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BARBRI MBE QUESTIONS AND ANSWERS
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BARBRI MBE QUESTIONS AND ANSWERS
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BARBRI MBE QUESTIONS AND ANSWERSA developer contracted with a general contractor to build an office building, and
completion of the building was two years late. The developer filed a breach of contract
action in federal district court against the general contractor, seeking damaged caused
by the delay. The general contractor filed a third-party claim against a major
subcontractor, claiming that the subcontractor caused any delay and should be liable to
the general contractor for anything the general contractor has to pay the developer. The
subcontractor believes that the developer interfered with the subcontract and that the
developer's interference caused not only the delay but also substantial cost overruns for
the subcontractor.
May the subcontractor assert a claim in the pending action against the developer
seeking payment for the cost overruns? - Answers-Yes, because the subcontractor's
claim against the developer arises form the same transaction or occurrence as the
developer's original claim, but the subcontractor may assert the claim in an independent
action if it prefers.
A tourist from State A was severely injured in a bar fight in State B. The tourist filed a
battery action against one of the bar's patrons, seeking $100,000 for his injuries. The
defendant patron claims that the tourist is mistaken about who hit him. The patron says
that he did not touch the tourist. The patron claims that it was the bar's bouncer--who
looks like the patron-- who hit the tourist and then continued to pummel him. The
bouncer claims that he never touched or harmed the tourist.
Can the patron assert a third-party claim against the bouncer to bring him into the
action? - Answers-No, because the patron has no legal basis to assert a claim against
the bouncer (patron is denying liability all together) and is not seeking to recover from
the bouncer any portion of the patron's liability to the tourist.
A homeowner discovered that the siding on his house was defective and had allowed
water to enter the structure, causing damage to the wood framing. The homeowner tried
for some time to negotiate a settlement with the corporation that the homeowner
believed had manufactured the defective siding. When no settlement was forthcoming,
the homeowner filed an action in federal district court against the corporation one week
before the SOL expired. Service of process was effected on the corporation several
months later. After inspecting the home, the corporation filed and served its answer in
which it denied manufacturing the siding used on the homeowners house. Upon
examining the corporation's evidence, the homeowner conceded that the siding was
manufactured by another company. With leave of court, the homeowner then filed an
amended complaint substituting the actual manufacturer of the siding for the original
incorrect def - Answers-Grant the motion, because the amended complaint was filed
after the SOL expired and the actual manufacturer did not receive timely notice of the
action. (R. Amendments to claims substituting a new defendant are allowed and relate
,back if (1) claims arise from the same transaction or occurrence; (2) within the time
allotted for serving the original complaint [90 days of filing]; (3) so that they received
such notice that a claim was against them so that they would not be overly prejudiced;
and (4) knew or should have known there would be an action against them.)
A motorist from State A struck and injured a pedestrian in State B. The pedestrian, a
state B resident, brought an action in a State B federal court against the State A
motorist, seeking $100,000 in damages. The summons and complaint were served on a
receptionist at the motorist's place of business in State A. State A's rules permit service
of process in this manner, while State B's rules do not.
If the motorist moves to dismiss the complaint on the basis of improper service of
process, is the court likely to dismiss the action? - Answers-No, because the federal
rules permit service under the rules of the state in which service will be effected (R.
Service can be made as allowed by the rules of the state where the fed. court sits or the
state where service was to be affected.)
A customer slipped and fell in a store, suffering a severe injury. Several weeks after the
accident, anticipating that the customer would file an action against it, the store's
attorney had the store manager interview any employees who were near the accident to
determine what they saw or heard. The store manager did so, taking handwritten notes.
The notes are now in the store's possession. The customer subsequently filed a civil
action against the store in federal district court. The complaint alleged that the store
negligently left a spill on the floor of the store, causing the customer's fall. The
customer's attorney served on the store a request for production of documents, which
included a request for all documents and reports prepared by the store that relate to the
customer fall and injury.
Must the store produce to the customer the notes taken by the store manger when he
interviewed the store's employees? - Answers-No, because the manager's notes are
protected by a qualified immunity from discovery under the work product doctrine (R.
Work product doctrine is a qualified immunity [not absolute immunity]; not have to be
produced unless it can be shown that there is a substantial need or an undue hardship)
A merchant owned a skate rental business that she operated out of a specially
equipped van. She would drive to various parks and public beaches within her home
state and rent roller skates, related safety equipment and lightweight stereo/earphone
sets to passerby on an hourly basis. She also sold skates and skating equipment. About
50% of the merchant's time is spent in a single city, and she earns about 70% of her
gross rental and sale income at that city's beach areas. After receiving numerous
complaints from beach goers about the sidewalks congested with roller skates, the city
council passed an ordinance prohibiting roller skating on public property between the
hours of 7 am and 9 pm
If the merchant seeks to enjoin enforcement of the ordinance in federal district court on
the basis that it is unconstitutional, what should the court do? - Answers-Reach the
,merits of the merchant's challenge because enforcement of the ordinance will harm her
business and the rights of the public are linked to her rights (R. A seller of goods may
have third party standing to challenge a law that adversely affects the rights of her
customers. [standing plus this])
Recently enacted legislation required farmers in certain counties of a western state to
use drip irrigation systems instead of traditional methods in order to conserve water for
agricultural and other uses. A farmer who refused to use the drip system was charged
pursuant to the enforcement provisions of the legislation. A state court enjoined him
from using other irrigation methods and fined him.
