MBE Question Thread Forum

[Bobby_Axelrod]

To answer your first Q:
An option K is supported by consideration to keep it open and "un-revocable". So if you're selling me your car and I put down a deposit $100 for your car you can't sell it to anyone else bc now I have an option K supported by consideration. If there's no consideration it's not an option K and you'd be free to sell your car to someone else. So to answer your Q the first guy doesn't have the right to sell it even if second guy says mmm not sure if its an option K because the second guy put down $$$... note even if second guy says "I don't want it" if he's made consideration (i.e. Put down $$$) the first guy can't sell it until the deadline for the option K runs out. This was a barbri Q I remember from the refresher mbe set.

A similar hypo re: tomatoes and lack of option k was the contracts MEE essay Q this past feb.

Re bolded: But, even if it's not an option contract, if offeror sells the car to someone else and does not effectively revoke the offer he made you, and you accept within a reasonable time, offeror would be liable to you, right?

Only if there is no indirect revocation.

Right

[TheWalrus]

To follow up, if the seller breached a revocable offer and sold it to a 3rd party, what are the buyer's options?

[Bobby_Axelrod]

To follow up, if the seller breached a revocable offer and sold it to a 3rd party, what are the buyer's options?

In most cases, I believe it would be replacement costs above contract price.

[Toubro]

I have a quick civil procedure question I'd appreciate any help with. If P wants to sue D in federal court and cannot satisfy the Federal Question prong of Subject Matter Jurisdiction (SMJ), and thus must satisfy the Diversity prong of SMJ, can he use supplemental jurisdiction to reach the amount-in-question aspect of Diversity Jurisdiction?

So for example his original cause of action is for $70k, which doesn't meet the amount-in-question requirement, which must per rule exceed $75k. So can he add another claim, in the way supplemental jurisdiction contemplates, to get up to the $75K+ requirement?

Critical Pass card #13 for Civil Procedure says the answer is yes, but I've seen elsewhere that the answer is no -- that you can't get a claim in, through supplemental jurisdiction, until *after* you've *already* satisfied the SMJ requirement, through either FQ or Diversity.

Any help would be nice. Thanks!

The flash card is right because a plaintiff can aggregate related or unrelated claims to reach the amount in controversy. You don't need supplemental jurisdiction for this - this original SMJ by way of diversity.

What you've heard is also right, that you can't get a claim in through supplemental jurisdiction unless there is already a claim in there through either FQ or diversity. But in your example, the aggregation of claims by one P against one D results in diversity jurisdiction and there is no need to consider supplemental jurisdictions.

Also btw two or more Ps cannot aggregate claims to meet the amount in controversy requirement. One P must satisfy the AIC either by way of one claim or aggregated claims (as above), then another P whose only issue is that she doesn't have enough amount in controversy can come in under supplemental jurisdiction (this is Exxon).

These hypos are really useful (although probably overkill for the MBE): http://www.nathenson.org/courses/civpro ... gregation/

Hmm. But the flash card (Critical Pass #13 for Civ Pro) says, "P can use supplemental Jx to overcome insufficient amount in controversy." What you wrote above seems to say P can aggregate claims via Diversity Jx without needing to resort to supplemental Jx. Am I missing something here?

Yeah, that I believe is an incorrect statement of the law, but feel free to check with a professor.

Suppose P1 has two claims, each for 40K. P1 cannot use "supplemental" jurisdiction and combine any of them because there is no claim in there that by itself would satisfy the AIC, thus there's no hook to get into federal court. It would only work if all of them combined were to give the court original SMJ by way of diversity.

Now, a plaintiff can use supplemental jurisdiction to overcome insufficient amount in controversy if another plaintiff is already in there and has independently met the AIC for diversity. That's Exxon, and I believe the flash card is only correct to the extent that it's reciting that principle.

[FormerChild]

I have a quick civil procedure question I'd appreciate any help with. If P wants to sue D in federal court and cannot satisfy the Federal Question prong of Subject Matter Jurisdiction (SMJ), and thus must satisfy the Diversity prong of SMJ, can he use supplemental jurisdiction to reach the amount-in-question aspect of Diversity Jurisdiction?

So for example his original cause of action is for $70k, which doesn't meet the amount-in-question requirement, which must per rule exceed $75k. So can he add another claim, in the way supplemental jurisdiction contemplates, to get up to the $75K+ requirement?

