Monday, September 15, 2014

Preliminary Injunctions vs. Temporary Restraining Orders

An issue that is sure to come up within Civil Procedure questions on the MBE is the difference between preliminary injunctions and temporary restraining orders. A preliminary injunction is an action in equity entered by a court prior to a final determination on the merits of a case. The purpose is either to restrain a party from moving forward with a course of conduct or to compel a party to continue with a course of conduct until the case has been decided. The result of a preliminary injunction is that it preserves the status quo, and the adverse party must be given notice and an opportunity to be heard before an injunction is ordered.

It is sometimes that case that irreparable injury will occur before the hearing on a preliminary injunction can be held, and such instances may call for a temporary restraining order to preserve the status quo until the hearing takes place. Once again it's generally true that notice must be provided before a temporary restraining order may be imposed. Here though there are instances in which notice is not necessary. Specifically, a temporary restraining order may be imposed without notice to the adverse party for a maximum 10-day period if the following conditions are satisfied:

--The moving party states specific facts in an affidavit or verified complaint of the irreparable injury that will occur if the temporary restraining order is not issued.

--The moving party certifies in writing the efforts made to notify the adverse party and the reasons why notice should not be required.

--The moving party provides security to pay for any damages incurred by the adverse party if the court later finds the restraining order to have been wrongful.

**note that although a temporary restraining order may be issued without notice if the above requirement are satisfied, a person must have notice of the order before being held in contempt for violating it.

Thursday, September 11, 2014

Sample Civil Procedure MBE Questions.

The NCBE has posted sample Civil Procedure questions to assist those who are preparing for the February exam. The questions can be found @

Monday, September 8, 2014

MBE Fast Fact: The Erie Doctrine

The Erie Doctrine is similar to the Rule Against Perpetuities in that it's notorious for being conceptually complex. But it's not too bad, and for purposes of the MBE, there isn't all that much to know.

The Erie doctrine answers the question as to whether a federal court will apply federal or state law to a case heard in federal court. Under the doctrine, a federal court in a diversity case will apply its own procedural law, but must apply the substantive law (including the rules regarding conflict of laws) of the state in which the federal court sits. That said, it's essential to determine whether a law is procedural or substantive so that you can then determine whether to apply state law or federal law.

Courts will generally use the "outcome determinative test" in determining if a law is procedural or substantive. A law that substantially determines outcome of the litigation is deemed substantive and the state law will be applied. But if a law is arguably procedural, the court will generally err on the side of applying the federal procedural law.

**Note that the Erie Doctrine is only an issue when the case is in federal court on basis of diversity jurisdiction. If instead there is federal-question jurisdiction, then federal law applies even to substantive issues as per the Supremacy Clause.

Monday, September 1, 2014

Removal Jurisdiction

Removal jurisdiction refers to removing a case that was originally filed in state court, and transferring that case to federal court. Under the federal rules, this will be allowed only if the case could have originally been filed in federal court and for cases removed on the basis of diversity, no defendant is a citizen of the state in which the action was filed.

Only defendants have the right to remove the case to federal court, but note that a defendant cannot remove a case only on the basis that he has a defense grounded in federal law. This follows from the fact that federal question jurisdiction in federal court would not have been conferred on that fact alone, so defendant will not be able to use that fact to remove the case to federal court. If there are multiple defendants, then all defendants must join in the removal. In short, before allowing for removal, ensure that either there is a federal question involved, or that there is complete diversity among the parties to the lawsuit. Watch also for situations where at first diversity does not exist, but later the non-diverse parties are dismissed from the lawsuit. If after removal of the non-diverse parties there is complete diversity, removal by defendant will be allowed.

The procedure for removal is straight-forward. A defendant seeking removal must file a notice of removal in the federal district court in the district and division within which the action is pending. A copy of the notice should be sent to the other parties and to the state court. The notice must be filed within 30 days after defendant receives notice that the case is removable, and in cases of diversity, no more than one year after the action was commenced.

Then, the plaintiff has the opportunity to file a motion to have the case remanded to the state court. The question as to whether the case should be remanded directly relates to the above; namely, the case should be remanded to state court if there was no jurisdictional basis for removing the case to federal court.