Which of the following statements is most accurate as to the constitutionality of the
state's ad regulation? - Answers-It is constitutional if it does not prohibit the
dissemination of truthful information about price and the availability of products, and is
narrowly tailored to serve a substantial government interest. (R. Commercial speech
allowed as long as they serve a substantial government interest; Intermediate scrutiny
used for: zoning laws on adult movie theaters and bookstores, nude dancing bands,
symbolic speech, content neutral time place and manner restrictions.)
Auto workers went on strike in a town heavily reliant on the auto industry. While
negotiations between the union and management were ongoing, a person intercepted
and recorded a phone call between the union's president and management's chief
negotiator. A state statute makes it illegal to record a phone call without the consent of
the parties being recorded. The statute also make is illegal to play an illegally recorded
conversation on television or radio.
The person who recorded the call anonymously sent the recording to a local TV station.
The TV station news anchor played the recording on air.
Can the anchor who played the recording be prosecuted under the statute? - Answers-
No, because the anchor did not record the conversation, and the information is truthful
and about a matter of public significance. (R. Press has a right to publish info about a
matter of public concern and it can only be restricted by a narrowly tailored sanction
designed to further a state interest of the highest order; applies even if the information
has been obtained unlawfully.)
A father conveyed his property to his son and daughter "as joint tenants with right of
surviviorship, but if they ever attempt to sell the property during their lifetimes, a right of
first refusal based on the sale price is hereby granted to my sister." Unbeknownst to the
son or the sister, the daughter quitclaimed her interest in the property to a purchaser.
The following month, the daughter was killed in a snowmobile accident. The purchaser
of the daughter's interest filed a suit for partition of the property. The son filed an
appropriate counterclaim for quiet title, asserting that he was the owner of the entire
parcel. The sister also filed a counterclaim, asserting that her right of first refusal was
valid and that she was prepared to exercise her right to purchase the property for the
contract price.
, In a jurisdiction in which the RAP is unmodified by statute, how should the court rule? -
Answers-For the sister, because she has a valid right of first refusal. (R. rights of first
refusal have to follow RAP; not an unreasonable restraint on alienation if can sell, but
must first offer ROFR ) (Not violate RAP here because right of first refusal is for the life
of the sister, so we will know during her life whether or not ROFR will be exercised)
A tenant entered into a written five-year lease to rent an office from a landlord for
$6,000 per year beginning October 1. The lease required that rent in the amount of
$500 be paid on or before the first of each month. Two months before the five-year term
was up, the tenant received a new lease identical to the one he had already signed,
except that the lease term began on the upcoming October 1 and the stated amount of
rent per month was $600. The tenant returned the lease to the landlord unsigned, with a
letter stating that he did not intend to renew the lease and would be moving out on
September 30. The tenant did not move out on September 30. On October 1, the
landlord received a check for $500 from the tenant. The notation on the check indicated
that it was for the October rent. The landlord deposited the check in her account. She
then sent a letter to the tenant stating that he was $100 in arrears in his rent. - Answers-
A year-to-year tenancy at $600 (R. Holdover Tenant liable under new terms of
lease/money amount if tenant was notified of a rent increase prior to the end of the
original lease; year-to year if commercial and month-to-month if residential)
An owner of three acres of lakefront property subdivided it and sold two acres to a
buyer, retaining the one acre actually fronting on the lake. The deed for the two acres
expressly included an easement over the westernmost 30 feet of the one-acre parcel
retained by the owner for access to the lake. The buyer recorded his deed in the county
recorder's office, which maintained an alphabetical grantor-grantee index only. Fifteen
years later, the owner died, leaving the one-acre parcel to his wife. She sold it to a
developer that planned to build condominiums. A month later, the buyer died, and his
two acres passed by will to his nephew. Three weeks after taking title to the property,
the nephew visited the property and discovered that the developer had erected a chain
link fence all along the boundary between the nephew's land and the acre of lakefront
land. The nephew brings an action to enjoin the developer from obst - Answers-The
nephew's easement is a legal interest that the developer had record notice of, even
though there is no tract index. (Recorded notice, so no track index is irrelevant.) (R.
Easement can be created by: express easement, adverse prescription/possession,
landlocked; Easement terminated by: abandonment,
A landowner owned two adjoining parcels of land containing a number of lakes. She
conveyed the eastern parcel, which contained a campground, to a fisherman. The deed
transferring the parcel granted to the fisherman "and to invited guests of the
campground all hunting and fishing rights and use of the lakes on the western parcel for
the benefit of the campground." Subsequently, the fisherman assigned his hunting and
fishing rights to a hunter.
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