Critical Pass card #13 for Civil Procedure says the answer is yes, but I've seen elsewhere that the answer is no -- that you can't get a claim in, through supplemental jurisdiction, until *after* you've *already* satisfied the SMJ requirement, through either FQ or Diversity.

Any help would be nice. Thanks!

The flash card is right because a plaintiff can aggregate related or unrelated claims to reach the amount in controversy. You don't need supplemental jurisdiction for this - this original SMJ by way of diversity.

What you've heard is also right, that you can't get a claim in through supplemental jurisdiction unless there is already a claim in there through either FQ or diversity. But in your example, the aggregation of claims by one P against one D results in diversity jurisdiction and there is no need to consider supplemental jurisdictions.

Also btw two or more Ps cannot aggregate claims to meet the amount in controversy requirement. One P must satisfy the AIC either by way of one claim or aggregated claims (as above), then another P whose only issue is that she doesn't have enough amount in controversy can come in under supplemental jurisdiction (this is Exxon).

These hypos are really useful (although probably overkill for the MBE): http://www.nathenson.org/courses/civpro ... gregation/

Hmm. But the flash card (Critical Pass #13 for Civ Pro) says, "P can use supplemental Jx to overcome insufficient amount in controversy." What you wrote above seems to say P can aggregate claims via Diversity Jx without needing to resort to supplemental Jx. Am I missing something here?

Yeah, that I believe is an incorrect statement of the law, but feel free to check with a professor.

Suppose P1 has two claims, each for 40K. P1 cannot use "supplemental" jurisdiction and combine any of them because there is no claim in there that by itself would satisfy the AIC, thus there's no hook to get into federal court. It would only work if all of them combined were to give the court original SMJ by way of diversity.

Now, a plaintiff can use supplemental jurisdiction to overcome insufficient amount in controversy if another plaintiff is already in there and has independently met the AIC for diversity. That's Exxon, and I believe the flash card is only correct to the extent that it's reciting that principle.

Yea, it definitely is an incorrect statement of law. Supplemental jurisdiction simply gets claim(s) into federal court that (1) are not able to be brought on their own basis (i.e., don't meet diversity and are not federal question), and (2) where the original claim (that invokes diversity or fq) and the supplemental claim share a "common nucleus of operative fact." The only exception w/ sup. jx is that when the original claim is in federal court based on diversity, the plaintiff cannot use sup. jx to bring in a claim that could not have been brought on its own basis, but the plaintiff can do so if the original claim is a federal question

[Samarcan]

I have a quick civil procedure question I'd appreciate any help with. If P wants to sue D in federal court and cannot satisfy the Federal Question prong of Subject Matter Jurisdiction (SMJ), and thus must satisfy the Diversity prong of SMJ, can he use supplemental jurisdiction to reach the amount-in-question aspect of Diversity Jurisdiction?

So for example his original cause of action is for $70k, which doesn't meet the amount-in-question requirement, which must per rule exceed $75k. So can he add another claim, in the way supplemental jurisdiction contemplates, to get up to the $75K+ requirement?

Critical Pass card #13 for Civil Procedure says the answer is yes, but I've seen elsewhere that the answer is no -- that you can't get a claim in, through supplemental jurisdiction, until *after* you've *already* satisfied the SMJ requirement, through either FQ or Diversity.

Any help would be nice. Thanks!

The flash card is right because a plaintiff can aggregate related or unrelated claims to reach the amount in controversy. You don't need supplemental jurisdiction for this - this original SMJ by way of diversity.

What you've heard is also right, that you can't get a claim in through supplemental jurisdiction unless there is already a claim in there through either FQ or diversity. But in your example, the aggregation of claims by one P against one D results in diversity jurisdiction and there is no need to consider supplemental jurisdictions.

Also btw two or more Ps cannot aggregate claims to meet the amount in controversy requirement. One P must satisfy the AIC either by way of one claim or aggregated claims (as above), then another P whose only issue is that she doesn't have enough amount in controversy can come in under supplemental jurisdiction (this is Exxon).

