MBE Multistate Bar Examination

A plaintiff from Ohio sues a defendant from Michigan in federal district court in Ohio, alleging breach of a $90,000 contract. The case is filed solely under diversity jurisdiction. The defendant moves to dismiss for lack of subject-matter jurisdiction. How should the court rule?

• ADeny the motion because the parties are citizens of different states.
• BGrant the motion because the amount in controversy does not exceed $75,000 exclusive of i…
• CDeny the motion because diversity jurisdiction requires only a good-faith allegation of a…
• DGrant the motion because federal courts have no jurisdiction over state-law contract clai…

A plaintiff sues a defendant in federal court under diversity jurisdiction. The defendant has never been to the forum state, owns no property there, has no contracts there, and has no contacts with the forum. The plaintiff serves the defendant with process while the defendant is briefly changing planes at the forum-state airport. Does the federal court have personal jurisdiction over the defendant?

• ANo, because the defendant lacks minimum contacts with the forum state.
• BNo, because transient presence is never a constitutional basis for personal jurisdiction.
• CYes, because personal service on a defendant physically present in the forum state is a c…
• DYes, but only if the underlying claim arose in the forum state.

In a diversity action filed in federal district court in California, the defendant moves for summary judgment. The substantive cause of action is governed by California law. The defendant argues that the California state-court summary-judgment standard, which is more plaintiff-friendly than the federal Rule 56 standard, should apply. How should the court rule on which standard applies?

• AApply the California state summary-judgment standard because Erie requires federal courts…
• BApply the federal Rule 56 standard because Rule 56 is a valid Federal Rule of Civil Proce…
• CApply whichever standard is more favorable to the moving party.
• DApply the California standard for the elements of the claim but the federal standard for…

A plaintiff sues two defendants in federal court for injuries from a single auto accident. One claim is based on negligence, the other on negligent entrustment of the vehicle. Both arise out of the same accident. Joinder of the two defendants in a single action is:

• AImproper because joinder of defendants in a single action requires identical legal theori…
• BProper under Rule 20 because the claims arise out of the same transaction or occurrence a…
• CPermitted only with the consent of both defendants.
• DImproper unless the defendants are jointly and severally liable.

A federal court grants summary judgment to a defendant in a negligence case on the ground that the plaintiff cannot establish the element of duty. The judgment is on the merits and final. The plaintiff later files a second suit in a different federal district against the same defendant on the same facts, alleging strict products liability. The defendant moves to dismiss based on claim preclusion (res judicata). How should the court rule?

• ADeny the motion because the second suit alleges a different legal theory.
• BDeny the motion because claim preclusion does not apply to summary judgments.
• CGrant the motion because claim preclusion bars all claims arising from the same transacti…
• DGrant the motion only if both jurisdictions follow the Restatement (Second) of Judgments.

A plaintiff files a complaint in federal court asserting only a state-law breach-of-contract claim. The complaint alleges that the defendant breached the contract by violating a federal regulation. The parties are non-diverse. Does the federal court have federal-question jurisdiction?

• AYes, because federal law is mentioned in the complaint.
• BYes, because the defendant's defense will raise a federal issue.
• CNo, because the cause of action arises under state law, not federal law.
• DNo, because federal-question jurisdiction requires diversity of citizenship.

In a federal diversity action, the parties dispute whether a state statute of limitations or federal common-law limitations period applies. The Supreme Court has held that statutes of limitations are:

• AProcedural, so federal common law applies in diversity.
• BSubstantive for Erie purposes, so state law applies in diversity.
• CSubject to the parties' choice in the pleadings.
• DAlways governed by the Federal Rules of Civil Procedure.

A plaintiff sues a defendant in federal court for $200,000. After the defendant answers, the plaintiff moves to amend the complaint to add a related claim against a third party not yet in the lawsuit. The third party is a citizen of the same state as the plaintiff, and there is no independent federal jurisdiction over the claim against the third party. The court should:

• APermit joinder because Rule 20 allows permissive joinder of any defendant.
• BDeny joinder because supplemental jurisdiction does not extend to claims against new defe…
• CPermit joinder if the plaintiff agrees to limit damages to $75,000.
• DPermit joinder because federal courts have inherent power to consolidate related claims.

Under Federal Rule 56, summary judgment is appropriate when:

• AThe movant shows by a preponderance of the evidence that the movant should prevail.
• BThere is no genuine dispute as to any material fact and the movant is entitled to judgmen…
• CThe opposing party fails to appear at the hearing.
• DThe judge concludes that the nonmovant's case is weaker than the movant's.

A plaintiff files a federal-question action in federal district court. The defendant timely removes a related state-court action to federal court. The plaintiff moves to remand on the ground that one defendant did not join the notice of removal. Under 28 U.S.C. § 1446, removal of a civil action requires:

• AA majority vote of all defendants.
• BThe consent of all properly joined and served defendants.
• COnly the consent of the lead defendant.
• DCourt approval before removal can be effective.

A federal court enters a judgment in favor of the defendant after a jury trial. The plaintiff did not move for judgment as a matter of law (Rule 50(a)) before submission to the jury. The plaintiff now wants to move for a renewed judgment as a matter of law under Rule 50(b). May the plaintiff do so?

• AYes, Rule 50(b) is independent of Rule 50(a).
• BNo, a Rule 50(b) motion can be made only if a Rule 50(a) motion was made before the case…
• CYes, but only with leave of court.
• DNo, but the plaintiff may seek a new trial under Rule 59.

