Mixed Deck — All Multistate Bar Exam Topics Flashcards

Two employees of a large multi-state corporation sued the company for violations of the wage and hour laws of state A, where the two worked and resided. They sued in a state court in state A, and requested class certification on behalf of their co-workers who also worked and resided in State A. The company filed to remove the case to the federal district court in state B based on federal diversity jurisdiction. The plaintiffs objected to removal because they asserted that the company's principal place of business was in State A, which destroyed diversity jurisdiction under the circumstances. The company argued that its principal place of business was in State B, thus creating diversity jurisdiction in the federal court. Which of the following would be the main basis for the court’s determination of where the company had it principal place of business?

Answer: In the state where the officers direct, control, and maintain its activities.

The federal diversity jurisdiction statute provides that "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U.S.C. § 1332(c)(1) See The Hertz Corporation v. Friend, 130 S.Ct. 1181 (2010). The Supreme Court ruled in Hertz that the "principal place of business" for purposes of determining whether there was diversity citizenship was the place where the corporation's officers direct, control, and coordinate the corporation's activities. It is called the corporation's "nerve center." Hertz, 130 S.Ct. 1192. In practice, it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the "nerve center," and not simply an office where the corporation holds its board meetings.

A state started conducting random vehicle stops at highway roadblocks to look for drugs. A young man was driving alone when he was pulled over with 12 other cars for a narcotics detection search. About 30 officers were involved in conducting the drug searches. After the stop, officers walked drug-sniffing dogs around the young man’s car and the other cars. An officer advised each motorist that this was a brief stop for a drug checkpoint, and asked the young man and the other drivers to produce a license and registration. The officer looked over the young man for signs of drug impairment and conducted an open -view examination of the car from the driver’s side window and the other windows. The young man was not arrested but he later filed an injunctive action in a United States District Court, demanding the police be prohibited from continuing the random drug searches. The lawsuit claimed Fourth Amendment violations based on unreasonable searches and seizures. The district court dismissed the case, but on appeal, the U.S. Circuit Court of Appeals reversed and ordered issuance of an injunction. On appeal to the U.S. Supreme Court, did the plaintiff prevail in his assertion that the procedure was unconstitutional?

Answer: Yes, because the stops were pursued for general crime investigation rather than highway safety, which is an unreasonable purpose not based on individualized suspicion of wrongdoing.

This hypothetical is modeled after Indianapolis v. Edmond, 531 US 32, 41-42 (2000). A general-purpose roadblock for detecting narcotics violates the rule that searches and seizures be reasonable under the Fourth Amendment. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. See Chandler v. Miller, 520 U. S. 305, 308 (1997). The Edmond Court held that there were only limited exceptions to the general rule that a seizure must be accompanied by some measure of reasonable suspicion or probable cause against an individual motorist. The Court said it would not credit the "general interest in crime control" as justification for a regime of suspicionless stops. Because the primary purpose of these narcotics checkpoints was to uncover evidence of ordinary criminal wrongdoing, and not to assure highway safety or for border patrol purposes, the program contravenes the Fourth Amendment. If the court did not draw the line at roadblocks designed primarily to serve the general interest in crime control, such intrusions would become a routine part of American life. 520 U.S. at 42.

An employer promises a long-time employee a pension upon retirement. The employee retires in reliance on that promise. The employer then refuses to pay. The best theory for enforcing the promise is:

Answer: Promissory estoppel based on detrimental reliance

Promissory estoppel applies when a party detrimentally relies on a promise and injustice can only be avoided by enforcement, even without bargained-for consideration.

A security guard sued his former employer for terminating his employment in violation of age discrimination laws under the state law where guard resided and the termination took place. The defendant files to remove the case to federal court based on the primacy of the federal Age Discrimination Enforcement Act. Will the district court allow the removal or remand the case back?

Answer: If a plaintiff has a viable state law claim, he may depend on it alone and thereby defeat attempts at removal.

Under the well-pleaded complaint rule, federal question jurisdiction exists only when a federal question appears on the face of the plaintiff's properly pleaded complaint. A plaintiff is generally the master of their complaint and can choose to bring a claim under state law, even if a federal claim is also available. Unless federal law completely preempts the state law claim (a narrow exception not applicable here for age discrimination), the mere existence of a federal statute on the same subject does not automatically create federal question jurisdiction or allow removal.