These hypos are really useful (although probably overkill for the MBE): http://www.nathenson.org/courses/civpro ... gregation/

Hmm. But the flash card (Critical Pass #13 for Civ Pro) says, "P can use supplemental Jx to overcome insufficient amount in controversy." What you wrote above seems to say P can aggregate claims via Diversity Jx without needing to resort to supplemental Jx. Am I missing something here?

Yeah, that I believe is an incorrect statement of the law, but feel free to check with a professor.

Suppose P1 has two claims, each for 40K. P1 cannot use "supplemental" jurisdiction and combine any of them because there is no claim in there that by itself would satisfy the AIC, thus there's no hook to get into federal court. It would only work if all of them combined were to give the court original SMJ by way of diversity.

Now, a plaintiff can use supplemental jurisdiction to overcome insufficient amount in controversy if another plaintiff is already in there and has independently met the AIC for diversity. That's Exxon, and I believe the flash card is only correct to the extent that it's reciting that principle.

Yea, it definitely is an incorrect statement of law. Supplemental jurisdiction simply gets claim(s) into federal court that (1) are not able to be brought on their own basis (i.e., don't meet diversity and are not federal question), and (2) where the original claim (that invokes diversity or fq) and the supplemental claim share a "common nucleus of operative fact." The only exception w/ sup. jx is that when the original claim is in federal court based on diversity, the plaintiff cannot use sup. jx to bring in a claim that could not have been brought on its own basis, but the plaintiff can do so if the original claim is a federal question

Wait a sec, the exception you write above (underlined) amounts to saying that bringing in another claim through sup. jx. is only available when the original claim is brought through FQ Jx, not Div. Jx. Is that right?

The main Themis outline says that "When a district court has diversity jurisdiction over a claim, the common-nucleus-of-operative-facts rule also applies to determine whether the court can exercise supplemental jurisdiction over an additional claim." That sounds like it says you can use sup. jx. to bring in another claim if the original claim is based on Diversity, rather than FQ, Jx.

[whats an updog]

Torts question:

Doesn't negligence "come to a rest" at a certain point? I remember from 1L that it did, but I guess it doesn't for purposes of the bar exam. I just got the following question in adaptibar:

The victim's leg was broken by a negligent driver. As a result of the injury, the victim was forced to use crutches. Later, the victim slipped on a banana peel left negligently by a shopkeeper. The correct answer said that she could recover from the original driver.

Is that right?

[FormerChild]

I have a quick civil procedure question I'd appreciate any help with. If P wants to sue D in federal court and cannot satisfy the Federal Question prong of Subject Matter Jurisdiction (SMJ), and thus must satisfy the Diversity prong of SMJ, can he use supplemental jurisdiction to reach the amount-in-question aspect of Diversity Jurisdiction?

So for example his original cause of action is for $70k, which doesn't meet the amount-in-question requirement, which must per rule exceed $75k. So can he add another claim, in the way supplemental jurisdiction contemplates, to get up to the $75K+ requirement?

Critical Pass card #13 for Civil Procedure says the answer is yes, but I've seen elsewhere that the answer is no -- that you can't get a claim in, through supplemental jurisdiction, until *after* you've *already* satisfied the SMJ requirement, through either FQ or Diversity.

Any help would be nice. Thanks!

The flash card is right because a plaintiff can aggregate related or unrelated claims to reach the amount in controversy. You don't need supplemental jurisdiction for this - this original SMJ by way of diversity.

What you've heard is also right, that you can't get a claim in through supplemental jurisdiction unless there is already a claim in there through either FQ or diversity. But in your example, the aggregation of claims by one P against one D results in diversity jurisdiction and there is no need to consider supplemental jurisdictions.

Also btw two or more Ps cannot aggregate claims to meet the amount in controversy requirement. One P must satisfy the AIC either by way of one claim or aggregated claims (as above), then another P whose only issue is that she doesn't have enough amount in controversy can come in under supplemental jurisdiction (this is Exxon).

These hypos are really useful (although probably overkill for the MBE): http://www.nathenson.org/courses/civpro ... gregation/

Hmm. But the flash card (Critical Pass #13 for Civ Pro) says, "P can use supplemental Jx to overcome insufficient amount in controversy." What you wrote above seems to say P can aggregate claims via Diversity Jx without needing to resort to supplemental Jx. Am I missing something here?

Yeah, that I believe is an incorrect statement of the law, but feel free to check with a professor.

