff was physically injured, lost wages or
income, suffered physical and mental pain, and incurred medical expenses of $100,000."

The truck driver has moved to dismiss the action for failure to state a claim, arguing that the
complaint lacks sufficient detail.

Is the court likely to grant the motion?

A. No, because the complaint alleges facts showing plausible entitlement to relief.
B. No, because the pedestrian has not had an opportunity to conduct discovery.
C. Yes, because the complaint fails to allege facts showing probable entitlement to relief.
D. Yes, because the complaint uses the term "negligently," which is a legal conclusion.

Solution: The correct answer is A.

Explanation: Answer option A is correct. The Supreme Court has articulated the current pleading
standard as requiring complaints to contain sufficient facts to state a claim “plausible on its face.”
Courts must be able to do more than infer the “possibility” of recovery. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). The pedestrian’s complaint sets out the date and place of an accident
in which the pedestrian claims that the truck driver hit him and lists several resulting injuries and
losses. If proven, these facts clearly set out a plausible negligence claim.

Answer option B is incorrect. The fact that the pedestrian has had no opportunity for discovery is
irrelevant; the pedestrian will survive the motion to dismiss because the facts in his complaint, if
proven, set out a plausible negligence claim.

Answer option C is incorrect. The Supreme Court has articulated the current pleading standard as
requiring complaints to contain sufficient facts to state a claim “plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007). “Probable entitlement to relief” is a higher standard and is
used in situations where preliminary injunctions are sought, which is not the case here.

Answer option D is incorrect. Federal pleadings standards do not prohibit the statement of legal
conclusions in a complaint. Federal Rule of Civil Procedure 8(a) merely requires “a short and plain
statement of the claim showing that the pleader is entitled to relief.” The inclusion of a legal
conclusion does not make a pleading defective.

[From Civil Procedure outline:]

III.B. Pretrial procedures: pleadings and amended and supplemental pleadings

Question # 8

A man asked his attorney whether he had a legal basis to challenge a rate increase proposed by his
electric utility company. The attorney said that he did and filed a federal action seeking a declaratory
judgment that the proposed increase would violate federal law.

Soon thereafter, the court issued an order requiring the man and his attorney to show cause why they
should not be sanctioned under Rule 11 and required to pay a monetary penalty to the court for filing
a frivolous complaint. The order cited several recent judicial decisions holding that rate increases such
as the one proposed do not violate federal law.

May the court impose this monetary sanction on the man?

A. No, because the court cannot impose a monetary sanction under Rule 11 without a motion
seeking such a sanction.
B. No, because the man is represented by an attorney.
C. Yes, because the action is not warranted by existing law.
D. Yes, because the court issued a show-cause order before imposing any sanction.
Solution: The correct answer is B.

Explanation: Answer option B is correct. Federal Rule of Civil Procedure 11(c)(5)(A) specifically
provides that the court must not impose a monetary sanction on a represented party on the ground that
the party’s attorney violated Rule 11(b)(2) by making an argument not grounded in existing law or a
nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new
law. Thus, while the monetary penalty might be appropriate for the attorney, it cannot be imposed on
the man.

Answer option A is incorrect. Rule 11(c)(3) specifically authorizes the court on its own initiative to
issue a show-cause order as to why conduct specifically described in the order has not violated Rule
11(b).

Answer option C is incorrect. Although there may have been a sanctionable violation of Rule 11(b)(2)
here, Rule 11(c)(5)(A) specifically provides that the court may not impose a monetary sanction on a
represented party for such a violation.

Answer option D is incorrect. The issuance of a show-cause order merely provides a party with notice
of a possible infraction and an opportunity to argue against it. It does not itself determine if a sanction
should be imposed. Additional facts must be considered before making that determination.

[From Civil Procedure outline:]

III.C. Pretrial procedures: Rule 11

Question # 9

A pharmaceutical retailer sued a drug manufacturer in federal court for antitrust and unfair-
competition violations under federal and state law. After the parties completed discovery, the retailer
submitted a pretrial narrative statement designating a broad set of facts and issues to be tried. The
manufacturer disputed the statement and submitted a much narrower one. At the final pretrial
conference, the court entered its final order, ruling in favor of the retailer's broader statement as the
one the court would read to the jury during voir dire and would use to define the facts and issues to be
tried.

