CIVIL PROCEDURE

MBE PRACTICE QUESTIONS


Civil Procedure Questions
Question 1
The plaintiff and the defendant are both
citizens of State A. The plaintiff wished to sue
the defendant in a federal court on a $100,000
claim. For this reason, and only this reason, she
moved permanently to State B and filed suit in
a federal court there, with jurisdiction being
based on diversity of citizenship. A few days
after being properly served, the defendant, after
accepting a job offer from a company based in
State B, moved permanently to State B.
For purposes of the plaintiff’s case, what are
the citizenships of the parties?
(A) Both the plaintiff and the defendant are
citizens of State B.
(B) The defendant is a citizen of State A, and
the plaintiff is a citizen of State B.
(C) The defendant is a citizen of State B, and
the plaintiff is a citizen of State A.
(D) Both the plaintiff and the defendant are
citizens of State A.
Civil Procedure Questions 1.
Question 2
Four investors, all of whom are American
citizens, own as a partnership a chain of 15 car
dealerships in a number of states. Two of the
investors live in State A, one lives in State B,
and one lives in State C. The investors leave
the day-to-day operation of each dealership to
a manager that the partnership employs. The
investors leave the management of the entire
chain of dealerships and the day-to-day opera-
tion of the partnership to several key officers
that it employs. The officers operate out of the
partnership’s largest dealership, which is in State
D. A customer of the State D dealership sued
the partnership in federal district court in State
D, alleging fraud and breach of contract arising
from her purchase of a car, and claiming, in
good faith, damages exceeding $75,000. The
customer is a citizen of State D.
Does the federal district court in State D have
subject matter jurisdiction over the customer’s
action against the partnership?
(A) Yes, because the federal district court is
located in State D and not another state.
(B) Yes, because the plaintiff customer is a
citizen of State D while the defendant
partnership is a citizen of State A, State B,
and State C.
(C) No, because the plaintiff customer is
a citizen of State D and the defendant
partnership is also a citizen of State D, the
state where its principal place of business is
located.
(D) No, because federal courts do not have
subject matter jurisdiction over local trans-
actions that take place entirely in one state.
2. Civil Procedure Questions
Question 3
A consumer filed a breach of contract action
against a seller in a state court in State A,
seeking $100,000 in damages. The consumer
was a citizen of State A. The seller was a State
B corporation whose principal place of business
was in State A. Five days after being served with
the complaint and summons, the seller removed
the action to federal district court. Seven months
later, the consumer filed a motion to remand the
action back to state court.
How should the federal court rule on the
motion to remand the action to state court?
(A) Deny the motion, because it was untimely.
(B) Deny the motion, because the federal court
has subject matter jurisdiction over the
action based on its diversity of citizenship
jurisdiction.
(C) Grant the motion, because the federal court
lacks subject matter jurisdiction.
(D) The federal court has discretion to either
hear the action or remand it to state court.
Question 4
A pedestrian was injured in a car accident
involving two cars. The pedestrian filed a negli-
gence action in federal district court against the
first driver, seeking $100,000 in damages. The
pedestrian is a citizen of State A and the first
driver is a citizen of State B. The first driver
then filed a third-party claim against the second
driver, claiming that the second driver is respon-
sible for half of the harm caused to the pedes-
trian and seeking to recover half of any liability
the first driver is found to have to the pedestrian.
The second driver is a citizen of State A.
Does the federal court have subject matter
jurisdiction over the third-party claim asserted
by the first driver against the second driver?
(A) Yes, because the court has supplemental
jurisdiction over the third-party claim.
(B) Yes, because the court has diversity of
citizenship jurisdiction over the third-party
claim.
(C) No, because the amount in controversy in
the third-party claim is too small.
(D) No, because complete diversity of citizen-
ship is lacking.