Sunday, August 24, 2014

Defenses to Negligence

The default defense to negligence on the MBE is pure comparative negligence. But often enough the questions will direct you to apply a different standard, so it's important to understand how the analysis changes when the standard changes. Three defenses you'll want to know are pure comparative negligence, modified (or partial) comparative negligence, and contributory negligence.

Let's assume the following fact situation in discussing the analysis of each. Plaintiff ("P") is injured by 3 defendants "X," "Y," and "Z." The fault (in dollar amount) of plaintiff's injury is allocated as follows:

P's fault is valued at $50,000

X's fault is valued at $30,000

Y's fault is valued at $20,000

Z's fault is valued at $10,000

Total: $110,000

Contributory Negligence: If directed in any given question to apply contributory negligence, the analysis is very straight-forward. If plaintiff is determined to have been at fault (by even the slightest amount), then plaintiff is prevented from recovering anything from any other defendant. In our example, plaintiff is $50,000 at fault, so plaintiff will recover nothing. Note that plaintiff can then raise his own defense of the "last clear chance doctrine," claiming that defendant(s) had the last clear chance to avoid the act that caused the injury. If proven, then the fact that plaintiff was contributorily negligent will not entirely prevent plaintiff from recovering.

Modified (partial) comparative negligence: Here the analysis changes. Plaintiff can recover provided that plaintiff was less than 50% at fault when taking the total dollar amount of damages into account. Here, plaintiff was determined to have been $50,000 at fault, and total damages were valued at $110,000. Therefore plaintiff was 45% percent at fault (50,000/110,000), and because that is less than 50%, plaintiff will recover for his injuries. In determining the amount of recovery, subtract the amount of damages allocated to plaintiff ($50,000) from the total amount ($110,000). Plaintiff will therefore recover $60,000. Plaintiff can recover this amount from either x, y, or z (as per the default rule of joint and several liability), and then each defendant will have a right of contribution from the other defendants if any defendant pays an amount that exceeds his own fault. So, for example, if plaintiff recovers the $60,000 from z, z will have a right of contribution of $50,000 from x and y.

Pure Comparative Negligence: This is the standard to apply if you are not told to apply otherwise. The analysis is the same as in modified comparative negligence, except that under pure comparative negligence, plaintiff can recover even if plaintiff is determined to have been more than 50% at fault. So, assume that instead of damages valued at $110,000, the total damages were valued at $90,000 and further assume that plaintiff was still determined to have contributed $50,000 to his own injuries. In that case plaintiff would be deemed 56% at fault (50,000/90,000). Even so, plaintiff would be able to recover for the remaining fault allocated to defendant(s). In this example, plaintiff would be able to recover $40,000, and once again, assuming the default rule of joint and several liability applies, plaintiff may choose among x, y, or z, when recovering that amount, and then each defendant will have a right of contribution against the others.

**Note:: If told not to apply joint and several liability, the analysis changes slightly. Plaintiff can no longer recover the full amount from any given defendant, and can only recover an amount from a defendant equal to that defendant's fault.

Sunday, August 17, 2014

The Top Five: Venue

It's important when studying Civil Procedure to understand well the difference between subject-matter jurisdiction and venue. Subject-matter jurisdiction is the power of the court to adjudicate the matter before it, while venue relates instead to a determination as to which district court should hear the case. Here are five things to know about venue when preparing for the MBE.

1. The general rule regarding venue is that venue is proper in any judicial district where any defendant resides if all defendants reside in the same state. In addition, venue is proper in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated.

2. There will be times when the standards above are not satisfied. In such instances, venue will be proper in a judicial district in which any defendant is subject to personal jurisdiction, but only if the action is based solely on diversity. If the action is not based solely on diversity, then venue will be proper in a judicial district in which any defendant may be found.

3. In determining if venue is proper it is sometimes necessary to determine the defendant's residency (such as in 1, above). For purposes of venue, an individual's residence is determined by that individual's domicile. A corporation resides in any jurisdiction in which it is subject to personal jurisdiction, and an unincorporated association (such as a partnership) resides wherever it does business.

