Themis Bar Review Hangout - July 2015 Exam Forum

[Pickled]

Edit: And the 4 unities are present of course

[Confused7]

Also this one please...

A woman from State A filed an action against a retailer in a state court in State B. The complaint alleged that the retailer had not delivered $100,000 worth of goods for which the woman had paid.Twenty days after being served, the retailer, which is incor-porated in State C and has its principal place of business in State B, filed a notice of removal in a federal district court in State B.Was the action properly removed?

(A)No, because the notice of removal was not timely filed.
(B)No, because the retailer is a citizen of State B.
(C)Yes, because the parties are citizens of different states and more than $75,000 is in controversy.
(D)Yes, because the retailer is a citizen of both State B and State C.

Answer is B

Everything I have seen up until now is that a corporation is a citizen of the state in which it is incorportated AND where it has its principal place of business???

In fact, this is word-for-word from a Themis answer explanation: "A corporation is a citizen of both its state of incorporation and the state in which it maintains its principal place of business."

You're right about the definition of "citizenship" for corporations. Here, the retailer is a corporation of both State B and C. However, because it is a citizen of state B, it cannot remove to federal court in state B. The rule is that a defendant can NEVER remove to a federal district court if the defendant (or at least one defendant) is a citizen of the state in which the federal district court to which removal is sought.

[Pleasye]

Also this one please...

A woman from State A filed an action against a retailer in a state court in State B. The complaint alleged that the retailer had not delivered $100,000 worth of goods for which the woman had paid.Twenty days after being served, the retailer, which is incor-porated in State C and has its principal place of business in State B, filed a notice of removal in a federal district court in State B.Was the action properly removed?

(A)No, because the notice of removal was not timely filed.
(B)No, because the retailer is a citizen of State B.
(C)Yes, because the parties are citizens of different states and more than $75,000 is in controversy.
(D)Yes, because the retailer is a citizen of both State B and State C.

Answer is B

Everything I have seen up until now is that a corporation is a citizen of the state in which it is incorportated AND where it has its principal place of business???

That's true (that they are a citizen of where they are incorporated as well as their principal place of business) and thus, the corporation is not allowed to remove because defendant's who are citizens of the state in which the case was filed cannot remove the case.

[Pleasye]

Can somebody please explain this question from the NCBE sample questions?

A brother and a sister purchased land under a deed that con-veyed title to them as joint tenants with right of survivorship. Common law joint tenancy is unmodified by statute in the jurisdiction.The purchase price was $50,000, of which the sister paid $10,000 and the brother paid $40,000. The sister later mort-gaged her interest in the land. The brother then died testate, leaving his entire estate to a cousin. The sister later paid off her mortgage debt, and the mortgage was released.At the present time, who owns the land?

(A)The answer depends on whether the jurisdiction follows the lien theory or the title theory of mortgages.
(B)Title is entirely in the sister as the surviving joint tenant.
(C)Title is in the sister and the cousin as equal tenants in common.
(D)Title is in the sister and the cousin as tenants in common, with the sister having a 20% interest and the cousin having an 80% interest.

(correct answer is A)

I am confused because the answer suggests this is a joint tenancy, but wouldn't both brother and sister need to have equal interest in the property for it to be a joint tenancy?

They do have an equal interest in the property because they are joint tenants with rights of survivorship. They took title at the same time, in the same instrument (that included words of survivorship (as JTs with right of survivorship)), and thus presumably have the same interest and the same right to possession. You can presume this because the questions tell you they are JTWRS. That meets the four unities. I believe you're getting tripped up because they paid different amounts for the house and thus you think they have different interests in it, but that isn't what determines their interest in the house.

Since they're JTWRS the answer to this question depends on whether the jx folows lien or title theory because who owns what depends on whether the mortgage severed the JT.

OK, so it never matters how much anybody pays. So long as they say we are JTWRS?

Right, the amount paid for the property isn't what determines the interest held in the property and that's what matters.