Question 5
A citizen of State A asserted a state law claim
of $80,000 against a citizen of State B in the
federal district court. The State B citizen then
brought a third-party impleader claim against
another citizen of State B. After learning of the
third-party action, the State A citizen decided
to bring his own related state law claim against
that person for $90,000, and amends his original
complaint accordingly within the period for
amending a claim as a matter of right.
Does the court have subject matter jurisdiction
over the claim in the amended complaint?
(A) No, because the amount in controversy is
insufficient.
(B) No, because there is no diversity of citizen-
ship.
(C) Yes, because the requirements of diversity
jurisdiction have been met.
(D) Yes, because the court has supplemental
jurisdiction.
Civil Procedure Questions 3.
Question 6
While working on a site in State A, a State B
construction worker was standing near a steel
crane when the crane’s boom swung near a high
tension power line. The worker was electro-
cuted and severely injured. The worker filed
an action in federal district court against the
power company that owns the power lines. The
action seeks $500,000 and alleges that the power
company’s negligent construction, maintenance,
and operation of the power lines caused the
injury. The power company is a State A corpo-
ration and all its operations are in State A. The
power company filed a third-party complaint
against the owner-operator of the crane, a State
B citizen. The third-party claim is based on state
law and alleges that the crane’s owner-operator
is liable to the power company for any liability
the power company has to the injured worker.
The worker amended his complaint to add a state
law negligence claim for $500,000 against the
crane’s owner-operator.
Does the federal court have subject matter
jurisdiction over the worker’s claim against the
owner-operator of the crane?
(A) No, because the court does not have sup-
plemental jurisdiction over the worker’s
claim against the owner-operator of the
crane.
(B) Yes, because the claim arose from the same
transaction or occurrence as the worker’s
claim against the power company.
(C) Yes, because all claims asserted arose from
a common nucleus of operative fact.
(D) Yes, because the State B worker has suffi-
cient contacts with State A.
4. Civil Procedure Questions
Question 7
A restaurant owner in State A bought two
large freezers from a manufacturer of commer-
cial refrigeration equipment with its principal
place of business in State B. Within one week
and after being fully stocked with meat, one of
the freezers broke down. The restaurant owner
filed a state-based products liability action
against the manufacturer in federal court in State
A, and included a demand for a jury trial. Under
the law in State A, jury verdicts do not need to
be unanimous, but the Federal Rules of Civil
Procedure require jury verdicts to be unanimous.
At trial, the restaurant owner makes a motion
asking the court to apply the State A law.
How should the court rule on the motion?
(A) Grant the motion, because applying the
federal rule may change the outcome of the
case.
(B) Grant the motion, because, when a federal
court has diversity jurisdiction, it is
required to apply the substantive law of the
state in which it is sitting.
(C) Deny the motion, because the Federal Rules
of Civil Procedure apply in federal court as
long as they are consistent with the Rules
Enabling Act and not unconstitutional.
(D) Deny the motion, because the Supreme
Court’s balancing factors indicate that
federal law should apply.
Question 8
An author from State A filed a claim
in federal court sitting in State B against
a publisher headquartered in State B. The
complaint alleged that the publisher plagiarized
a portion of the author’s book and asserted both
a copyright infringement claim under federal law
and an unfair business practices claim under an
applicable State B statute. At trial, the publisher
presented evidence that the author never filed
the copyright infringement claim with the
appropriate federal agency, as required by the
federal statute, thereby invalidating the copyright
infringement claim. The claim for unfair
business practices, however, was still capable
of obtaining a favorable verdict. The publisher
moved for dismissal of the state law claim as
well.
How should the federal court rule?
(A) The court must remand the state law claim
to state court because there is no federal
subject matter jurisdiction without the
copyright infringement claim.
(B) The court must dismiss the state law claim,
because there is no federal subject matter
jurisdiction without the copyright infringe-
ment claim.
(C) The court should, in its discretion, retain
jurisdiction over the state law claim because
the trial has begun.
(D) The court should, in its discretion, dismiss
the state law claim because the jury has not
yet begun to deliberate.