4. Improper venue may be waived by the parties. And importantly, venue is considered waived unless timely objection is made to improper venue.

5. There are situations in which, although venue is proper, the court may still wish to transfer the case for the convenience of the parties. This is allowable under the federal rules provided that the case is transferred to a court where it could have originally been filed. The standard here is the "interest of justice," and the court to which the case is transferred must have subject-matter and personal jurisdiction over the defendant; otherwise, venue in the transferee court is improper.

Monday, August 11, 2014

Personal Jurisdiction

Personal jurisdiction will surely be a heavily tested topic in Civil Procedure now that it'll be tested on the MBE. There are three types of jurisdiction to note: in personam jurisdiction (when the forum has power over the person of defendant); in rem jurisdiction (when the court has the power to adjudicate the rights of all persons with respect to a particular item of property); and quasi is rem jurisdiction (when the court has the power to determine the rights of particular individuals with respect to specific property within the court's control.) This post will focus on the first: in personam jurisdiction. As a foundation, it's important to understand that there are two potential limits on the exercise of personal jurisdiction over a defendant: the constitution, and any given state's long-arm statute.

(1): The Long-arm Statute:

The limitations as set forth the by long-arm statutes will of course vary by state (and so on the MBE, you'd have to be provided with a statute). But there are commonalities to note. Very often long arm statutes will allow for personal jurisdiction over defendants who are present in the forum state and personally served with process while present in that state. There are, however, often exceptions allowable for those who are in the state merely to serve as a party or witness to a judicial proceeding. In addition, if your domicile is the forum state, or if you consent to jurisdiction in the forum state, personal jurisdiction in that state is often granted. Finally, it's common for a state's long-arm statute to allow for jurisdiction whenever it would be allowed under the Constitution.

(2): The Constitution:

The constitutional requirements for granting personal jurisdiction over a defendant revolve around three concepts: minimum contacts, fairness, and notice. In regards to contacts, the constitution requires that the defendant have minimum contacts with the forum such that the exercise of jurisdiction over defendant would be fair and reasonable. The contacts must not be accidental; rather, the court must find that through defendant's contacts with the forum state, defendant purposefully availed him/herself of the privilege of conducting activities in that state, thus invoking the benefits and protections of the laws of that state. Further, the court will determine whether it was reasonably foreseeable to defendant that s/he may be haled into court in the forum state.

As to fairness, if the claim against defendant is related to the contacts with the state, then less contacts will be required for the court to determine that jurisdiction is fair. If the claim is entirely unrelated to the contacts with the state, then far more contacts (often deemed systematic and continuous contacts) may be required prior to granting jurisdiction. A determination of fairness in regards to the number of contacts is essential, and some other factors to consider when analyzing fairness are the plaintiff's interest in obtaining convenient and effective relief, the judicial system's interest in efficiency, convenience to defendant, and the shared interests of states in furthering social policies.

Notice is also required, and this is based on due process. Defendant must be notified by a reasonable method of a pending lawsuit, so that s/he may have the opportunity to appear in court and be heard.

Wednesday, August 6, 2014

Federal Question Jurisdiction

In the most recent post, I outlined the important points concerning diversity jurisdiction. Diversity jurisdiction is one avenue for getting a case into federal court. The other is federal question jurisdiction.

The district federal courts have original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States. It's important to note that the federal question for which jurisdiction is based must appear as part of plaintiff's cause of action. In other words, the fact that there is an asserted defense that implicates a federal question is not sufficient to confer jurisdiction if plaintiff has not also asserted a federal question.

It gets a bit more complex when there are multiple claims, some of which assert a federal question, and some of which do not. In such instances the federal court will have discretion (as per its pendent jurisdiction) to hear all claims that derive from a "common nucleus of operative fact." That's a rather odd way of stating the idea, but what it means is that if the claims all arise from the same set of facts, then the the fact that some of the claims are based on state law will not prevent a federal court from hearing those state-law claims provided there is at least one federal claim to warrant jurisdiction. And even if the federal claim on which jurisdiction is based ends up getting dismissed after trial has commenced, the federal court may still exercise pendent jurisdiction over the state claims.