Suppose P1 has two claims, each for 40K. P1 cannot use "supplemental" jurisdiction and combine any of them because there is no claim in there that by itself would satisfy the AIC, thus there's no hook to get into federal court. It would only work if all of them combined were to give the court original SMJ by way of diversity.

Now, a plaintiff can use supplemental jurisdiction to overcome insufficient amount in controversy if another plaintiff is already in there and has independently met the AIC for diversity. That's Exxon, and I believe the flash card is only correct to the extent that it's reciting that principle.

Yea, it definitely is an incorrect statement of law. Supplemental jurisdiction simply gets claim(s) into federal court that (1) are not able to be brought on their own basis (i.e., don't meet diversity and are not federal question), and (2) where the original claim (that invokes diversity or fq) and the supplemental claim share a "common nucleus of operative fact." The only exception w/ sup. jx is that when the original claim is in federal court based on diversity, the plaintiff cannot use sup. jx to bring in a claim that could not have been brought on its own basis, but the plaintiff can do so if the original claim is a federal question

Wait a sec, the exception you write above (underlined) amounts to saying that bringing in another claim through sup. jx. is only available when the original claim is brought through FQ Jx, not Div. Jx. Is that right?

The main Themis outline says that "When a district court has diversity jurisdiction over a claim, the common-nucleus-of-operative-facts rule also applies to determine whether the court can exercise supplemental jurisdiction over an additional claim." That sounds like it says you can use sup. jx. to bring in another claim if the original claim is based on Diversity, rather than FQ, Jx.

Only for the plaintiff, there is no such restriction for the defendant--a defendant may bring a claim in using sup. jx. whether the original claim is through diversity or fq. According to Barbri, "… the limitation does not take away supplemental jurisdiction over claims by defendants or third-party defendants or defendant intervenors." Also, even though a defendant or plaintiff (if fq in original claim) may meet all the requirements for sup. jx, court has discretion to decline it under a few circumstances

[cnk1220]

Torts question:

Doesn't negligence "come to a rest" at a certain point? I remember from 1L that it did, but I guess it doesn't for purposes of the bar exam. I just got the following question in adaptibar:

The victim's leg was broken by a negligent driver. As a result of the injury, the victim was forced to use crutches. Later, the victim slipped on a banana peel left negligently by a shopkeeper. The correct answer said that she could recover from the original driver.

Is that right?

Yes because the injury (broken leg caused by negligent driver) was further aggravated because the victim had to use crutches- if she wasn't on crutches she wouldn't have slipped on the banana peel so the driver was at fault and because of JS liability, she can sue and recover from the original driver.

[whats an updog]

Torts question:

Doesn't negligence "come to a rest" at a certain point? I remember from 1L that it did, but I guess it doesn't for purposes of the bar exam. I just got the following question in adaptibar:

The victim's leg was broken by a negligent driver. As a result of the injury, the victim was forced to use crutches. Later, the victim slipped on a banana peel left negligently by a shopkeeper. The correct answer said that she could recover from the original driver.

Is that right?

Yes because the injury (broken leg caused by negligent driver) was further aggravated because the victim had to use crutches- if she wasn't on crutches she wouldn't have slipped on the banana peel so the driver was at fault and because of JS liability, she can sue and recover from the original driver.

Yeah, I get that's the explanation, it's just hard to believe that's right. Seems like after you've gotten medical care and crutches, the link is too attenuated. But, that's fine, I will swallow it.

[Puffman1234]

Torts question:

Doesn't negligence "come to a rest" at a certain point? I remember from 1L that it did, but I guess it doesn't for purposes of the bar exam. I just got the following question in adaptibar:

The victim's leg was broken by a negligent driver. As a result of the injury, the victim was forced to use crutches. Later, the victim slipped on a banana peel left negligently by a shopkeeper. The correct answer said that she could recover from the original driver.

Is that right?

Yes because the injury (broken leg caused by negligent driver) was further aggravated because the victim had to use crutches- if she wasn't on crutches she wouldn't have slipped on the banana peel so the driver was at fault and because of JS liability, she can sue and recover from the original driver.

Yeah, I get that's the explanation, it's just hard to believe that's right. Seems like after you've gotten medical care and crutches, the link is too attenuated. But, that's fine, I will swallow it.

