MBE Question Thread Forum

[ConfusedL1]

This one keeps bugging me...

Developer, from state A, files a breach of contract action against General Contractor, from state B. General Contractor impleads Subcontractor from state B properly for indemnification. General Contractor then also files a tort claim against Subcontractor claiming that Subcontractor stole $80,000 worth of equipment from General Contractor at the work-site. Answer is that General Contractor can only properly assert the indemnity claim, because the federal court lacks subject matter jurisdiction over the tort claim. The explanation states that the tort claim is unrelated to the Developer's claim in federal court. Is this accurate? How narrow is the common nucleus of operative fact analysis?

Pretty narrow. The anchoring claim (dev v. gen contractor) is a breach of contract action. The tort claim that gen contractor has against sub contractor is not going to have a common operation of fact or questions of law. Contract law is different, and presumably so are facts regarding a separate tort action.

slightly different hypo. If P brings in two parties those two parties can sue each other for whatever they want within the supplemental jurisdiction T/O test, right? Let's say P sued for several different claims: breach, negligence, etc. They'd have a lot to go with, but they couldn't litigate a separate contract dispute.

[TheWalrus]

Does anyone know what special damages for defamation are? I've missed it every time.

[bballbb02]

Yeah,, they are two types of defamation...libel, which is written--damages for libel are presumed, plaintiff need not prove them, so special damages are not required for libel..

And then there's slander, which is oral or spoken..there are the four slander per se categories, which like libel the damages are presumed thus you need not prove special damages...if it is slander but not slander per se, you need to show special damages to have a case.

[DR3]

Apparently there are new property questions on the MBE (ones that self-study resources don't have like negotiating conveyances and easement, etc. deeds); just wondering if anyone including Feb takers with any idea of how likely those are to appear on MBE?

[ConfusedL1]

Apparently there are new property questions on the MBE (ones that self-study resources don't have like negotiating conveyances and easement, etc. deeds); just wondering if anyone including Feb takers with any idea of how likely those are to appear on MBE?

Can you be more specific about how you know this andthe categories? Like, what does "negotiating" an easement mean in terms of a question.

[bballbb02]

can anyone explain whether determinations of admissibility can be conducted with the jury present---i thought that the jury should not be present but i have seen some different answers lately

[EzraFitz]

can anyone explain whether determinations of admissibility can be conducted with the jury present---i thought that the jury should not be present but i have seen some different answers lately

FRE 104(c) provides:

(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:

(1) the hearing involves the admissibility of a confession;

(2) a defendant in a criminal case is a witness and so requests; or

(3) justice so requires.

If one or two aren't met, the judge essentially has discretion under three. But it's discretion.

[Yazzzay]

Hey, sorry if this one has been asked before but super confused- 85% of Adaptibar users and I got it wrong:

On January 1, 2005, a woman met with a plastic surgeon for a face lift consultation. The plastic surgeon described the procedure and the woman agreed to have the surgery on a date exactly one week later. On December 25, 2007, unhappy with the results, the woman filed a single-count complaint against the plastic surgeon in federal court. The complaint asserts that the plastic surgeon failed to obtain informed consent. Applicable state law provides a three-year statute of limitations for tort claims. Three weeks after serving the complaint, the woman's attorneys amended the complaint to add a negligence claim on the theory that the plastic surgeon was intoxicated while he performed her surgery.

Can the woman amend her complaint?

A. Yes, because the negligence claim relates back to the date of the original complaint, which was filed timely, and the woman can amend the complaint as a matter of right.
B. No, because the negligence claim does not relate back to the original complaint.
C. Yes, because the plastic surgeon knew or should have known that the woman would have brought a negligence claim against him, but for a mistake.
D. No, because the three-year statute of limitations for tort claims expired on January 1, 2008, and the woman did not file the negligence claim before that date.

Correct answer was B and NOT A. How is it not from the same transaction/occurence and able to relate back?

I'm guessing the language in bold is key. A week separated the woman consenting to the surgery and the surgeon getting plastered and actually performing the surgery, so I guess that (in part) leads to the two events amounting to separate transactions/occurrences.

Just to add a little- the rule regarding relation back that applies here states: the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out–or attempted to be set out–in the original pleading...

In your Q- relation back won't apply because the "set of facts/transaction/occurrence" from which the cause of actions arise are different- they are separated by two distinct set of facts; in other words
#1) surgeon describes procedure during a consult visit
#2) surgery one week after consult

They don't arise from the same transaction/occurrence/set of facts although one could easily argue the other way as IMO- the consult and surgery are derived from one in the same b/c a consult is usually mandatory pre plastic surgery ...this is deff. a tricky question- like the above poster said the dates are key to getting it right.

Thanks, guys. Definitely think it should be argued the other way but now I know to check dates.