[Ahyis]

Also this one please...

A woman from State A filed an action against a retailer in a state court in State B. The complaint alleged that the retailer had not delivered $100,000 worth of goods for which the woman had paid.Twenty days after being served, the retailer, which is incor-porated in State C and has its principal place of business in State B, filed a notice of removal in a federal district court in State B.Was the action properly removed?

(A)No, because the notice of removal was not timely filed.
(B)No, because the retailer is a citizen of State B.
(C)Yes, because the parties are citizens of different states and more than $75,000 is in controversy.
(D)Yes, because the retailer is a citizen of both State B and State C.

Answer is B

Everything I have seen up until now is that a corporation is a citizen of the state in which it is incorportated AND where it has its principal place of business???

In fact, this is word-for-word from a Themis answer explanation: "A corporation is a citizen of both its state of incorporation and the state in which it maintains its principal place of business."

If the ONLY reason for removal is DIVERSITY, and the D is a resident of the forum state, they CAN'T REMOVE.

[Pickled]

Thanks all!

[adevine39]

As for me, question on one of the NY Torts essay PQ's:


Am I to just assume that drivers have no fault insurance in NY unless the fact pattern states otherwise? HALP!

You've been such a rockstar with info here I didn't want your question to go unanswered. According to the outline NY requires that all owners insure their vehicles, and all insurance policies must include the no-fault provision. I'm just planning on throwing the no-fault rule in there in any essay q that involves a motor vehicle, even if the fact pattern says there is no insurance, and then just say it doesn't apply if it is in fact not applicable. Maybe half a point even if it's not on the grader's point sheet, right?

[Confused7]

I just came across another NY MC question where 87% of ppl chose the WRONG answer (including me). Lolololol this is a joke.

[aladdinismyprince]

Directed study would like me to do THIRTY FOUR assignments today. Ha!
Directed study is a disaster. I really hate it.

[sd5289]

Okay, I just saw the one you mentioned. I also do NOT understand it. I thought that solicitation never merged in NY (even if necessarily incidental to the crime solicited)? There was even an essay question about this where the police officer dealt oregano and the model answer stated that it should not merge. When I asked Themis about it, they said that solicitation doesn't merge in NY.

I honestly have zero clue. Solicitation does NOT merge in NY.

I'm looking at the answer again (and this coming from someone who will be practicing criminal law in NY), and it seems like the answer is tied to an intricate understanding of drug sale law. Which, of course, we didn't really cover. I've spent about 5 minutes trying to makes heads or tails of the explanation and I just don't get it.

At the very least, with an answer spread like, this is one of the many NYMC that will get scaled out.

[sd5289]

As for me, question on one of the NY Torts essay PQ's:


Am I to just assume that drivers have no fault insurance in NY unless the fact pattern states otherwise? HALP!

You've been such a rockstar with info here I didn't want your question to go unanswered. According to the outline NY requires that all owners insure their vehicles, and all insurance policies must include the no-fault provision. I'm just planning on throwing the no-fault rule in there in any essay q that involves a motor vehicle, even if the fact pattern says there is no insurance, and then just say it doesn't apply if it is in fact not applicable. Maybe half a point even if it's not on the grader's point sheet, right?

Thanks!

Yeah if you take a look at the answers from past years, some of them are straight up stream of consciousness writing. So my plan is to do the exact same as what you're thinking if the fact pattern is a collision between drivers and the question is asking about filing suit and damages.

[amorsebu14]

Has anyone completed MBE set 16? What are your thoughts? The difficulty level seems to have gone down a notch, and many of the questions are repeats.

[Confused7]

Has anyone completed MBE set 16? What are your thoughts? The difficulty level seems to have gone down a notch, and many of the questions are repeats.

Yeah, towards the end I found A LOT of repeats. I did the best in sets 13-17 maybe because they were easier or there were repeats. But then I dropped again at set 18.

