Practice: Mixed-Set MBE PQs Session 11

An insurance company, incorporated and with its principal place of business in State A, brought a federal statutory interpleader action in federal district court after a dispute arose as to person(s) entitled under state law to the proceeds of the insurance policy in the amount of $100,000. The claimants under the policy are all citizens of State B. The insurance company posted a bond for $100,000, representing the disputed proceeds. Does the court have jurisdiction over this action? Answers: A. No, because the claimants are not diverse B. No, because the claim does not arise under federal law. C. Yes, because the amount in controversy exceeds $75,000 D. Yes, because the insurance company is diverse from the claimants Answer choice A is correct. For statutory interpleader, diversity jurisdiction is met if any two adverse claimants are citizens of different states. With regard to the amount in controversy, in a statutory interpleader action, the property at issue must merely be $500 or more in value, not meet the $75,000 threshold requirement for regular diversity matters. In this case, although the amount-in-controversy requirement is met, none of the claimants are diverse because they are all citizens of State B. Therefore, the court does not have jurisdiction over the statutory interpleader action brought by the insurance company. Answer choice B is incorrect. There is no requirement that a federal statutory interpleader action be based on federal law. Answer choice C is incorrect. The amount in controversy for a federal statutory interpleader action need only be $500 or more; it does not need to exceed $75,000. In addition, although the amount-in-controversy requirement is satisfied, none of the claimants are diverse. Thus, the court cannot exercise diversity jurisdiction over the action. Answer choice D is incorrect. Although the stakeholder (insurance company) must be diverse from the claimants in an action brought under the federal interpleader rule, the citizenship of the stakeholder is not relevant in an action for federal statutory interpleader. In a class action lawsuit, the representative members of the certified classes reached a settlement agreement with the defendant. A court held a fairness hearing on the proposed settlement at which a member of one of the certified classes who was not a named representative of the class voiced objections. The court, finding that the settlement was adequate and fair, approved the settlement. Can the objecting class member appeal the court's approval of the settlement? Answers: A. No, because the objecting class member was not a named representative of the class. B. No, because the objecting class member was only permitted to voice his objections at the fairness hearing. C. Yes, because any member of a class that has been certified has the rights of a party during the litigation of the class action lawsuit. D. Yes, because the representative members of the class didi not represent the objecting member's interests. Answer choice D is correct. When a proposed settlement agreement of a class action lawsuit would bind class members, the court must approve the proposed settlement after a hearing and on finding that it is fair, reasonable, and adequate. A class member who objects to the proposed settlement has the right to appeal the court's approval of it. Answer choice A is incorrect. Even though the objecting class member was not a named class representative and therefore does not have the status as a party with regard to rights to participate in the litigation of the lawsuit, the objecting class member is directly affected by the final settlement of the lawsuit. Consequently, he is entitled to appeal the court's approval. Answer choice B is incorrect because, despite exercising his right to voice his objections to the proposed settlement at the fairness hearing, the non-representative class member is subject to a settlement agreement that finally disposes of his rights in the matter. Consequently, he is entitled to appeal the court's approval of the settlement. Answer choice C is incorrect because generally a person who is not named as a representative of a class in a class action does not have the rights of a party during the litigation. Only the named class representatives are treated as a party to the lawsuit with respect to such matters as service of pleadings or other litigation documents. A federal court in State A properly certified a class action against a company incorporated in State A for fraudulently marketing annuities to customers in violation of federal law. The certification was based on the predominance of common questions of law. The court rendered a judgment in favor of the company. One of the members of the class who received proper notice of the action and did not elect to opt out initiated an action against the company in federal court in State B seeking damages stemming from the company's fraudulent marketing of an annuity that the class member purchased from the company through its sales representative based in State B. The class member was domiciled in State B. The company has moved to dismiss this action on the grounds that the class member's claim is precluded by the judgment in the class action lawsuit. How should the court rule? Answers: A. For the company, because the class member did not opt out of the class action lawsuit. B. For the company, because a judgment in this type of class action lawsuit is enforceable against all members of the class. C. For the class member, because the class member did not have minimum contacts with State A. D. For the class member, because she did not expressly agree to be a member of the class action lawsuit. Answer choice A is correct. In a class action certified under Rule 23(b)(3), a class member who does not opt out is bound by the judgment. Here, the class action was brought under Rule 23(b)(3) because the court certified the action on the basis that question of law common