The manufacturer's attorney is concerned that trying many of the facts and issues listed in the pretrial
order would reveal litigation strategies important in other actions pending against the manufacturer.

What is the best way for the manufacturer's attorney to seek relief from the court's ruling on the
pretrial statement?

A. Appeal from the final pretrial order, arguing that it is overbroad on its face.
B. Object in the trial court and appeal any adverse ruling on the objection.
C. Object in the trial court and file a motion to delay the trial.
D. Object in the trial court and move to modify the order to prevent manifest injustice.

Solution: The correct answer is D.

Explanation: Answer option D is correct. Under Federal Rule of Civil Procedure 16(e), once a trial
court issues an order regarding the trial plan after a final pretrial conference, that order may be
modified only to prevent manifest injustice. Thus, if the manufacturer’s attorney wants to modify the
final pretrial order, the attorney must move for a modification and demonstrate that manifest injustice
would result if the order is not modified.

Answer option A is incorrect. An immediate appeal from the final pretrial order is not possible
because there is no final judgment in the action. Further, if the manufacturer’s attorney does not seek
to modify the final pretrial order at the trial-court level, the issue will not be preserved for appeal.
Thus, the attorney should move to modify the order by demonstrating that manifest injustice would
result if it is not modified. Fed. R. Civ. P. 16(e). If the court rejects that motion, then the attorney will
be able to challenge the court’s ruling on appeal, where it will be reviewed for an abuse of discretion.
See United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1236 (10th Cir. 2000).

Answer option B is incorrect. An immediate appeal from any adverse ruling on the objection is not
possible because there is no final judgment in the action. Further, merely objecting at the trial-court
level will not suffice to preserve the issue for appeal.

Answer option C is incorrect. Merely objecting at the trial-court level will not suffice to preserve the
issue for appeal, and a motion to delay the trial does not advance the manufacturer’s attorney’s goal of
modifying the final pretrial order.

[From Civil Procedure outline:]

III.G. Pretrial procedures: Pretrial conference and order

Question # 10

A plaintiff brought a class action in federal court against a nationwide grocery-store chain for
violating a federal disability-rights statute that requires public buildings to be wheelchair-accessible.
The plaintiff sought an injunction requiring the grocery chain to modify the entrances to its stores to
comply with the statute. The plaintiff demanded a jury trial.

The statute is silent on the right to a jury trial. The grocery chain does not want a jury trial.

What is the grocery chain's strongest argument that the plaintiff is not entitled to a jury trial?

A. Class actions are so complex as to be outside the jury's competence to decide.

B. Disability-rights claims did not exist at common law when the Seventh Amendment was
adopted.
C. The remedy the plaintiff seeks is primarily equitable in nature.
D. The statute is silent on the right to a jury trial.

Solution: The correct answer is C.

Explanation: Answer option C is correct. The Seventh Amendment preserves the right to a jury trial in
actions in which legal, not equitable, relief is sought. Here, the plaintiff is seeking an injunction,
which is equitable relief. Therefore, the plaintiff is not entitled to a jury trial.

Answer option A is incorrect. Whether a litigant is entitled to a jury trial does not depend on whether
or not the action is a class action. There is no complexity exception to the right to a jury trial.

Answer option B is incorrect. There is no blanket prohibition against jury trials for claims that did not
exist at common law when the Seventh Amendment was adopted. Rather, the right to a jury trial
depends on whether the statutory claim is analogous to one tried to a jury at common law and whether
the relief sought is legal, not equitable.

Answer option D is incorrect. There is no blanket prohibition against jury trials for claims based on
federal statutes, even if those statutes are silent on the right to a jury trial. The Seventh Amendment
preserves the right to a jury trial in statutory actions that provide for claims analogous to claims tried
at common law in which legal relief is sought.

[From Civil Procedure outline:]

IV.A. Jury trials: right to jury trial

Question # 11

An actor brought a federal diversity action against a theater company for breach of contract. Twenty
days after discovery closed, the company moved for summary judgment. The company attached to the
motion affidavits of its managing director and artistic director and a verified copy of its contract with
the actor. In their affidavits, the directors stated facts establishing that the company had fully
performed the contract.