I've had difficulty with this concept as well. The first question of this sort that I missed involved a guy playing baseball in his backyard; he popped the ball over the fence while his neighbor was having a barbecue, causing a bystander to attempt to protect the neighbor, knock over the BBQ, and set the neighbor on fire. I thought that was sufficiently disconnected from the risks attached to playing baseball in your backyard, but I was wrong. It seems on the MBE questions that unless the superseding cause is basically something ridiculous (think a meteor strike) the chain of causation is not broken.

That's not how it works in the real world, but that's apparently how it is for the bar. I presume they're just trying to test really basic connection, i.e. they want you to only go to superseding cause if you see (1) really crazy intervening causes (act of god style); or (2) intentional torts and criminal acts. I haven't yet seen a question where the chain of causation was broken.

[TheWalrus]

Looking to see if I understand this correctly: under the open mines doctrine, you can expand an existing operation, but not create a new one?

[ConfusedL1]

Am I understanding this UCC contract reality correctly?

There is no rule under the UCC that makes contracts between merchants cancellable within a reasonable time. Thus, you could have a scenario where merchant 1 says “ship me xyz at a usual price,” merchant 2 says “OK, but the price is higher. Sorry.” Merchant 2 then goes ahead and prepares shipping. Merchant 1 then replies THE NEXT DAY and says “sorry, price too high.” Merchant 1 can sue merchant 2 for breach for the incidental costs of preparing shipping and the difference between contract and resale price.

So, the only way to avoid liability from merchant 1 is to make the offer conditional? Like saying "ship me xyz ONLY if the price is less than $xx" ?

[pancakes3]

Looking to see if I understand this correctly: under the open mines doctrine, you can expand an existing operation, but not create a new one?

i think the doctrine is ambiguous about expanding but definitely allows continued operation.

also, to be clear, this comes up in the context of waste.

Am I understanding this UCC contract reality correctly?

There is no rule under the UCC that makes contracts between merchants cancellable within a reasonable time. Thus, you could have a scenario where merchant 1 says “ship me xyz at a usual price,” merchant 2 says “OK, but the price is higher. Sorry.” Merchant 2 then goes ahead and prepares shipping. Merchant 1 then replies THE NEXT DAY and says “sorry, price too high.” Merchant 1 can sue merchant 2 for breach for the incidental costs of preparing shipping and the difference between contract and resale price.

So, the only way to avoid liability from merchant 1 is to make the offer conditional? Like saying "ship me xyz ONLY if the price is less than $xx" ?

Are you talking about cancellable as in making the contract voidable, or are you talking about avoiding liability?

[ConfusedL1]

Looking to see if I understand this correctly: under the open mines doctrine, you can expand an existing operation, but not create a new one?

i think the doctrine is ambiguous about expanding but definitely allows continued operation.

also, to be clear, this comes up in the context of waste.

Am I understanding this UCC contract reality correctly?

There is no rule under the UCC that makes contracts between merchants cancellable within a reasonable time. Thus, you could have a scenario where merchant 1 says “ship me xyz at a usual price,” merchant 2 says “OK, but the price is higher. Sorry.” Merchant 2 then goes ahead and prepares shipping. Merchant 1 then replies THE NEXT DAY and says “sorry, price too high.” Merchant 1 can sue merchant 2 for breach for the incidental costs of preparing shipping and the difference between contract and resale price.

So, the only way to avoid liability from merchant 1 is to make the offer conditional? Like saying "ship me xyz ONLY if the price is less than $xx" ?

Are you talking about cancellable as in making the contract voidable, or are you talking about avoiding liability?

I mean, both, to the extent they apply. But if the contract is formed as soon as Merchant 2 says OK and prepares to ship (even if the "usual price" isn't right), reasons to void it don't seem to be there in this hypo, so it's more of liability.

[pancakes3]

Am I understanding this UCC contract reality correctly?

There is no rule under the UCC that makes contracts between merchants cancellable within a reasonable time. Thus, you could have a scenario where merchant 1 says “ship me xyz at a usual price,” merchant 2 says “OK, but the price is higher. Sorry.” Merchant 2 then goes ahead and prepares shipping. Merchant 1 then replies THE NEXT DAY and says “sorry, price too high.” Merchant 1 can sue merchant 2 for breach for the incidental costs of preparing shipping and the difference between contract and resale price.