Question 9
A corporation manufactured a patented
automatic potato peeler. Subsequently, that
corporation’s biggest rival manufactured a
similar potato peeler. Both are corporations of
the same state. The state has a unique statute
authorizing quadruple damages for unfair
business competition relating to potatoes;
however, there is considerable debate whether
the law is constitutional under the state constitu-
tion. The corporation holding the patent sued
its rival in federal court, alleging that the rival
corporation violated its patent and the unfair
business law. Shortly after the pretrial meeting
of the parties required under the Federal Rules,
the two companies reached a settlement of the
patent infringement claim.
May the court dismiss the remaining claim?
(A) No, because the federal court still has
supplemental jurisdiction over the case.
(B) No, because the federal court already
exercised jurisdiction over the case and thus
cannot now dismiss it.
(C) Yes, because the federal court never had
jurisdiction over the claim.
(D) Yes, because the federal court may decline
to exercise its supplemental jurisdiction.
Civil Procedure Questions 5.
Question 10
A plaintiff, a citizen of State A, sued a defen-
dant, a citizen of State B, alleging that the defen-
dant violated the Civil Rights Act by refusing to
serve the plaintiff in her restaurant. The plaintiff
brought his suit in state court in State B, asking
for damages of $100,000. The defendant seeks
to remove the case to the United States District
Court for the District of State B, and the plaintiff
opposes removal.
Is the case properly removable?
(A) No, because the defendant is a citizen of
the forum state.
(B) No, because the state court has concurrent
jurisdiction, making removal improper.
(C) Yes, because diversity of citizenship exists
and the amount in controversy is more than
$75,000.
(D) Yes, because a federal question has been
presented.
6. Civil Procedure Questions
Question 11
A State A citizen and a State B citizen were
in a car accident. The State B citizen filed a
negligence action against the State A citizen
in a State A state court, seeking $500,000 in
damages. The State A citizen immediately filed
a notice of removal in the state court and in the
appropriate federal district court.
If the State B citizen believes the removal is
improper and that the action should properly
remain in the State A state court, what should
the State B citizen do?
(A) The State B citizen does not need to do
anything because the removal is improper
and will not be recognized by the courts.
(B) The State B citizen should file an objection
to the removal in the state court.
(C) The State B citizen should file in the federal
court a motion to remand the action to state
court.
(D) The State B citizen has no recourse
because, once an action is removed to
federal court, the federal court will retain
the case unless it lacks subject matter juris-
diction.
Question 12
A State A citizen and a State B citizen were
in a car accident in State C. The State A citizen
filed a negligence action against the State B
citizen in a State C state court, seeking $500,000
in damages.
If the State B citizen wishes to remove the
action to federal district court, in which federal
district should the State B citizen file a notice of
removal?
(A) In either the district in State C in which the
accident took place or the district in State B
in which the State B citizen resides.
(B) In either the district in State C in which the
accident took place or the district in State A
in which the State A citizen resides.
(C) In only the district in State C in which the
State C state court is located.
(D) In only the district in State B in which the
State B citizen resides.

Question 13
A State A citizen filed a breach of contract
action against a State B citizen in a State B state
court. The action credibly seeks $150,000 in
damages.
May the State B citizen remove the case to a
federal district court?
(A) No, because defendants sued in state courts
may remove cases to federal court only if
the action “arises under” federal law.
(B) No, because the State B citizen is a citizen
of the state in whose court the case is
pending.
(C) No, because cases properly filed in state
courts may not be removed to federal
district court on the basis of diversity of
citizenship.
(D) Yes, because there is complete diversity of
citizenship and the amount in controversy
exceeds $75,000.
Civil Procedure Questions 7.
Question 14
A plaintiff, a citizen of State A, sued a defen-
dant, a citizen of State B, in state court in State
B for breach of a contract to build a house for
$200,000. The defendant counterclaimed for
$300,000, alleging that the plaintiff breached
an earlier contract by failing to pay for a house
that the defendant had built. The plaintiff files a
notice of removal to federal court in State B.
Can the case properly be removed to the
federal court in State B?
(A) Yes, because all plaintiffs are of diverse
citizenships from all defendants.
(B) Yes, unless the defendant objects to
removal.
(C) No, unless the defendant joins in the
removal.
(D) No, because only defendants may remove.
8. Civil Procedure Questions
Question 15
A plaintiff sued a defendant in state court
in State A, alleging that the defendant violated
the plaintiff’s patent on a new type of air condi-
tioner. The defendant removed the case to federal
court in State A and quickly lost on the plain-
tiff’s motion for summary judgment. The defen-
dant appeals, claiming that because the case was
improperly brought in state court, which does
not have jurisdiction over patent cases, it was not
removable to federal court, and the federal court
thus lacked jurisdiction. The plaintiff argues that
no rule requires that the state court have had
jurisdiction over a removed case.
Who is correct?
(A) The plaintiff, because the defendant did not
timely object to a lack of jurisdiction.
(B) The plaintiff, because the federal court may
hear a removed case even though the state
court from which the case was removed did
not have jurisdiction.
(C) The defendant, because if the state court
did not have subject matter jurisdiction,
then it could not have ordered removal.
(D) The defendant, because the state court was
required to dismiss the action upon finding
that it lacked subject matter jurisdiction.
Question 16
A state’s civil procedure rules allow for “nail
and mail” service (posting the summons at the
defendant’s dwelling and thereafter mailing him
a copy by certified mail) when “regular” service
(service by physical delivery or by leaving a
copy of the complaint with someone of suitable
age and discretion at the defendant’s usual
place of abode) cannot be accomplished with
due diligence. A plaintiff brought suit against
a defendant in the federal district court for that
state. After the plaintiff’s special process server
made many attempts at serving the defendant,
the plaintiff’s attorney directed the process
server to nail the complaint and summons to the
defendant’s front door, and the attorney mailed
(by certified mail) a copy to the defendant in
accordance with the state rule.
Has the defendant been properly served?
(A) Yes, if “nail and mail” service is reasonably
calculated to give the defendant notice of
the action.
(B) Yes, because under the Erie doctrine the
federal court must apply the state’s service
of process rules.
(C) No, if the defendant only rented the
dwelling at which service was posted.
(D) No, because “nail and mail” service is not
authorized by the Federal Rules of Civil
Procedure.