A patient confided to his psychologist that he was having urges to kill his former girlfriend. The psychologist notated those urges in his office notes and called the referring customer, the security department of the patient’s employer, asking them to take care of warning the potential victim and taking any other necessary action. The security department did nothing. The patient continued to repeat the urges in therapy sessions but the psychologist felt assured that his notifying the employer was sufficient protective action. About 30 days after first sharing the homicidal urges, the patient shot and killed his former girlfriend in her parents’ home. The parents sued the psychologist and the security department of the employer for negligence. The psychologist filed a motion to dismiss, alleging no legal duty to the victim and, despite having no duty to her, that he took reasonable steps to warn and protect her. Will the court likely dismiss the case as a matter of law against the psychologist?

Answer: Yes, because he was absolved from further responsibility after he did take reasonable steps to have her warned.

Once a therapist does determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. While the discharge of this duty of due care will necessarily vary with the facts of each case, in each instance the adequacy of the therapist's conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances. That is usually a decision for the jury to make after all of the factual evidence is in.

A plaintiff files a complaint alleging breach of contract. The defendant's answer asserts that the plaintiff's own breach excuses the defendant's performance. This assertion is a:

Answer: Affirmative defense

An affirmative defense is new matter asserted by the defendant that, if proven, defeats the plaintiff's claim even if all of the plaintiff's allegations are true.

A spouse is called to testify against her husband in a federal criminal case. Regarding the adverse spousal testimony privilege:

Answer: The testifying spouse holds the privilege and may refuse to testify

Under Trammel v. United States, in federal courts the witness-spouse holds the adverse spousal testimony privilege and may choose to testify or refuse.

A state recidivist statute made it a felony punishable by life imprisonment without parole to be convicted for the sixth time of any form of criminal theft involving goods or money in excess of $500. A man’s record showed five prior convictions for different forms of theft, each one for property or cash in excess of $500 but usually not in excess of $1,000. On the sixth conviction for a similar violation, he was sentenced to life without parole. He challenged the sentence based on the Eighth Amendment prohibition against cruel and unusual punishment. He appeals all the way to the U.S. Supreme Court. Is the Supreme Court likely to invalidate the sentence on these facts?

Answer: Yes, because the gravity of the sentence is disproportionate to the seriousness of the crimes, none of which involved bodily injury.

One of the principles of the Eighth Amendment is that the punishment must be proportionate to the crime for which the defendant has been convicted. It is likely that the court would here follow the reasoning that it provided in Solem v. Helm, 463 U.S. 277 (1983) where the Court found similar conduct to be “relatively minor” and not deserving of the “penultimate sentence.” The harsh treatment is more than others in the state and other states have received for more serious crimes and criminal records.

A contractor agreed with a city government to build it a bridge. The contractor was guilty of undue delay in getting the construction finished. The contract specified liquidated damages of a deduction from the contract price for each day of delay based on how much traffic flow was turned away. The city tried to deduct the damages from the contract price. The contractor, however, pointed out that the city had not yet connected a road to the bridge so that there was no traffic flow and hence no damage to the city. Will the court uphold the liquidated damages clause in favor of the city?

Answer: No, because the purpose of the liquidated damages clause has been frustrated by the city’s own failure to perform, making liquidated damages in this case unnecessary.

Liquidated damages clauses are enforceable if they are a reasonable forecast of actual damages and not a penalty. However, if there are no actual damages whatsoever, or if the party seeking to enforce the clause contributed to the lack of damages, the clause may be unenforceable. Here, the city suffered no actual traffic-related damages from the delay because its own failure to connect a road rendered the bridge unusable, frustrating the purpose of the liquidated damages clause.

An employee of a retail chain filed a class action against the company alleging wage and hour violations. The complaint alleged that the plaintiff and other salespersons had to make summary reports after they clocked out each day. They had to type up the reports and submit them to their supervisor each day. The suit claimed an average of 15 hours per week of overtime that went uncompensated. The plaintiff sought to represent about 1,000 sales employees who were required to fill out the forms and who did not get paid for the overtime. The employer filed a motion to dismiss the class action, stating that each case was different to some degree, the amount of wages claimed by each employee would differ, and that the plaintiff could not represent the class properly as required by law. Will the court dismiss the case because there are deviations in the facts of some of the cases?

