Multistate Bar Exam Civil Procedure 2 — Questions and Answers
Question 1: A plaintiff files suit in federal court based solely on diversity jurisdiction. The defendant moves to dismiss for lack of subject matter jurisdiction, arguing the amount in controversy does not exceed $75,000. Who bears the burden of proof on this issue?
- The defendant, as the moving party
- The plaintiff, as the party invoking federal jurisdiction (Correct answer)
- Neither party; the court determines jurisdiction sua sponte
- The party challenging jurisdiction always bears the burden
Correct answer: The plaintiff, as the party invoking federal jurisdiction
The party invoking federal jurisdiction bears the burden of establishing that subject matter jurisdiction requirements, including the amount in controversy, are satisfied.
Question 2: A defendant is served with a complaint. Under the Federal Rules, within how many days must the defendant serve an answer if served within the United States?
- 14 days
- 21 days (Correct answer)
- 28 days
- 30 days
Correct answer: 21 days
Under FRCP 12(a)(1)(A)(i), a defendant must serve an answer within 21 days after being served with the summons and complaint.
Question 3: During discovery, a party receives documents from the opposing side that are clearly subject to attorney-client privilege but were inadvertently produced. Under FRCP 26(b)(5)(B), what must the receiving party do?
- Immediately use the documents before they can be clawed back
- Notify the producing party and sequester the documents pending resolution (Correct answer)
- File a motion with the court to determine if privilege applies
- Destroy the documents immediately
Correct answer: Notify the producing party and sequester the documents pending resolution
Upon receiving notice of inadvertent production of privileged material, the receiving party must promptly return, sequester, or destroy the specified information and may not use it until the privilege claim is resolved.
Question 4: A federal court enters a default judgment against a defendant who was never properly served. The defendant learns of the judgment one year later. Under FRCP 60(b)(4), the defendant may seek relief from the judgment because:
- Newly discovered evidence supports setting aside the judgment
- The judgment was entered through fraud on the court
- The judgment is void due to lack of personal jurisdiction (Correct answer)
- Enforcing the judgment would be unjust
Correct answer: The judgment is void due to lack of personal jurisdiction
A judgment is void under Rule 60(b)(4) when the court lacked personal jurisdiction over the defendant, and there is no time limit for seeking relief from a void judgment.
Question 5: A plaintiff sues a corporation in federal court. The plaintiff's attorney seeks to depose the corporation. Under FRCP 30(b)(6), the corporation must:
- Produce its CEO or highest-ranking officer
- Designate one or more representatives who will testify on the organization's behalf (Correct answer)
- Allow the plaintiff to choose which employee to depose
- Produce written answers to deposition questions in lieu of an oral deposition
Correct answer: Designate one or more representatives who will testify on the organization's behalf
Under FRCP 30(b)(6), a corporation must designate one or more representatives who will testify on its behalf as to matters described in the deposition notice.
Question 6: After a jury verdict, the losing party moves for judgment as a matter of law under FRCP 50(b). What standard does the court apply?
- Whether the court disagrees with the jury's factual findings
- Whether a reasonable jury could find for the nonmoving party based on the evidence presented (Correct answer)
- Whether the weight of the evidence favors the moving party
- Whether the losing party raised the issue in a pre-verdict motion
Correct answer: Whether a reasonable jury could find for the nonmoving party based on the evidence presented
The court grants a renewed motion for JMOL only if a reasonable jury would not have a legally sufficient evidentiary basis to find for the nonmoving party.
Question 7: A class action is certified under FRCP 23(b)(3). After certification, class members are entitled to:
- No notice, as the class representative speaks for all
- Notice and an opportunity to opt out of the class (Correct answer)
- Notice but no opportunity to opt out
- Notice only if they request it
Correct answer: Notice and an opportunity to opt out of the class
Rule 23(b)(3) class members must receive the best practicable notice and have the opportunity to opt out, protecting their right to pursue individual claims.
Multistate Bar Exam Civil Procedure 2
A plaintiff files suit in federal court based solely on diversity jurisdiction.
The defendant moves to dismiss for lack of subject matter jurisdiction, arguing the amount in controversy does not exceed $75,000.
Who bears the burden of proof on this issue?