Question 17
A plaintiff sued an auto manufacturer for
negligence after a car accident involving
the plaintiff’s car that was made by the auto
manufacturer. Sixty days after service of
the complaint and 40 days after service of
the manufacturer’s answer that contained no
counterclaim, the plaintiff filed a motion seeking
to file an amended complaint adding a claim for
strict products liability against the auto manufac-
turer stemming from the same incident. The
statute of limitations for strict products liability
claims expired one week before the motion was
filed.
How should the court rule on the plaintiff’s
motion?
(A) Grant the motion, because every party
is entitled to amend once as a matter of
course.
(B) Grant the motion, because the amended
complaint relates back.
(C) Deny the motion, because, while the motion
is timely, the proposed claim is futile
because the statute of limitations has run.
(D) Deny the motion, because it is not timely.
Civil Procedure Questions 9.
Question 18
An attorney in one state represented a plain-
tiff for personal injuries sustained due to the
negligence of the defendant, which occurred on
January 20. The statute of limitations for the
plaintiff’s cause of action is governed by the law
of a different state. That statute of limitations is
only three months. In other states, the statute of
limitations for similar causes of action ranges
from two years to five years; in the attorney’s
home state it is three years. The plaintiff first
went to see the attorney on June 15, after the
statute of limitations had expired. The attorney,
based on his experience in other states, believed
that the case was well within the statute of
limitations. He drafted a complaint, signed it,
and filed it in federal court on June 20. The case
was immediately dismissed based on the fact
that the statute of limitations had expired.
May the attorney be sanctioned?
(A) No, because he did not know that the plain-
tiff’s case was not warranted by existing
law.
(B) No, because he could have argued that the
statute of limitations should be reversed.
(C) Yes, because the attorney’s signature makes
him strictly liable for any defects in the
complaint.
(D) Yes, because he should have known that
the plaintiff’s case was not warranted by
existing law.
10. Civil Procedure Questions
Question 19
A condo owner, a citizen of State A, hired
an electrician, a citizen of State A, and a gas
worker, a citizen of State B, to fix the wiring in
his condo and install a new gas stove. Unfortu-
nately, the condo burned down while they were
working on it. The condo owner sued the gas
worker for negligence, seeking $100,000. The
gas worker files a motion to dismiss the case for
failure to join the electrician, alleging that he
contributed to the fire.
How should the court rule?
(A) Deny the motion and order that the electri-
cian be joined as a permissive co-defen-
dant.
(B) Deny the motion and order that the electri-
cian be joined as an indispensable party.
(C) Deny the motion, because the electrician is
not a necessary party.
(D) Grant the motion, because the electrician
is a necessary party but his joinder would
destroy complete diversity.
Question 20
A senior engineer and junior engineer worked
for the same employer. In the course of their
employment, the engineers had access to the
design of some valuable equipment developed by
their employer, which equipment constituted a
trade secret. Conspiring together, the engineers
secured copies of the blueprints for the equip-
ment and removed them from the employer’s
premises. The senior engineer then sold a copy
of the prints to one of the employer’s competi-
tors, and the junior engineer sold a copy to a
different competitor. The employer intends to
sue both engineers in federal district court,
asserting misappropriation of trade secrets tort
claims, seeking $150,000 in damages from the
senior engineer and $100,000 in damages from
the junior engineer. The employer is a citizen of
State A. The engineers are both citizens of State
B.
Can the employer assert and maintain its
claims against both engineers in the same action
in federal court?
(A) Yes, because, under the rules of compul-
sory joinder, the employer must join both
engineers in the same action.
(B) Yes, because, under the rules of permissive
joinder of parties, the employer may (but is
not required to) join both engineers in the
same action.
(C) No, because, under these facts, the require-
ments for permissive joinder of parties are
not satisfied.
(D) No, because the court will lack subject
matter jurisdiction.