[ConfusedL1]

Can ANYONE explain what independence means in the context of felony muder?

I thought it meant the felony must be independent of the murder, but I don't get when this is applicable. So, like murder because of an aggravated battery would't count but an armed robbery would? It seems like a messy line.

[existentialcrisis]

This is probably a moronic question, but I didn't take crim pro and I am somehow baffled by Barbri's explanations both in the answers and in the outlines.

Can someone explain in a sentence or two how appeals work in the context of double jeopardy? The outline/lecture handout both list appeals as an exception to the no double jeopardy rule, which I just can't seem to grasp.

Like if someone is convicted and then gets it reversed on appeal, can they be tried again?

Or what happens if D wins at trial but then the prosecution wins on appeal?

[ConfusedL1]

This is probably a moronic question, but I didn't take crim pro and I am somehow baffled by Barbri's explanations both in the answers and in the outlines.

Can someone explain in a sentence or two how appeals work in the context of double jeopardy? The outline/lecture handout both list appeals as an exception to the no double jeopardy rule, which I just can't seem to grasp.

Like if someone is convicted and then gets it reversed on appeal, can they be tried again?

Or what happens if D wins at trial but then the prosecution wins on appeal?

It depends on the crime, I think. The clause prohibits retrying any defendant whose conviction has been reversed on appeal for ANY offense more serious than that for which they were convicted at the first trial.

I.e. the state can bring another lesser charge, but they can't bring the same charge or one more serious.

[uceoledinbdnrn]

This is probably a moronic question, but I didn't take crim pro and I am somehow baffled by Barbri's explanations both in the answers and in the outlines.

Can someone explain in a sentence or two how appeals work in the context of double jeopardy? The outline/lecture handout both list appeals as an exception to the no double jeopardy rule, which I just can't seem to grasp.

Like if someone is convicted and then gets it reversed on appeal, can they be tried again?

Or what happens if D wins at trial but then the prosecution wins on appeal?

I don't think this is really amenable to a one or two sentence answer but this random link I googled might help: http://criminal.findlaw.com/criminal-ri ... -ends.html

The key take-aways are that the prosecution is absolutely barred from appealing a jury verdict or any other final judgment on the merits. When a defendant appeals a guilty conviction on the basis of anything but sufficiency of evidence, they're opening the door to a retrial. A court cannot impose a harsher sentence just because of the appeal, but that implicates due process and not double jeopardy.

[existentialcrisis]

I don't think this is really amenable to a one or two sentence answer but this random link I googled might help: http://criminal.findlaw.com/criminal-ri ... -ends.html

The key take-aways are that the prosecution is absolutely barred from appealing a jury verdict or any other final judgment on the merits. When a defendant appeals a guilty conviction on the basis of anything but sufficiency of evidence, they're opening the door to a retrial. A court cannot impose a harsher sentence just because of the appeal, but that implicates due process and not double jeopardy.

It depends on the crime, I think. The clause prohibits retrying any defendant whose conviction has been reversed on appeal for ANY offense more serious than that for which they were convicted at the first trial.

I.e. the state can bring another lesser charge, but they can't bring the same charge or one more serious.

Thanks y'all, that actually helps a lot.

[ConfusedL1]

Imma repost:

Can ANYONE explain what independence means in the context of felony muder?

I thought it meant the felony must be independent of the murder, but I don't get when this is applicable. So, like murder because of an aggravated battery would't count but an armed robbery would? It seems like a messy line.

[TheWalrus]

Imma repost:

Can ANYONE explain what independence means in the context of felony muder?

I thought it meant the felony must be independent of the murder, but I don't get when this is applicable. So, like murder because of an aggravated battery would't count but an armed robbery would? It seems like a messy line.

Burglary
Arson
Rape
Robbery
Kidnapping.

These are the barrk crimes that lead to felony murder.

[sam91]

Imma repost:

Can ANYONE explain what independence means in the context of felony muder?

I thought it meant the felony must be independent of the murder, but I don't get when this is applicable. So, like murder because of an aggravated battery would't count but an armed robbery would? It seems like a messy line.

Burglary
Arson
Rape
Robbery
Kidnapping.

These are the barrk crimes that lead to felony murder.

The above is a much easier way to go. The independence isn't really a huge sticking point (w/r/t MBE type questions), just know the designated felonies to which the felony murder rule applies.

In any event, the idea is that the underlying felony needs to be distinct w/r/t intent from the actual malice requirement for murder. For instance, if you could be charged with felony murder for a death that was a result of an aggravated battery, now essentially actual malice is expanding all the way from intent to cause serious bodily harm to simply the intent to cause an offensive touching.

I think of it like this, the above listed designated felonies are so egregious, that they almost imply the same level of recklessness as depraved heart murder does. Or, at least thats how society views them. Hope this helped.