to the class members predominated over any questions affecting only individual members. Consequently, the class member was bound by the judgment in the class action lawsuit. Answer choice B is incorrect. Unlike a class action brought under Rule 23(b)(1) or 23(b)(2), members of the class must be allowed to opt out in a class action brought under Rule 23(b)(3). The judgment in a class action brought under Rule 23(b)(3) is only binding on those class members who do not opt out. Answer choice C is incorrect. While the plaintiff in a class action suit is entitled to certain minimal procedure protections (such as notice and opportunity to be heard), there is no minimum contacts requirement to bind the plaintiff to a judgment, like there is to establish personal jurisdiction over a defendant. Answer choice D is incorrect because a class action brought under Rule 23(b)(3) does not require a class member to opt in to be bound by the judgment. It is sufficient that a class member is given the opportunity to opt out. A state statute requires professional gardeners to obtain a license to charge for gardening services within the state. To obtain the license, individuals must pay a $50 fee and complete an instructional class covering, among other things, how to avoid underground electric and gas lines when gardening. Although it was not the legislature's intent, the statute disproportionately affects one race, as the majority of gardeners in the state are of the same race. Is the statute constitutional? Answers: A. No, because it has a disparate impact on a particular race and is not necessary to advance a compelling government interest. B. No, because race is a suspect classification. C. Yes, because it is rationally related to a legitimate state interest. D. Yes, because it is substantially related to an important government interest. Answer choice C is correct. The rational basis standard of review applies to laws that draw distinctions based on age, wealth, or most other classifications (such as "gardeners"), and those that have a disparate impact on a particular class without discriminatory intent. Because there is no discriminatory intent in this statute, rational basis review would apply. Answer choice A is incorrect because, in order to trigger strict or intermediate scrutiny, there must be a discriminatory intent on the part of the government. The fact that the legislation has a disparate effect on people of a particular race is, without intent, insufficient. Without discriminatory intent, the law must only be rationally related to a legitimate state interest. Answer choice B is incorrect because, although race is a suspect classification, the statute has only a disparate impact on race, and thus rational basis review would apply. Answer choice D is incorrect because it states the standard for intermediate scrutiny rather than rational basis review. A homeowner went to a home improvement store specializing in plumbing supplies to purchase a filter for the water filtration system in her house. After telling a store clerk that she needed the appropriate filter for her system, the clerk excused himself, went to the storeroom, and inadvertently returned with a filter for another water filtration system. The clerk, who became engaged in a conversation with another employee, handed the filter to the homeowner but said nothing to her. The homeowner took the filter to the register and paid for it. The cashier noted that the filter was sold "without the store's usual warranties." The homeowner installed the filer, and as a consequence, suffered a debilitating disease from the improperly filtered water. The homeowner has sued the store for breach of the warranty of fitness for a particular purpose. Is she likely to succeed? Answers: A. No, because no store employee made any express promise to the homeowner regarding the filter she purchased. B. No, because the cashier's comment that the filter was sold "without the store's usual warranties" effectively disclaimed any implied warranty. C. Yes, because the clerk knew that the homeowner wanted an appropriate filter for her water filtration system, and the homeowner relied on the clerk's knowledge. D. Yes, because the home improvement store was a merchant that specialized in selling plumbing supplies. Answer choice C is correct. A warranty that goods are fit for a particular purpose is implied whenever the seller has reason to know (from any source, not just from the buyer) that the buyer has a particular use for the goods, and that the buyer is relying upon the seller's skill to select the goods. Here, the homeowner went not just to a store that sold hardware items, but to one that specialized in selling plumbing supplies, The store clerk was aware of the homeowner's need for a filter that was appropriate for her water filtration system, but instead mistakenly supplied the homeowner with a filter that did not meet that need. Consequently, the store has breached the warranty of fitness for a particular purpose. Answer choice A is incorrect because the warranty of fitness for a particular purpose is an implied warranty. There is no requirement that the seller make an express promise in order to violate this warranty. Answer choice B is incorrect. Unlike the implied warranty of merchantability, implied warranties of fitness for a particular purpose may be excluded by general language, but only if it is in writing and conspicuous. Therefore, the cashier's oral disclaimer was ineffective. Answer choice D is incorrect. Although the store was a merchant for plumbing supplies, any seller may breach the warranty of fitness for a particular purpose. Unlike the implied warranty of merchantability, the seller need not be a merchant who deals in goods of the kind. Under the laws of a state, driving with a blood alcohol concentration (BAC) of more than 0.08% is per se illegal. In addition, a state statute provides that an individual who drives on the state's roads impliedly consents to a BAC test if the