MBE Tip of the Day: Civil Procedure
Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on civil procedure.
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.
MBE Tip of the Day: Civil Procedure
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? 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 bus crashed into a telephone pole on a road in State A on May 1. Two passengers sustained serious, yet different injuries. Both passengers are domiciled in State B. The bus driver is domiciled in State A. The two passengers decided to jointly sue the driver for negligence in state court in State B. Their suit was filed on May 10, and each passenger sued for $40,000 to cover their individual injuries. The bus driver responded by raising a defense available to him under federal law. On June 3, the bus driver filed a notice of removal to remove the case to federal court in State B. The passengers promptly filed a motion to remand back to state court.
Should the federal court grant the motion for remand?
(A) No, because the requirements for federal diversity jurisdiction are met.
(B) No, because the requirements for federal question jurisdiction are met.
(C) Yes, because the federal court would not have subject matter jurisdiction over the case.
(D) Yes, because the bus driver did not file his notice of removal within 21 days of when the case was filed.
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: Federal Subject Matter Jurisdiction and Removal
Legal Rule and Analysis: In order for a case to be removable to federal court, the plaintiff(s) must have been able to originally file the case in federal court. This means that the federal court must have subject matter jurisdiction over the claim. Subject matter jurisdiction comes in four forms: diversity, federal question, supplemental, and statutory. Diversity jurisdiction requires that each plaintiff be diverse from every defendant, and that the amount in controversy be greater than $75,000. Federal question jurisdiction requires the claim to arise under federal law. Supplemental jurisdiction requires another claim with subject matter jurisdiction that the claim in question could tie to. The statutory option refers to various federal statutes that give the federal courts jurisdiction over certain types of cases.
In this case, supplemental and statutory jurisdiction would not be options as there is no additional claim that this case could attach to, and negligence is not an area that federal statutes have required federal courts to hear. The requirements for diversity are also not met. Complete diversity is present since both plaintiffs are domiciled in State B whereas the defendant is domiciled in State A. However, the amount in controversy requirement is not met. Individual plaintiffs can combine their claims to meet the threshold, but multiple plaintiffs cannot (unless they are seeking to enforce a single title or right in which they have a common or undivided interest, which is not the case here). Thus, since each plaintiff only has an amount in controversy of $40,000 and their claims cannot be aggregated, diversity jurisdiction will fail. Finally, federal question jurisdiction is also not present. The federal question must be raised in a well-plead complaint. While in this case, the defendant plans to raise a federal law defense, bringing elements of federal law into the claim, there is no federal question presented in the complaint, which is merely for negligence.
Conclusion: Since none of the forms of federal subject matter jurisdiction are met, the federal court must remand the case back to state court.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
The answer choice (C) is therefore correct. (A) is incorrect because the amount in controversy requirement for diversity jurisdiction is not met. (B) is incorrect because no federal question arises in a well-plead complaint. (D) is incorrect because it is an incorrect statement of law. A defendant must file a notice of removal within 30 days of when the defendant receives a paper from which he should realize the case is removable. The bus driver in this case filed his notice of removal in time, so this would not be a reason to remand the case.
MBE Tip: Understand how the rules interact and overlap! Rarely will you see a question that allows you to focus on one specific topic and apply one rule in a vacuum. Bar exam questions like to take rules from various topics and weave them together, requiring you to understand multiple concepts in order to answer the question correctly. In this question, it wasn’t enough just to know the basics of removal. You also had to know the rules involved with subject matter jurisdiction to be able to reach the correct answer. Practicing MBE questions will allow you to see how the examiners combine topics and how knowing certain rules from specific concepts will allow you to be able to correctly answer a question on a different topic.
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: A case cannot be removed to federal court unless the plaintiff could have originally filed the case in that court. Answering these types of questions will involve an analysis of whether subject matter jurisdiction is present (diversity, federal question, supplemental, or statutory).
MBE Tip: Understand how the rules interact and overlap!
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!
Looking for additional MBE help? If you are looking for MBE help, read our 10 expert MBE tips here. Check out our step-by-step guide to improving your MBE score, please review this post for an overview of tips. If you would like to have the next MBE tip emailed to you when we come out with another one, please fill out the form below.
Looking for MBE Help?
We offer the following MBE products and services:
- An MBE course, which comes with several MBE sessions, all 7 MBE outlines, our MBE diagnostic, MBE guide, and MBE one-sheets!
- MBE private tutoring for those seeking one-on-one help to pass the MBE.
- Real MBE questions! We offer the latest NCBE-released questions!
- Our MBE favorites series, which dissects the “favorite” issues the MBE tests. You have instant access to them online!
- An MBE Seminar for those looking for strategies to improve their MBE score.
- An MBE guide, which has a guaranteed 7-point score increase.
- An MBE diagnostic for those who are having trouble determining why their scores are not increasing.