So, the only way to avoid liability from merchant 1 is to make the offer conditional? Like saying "ship me xyz ONLY if the price is less than $xx" ?

Are you talking about cancellable as in making the contract voidable, or are you talking about avoiding liability?

I mean, both, to the extent they apply. But if the contract is formed as soon as Merchant 2 says OK and prepares to ship (even if the "usual price" isn't right), reasons to void it don't seem to be there in this hypo, so it's more of liability.

I just came across the Barbri question that prompted your post - Contracts Set 1 Q 7.

In the barbri question, buyer says "send me chairs at the usual price" and seller confirms "ok, i'll send you the chairs at $75, which is the usual price." In your hypo, the "usual price" and the numeric price are different, which brings a formation/2-207 issue as to whether the contract is formed or not.

This fact makes it ok for the reader to assume that there isn't a formation issue. Even though there isn't a mirror image on price, the contract is still valid.

However, even if valid, the answer choice that states "this is a contract between merchants and the wholesaler canceled within a reasonable time." is wrong bc like you (and the explanation) says: "There is no rule under the UCC that makes contracts between merchants cancellable within a reasonable time."

That's not in the UCC, and really it goes to the entire point of contract law - contracts are binding.

If you're looking for ways the buyer can limit his liability, there are lots of other ways. He can state the price he wants for the chairs explicitly, he can ask the seller about the price before making an offer, etc.

[TheWalrus]

I'm having problems with foreseeable plaintiff on Torts. Any tips or helpful info?

[Puffman1234]

Double posted accidentally

[Puffman1234]

I'm having problems with foreseeable plaintiff on Torts. Any tips or helpful info?

I have difficulty with these questions as well because I apparently am much more cautious in my application of "reasonableness" than the writers of the questions. My experience so far has been that unless it's truly ridiculous, an outcome or plaintiff is always foreseeable.

I've only seen one question where the answer was that the defendant should prevail because the plaintiff was not foreseeable. The facts were basically:

Driver D is driving along, cell phone rings, he picks it up, sees a pedestrian crossing the street, swerves to avoid the pedestrian, and hits a utility pole. This causes a power outage within the neighborhood. The lights go out in a house a couple blocks away. A kid who lives there and who is afraid of the dark runs out of the house and into the street where she is hit by a bicyclist and injured. The child's parent's sue D. Who prevails?

Answer: The driver, because he owed no duty to the child.

[pancakes3]

if an offeree mails an acceptance but then subsequently mails a rejection, mailbox rule applies.
if an offeree mails a rejection but then subsequently mails an acceptance, mailbox rule doesn't apply and the contract forms or fails based on which correspondence is received first - but not read first.

lol, ok.

[Toubro]

if an offeree mails an acceptance but then subsequently mails a rejection, mailbox rule applies.
if an offeree mails a rejection but then subsequently mails an acceptance, mailbox rule doesn't apply and the contract forms or fails based on which correspondence is received first - but not read first.

lol, ok.

Yeah, this threw me off too. Especially because the Critical Pass flash card on the Mailbox Rules doesn't make this distinction. It just says "if both offer and rejection are mailed, whichever arrives first is effective" but Epstein's lecture made it sound like the Mailbox rule is only suspended if the rejection is mailed before acceptance (which is what you said).

I think this rule won't be as tested as the Mailbox rule exception for option contracts or offers in which a time to respond is specified.

Question if any practicing attorney is reading this - does the mailbox rule even have any practical significance anymore after the advent of email? The NCBE should probably avoid testing such decidedly archaic rules.

[TheWalrus]

Probably a dumb question, but what are the hearsay exceptions where the declarant must be unavailable?

[Bobby_Axelrod]

Probably a dumb question, but what are the hearsay exceptions where the declarant must be unavailable?

https://www.law.cornell.edu/rules/fre/rule_804

[Samarcan]

For the Evidence topic, if it comes up as an essay topic on the MEE portion, do we need to cite actual FRE numbers when we cite rules? Anyone know?

[TheWalrus]

For the Evidence topic, if it comes up as an essay topic on the MEE portion, do we need to cite actual FRE numbers when we cite rules? Anyone know?

You can just cite the rules.