[BelugaWhale]

Civ pro question.

Say a FL person is suing two TX people under proper diversity. The first TX person then crossclaims against the second. That crossclaim has to relate to the subject matter that the FL person is suing the two TX people for. And this is ok even if the crossclaim itself doesnt meet diversity (2 TX people) and if the amount isn't over 75K.

But if there are two cross claims, the second cross claim doesnt have to relate to the subject matter nor fulfill the amount in controversy and it can still be brought right? As long as there is a valid initial crossclaim that relates to the subject matter, the first TX person can bring as many unrelated claims against the second TX person as it can want to and it'll still be proper right?

[ThreeRivers]

In desperate need of some help.

I've been studying primarily with the lecture handouts. I had a folder saved "MBE" and a folder saved "PA". My PA folder somehow disappeared (I've spent way too long trying to recover it). Anyone taking PA and have the lecture handouts filled in / willing to send them to me?

Appreciate any help anyone can offer

Here you go: https://www.dropbox.com/sh/eik3fu7zmudc ... IpPXa?dl=0

There are going to be some pretty bad typos--I have like zero patience for doing anything whole heartedly during lectures.

Thank you!

Someone pm'ed me it as well.. TLS is good people

[anon sequitur]

Here is a really good online tutorial/quiz for rule against perpetuities. I know it's only supposed to be one MBE question, but worth it if you wanna learn it without reading ridiculous 500 word hypotheticals.

http://lawweb.pace.edu/jhumbach/RulePer ... uities.htm

[smalogna]

As for me, question on one of the NY Torts essay PQ's:


Am I to just assume that drivers have no fault insurance in NY unless the fact pattern states otherwise? HALP!

You've been such a rockstar with info here I didn't want your question to go unanswered. According to the outline NY requires that all owners insure their vehicles, and all insurance policies must include the no-fault provision. I'm just planning on throwing the no-fault rule in there in any essay q that involves a motor vehicle, even if the fact pattern says there is no insurance, and then just say it doesn't apply if it is in fact not applicable. Maybe half a point even if it's not on the grader's point sheet, right?

Thanks!

Yeah if you take a look at the answers from past years, some of them are straight up stream of consciousness writing. So my plan is to do the exact same as what you're thinking if the fact pattern is a collision between drivers and the question is asking about filing suit and damages.

So assuming average is what, a 60 on essays? And the "model answers" are stream of consciousness writing and said to be above average...we got this as long as we do some somewhat decent stream of consciousness. Let's do this!!!

[Ahyis]

As for me, question on one of the NY Torts essay PQ's:


Am I to just assume that drivers have no fault insurance in NY unless the fact pattern states otherwise? HALP!

You've been such a rockstar with info here I didn't want your question to go unanswered. According to the outline NY requires that all owners insure their vehicles, and all insurance policies must include the no-fault provision. I'm just planning on throwing the no-fault rule in there in any essay q that involves a motor vehicle, even if the fact pattern says there is no insurance, and then just say it doesn't apply if it is in fact not applicable. Maybe half a point even if it's not on the grader's point sheet, right?

Thanks!

Yeah if you take a look at the answers from past years, some of them are straight up stream of consciousness writing. So my plan is to do the exact same as what you're thinking if the fact pattern is a collision between drivers and the question is asking about filing suit and damages.

So assuming average is what, a 60 on essays? And the "model answers" are stream of consciousness writing and said to be above average...we got this as long as we do some somewhat decent stream of consciousness. Let's do this!!!

Actually, average in NY on essays is 45-55. You get all 60s, you're golden and can probably guess half the MBE and still pass.

[zot1]

Has anyone completed MBE set 16? What are your thoughts? The difficulty level seems to have gone down a notch, and many of the questions are repeats.

Yeah, towards the end I found A LOT of repeats. I did the best in sets 13-17 maybe because they were easier or there were repeats. But then I dropped again at set 18.

