Civil Procedure MBE Tip of the Day
Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on Civil Procedure MBE questions.
You will see 25 scored civil procedure MBE questions on the Multistate Bar Exam. In this post, we will review a civil procedure question together. Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each “MBE tip of the day” post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
Civil Procedure MBE Tip of the Day
MBE Tip of the Day Instructions:
Do your best to answer this civil procedure MBE question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? Next, what is the legal issue? What is the rule and analysis? Finally, what is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the answer as well as read more about our MBE tip of the day.
Civil Procedure MBE Question
A restaurant owner sued a city official who condemned her building, arguing that the official wants the land for his own personal profit. The restaurant owner filed a request for a preliminary injunction to prevent the destruction of her building until the case could be resolved at trial. The court granted this request. The city official asserted a claim of immunity, arguing that he did not have to stand trial. He also filed a motion to dismiss for failure to state a claim upon which relief could be granted. The court denied both of the city official’s requests. The official wanted to immediately appeal all three decisions before trial and sought the advice of his attorney.
Which of the following is the best and most accurate piece of advice the attorney could give?
(A) None of these decisions are appealable until the case is completed to the end.
(B) All three of these decisions are immediately appealable as they are all either of grave importance or could resolve the case then and there.
(C) Only the granting of the preliminary injunction is immediately appealable as an interlocutory order.
(D) Both the granting of the preliminary injunction and the denial of immunity are immediately appealable.
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Answer to the Civil Procedure MBE Question
Subject: Civil Procedure
Legal Issue: Interlocutory and Collateral Orders
Legal Rule and Analysis: While generally, only final judgments are appealable, there are exceptions for some interlocutory and collateral orders. The granting or denial of a preliminary injunction is an interlocutory order and is appealable before trial as these usually involve the risk of irreparable harm. The denial of a request for immunity is considered a collateral order that is immediately appealable, as forcing the defendant to stand trial before appealing would defeat the purpose of being granted immunity.
In this case, the restaurant owner obtained a preliminary injunction to stop the imminent destruction of the building. The official can appeal this decision before trial. The official also had his request for immunity denied. Since this is considered a collateral order, the official can appeal this decision before trial.
Conclusion: Both the granting of the preliminary injunction and the denial of the request for immunity are immediately appealable.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. The answer choice (D) is therefore correct. (A) is incorrect because it incorrectly states that none of the decisions are immediately appealable, as just stated. (B) is incorrect because the denial of a motion to dismiss for failure to state a claim is not immediately appealable. It is not a final order and does not fall under any exception. (C) is incorrect because it does not recognize that the denial of immunity is also immediately appealable.
MBE Tip: Always memorize the exceptions to a rule, as these are easily and often tested on the MBE. It is all too simple for the NCBE to craft a question that tests your understanding of the basic rule. However, many rules have nuances and exceptions that are very important. The examiners want to know that you can spot situations when an exception to the rule applies. Thus, don’t just stop with the rule! The exceptions are important too!
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: Orders denying immunity and granting a preliminary injunction are immediately appealable as exceptions to the final judgment rule.
MBE Tip: Always memorize and learn how to spot exceptions to the rules!
Want to See Past MBE Tip of the Day Posts?
If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!
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