A plaintiff sues a corporation in federal court under diversity jurisdiction. The corporation is incorporated in Delaware, has its headquarters in New York, and conducts most of its operations in California. For diversity purposes, the corporation is a citizen of:

• ADelaware only.
• BDelaware and California.
• CDelaware and New York.
• DDelaware, New York, and California.

A federal court grants a defendant's Rule 12(b)(6) motion to dismiss without leave to amend. The plaintiff appeals. The court of appeals reviews the dismissal:

• AFor abuse of discretion.
• BDe novo, accepting all factual allegations in the complaint as true and drawing reasonabl…
• CFor clear error.
• DOnly on the record made at oral argument.

Under Federal Rule 4(m), if a defendant is not served within 90 days after the complaint is filed, the court must:

• ADismiss the action with prejudice.
• BDismiss the action without prejudice or order that service be made within a specified tim…
• CEnter default judgment against the defendant.
• DContinue the case indefinitely until service is achieved.

Congress passes a statute regulating the sale of homegrown wheat consumed entirely on the farm where it is grown. A farmer challenges the statute as exceeding Congress's power under the Commerce Clause. The Supreme Court is most likely to:

• AStrike down the statute because purely intrastate, non-economic activity is beyond the Co…
• BUphold the statute because intrastate activity that, in the aggregate, has a substantial…
• CStrike down the statute because it violates the Tenth Amendment.
• DUphold the statute only if the farmer has voluntarily entered the stream of commerce.

A state law requires that all milk sold in the state be processed within the state. Out-of-state dairies challenge the law as a violation of the Dormant Commerce Clause. The state argues that the law protects consumer health. The court is most likely to:

• AUphold the law as a valid exercise of state police power.
• BStrike down the law because it facially discriminates against interstate commerce and is…
• CUphold the law if any rational basis supports it.
• DStrike down the law only if Congress has enacted a contrary statute.

The President issues an executive order seizing private steel mills during wartime to prevent a labor strike, even though Congress has not authorized the seizure and has previously declined to do so. The seizure is most likely:

• AConstitutional under the President's Commander-in-Chief power.
• BUnconstitutional because the President is acting against the expressed or implied will of…
• CConstitutional under the Take Care Clause.
• DConstitutional because national security justifies any executive action.

A city ordinance bans all door-to-door solicitation. A religious group sues, claiming the ordinance violates the First Amendment. The ordinance is content-neutral. Under what standard will the court evaluate the ordinance?

• AStrict scrutiny.
• BIntermediate scrutiny: the regulation must be narrowly tailored to serve a significant go…
• CRational-basis review.
• DNo scrutiny because door-to-door solicitation is not protected speech.

A state law requires public school students to recite the Pledge of Allegiance. Students who refuse on religious grounds are suspended. The law most likely violates:

• AThe Free Exercise Clause.
• BThe Establishment Clause.
• CThe Free Speech Clause, because compelled affirmation of belief is unconstitutional regar…
• DNeither, because the Pledge is a secular ceremony.

A state law provides scholarships to students attending private religious schools on the same terms as students attending other private schools. Taxpayers challenge the law as a violation of the Establishment Clause. The Supreme Court is most likely to:

• AStrike down the law because public funds may not flow to religious schools.
• BUphold the law because, under Trinity Lutheran, Espinoza, and Carson, excluding religious…
• CUphold the law only if the religious schools agree to teach a secular curriculum.
• DStrike down the law unless the funds are paid directly to parents.

A state law requires women, but not men, to be 21 years old to buy beer; men can buy at 18. The law is challenged on equal-protection grounds. The court will apply:

• ARational-basis review because age is not a suspect classification.
• BIntermediate scrutiny because gender is a quasi-suspect classification — the law must be…
• CStrict scrutiny because gender is a suspect classification.
• DNo scrutiny because alcohol regulation is reserved to the states under the 21st Amendment.

A state denies a driver's license to a resident without providing a hearing. The driver sues, claiming a violation of procedural due process. To establish a procedural-due-process violation, the driver must show:

• AThat the license is a 'fundamental right.'
• BThat the license is a 'liberty' or 'property' interest, and that the procedures provided…
• CThat the state acted with discriminatory intent.
• DThat the state's revocation was unreasonable.

A federal statute bans the possession of guns within 1,000 feet of a school. Congress invokes the Commerce Clause as the constitutional basis. The Supreme Court is most likely to:

• AUphold the statute because all gun regulation affects interstate commerce.
• BStrike down the statute because mere possession of a gun in a school zone is non-economic…
• CUphold the statute under the Necessary and Proper Clause.
• DStrike down the statute on Second Amendment grounds.

The federal government enacts a law that requires state legislatures to enact specified gun-control statutes. The law is most likely:

• AConstitutional under the Supremacy Clause.
• BUnconstitutional under the anti-commandeering doctrine — Congress cannot compel state leg…
• CConstitutional if Congress provides funding.
• DUnconstitutional under the Second Amendment.

A state university denies admission to applicants based on race in pursuit of student-body diversity. Under current Supreme Court doctrine, the admissions policy is:

• AConstitutional under intermediate scrutiny.
• BSubject to strict scrutiny and, after Students for Fair Admissions v. Harvard (2023), gen…
• CConstitutional if narrowly tailored.
• DConstitutional because diversity is always a compelling interest.