The actor's brief opposing the motion relied solely on the allegations of the complaint.

Should the court grant the summary-judgment motion?

A. No, because in deciding the motion, the court must take the allegations and inferences of the
complaint as true.
B. No, because the company did not timely file the motion.
C. Yes, because the actor filed no evidence in opposition to the motion.
D. Yes, because there is no genuine dispute as to any material fact and the company is entitled to
judgment as a matter of law.
Solution: The correct answer is D.

Explanation. Answer option D is correct. At the summary judgment stage, the court may consider
evidence beyond the pleadings to determine whether there is a genuine dispute as to any material fact.
Here, the company has offered evidence that establishes its defense of full performance. The burden
then shifted to the actor, who has not offered any evidence that would tend to refute the company’s
evidence. The actor’s reliance on the allegations of the complaint alone is insufficient. Because the
actor has failed to show that there is a genuine dispute regarding any material fact, the company’s
evidence entitles it to judgment as a matter of law. Fed. R. Civ. P. 56(e)(3).

Answer option A is incorrect for the reason given in the explanation for answer option D.

Answer option B is incorrect. A party may move for summary judgment at any time until 30 days
after the close of all discovery. See Fed. R. Civ. P. 56(b). Here, the company’s motion for summary
judgment was timely because it was made 20 days after discovery closed.

Answer option C is incorrect. There is no requirement that an opposing party file evidence in
opposition to a summary-judgment motion. First Nat. Bank of Arizona v. Cities Serv. Co., 88 S.Ct.
1575 (1968). The party can simply argue that the moving party’s evidence is insufficient to warrant
judgment as a matter of law. 10A Wright, Miller & Kane, Federal Practice & Procedure § 2727.2.
Therefore, the failure to file evidence is not itself a basis to grant summary judgment.

[From Civil Procedure outline:]

V.A. Motions: pretrial motions, including motions addressed to face of pleadings, motions to dismiss,
and summary judgment motions
Question # 12

After being forcibly ejected from a casino, a tourist brought a federal diversity action against the
casino, seeking $105,000 in damages. The tourist claimed that the casino's security guard had used
excessive force when ejecting him from the casino, causing severe personal injuries.

At trial, the tourist's attorney attempted to introduce testimony of the security guard's ex-wife, who
had filed several complaints of spousal abuse against the security guard. The casino's attorney
objected that the evidence was irrelevant and unfairly prejudicial. The court overruled the objection,
and the ex-wife testified. The jury returned a verdict for the tourist, awarding him $82,000 in
damages.

The casino's attorney believes that the ex-wife's testimony was unfairly prejudicial and should not
have been admitted.

What is the best way for the casino's attorney to attack the verdict?

A. Appeal, arguing that the trial court erred in admitting the testimony, which was so prejudicial
that the judgment should be reversed.
B. Move for a new trial, arguing that the court erred in admitting the testimony and that a new
trial without the testimony is necessary.
C. Move for judgment as a matter of law, arguing that the court erred in admitting the testimony
and that without the testimony, the evidence was legally insufficient to find for the tourist.
D. Move for relief from judgment, arguing that the court's admission of the testimony was a
mistake.

Solution: The correct answer is B.

Explanation: Answer option B is correct. If the testimony was improperly admitted, that is an error
that can most immediately be urged on the trial court via a motion for a new trial.

Answer option A is incorrect. Although the erroneous admission of testimony could be a basis for an
appeal, the most immediate way to obtain the desired relief is to move for a new trial at the trial-court
level. Preserved evidentiary objections may be raised as a ground for a new trial.

Answer option C is incorrect. A motion for judgment as a matter of law is not the proper vehicle for
raising the erroneous admission of evidence. Rather, it is a motion used to indicate that the evidence
that has been presented to the court is so one-sided that the movant is entitled to judgment as a matter
of law. Further, the motion may be raised after a jury verdict only if it was first made before the case
was submitted to the jury, which did not occur here.

Answer option D is incorrect. Federal Rule of Civil Procedure 60(b)(1) authorizes relief from a
judgment entered as a result of a mistake. Typically, this covers party mistakes in allowing a default
judgment to be entered or judicial mistakes in the entry of the judgment itself. Judicial errors in
admitting evidence are not treated as mistakes under Rule 60(b)(1).