Answer: No, because the employer's claim is general and can be taken up later; it appears that the cases are all very similar and they all deal with the same challenged policy of the employer.

For a class action, Federal Rule of Civil Procedure 23(a) requires commonality, meaning there must be questions of law or fact common to the class. Here, all 1,000 employees share the common legal and factual issue of being required to perform uncompensated work after clocking out, stemming from a single employer policy. While individual damages may vary, this common policy forms the core of the dispute, making the cases sufficiently similar to satisfy the commonality and typicality requirements for class certification.

A man set fire to his grocery store in order to collect on the insurance. He started a blaze at night when the store was closed and no one would be on the premises. During the blazing fire, a fireman was killed. The authorities arrested the man on charges of arson and felony murder. He was convicted of murder at a jury trial. The man argued that he could not be convicted of murder because he never intended to murder anyone. Will the courts uphold the murder conviction?

Answer: Yes, because the death of a fireman in the blaze was reasonably foreseeable as a consequence of the arson and therefore intent is attributed to the defendant and he is guilty of murder.

It is reasonably foreseeable that a fireman could be killed in the blaze. The homicide was thus a natural and probable consequence of the arson. If a thief had been caught in the fire and died, this would not be murder because it was not reasonably foreseeable.

A defendant in a criminal trial does not testify. The prosecutor in closing argument comments, 'The defendant chose not to explain away the evidence.' This violates:

Answer: The defendant's Fifth Amendment right against self-incrimination

The Fifth Amendment, along with FRE 513 and Griffin v. California, prohibits adverse comment on a criminal defendant's failure to testify.

A man created a website where he presented himself as a champion of justice and a superhero with exceptional abilities. He acted as a watchdog, outing bad actors while focusing mostly on consumer issues in his writing. In one of his articles, he profiled a female preacher from a nearby church with no affiliations and just a local blog on the internet. The preacher described the woman's appearance as medieval and said her hair was like a bag of "hot wires ready to electrocute anyone who dares come too close." He claimed she was "conspiring with the devil" to learn "how to lead people's minds astray" and to live a nice "sheltered role of pure moral superiority at the expense of inferiors" like himself and his readers. The pastor was not pleased, and the woman launched a defamation action claiming libel per se and requesting damages along with an injunction against the website. He described the woman's clothing as "medieval" and her hair style as being similar to a bag of "hot wires ready to electrocute anyone who dares come too close." The defendant submitted a dismissal petition. Will the move to dismiss be likely granted by the court?

Answer: Yes, because the defendant was expressing opinions more than factual assertions, and opinions in this context are constitutionally protected.

Explanation: The concept of constitutionally protected opinion has been developed by the courts. There is no such thing as a false concept, according to Gertz v. Robert Welch, 418 U.S. 323, 339-40 (1974). Take Ollman v. Evans, 750 F.2d 970 (D.C.Cir.1984) (en banc), for instance. rejected, 105 S.Ct. 1127, 471 U.S. 1127. (distinguishing statements of truth from expressions of opinion) 2662, 86 L.Ed.2d 278 (1985). The idea of constitutionally protected opinion, according to courts, mandates a review of the """"totality of the circumstances"""" surrounding an alleged defamation. Genesis One Computer Corp. v. Information Control Corp., 611 F.2d 781 (9th Cir. 1980). A statement of pure opinion is typically not actionable. Regardless of how hateful or illogical it may be, it is protected by the First Amendment as is any expression of ideas. Expressions of opinion, whether true or untrue, libelous or not, are protected by the constitution and cannot be the target of private damage claims. Check out McCabe v. Rattiner, 814 F. 2d 839, 843 (1st Circ. 1987) (context, first-person narratives, evasive and unsubstantiated claims, and utterances that give rise to opinion rather than reality).

A witness called to testify has previously been convicted of perjury five years ago. Under FRE 609, this conviction:

Answer: Is admissible only if the probative value outweighs prejudice

Under FRE 609(b), convictions more than 10 years old face a higher standard, but convictions within 10 years are admissible if probative value outweighs prejudicial effect.

