MBE Strategies Blog Post Series: Welcome to our MBE tips and tricks blog post series — this post focuses on Civil Procedure MBE tips.
You will see 25 scored Civil Procedure MBE questions on the Multistate Bar Exam.
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 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.
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? What is the legal issue? What is the rule and analysis? 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 woman was domiciled in State A. She filed a lawsuit in federal court seeking $100,000 in damages against a construction company that was one of several contractors that she hired to construct her office building. The woman alleged that the construction company was negligent. The construction company was incorporated in State B and had its principal place of business in State C. The construction company stated that the woman sued the wrong party as it was really the building company that was negligent and responsible for the woman’s damages. The construction company alleged it did not even work on the portion of the building that the woman claimed was improperly constructed. Ten days after serving its original answer, the construction company timely asserted a third-party complaint against the building company, which was incorporated in State B and had its principal place of business in State A.
What is the best argument to achieve dismissal of the third-party complaint?
(A) The third-party claim destroys diversity jurisdiction as the building company is incorporated in State B.
(B) The third-party claim destroys diversity jurisdiction as the building company has its principal place of business in State A.
(C) The construction company did not seek leave of court prior to filing a third-party claim.
(D) The construction company did not properly assert a third-party claim.
Legal Rule and Analysis:
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
Answer to the Civil Procedure MBE Question
Subject: Civil Procedure
Legal Issue: What is the best argument to dismiss the third-party complaint?
Legal Rule and Analysis: Let’s go through the answer choices one-by-one as we are asked for the “best” argument. So let’s evaluate the arguments.
(A) and (B) both focus on diversity jurisdiction being destroyed.
First, the facts tell us the woman (plaintiff) is from State A and the defendant she sued (that is, the construction company) is “incorporated in State B and had its principal place of business in State C.” Corporations are domiciled where (a) they are incorporated and (b) where they have their principal place of business. So we have a plaintiff from State A suing a defendant from States B & C. So far, so good.
Then the construction company wants to “bring in” the building company. The building company is “incorporated in State B and had its principal place of business in State A”. So it is domiciled in State A and State B. This appears nondiverse. The building company is nondiverse from the woman because it is domiciled in State A. It is nondiverse from the construction company because it is domiciled in State B. However, remember that defendants are allowed to implead non-diverse defendants. A plaintiff cannot sue a nondiverse defendant but a defendant can – and diversity jurisdiction will not be destroyed. Courts are more lenient to defendants because they do not want to be in court in the first place!
So diversity is not destroyed. (A) and (B) are incorrect because the defendant is permitted to implead a non-diverse party. (The plaintiff simply cannot sue that party directly.)
(C) is incorrect because leave of court is not required to file a third-party claim. This may be one you pick if you simply have no idea, but carefully evaluate (D) as well!
(D) says the third-party claim was not properly filed. In this case, the construction company did not file a proper third-party complaint. A third-party complaint is appropriate when the defendant contends that the third party is liable to it for some or all of the harm. In this case, the defendant simply alleged that the plaintiff sued the wrong party. The defendant should have filed a motion to dismiss rather than a third-party complaint. This is simply an improper use of impleader. (D) is the right answer.
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect: See above.
MBE Tip: Complete the free released questions on the National Conference of Bar Examiners’ (NCBE) website! The NCBE is the organization that writes the bar exam so their questions are representative of what you will see on the bar exam. This question is based on one of the NCBE’s questions. You can find 28 sample MBE questions as well as 10 Civil Procedure questions at this link. We also give you answer explanations for the NCBE’s Civil Procedure questions here. Looking for more released MBE questions? Check out this post.
Key Takeaways and MBE tips for the day:
Takeaway for the Law: Impleader is not appropriate if the defendant alleges “it wasn’t me, it was him!” Impleader is only appropriate if the defendant alleges “if I am liable, he is liable for some or all of the harm.”
MBE Tip: Complete the free released questions on the NCBE website! You can find 28 sample MBE questions as well as 10 Civil Procedure questions at this link.
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