[uceoledinbdnrn]

Imma repost:

Can ANYONE explain what independence means in the context of felony muder?

I thought it meant the felony must be independent of the murder, but I don't get when this is applicable. So, like murder because of an aggravated battery would't count but an armed robbery would? It seems like a messy line.

On top of just brute forcing the barrk crimes (which you absolutely should do) it also helps if you remember that it is a messy line, but it's messy because normal murder and involuntary manslaughter were already around when the felony murder rule was crafted.

Like if you aggravatedly batter someone and they die, you just checked off all the actus reus elements of a homicide crime. If you were to make felony murder apply to aggravated battery, there just wouldn't be a crime of involuntary manslaughter. You'd either have the mens rea for murder or you'd have a lower mens rea but it wouldn't matter because felony murder would just bring you right back to murder.

(scooooped)

[TheWalrus]

What are the 12(b) motions you have to file or lose? And does anyone have an easy way to remember them?

[ConfusedL1]

Imma repost:

Can ANYONE explain what independence means in the context of felony muder?

I thought it meant the felony must be independent of the murder, but I don't get when this is applicable. So, like murder because of an aggravated battery would't count but an armed robbery would? It seems like a messy line.

On top of just brute forcing the barrk crimes (which you absolutely should do) it also helps if you remember that it is a messy line, but it's messy because normal murder and involuntary manslaughter were already around when the felony murder rule was crafted.

Like if you aggravatedly batter someone and they die, you just checked off all the actus reus elements of a homicide crime. If you were to make felony murder apply to aggravated battery, there just wouldn't be a crime of involuntary manslaughter. You'd either have the mens rea for murder or you'd have a lower mens rea but it wouldn't matter because felony murder would just bring you right back to murder.

(scooooped)

Thanks. Super useful. I think my plan will just be to look for BARRK and not overthink the independent angle.

[ConfusedL1]

What are the 12(b) motions you have to file or lose? And does anyone have an easy way to remember them?

AS far as I know there are only three. I personally remember it as POV because I awkwardly think of it as "hey your suit is just, like, your POV man." But there are so few you could just straight up know them. The following are waived if not raised by motion or answer, whichever is first:

1. Personal jurisdiction
2. Service of process / sufficiency of process (just think anything service related)
3. Venue

The following can be raised before trial or even AT trial:

1. failure to state a claim
2. failure to join an indispensible party.

Edit for spellcheck. Whoops.

[ConfusedL1]

Can some one clear up third party beneficiaries?

I thought a donee beneficiary could never sue a promisee, but it appears there is only one exception for reliance. Is that correct?

[BulletTooth]

I know that parol evidence rule does not bar introduction of evidence of condition precedent.

But in the Themis Property outline, it says "When the grantor transferred the deed to the grantee subject to an oral condition (i.e., a condition that does not appear in the deed), parol evidence is not admissible, and the condition is not enforceable."

Is this an exception to the exception that evidence of condition precedent is admissible despite parol evidence rule?

I've read that conditions for a land sale contract need to be in the written contract, so it seems like it may be more of a statute of frauds issue.

[bballbb02]

What are the 12(b) motions you have to file or lose? And does anyone have an easy way to remember them?

AS far as I know there are only three. I personally remember it as POV because I awkwardly think of it as "hey your suit is just, like, your POV man." But there are so few you could just straight up know them. The following are waived if not raised by motion or answer, whichever is first:

1. Personal jurisdiction
2. Service of process / sufficiency of process (just think anything service related)
3. Venue

The following can be raised before trial or even AT trial:

1. failure to state a claim
2. failure to join an indefensible party.

--indespensible party not indefensible party---meaning a party that is necessary for just adjudication of the case

[TheWalrus]

Can some one clear up third party beneficiaries?

I thought a donee beneficiary could never sue a promisee, but it appears there is only one exception for reliance. Is that correct?

Yes, that's correct. It's simply an equitable thing.

[wwwcol]

What are the 12(b) motions you have to file or lose? And does anyone have an easy way to remember them?

AS far as I know there are only three. I personally remember it as POV because I awkwardly think of it as "hey your suit is just, like, your POV man." But there are so few you could just straight up know them. The following are waived if not raised by motion or answer, whichever is first:

1. Personal jurisdiction
2. Service of process / sufficiency of process (just think anything service related)
3. Venue

The following can be raised before trial or even AT trial:

1. failure to state a claim
2. failure to join an indefensible party.

--indespensible party not indefensible party---meaning a party that is necessary for just adjudication of the case

Just so y'all aren't caught off guard, the FRCP recently eliminated the term "indispensable party." The concept remains but now the analysis is phrased as a necessary party that suffers prejudice.