Question 21
A shareholder bought 1,000 shares of a global
energy company on August 20. At the time,
there were 100,000 shares of the company’s
stock outstanding. Unfortunately for the share-
holder, on August 21 it came to light that the
company’s management was artificially inflating
the company’s earnings the past year in order to
inflate the company’s stock price. By August 27,
the stock was worthless. It is unquestioned that
the shareholders who owned the stock during the
week of August 21-27 were harmed. The share-
holder filed a class action lawsuit in the federal
district court.
Must she give notice to other absent class
members?
(A) Yes, because the class action is a “common
question” class action.
(B) Yes, because due process always requires
notice to absent class members.
(C) No, because notice would be impracticable
under these circumstances.
(D) No, because notice to absent class members
is never required.
Civil Procedure Questions 11.
Question 22
In exchange for future royalty payments, an
inventor sold a developer a license to use the
inventor’s patented technology. The inventor and
the developer are citizens of different states. A
month later, the inventor and developer were
in a traffic accident entirely unrelated to their
patent licensing transaction. A few months
after that, the inventor filed a breach of contract
action against the developer seeking $250,000
in royalty payments. The developer then filed
two counterclaims, one alleging that the inven-
tor’s licensed product did not work properly and
one alleging negligence and seeking $150,000
in damages for injuries sustained in the traffic
accident. The inventor was also injured in the
accident and believes the developer’s negligence
was the cause of the accident.
May or must the inventor file a counterclaim
against the developer to recover $50,000 in
damages he sustained in the accident?
(A) The inventor must assert the claim as a
counterclaim or he will be barred from
later asserting it because the inventor’s tort
claim is a compulsory counterclaim.
(B) The inventor may assert the tort claim as a
counterclaim, or he may wait and assert it
in an independent action.
(C) The inventor may not assert a counterclaim
because the inventor is the original plaintiff
and only defendants may assert counter-
claims.
(D) The inventor may not assert a counterclaim
because the federal court lacks subject
matter jurisdiction over the inventor’s tort
claim since the amount of the claim is too
small.
12. Civil Procedure Questions
Question 23
A consumer injured by a kitchen appliance
he purchased filed a products liability action in
federal district court against both the retailer
from whom he purchased the appliance and the
manufacturer of the appliance. The action seeks
to hold the retailer and the manufacturer jointly
and severally liable for $500,000 in damages.
All three parties are citizens of different states.
The manufacturer has an unasserted breach of
contract claim for $100,000 against the retailer
for the retailer’s failure to pay for a shipment of
power tools.
Can the manufacturer assert and maintain its
breach of contract claim against the retailer in
the pending action filed by the consumer?
(A) Yes, because the manufacturer may assert
any claims it has against the retailer since
they are already parties to the consumer
action.
(B) Yes, because the manufacturer’s claim
against the retailer is sufficiently related to
the consumer’s claim.
(C) No, because the manufacturer’s claim
against the retailer does not arise from
the same transaction or occurrence as the
consumer’s pending claim.
(D) No, because the court lacks subject matter
jurisdiction over the manufacturer’s claim
against the retailer.
Question 24
A tourist from a foreign country rented a car
from a car rental company that is incorporated
and has its principal place of business in State
A. The tourist then was in a traffic accident with
another driver, a citizen of State B. The State
B driver filed an action in federal district court
against both the tourist and the rental company,
alleging that both were negligent and liable for
the injuries the State B driver sustained in the
accident. The rental company believes that both
the tourist and the State B driver were negligent
and wants to recover from both for the extensive
damage done to its car.
Are the rental company’s claims against the
State B driver and the foreign tourist compul-
sory such that it must assert them in the State B
driver’s pending federal action?
(A) Both claims are compulsory.
(B) The claim against the State B driver is
compulsory, but the claim against the
foreign tourist is not.
(C) The claim against the foreign tourist is
compulsory, but the claim against the State
B driver is not.
(D) Neither claim is compulsory.
 Civil Procedure Questions 13.

Question 25

A property owner sued a developer in federal

court alleging breach of an oral contract.
According to the property owner, only one other
person of questionable credibility heard the
conversation in which the contract was alleg-
edly made. That person was listed in the pretrial
conference order. The next day, five days before
the scheduled trial, the property owner’s attorney
discovered that a disinterested person also heard
the conversation, and he wanted to call this
witness at trial as well. He immediately notified
the developer of the witness and his change in
plans.

May the property owner call the additional

witness?

(A) Yes, if the court modifies the pretrial order.

(B) Yes, because the trial has not yet begun.

(C) No, because the final pretrial order controls

the subsequent course of the trial.

(D) No, if the jury has already been selected.