Shhhh I didn't do so well on it

[addy11]

Hey all. Late to the party!

A few questions I'm hoping you all can answer to put my mind at ease at this late juncture:

* Has anyone taken the only-on-paper 100 question test in the back of the book titled "Multistate Practice Exams"? I have been averaging in the mid-70s on MBE sets, and as soon as I started this set it just seemed off. I don't know how to explain it, but the uneasiness was borne out in my score: 55%

* Relatedly, has anyone bought any of the real MBE tests that have been administered in years past? I have taken the sample questions on the official MBE site and those seem just like the Themis questions I am used to and comfortable with, but now I am worried that I am just used to Themis' style and could encounter a test with a very different emphasis.

...was really looking forward to not panicking during this whole thing. *sigh*!

[IamIn]

Civ pro question.

Say a FL person is suing two TX people under proper diversity. The first TX person then crossclaims against the second. That crossclaim has to relate to the subject matter that the FL person is suing the two TX people for. And this is ok even if the crossclaim itself doesnt meet diversity (2 TX people) and if the amount isn't over 75K.

But if there are two cross claims, the second cross claim doesnt have to relate to the subject matter nor fulfill the amount in controversy and it can still be brought right? As long as there is a valid initial crossclaim that relates to the subject matter, the first TX person can bring as many unrelated claims against the second TX person as it can want to and it'll still be proper right?

I believe any cross-claim must be related to the subject matter of the complaint. There cannot be any unrelated cross-claims: this is plaintiff's case, and defendants cannot just decide to litigate some random issues between themselves in the same lawsuit.

[anon sequitur]

Hey all. Late to the party!

A few questions I'm hoping you all can answer to put my mind at ease at this late juncture:

* Has anyone taken the only-on-paper 100 question test in the back of the book titled "Multistate Practice Exams"? I have been averaging in the mid-70s on MBE sets, and as soon as I started this set it just seemed off. I don't know how to explain it, but the uneasiness was borne out in my score: 55%

I don't trust those milestone exams, which is what the paper exam in the book is, if I understand correctly. I did both the milestones well after it was suggested, and did markedly worse on them than other mixed MBE sets I did immediately before and after (15-20% worse). I think they were supposed to challenge you or make you feel like you need to study harder or some shit like that.

As for the Themis questions, unless they're marked as adapted to "reflect current NCBE style" they're the legit NCBE questions. I've seen quite a few of them verbatim identical to the adaptibar questions I did. They may be old, but they are real.

[addy11]

Hey all. Late to the party!

A few questions I'm hoping you all can answer to put my mind at ease at this late juncture:

* Has anyone taken the only-on-paper 100 question test in the back of the book titled "Multistate Practice Exams"? I have been averaging in the mid-70s on MBE sets, and as soon as I started this set it just seemed off. I don't know how to explain it, but the uneasiness was borne out in my score: 55%

I don't trust those milestone exams, which is what the paper exam in the book is, if I understand correctly. I did both the milestones well after it was suggested, and did markedly worse on them than other mixed MBE sets I did immediately before and after (15-20% worse). I think they were supposed to challenge you or make you feel like you need to study harder or some shit like that.

As for the Themis questions, unless they're marked as adapted to "reflect current NCBE style" they're the legit NCBE questions. I've seen quite a few of them verbatim identical to the adaptibar questions I did. They may be old, but they are real.

Thank you, friend! This is good to know. Perhaps it's reassuring that the paper-only test at the end of the MPE book had so many questions that I had never seen before... or even iterations thereof. And even the logic seemed inconsistent with Themis' general approach:

[+] Spoiler

There was one question where a seller breached on a buyer on a $600k order, and the buyer had two options -- a seller whom the buyer trusted, who was selling the goods for $800k and another seller, whom the buyer had no reason to distrust, who was offering them for $600k. The answer somehow held that the buyer could choose the trusted seller and recoup his $200k from the breaching seller! As if the duty to mitigate got converted into some "if you get breached, then you get to dictate your own terms!" doctrine

[addy11]

Civ pro question.