A plaintiff files a federal lawsuit that is ultimately dismissed on the merits. The plaintiff then files an identical suit in a different federal court. Under claim preclusion (res judicata), the second suit will be barred if:

Answer: The first judgment was on the merits, involving the same claim and the same parties

Claim preclusion bars re-litigation when there is a final judgment on the merits, the same parties or those in privity, and the same cause of action (arising from the same transaction or occurrence).

A defendant wants to implead a third party who may be liable to the defendant if the defendant is found liable to the plaintiff. Under FRCP 14, the defendant may implead a third party:

Answer: As of right within 14 days of serving the answer; thereafter, with leave of court

Under FRCP 14(a)(1), a defending party may serve a third-party complaint as of right within 14 days of serving its original answer; after that, leave of court is required.

A defendant, intending to frighten a plaintiff, fires a gun near her ear. The plaintiff does not see or hear the gun but suffers a heart attack from the noise. Has assault been committed?

Answer: No, because the plaintiff did not have apprehension of imminent harmful contact.

Assault requires that the plaintiff have apprehension of imminent harmful or offensive contact; if the plaintiff was unaware of the threatening act, no assault occurred.

A man and a woman got in the man’s car to go visit friends. The man had a few martinis during the preceding hour. It was lightly raining but he insisted on driving. When approaching a slippery curve on a winding roadway he lost control and crashed the car into a tree. He was traveling 10 miles above the speed limit. His passenger died and he was charged with involuntary manslaughter while driving DUI. The police took his blood sample at the hospital and his blood alcohol level was .07, right below the threshold level of .08 used for determining sobriety. He had passed a field sobriety test at the scene. He was also cited for speeding and driving too fast for conditions. Which of the following will the prosecution most likely be able to prove beyond a reasonable doubt?

Answer: Involuntary manslaughter

Involuntary manslaughter typically involves an unintentional killing resulting from criminal negligence or during the commission of an unlawful act not amounting to a felony. Here, the man was driving 10 mph over the speed limit and too fast for conditions, demonstrating a reckless disregard for safety. While his blood alcohol level was below the legal DUI threshold, his negligent driving actions could constitute criminal negligence sufficient to prove involuntary manslaughter beyond a reasonable doubt.

Two women are married in a state that recognizes same-sex marriages. One of them is driving home from work one day when a man in a pickup truck goes through a red light and rams into the woman’s car. She has to be extricated and is taken to the hospital. This puts a terrible strain on her spouse, and numerous functions in their life are disrupted. The injured woman sues the pickup driver for tort damages. Her spouse joins as a plaintiff. The defendant objects, arguing that there is no legal basis for allowing the marital partner to join in the case. Will the court order the spouse to be dismissed from the action?

Answer: No, the court cannot order a party removed from an action; instead, that is a function of the jury.

Loss of consortium is a recognized cause of action that allows a spouse to recover for the loss of companionship, affection, aid, and sexual relations due to injuries suffered by their marital partner. Since the state recognizes same-sex marriages, the spouse in a same-sex marriage has the same legal right to bring a claim for loss of consortium as a spouse in a heterosexual marriage.

At a no-reserve auction, the auctioneer put up a painting that was unsigned and apparently quite old. A woman made the highest bid, which was $100, and the auctioneer slammed the gavel down, completing the transaction. Before the day's auction ended, an art historian told the auctioneer in private during a break that the piece was an original by Claude Monet, worth about $1 million. The auctioneer quickly told the successful bidder that the amount was rejected by the seller and that the piece would be withdrawn from the sale that day. The woman sued the auctioneer, claiming that there was a binding contract and requesting specific performance. Based strictly on the rules of offer and acceptance, is the auctioneer in danger of losing the painting to the successful bidder and, if so, why?

Answer: Yes, in a no-reserve auction there is a binding contract based on the highest amount offered by the winning bidder.

In a no-reserve auction, like this one, the auctioneer is considered the offeror and the highest bidder is the offeree. The offeree’s bid, being the highest, is the acceptance and constitutes the formation of a binding contract. In a reserve auction, the highest bid may ultimately be rejected by the auctioneer or seller because it is only an offer. The seller does not have to accept the offer made. See, for example, Pitchfork Ranch Co. v. Bar Tl, 615 P. 2d 541, 548-550 (WY Supreme Ct. 1980).