It's also possible that questions may arise in which plaintiff sues more than one defendant, and there is a federal claim against only one of the defendants. Here, too, pendent jurisdiction (specifically, pendent-party jurisdiction) will allow the federal court to hear the non-federal claims against all defendants provided that the claims once again derive from a "common nucleus of operative fact."

***note that the term pendent jurisdiction is interchangeable with the term supplemental jurisdiction.

Monday, August 4, 2014

Diversity Jurisdiction

The MBE is about to change. Beginning in February of 2015, a new subject, Civil Procedure, will be added to the testable list of subjects. As such, I'll be posting quite a lot on this subject prior to the exam. Today's post is on the topic of diversity jurisdiction.

Subject-matter jurisdiction is the requirement that the court have power to hear the specific kind of claim that is brought to that court. The two primary sources of subject-matter jurisdiction of the federal courts are diversity jurisdiction and federal-question jurisdiction. If jurisdiction is predicated on diversity, then every plaintiff must be of diverse citizenship from every defendant. Stated differently, if one defendant and one plaintiff are co-citizens of the same state, there is no diversity jurisdiction. Though there are exceptions to this rule, which will be discussed in later posts, it's always important to first understand the general rule.

In addition, diversity of citizenship as outlined above must exist as of the time that suit is instituted. As such, it need not exist at the time the cause of action arose, and diversity will not be defeated if after the suit is instituted, a plaintiff and defendant become citizens of the same state.

In determining whether there is complete diversity, it's often necessary to determine the citizenship of each party. For individuals, it's fairly simple: an individual is a citizen of his/her domicile, or the permanent home to which s/he intends to return. A corporation is a citizen of every state of its incorporation and also of its principal place of business. If the corporation performs its business in various states, look to see where the executive office is located, as that state will be deemed the principal place of business for determining citizenship. It's a bit different for unincorporated businesses such as partnerships. There, you'll want to determine the citizenship of each member, as the business will be deemed a citizen of each state of which any member is a citizen.

When analyzing diversity, in addition to determining that the citizenship requirement has been satisfied, it's also necessary to determine that the jurisdictional amount has been satisfied. When subject-matter jurisdiction is based on diversity, actions must be in excess of $75,000 exclusive of interests or costs. The amount is entirely determined by plaintiff's good faith allegations. In other words, if the plaintiff alleges an amount in excess of $75,000, the complaint can be dismissed only if it appears there is no legal possibility for the plaintiff to recover the amount alleged. And importantly, if the plaintiff ends up not recovering an amount in excess of $75,000, this has no effect on jurisdiction, as jurisdiction is not retroactively defeated. For purposes of satisfying the jurisdictional requirement, plaintiff may aggregate all claims against a single defendant (and against multiple defendants if those defendants are jointly liable to plaintiff).

Monday, July 21, 2014

Good luck!

Good luck to all in this final week of preparation for the July exam!! Posting to resume shortly in preparation for February.

Sunday, July 20, 2014

MBE Essentials: 3rd Party Beneficiaries

Two questions and answers from my book, MBE Essentials, clarifying the rights of a 3rd party beneficiary once it's determined that the party is intended and the rights have vested:

Can the third party beneficiary sue the promisor?

Yes, if the third party is intended and the rights have vested then the third party can sue the promisor. The promisor, however, may raise against the third party any defense that the promisor has against the promisee. The promisor may be able to use defenses that the promisee has against the third party, but that will depend upon whether the promisor has made an absolute promise to perform or has only promised to perform that which the promisee would have had to perform. If the latter, then the promisor can assert the promisee’s defenses.

Can the third-party beneficiary sue the promisee?

This will depend on whether the third party is a creditor beneficiary or a donee beneficiary. If the third party is a creditor of the promisee, then he can sue the promisee on the existing obligation between them. But if merely a donee (one who was given a gift by the promisee) then he will have no right to sue the promisee, unless he can prove that he detrimentally relied on the promise made by the promisee.

**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on @

Or you can purchase and download it right here on the blog:
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Thursday, July 17, 2014

The Top Five: The Privilege Against Self-Incrimination

We're just a few weeks away from the July exam. Here are five things to know going into the exam about the privilege against self-incrimination:

(1): A person may assert the privilege against self incrimination in any proceeding in which an answer to a question might tend to incriminate him. Any answer choice which limits the privilege to criminal cases is incorrect.