[From Civil Procedure outline:]

V.C. Motions: posttrial motions, including motions for relief from judgment and for new trial
Question # 13

A stockbroker was convicted in federal court of criminal fraud in the sale of certain securities. A
former client then sued the stockbroker in a federal civil action, alleging fraud in the sale of the same
securities for which the stockbroker had been criminally convicted. The client's attorney moved to
preclude the stockbroker from relitigating the liability issues that were common to the criminal and
civil actions. The court granted the motion and, after a bench trial on damages, entered judgment
against the stockbroker for $100,000.

On appeal from the stockbroker's criminal conviction, the appellate court reversed and vacated the
conviction. The stockbroker promptly moved for relief from the final judgment in the civil action. The
motion was filed 15 months after entry of the final judgment in the civil action.

Should the court grant the motion?

A. No, because it is untimely.

B. No, because the stockbroker did not appeal the civil judgment.
C. Yes, because the court in the civil action should not have based the civil judgment on the
criminal judgment before it had been reviewed on appeal.
D. Yes, because the criminal judgment on which the civil judgment was based has been reversed
and vacated.

Solution: The correct answer is D.

Explanation: Answer option D is correct. The stockbroker’s motion is made under Federal Rule of
Civil Procedure 60(b)(5), which allows the court to grant relief from the final judgment in the civil
action because the criminal judgment on which the civil judgment was based has been reversed and
vacated.

Answer option A is incorrect. The stockbroker’s motion is made under Rule 60(b)(5), because the
ground for the motion is that the judgment was based on an earlier judgment that has been reversed
and vacated. Under Rule 60(c)(1), motions under Rule 60(b) must be made within a “reasonable time”
after the entry of the judgment. Rule 60(b)(1) imposes a one-year deadline, but that deadline applies
only to motions made under Rule 60(b)(1), (2), or (3). Here, the stockbroker promptly moved for
relief after the conviction was vacated, making it a reasonable time under Rule 60(c)(1).

Answer option B is incorrect. There is no requirement that an appeal be taken before moving to set
aside a judgment under Rule 60(b). Indeed, the stockbroker would not have been able to appeal the
civil judgment because the court in the civil action properly gave preclusive effect to the conviction
and thus there was no error. No appeal would be possible now because the time for appeal has
expired.

Answer option C is incorrect. Once there is a final judgment in an action, the judgment is entitled to
preclusive effect. The fact that the judgment is subject to reversal on appeal does not undermine its
preclusive effect unless and until the appeal actually reverses or vacates the judgment. See
Restatement (Second) of Judgments § 13, cmt. f.

[From Civil Procedure outline:]

V.C. Motions: posttrial motions, including motions for relief from judgment and for new trial
Question # 14

A builder brought a federal diversity action against a homeowner for breach of contract, seeking
$115,000 in damages. The homeowner answered and counterclaimed for $93,000 in damages for
breach of warranty. Four weeks later, when the homeowner had not received any responsive pleading
from the builder, the homeowner moved for entry of default and a default judgment on the
counterclaim. After the clerk entered default, the homeowner asked the clerk to enter a default
judgment.

May the clerk enter a default judgment?

A. No, because only the court can enter a default judgment under these circumstances.
B. No, because the builder's time to respond has not expired.
C. Yes, because the builder has failed to defend himself against the counterclaim.
D. Yes, because the damages the homeowner seeks are a sum certain.

Solution: The correct answer is A.

Explanation: Answer option A is correct. A clerk may enter default judgment only when the amount
sought is a sum certain and the defaulting party has failed to appear. Fed. R. Civ. P. 55(b)(1). Here,
because the defaulting party—the builder—is the original plaintiff in the action and thus appeared
when filing the complaint, the clerk is precluded from entering a default judgment.

Answer option B is incorrect. The builder had 21 days to respond to the counterclaim. Fed. R. Civ. P.
12(a)(1)(B). Four weeks have passed, meaning that the time to respond has expired.

Answer option C is incorrect. For the reason given in the explanation for answer option A, the
builder’s failure to defend against the counterclaim is the basis for the entry of default, not the basis
for the entry of a default judgment.