individual is arrested or otherwise suspected of a drunk-driving offense. The statute further provides that an individual who refuses consent is not only subject to the loss of his driving privileges but is also guilty of a misdemeanor. An individual who had been arrested for a drunk driving offense refused to consent to a blood test. Which of the following exceptions to the warrant requirement of the Fourth Amendment provides the best support for compelling the individual to undergo a warrantless blood test? Answers: A. Consent B. Exigent circumstances C. Search incident to arrest D. Automobile exception. Answer choice B is correct. While generally the Fourth Amendment mandates that police officers obtain a warrant before a blood sample an be drawn, a warrantless search is permitted in exigent circumstances when they cannot reasonably do so without significantly undermining the efficacy of the search. Answer choice A is incorrect because, while a driver can impliedly consent to the loss of his license for refusing to take a test to determine his BAC, inferring a driver's consent in the face of a criminal penalty is unreasonable. Answer choice C is incorrect. A blood test is significantly more intrusive than a breath test and consequently requires a case-by-case analysis of the reasonableness of administering the test. Since a search incident to an arrest applies a categorical rule rather than a case-by-case approach to such searches, a blood test may not be administered as a search incident to an arrest for drunk driving. Answer choice D is incorrect because under the automobile exception, police do not have to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of criminal activity. Consequently, it is not applicable to the question of whether the driver of an automobile can be compelled to submit to a warrantless blood test. A defendant was arrested and charged with robbery. Prior to the defendant's arrest, the police, acting on information provided by a reliable informant, had gone to the defendant's home and asked for permission to search it. The defendant, who unbeknownst to the police had a mental abnormality that prevented him from recalling traumatic events, consented. During the search, the police found a diary that contained incriminating evidence about the robbery. The defendant's lawyer has field a motion to exclude the diary evidence because the defendant's mental abnormality negated the defendant's consent to search his home. In addition, the defendant's lawyer has challenged the use of a diary as a violation of the defendant's Fifth Amendment right against self-incrimination. How is the court likely to rule on this motion? Answers: A. Grant it, because the diary contains testimonial evidence, and its use violates the privilege against self-incrimination. B. Grant it, because the defendant's mental abnormality prevented him from being competent to consent to the search and produce the diary. C. Deny it, because of the good-faith exception to the exclusionary rule. D. Deny it, because the defendant's consent to the search was valid and the defendant was not compelled to produce the diary. Answer choice D is correct. Consent to a search is voluntary if it is made free from threat or compulsion. Here, the defendant's inability to recall traumatic events does not negate the voluntary nature of the defendant's consent. Thus, the search of the defendant's home was valid. The Fifth Amendment prohibits the government from compelling self-incriminating testimony. Here, the diary entry was made freely, without government compulsion. In addition, the production of the diary was a consequence of a search that was conducted after the police obtained the defendant's valid consent to the search. The government did not compel production of the diary. Consequently, the prosecution can use the defendant's diary at trial. Answer choice A is incorrect. Although the police may not compel production of a diary, as diary entries are testimonial in nature, here the diary was acquired during a valid search conducted as a result of the defendant's valid consent. Answer choice B is incorrect because th test for the validity of the defendant's consent to a search is whether the consent is voluntarily given or instead elicited by improper threats or compulsion. Although the defendant's mental abnormality directly affected his awareness of the need to refuse to consent to the search, it does not affect his ability to validly consent. In addition, because the police were not aware of the defendant's abnormality, they did not take advantage of it in seeking the defendant's consent. Thus, the court is likely to find that the defendant's consent was voluntary and valid. Answer choice C is incorrect because the good-faith exception to the exclusionary rule applies when the police act pursuant to an invalid warrant or an existing law later declared unconstitutional. Accordingly, the exception does not apply here. In a trial for civil assault, the defendant called his friend to testify regarding the defendant's location at the time of the assault. The friend unexpectedly testified that the defendant was not with the friend and that he was unsure where the defendant was at the time in question. At his deposition a month before, the friend had testified that he was with the defendant when the assault occurred. The defendant then sought to introduce the deposition transcript of his friend's testimony. Is the deposition transcript admissible? Answers: A. Yes, both to impeach the friend and as proof of the defendant's location at the time of the assault B. Yes, but only to question the truthfulness of the friend's trial testimony. C. No, because a party may not impeach its own witness. D. No, because the statement was not made at a prior trial. Answer choice A is correct. A prior inconsistent statement made under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition may be admissible to impeach the declarant's credibility and as substantive evidence. In