Say a FL person is suing two TX people under proper diversity. The first TX person then crossclaims against the second. That crossclaim has to relate to the subject matter that the FL person is suing the two TX people for. And this is ok even if the crossclaim itself doesnt meet diversity (2 TX people) and if the amount isn't over 75K.

But if there are two cross claims, the second cross claim doesnt have to relate to the subject matter nor fulfill the amount in controversy and it can still be brought right? As long as there is a valid initial crossclaim that relates to the subject matter, the first TX person can bring as many unrelated claims against the second TX person as it can want to and it'll still be proper right?

1 - I think that the AIC can be waived if it arises out of the same set of facts, but I don't think that diversity can ever be defeated (diversity in this case referring to the claim between the two TX ∆s). Would need to look this up, though. You know what Themis says about absolute answers!
2 - I believe that if there are two CROSS claims, then they MUST be from different sets of facts. The reason I say this is because I believe that a response to a cross claim from the same set of facts is definitionally a counterclaim, and therefore MUST be brought if it is to be preserved.
3 - I just want to reiterate the idea of diversity being a sine qua non. I don't think that a court would have any type of jurisdiction (not diversity if there is no diversity of citizenship; not supplemental if it doesn't arise from the same set of facts) in the "two cross claims" scenario that you posed.

[BelugaWhale]

Civ pro question.

Say a FL person is suing two TX people under proper diversity. The first TX person then crossclaims against the second. That crossclaim has to relate to the subject matter that the FL person is suing the two TX people for. And this is ok even if the crossclaim itself doesnt meet diversity (2 TX people) and if the amount isn't over 75K.

But if there are two cross claims, the second cross claim doesnt have to relate to the subject matter nor fulfill the amount in controversy and it can still be brought right? As long as there is a valid initial crossclaim that relates to the subject matter, the first TX person can bring as many unrelated claims against the second TX person as it can want to and it'll still be proper right?

1 - I think that the AIC can be waived if it arises out of the same set of facts, but I don't think that diversity can ever be defeated (diversity in this case referring to the claim between the two TX ∆s). Would need to look this up, though. You know what Themis says about absolute answers!
2 - I believe that if there are two CROSS claims, then they MUST be from different sets of facts. The reason I say this is because I believe that a response to a cross claim from the same set of facts is definitionally a counterclaim, and therefore MUST be brought if it is to be preserved.
3 - I just want to reiterate the idea of diversity being a sine qua non. I don't think that a court would have any type of jurisdiction (not diversity if there is no diversity of citizenship; not supplemental if it doesn't arise from the same set of facts) in the "two cross claims" scenario that you posed.

Thanks for the response, but I'm pretty sure that a crossclaim between 2 defendants don't need diversity of citizenship or AIC as long as it relates to the subject matter. But please let me know if you think I'm wrong. Based on page 14 of the themis Fed rules outline: it states "a cross claim . . . may be asserted by 1 defendant against another defendant w/o regard to the AIC or the citizenship of the parties to the cross-claim as long as the court has SMJ"

As for the second part of my question regarding 2 cross claims, the first of which does relate to the subject matter and the second which doesnt, the reason I ask is because of question 7 on this old virginia essay. To clarify, when I mean 2 crossclaims, I mean defendant 1 (as 3rd party plaintiff) filing 2 claims against defendant 2. Not defendant 2 counterclaiming to defendant 1.

http://law.wm.edu/documents/July.2009Su ... nswers.pdf

The answer (which is prepared by a consortium of virginia law school profs) suggests that because of FRCP 18, only the FIRST crossclaim needs to relate to the subject matter and any additional crossclaims DO NOT. The reason I'm asking here on TLS is because this is new to me and kinda blew my mind. Also, these answers have been wrong before so wanna double check them as well.