Answer option D is incorrect. For the reason given in the explanation for answer option A, the clerk is
precluded from entering a default judgment regardless of whether the homeowner’s damages are a
sum certain.

[From Civil Procedure outline:]

VI.A. Verdicts and judgments: defaults and dismissals

Question # 15

An accounting firm brought a federal diversity action against a former client for failing to pay for the
firm's audit of the client's financial statements. After the client answered, the parties settled, and the
court dismissed the action with prejudice. The client subsequently sued the firm for negligently
performing the audit. The firm moved to dismiss the negligence action on the basis of res judicata
(claim preclusion).

Is the court likely to grant the motion?

A. No, because the firm's negligence was never raised or decided in the first action.
B. No, because the first action was resolved by settlement.
C. Yes, because the court dismissed the first action with prejudice.
D. Yes, because the negligence claim was transactionally related to the claim in the first action
and should have been asserted as a counterclaim.

Solution: The correct answer is D.

Explanation: Answer option D is correct. The negligence claim arose out of the same audit that was
the subject of the dispute in the first action. The parties in the second action were adversaries in the
first action, and that action was resolved through a settlement and dismissal with prejudice. Therefore,
the first action precludes the client from asserting any claims arising out of the transaction that was
the subject of the first action, which would include the negligence claim. The client should have
asserted the negligence claim in the first action as a compulsory counterclaim, and its failure to do so
means that the court is likely to grant the motion to dismiss.

Answer option A is incorrect. Because the claim that the client asserted in the second action
(negligence) arose out of the same audit that was the subject of the dispute in the first action, the
client should have asserted the negligence claim in the first action as a compulsory counterclaim.
Claim preclusion prevents the presentation of claims that ought to have been asserted and decided in
the first action, not just those that were actually asserted.

Answer option B is incorrect. A judgment entered as the result of settlement is entitled to preclusive
effect. See Arizona v. California, 530 U.S. 392, 414 (2000); 18A Wright, Miller & Cooper, Federal
Practice and Procedure § 4443.

Answer option C is incorrect. A dismissal with prejudice in a first action can be preclusive of a
second action but only if the claims in the second action arise out of the same transaction as the first
action. The fact that the first action was dismissed with prejudice is not sufficient by itself to
determine that claim preclusion applies.

[From Civil Procedure outline:]

VI.D. Verdicts and judgments: effect; claim and issue preclusion

Question # 16

After a federal trial in which the jury awarded the plaintiff $100,000 in compensatory damages and $7
million in punitive damages, the defendant moved for a new trial on the ground that the verdict was
not supported by the evidence and also that the punitive damages award was unconstitutionally
excessive. The trial court, after reviewing the evidence, denied the motion on the condition that the
plaintiff accept a reduced punitive damages award of $1 million, which the plaintiff did.

The defendant wants to appeal.

Which of the following principles governs the appellate court's review?

A. The trial court cannot weigh the evidence in ruling on a motion for a new trial.
B. The trial court must give the plaintiff the minimum amount that the jury could have awarded
under the evidence.
C. The trial court's decision to reduce the punitive damages award is reviewed de novo.
D. The trial court's reduction of the punitive damages award improperly invaded the province of
the jury.

Solution: The correct answer is C.

Explanation: Answer option C is correct. When a trial court reduces a punitive damages award on the
ground that it is unconstitutionally excessive, the appellate court reviews that determination de novo.
See Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001).

Answer option A is incorrect. On new-trial motions, the trial court may weigh the evidence and the
credibility of witnesses and need not view the evidence in the light most favorable to the prevailing
party.

Answer option B is incorrect. When conditioning the denial of a new trial motion on the plaintiff’s
acceptance of a lower amount of damages than the jury awarded, the trial court has discretion to
award any amount supported by the evidence.

Answer option D is incorrect. Remittitur is constitutional and does not interfere with the province of
the jury so long as the trial court gives the plaintiff the option of proceeding with a new trial. See
Dimick v. Schiedt, 293 U.S. 474, 486–487 (1935).

[From Civil Procedure outline:]

VII.C. Appealability and review: scope of review for judge and jury