this case, the defendant sought to introduce the friend's deposition transcript as a prior inconsistent statement. Because the friend's prior inconsistent statement regarding the defendant's location at the time of the assault was made at a deposition, the statement may be admitted both to impeach the friend and as substantive evidence of the defendant's location. Answer choice B is incorrect. While the friend's statement in the deposion transcript may be used to impeach the friend's testimony at trial, the statement may also be admitted as substantive evidence. Answer choice C is incorrect because any party, including the party that called the witness to testify, may impeach a witness. Answer choice D is incorrect. Because the friend's statement was made at a deposition, which is an event that requires the deponent to answer questions under penalty of perjury, this statement is not hearsay and is admissible. A landowner sold his land to a buyer in fee simple absolute for $150,000. The buyer promptly and properly recorded the general warranty deed. Shortly thereafter, the buyer was sued by a third party who claimed ownership of the land based on a transaction with a prior owner of the land. The buyer notified the landowner of the suit, and demanded that the landowner defend against the suit based on the covenant of warranty in the general warranty deed, but the landowner refused. The buyer spend $25,000 in legal fees and expenses in successfully defending against the third party's lawsuit. Can the buyer recover the legal fees and expenses from the landowner? Answers: A. Yes, because the amount of legal fees and expenses did not exceed the cost of the land. B. Yes, because the buyer notified the landowner and demanded that the landowner defend against the suit. C. No, because the deed was not a special warranty deed. D. No, because the buyer was successful in defending against the lawsuit. Answer choice D is correct. The covenant of warranty is a future covenant that guarantees that the grantor will defend against a third party's lawful (i.e., valid) claim for title. This covenant, however, does not require the grantor to defend against a third party's wrongful claim. In essence, this covenant does not require the grantor to defend against all title claims brought by a third party against the grantee, but to be responsible for the litigation costs if the third party's claim is successful. Here, because the buyer was successful in defending against the third party's claim, the grantor was not required to defend the buyer against this action. Answer chocie A is incorrect. Although a grantee may recover the lesser of the purchase price or the cost of defending a challenge to a defective title when the grantor has breached the covenant of warranty, here the buyer's title was not found to be defective as the buyer was successful. Consequently, the buyer is not entitled to recover from the landowner the cost of defending this action. Answer choice B is incorrect. Although to recover from the breach of the covenant of warranty, the grantee must notify the grantor of the interference and the grantor must refuse to defend the title, the grantee can only recover from the grantor when the title is defective. Here, the buyer's title was not found to be defective as the buyer was successful. Answer choice C is incorrect because a special warranty deed offers less protection than a general warranty deed. A special warranty deed only protects the grantee against a title defect that arose during the time the grantor had title. Two farmers who owned adjoining farms entered into a written agreement, promising that each farmer, as well as "his heirs and assigns," would not use chemical pesticides or herbicides in farming the land. This agreement was promptly and properly recorded in the land records for the county in which the farms were located. One farmer died and left his farm to his only child, a son, for life and then to his grandson. The other farmer died and left half his farm to one of his daughters and the other half to his other daughter. The son began to use chemical pesticides and herbicides on the farm that he inherited. One of the farmer's daughters brought an action seeking an injunction against the son to prevent his continued use of chemical pesticides and herbicides on his farm. Is the daughter's action likely to succeed? Answers: A. No, because the son only holds a life estate interest in the farm. B. No, because the daughter owns only one-half of the farm that was formerly owned by her father. C. Yes, because both the daughter and the son are in vertical privity with their respective predecessors-in-interest. D. Yes, because the two original farmers created an equitable servitude that is enforceable by the daughter against the son. Answer choice D is correct. Equitable servitudes are covenants about land use that are enforced in equity by injunction. For an equitable servitude to exist, there must be a written agreement that reflects an intent for the restriction to be enforceable by and against successors in interest. In addition, the restriction must touch and concern the land, and if the person against whom the servitude is to be enforced is a purchaser, he must have notice of the restriction. In this case, the daughter is seeking to obtain an injunction against the son. Thus, the dauther must establish that the agreement between the two farmers (the parties' fathers) created an equitable servitude. Here, each farmer bound his heirs and assigns to the written agreement, the prohibition on the use of chemical pesticides and herbicides directly related to the use of the land for farming, and the agreement was recorded, which provided the son with constructive notice of the agreement (although notice was not required because the son was not a purchaser, as he inherited the property from the farmer). Therefore, the requirements for enforcing an equitable servitude have been met, and the daughter should be granted in injunction