(2): Though the privilege can be waived, it is not waived merely by taking the witness stand. The privilege, however, must be claimed in a civil proceeding to prevent the privilege from being waived in a later criminal prosecution.

(3): The privilege may only be claimed by natural persons. An answer choice on the exam that purports to allow the privilege for corporations or partnerships is incorrect.

(4): Only a criminal defendant can use the privilege to avoid taking the witness stand. For all others, the privilege does not permit a person to avoid taking the stand; instead, the person must take the stand, listen to the question, and then invoke the privilege.

(5): This privilege only applies to testimonial or communicative evidence rather than real or physical evidence. In other words, one cannot claim the privilege against self-incrimination to avoid producing documents (as part of discovery) that might tend to incriminate, as such documents are not considered to be testimonial, and are therefore not covered by the privilege.

Saturday, July 12, 2014

MBE Fast Fact: Dedication of Land

As we approach the July exam, ideally you'll begin to feel comfortable with the more commonly tested issues on the MBE, and you'll be able to dig deeper into the the areas that are less tested but do come up. One such issue involves a person (often a developer) dedicating land to a public body.

Land may be transferred to a public body (often a city or county) by dedication. The offer of dedication may be either written or oral, and both submission of a map or plat showing the dedication, or opening the land for public use will both suffice to satisfy an offer of dedication. The acceptance of such offer by the public agency is necessary, and may be accomplished by either a formal resolution, approval of the map or plat, or actual assumption of the maintenance or construction of improvements on the land by the public agency.

When you see a question implicating dedication, it's important to first note that such dedication (provided the requirements above are satisfied) is entirely valid. The property will pass to the public agency just as it would pass to any individual purchaser.

Sunday, July 6, 2014

MBE Fast Fact: Priority of Mortgages

Mortgage questions are some of the most difficult questions on the MBE. Some of them are just brutal. One issue that comes up often enough that it's worth knowing well involves a senior mortgagee who fails to include a junior mortgagee in a foreclosure sale.

As a general rule, the priority of a mortgage is determined by the time it was placed on the property (Exceptions do apply, such as purchase-money mortgages which can have priority over prior mortgages placed on the property.) Generally foreclosure will terminate interests junior to the mortgage being foreclosed, but will have no effect on mortgages senior to the mortgage being foreclosed.

Watch carefully, however, for situations where a senior mortgagee fails to include a junior mortgagee as a party to the foreclosure action. Such failure on the part of the senior mortgagee will preserve the rights of a junior mortgagee so that the general rule that the junior mortgagee's rights are extinguished will not apply.

The policy behind the above analysis is that the junior mortgagee has the option to pay off any liens senior to the junior mortgagee that are in default, and that right makes the junior mortgagee a necessary party to any foreclosure action on the part of a senior mortgagee. By not including a necessary party in the foreclosure action, the senior mortgagee effectively preserves the rights of the junior mortgagee. Anyone who then purchases the property at the foreclosure sale will purchase subject to the interests of the junior mortgagee.

Monday, June 30, 2014

Strategies for July

Students very often ask me whether they should be studying differently for the MBE in July than they were in the months leading up to the exam. Though it's difficult to generalize, the one piece of advice I do give to all students is that in July you should be focusing far more on practice questions than on reading substantive outlines. There is definitely a time for reading outlines, and doing so is an essential aspect of the bar-review process, but in the last month leading up to the exam, practicing applying the knowledge that you've already learned will often benefit you more than continuing to try to memorize the substantive law.

That isn't to say you should put the outlines away. As you work through questions you will often need to refer back to the outlines to clarify points made in the answer explanations to the questions you're working through. In other words, the outlines should become a reference rather than a primary studying tool.

It's still a balance, and throughout this final month you should continue to balance the two essential components of effective bar preparation: gaining a deep knowledge of the subject matter, and applying that knowledge to practice questions. But understand that just as it would be difficult to learn how to play a musical instrument by only memorizing the notes of a song, simply learning the law will not be enough to excel on the MBE.