Civil Procedure Missed MBE Questions and Answers 2022/2023
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Civil Procedure Missed MBE
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Civil Procedure Missed MBE
A federal district court denied certification of an action as a class action. In doing so, the court made a mistake of law. Thirteen days after the entry of the district court's order, the plaintiff filed a petition with the clerk of the applicable circuit court for permission to appeal the denial ...
civil procedure missed mbe questions and answers 20222023
a federal district court denied certification of an action as a class action in doing so
the court made a mistake of law thirteen days aft
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Civil Procedure Missed MBE Questions
A federal district court denied certification of an action as a class action. In doing so, the
court made a mistake of law. Thirteen days after the entry of the district court's order,
the plaintiff filed a petition with the clerk of the applicable circuit court for permission to
appeal the denial of certification.
Must the appellate court hear this appeal?
Answers:
A. No, because entertaining this appeal is at the discretion of the appellate court.
B. No, because the petition was not timely filed.
C. Yes, because the district court denied rather than granted certification of the class.
D. Yes, because the district court made an error of law. - Answer Answer choice A is
correct. An appellate court may, but is not required to, hear an immediate appeal of a
certification decision rendered by the district court. Answer choice B is incorrect. A
petition for permission to appeal a certification order must be filed within 14 days of the
entry of the order. Thus, it was timely filed. Answer choice C is incorrect because a
petition for permission to appeal may be made whether the district court grants or
denies certification of the class. Answer choice D is incorrect. While the commission of
an error of law could be grounds for overturning the district court's order, it does not
compel the appellate court to hear the appeal.
An Internet startup company became marketing a line of products under a trade name
that was identical to a manufacturer's protected trademark. The manufacturer filed an
action in federal district court for injunctive relief against the startup company, seeking
to put a stop to the company's use of the protected trade name. The district court
granted a preliminary injunction in favor of the manufacturer and scheduled a hearing to
consider a permanent injunction. The startup company wants to immediately appeal the
preliminary injunction.
Which of the following is most accurate concerning the startup company's potential
appeal?
Answers:
A. Immediate appeal is precluded by the final judgment rule.
B. Immediate appeal is precluded because the relief sought in the action is equitable.
, C. Immediate appeal is allowed by right.
D. Immediate appeal is allowed only with the approval of the district court. - Answer
Answer choice C is correct. While most interlocutory orders are not immediately
appealable, certain equitable orders are reviewable immediately as a matter of right,
including an order granting an injunction. Answer choice A is incorrect. While the final
judgment rule does preclude immediate appeal of most interlocutory orders, certain
equitable orders are appealable as of right. Answer choice B is therefore also incorrect.
Answer choice D is incorrect. Although a district court may certify for immediate appeal
an order involving a controlling question of law, approval of the district court is not
necessary to appeal an order granting an injunction.
A plaintiff filed a patent infringement action in federal district court. After discover
concluded, the defendant filed a motion for summary judgment. The court denied the
motion for summary judgment, noting in its order that the legal issue presented had
been decided inconsistently among federal courts, and had not been decided by the
appellate court for the circuit in which the district court sat. Twelve days after the
summary judgment order was issued, the defendant filed with the appellate court an
application for appeal of the order denying summary judgment.
Is the appellate court likely to hear the appeal?
Answers:
A. No, because an order denying summary judgment is not immediately appealable.
B. No, because the application for appeal was made more than 10 days after the
summary judgment order was issued.
C. Yes, because an order denying summary judgment is immediately appealable.
D. Yes, because the order involved a controlling question of law to which there is
substantial ground for difference of opinion. - Answer Answer choice A is correct.
Federal courts of appeals from the final judgment of the district courts, but most
interlocutory orders are not considered final and therefore not immediately appealable.
If a district court certifies that an immediate appeal would help to resolve an unclear
interpretation of a controlling question of law, however, a court of appeals has discretion
to allow the appeal if the application is made to it within 10 days after entry of the order.
But such certification must occur. In this case, although the court noted that the legal
issue was unsettled, it did not certify the order for immediate appeal, and the order was
therefore not immediately appealable. Answer choice B is incorrect because the court
would reject the application because it was an interlocutory order. Answer choice C is
incorrect because an interlocutory order such as the denial of summary judgment is not
immediately appealable. Answer choice D is incorrect because although the issue
involved an unsettled question of law, the court did not certify the order for immediate
appeal.
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