against the son. Answer choice A is incorrect. Although the type of property interest held by the son in the farm (i.e., a life estate) means that vertical privity does not exist between the son and his father, the existence of vertical privity is not required for an equitable servitude to be enforceable. Answer choice B is incorrect because vertical privity does exist between the father and his father. Even though she received only one-half of the farmed owned by her father in geographic terms, she took full durational interest held by her father. More importantly, whether there is vertical privity between the daughter and her father is irrelevant for purposes of enforcing an equitable servitude. Answer choice C is incorrect because vertical privity does not exist between the son and his father because the son did not take the full durational interest held by his father. Moreover, whether there is vertical privity between father and the son and their fathers is irrelevant for the purposes of enforcing an equitable servitude. A college student and her roommate regularly shared their clothing with one another. One day, when the roommate returned to their dorm after class, she discovered that the college student was taking a nap in a blouse that the college student knew the roommate planned to wear to a party that evening. Not wanting to wake her up, the roommate quietly unbuttoned the blouse without touching the college student. Realizing that she would not be able to get the blouse off without waking her up, the roommate gave up. Later, when the college student woke up and noticed the buttons on her blouse were undone, she accused the roommate of trying to undress her. If the college student files a suit against the roommate for battery, is she likely to succeed? Answers: A. Yes, because the college student suffered actual harm B. Yes, because the college student did not consent to the roommate taking the blouse off her C. No, because the college student was asleep when the roommate tried to unbutton the blouse. D. No, because the roommate did not touch the college student when she tried to unbutton the blouse. Answer choice B is correct. One is liable for battery when he intentionally causes a harmful or offensive contact with the person of another and acts with the intent to cause such conduct or the apprehension of such contact. Contact with the plaintiff's person includes contact with any thing closely connected to the plaintiff's person. Here, the roommate intentionally tried to take the blouse off the college student without her permission, which is an offensive contact. The blouse was connected to the college student because she was wearing it. Thus, touching the blouse constituted contact with the college student's person. Answer choice A is incorrect because no proof of actual harm is required to succeed on a claim of battery. Moreover, the student does not appear to have suffered any actual harm from the encounter. Answer choice C is incorrect because the plaintiff need not be aware of the contact when it occurs in order to recover. Answer choice D is incorrect because, as stated above, the blouse was closely connected to the college student because she was wearing it. Thus, this suffices as contact with the college student's person. A business operates a daycare center for pets. Employees of the business transport pets from their homes to the center and back again. One day, after obtaining a large poodle from the client's home, an employee drove the business's van back to the daycare center. Less than a mile before reaching the center, he realized the poodle vomited in the van and all over the employee's coat. Rather than returning directly to the center, the employee pulled into a carwash to clean the van, and then drove to a dry cleaner across the street from the carwash to drop off his coat before returning to work. When exiting the dry cleaner's parking lot, the employee turned around to console the sick poodle and drove into the car in front of him. He severely damaged the car, but the poodle sustained no injuries. Would the business be liable to the car owner for the actions of the employee? Answers: A. Yes, because the employee's trip to the dry cleaner was not a substantial deviation. B. Yes, because the employee was within a mile of the daycare center. C. No, because this deviation by the employee absolved the business of liability D. No, because the employee did not go directly to and from the client's home. Answer choice A is correct. An employer is liable for the tortious conduct of an employee that is within the scope of employment. Conduct within the scope of employment includes that which the employee is employed to perform or which is intended to profit or benefit the employer. An employee may be liable for a tort committed by an employee during the employee's detour (a minor and permissible deviation from the scope of employment), but not during the employee's frolic (an unauthorized and substantial deviation). Here, the drive to the dry cleaner would likely be considered a detour. By driving to the car wash, the employee was performing a work-related task within the time constraints of his trip to retrieve and deliver the poodle, and his actions were performed for the benefit of the employer. The trip to the dry cleaner, which was just across the street from the car wash, was only a minor deviation from his duties. Answer choice B is incorrect because the business's liability is not based solely upon the proximity of the employee to the center but rather whether or not the drive to the dry cleaner was a substantial deviation, proximity is only one factor in determining whether a deviation was substantial. Answer choice C is incorrect because while an unauthorized and substantial deviation might absolve an employer of liability, no such deviation occurs here. Answer choice D is incorrect because the employee's actions do not indicate any substantial deviation from his drive to and from the clien