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 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? 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.

You can also watch us dissect the question in the video below!

Show the MBE Question...

Civil Procedure MBE Question

A man sued his boss in state court, alleging claims for nonpayment of wages under both state and federal law. The man’s friend, who was an attorney, advised the man to remove the case to federal court on the basis of federal-question jurisdiction, as he thought that the federal court would be more sympathetic to the man’s claim. The man thereafter promptly removed the case to federal court. The man’s boss made a timely motion to remand the case.

How will the federal court proceed?

(A) It will hear the federal claims but not the state claims.
(B) It will hear the case only if the amount in controversy exceeds $75,000.
(C) It will remand the case to state court.
(D) It will hear the case because it was timely removed and involves a federal question.

Subject:

Legal Issue:

Legal Rule and Analysis:

Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:

Show the Answer to the MBE Question...

Answer to the Civil Procedure MBE Question

Subject: Civil Procedure

Legal Issue: Whether a plaintiff may remove a case to federal court on federal question grounds.

Legal Rule and Analysis: A plaintiff is not permitted to remove a case to federal court. A defendant may remove a case to federal court. However, a plaintiff may not remove the case to federal court. (The reason behind this is that a plaintiff could simply file the case in federal court to begin with!)

Conclusion: The federal court will not hear this case. It will remand it 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 not correct. When a case is removed, the entire case is removed. The state claims would be heard in federal court on the basis of supplemental jurisdiction if the federal court heard the case. Here, however, the federal court would not hear the case at all as a plaintiff is not permitted to remove a case to federal court. (B) is incorrect because this conflates federal question jurisdiction with diversity jurisdiction. There is no dollar amount required for a federal question case, as there is for diversity jurisdiction. Further, this answer choice does not recognize that the case will be remanded. (D) is incorrect because plaintiffs are not permitted to remove cases to federal court. Only defendants are. If the plaintiff really wanted to be in federal court, he could ask for a dismissal without prejudice and then refile the case in federal court.

MBE Tip: Take note of the policies behind the rules. The reason that a plaintiff may not remove a case is that the plaintiff can control where the case is filed, to begin with. If you remember this policy reason for the rule, you are more likely to correctly answer a question that tests this issue!

Show Summary of the Two Key Takeaway Points for the Day

Key Takeaways and MBE Tips From Prior Posts

Takeaway for the Law: A plaintiff may not remove a case to federal court.

MBE Tip: Take note of the policies behind the rules. If you know the rationale for the rule, you are more likely to remember the rule!

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!

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.

MBE Tip of the Day

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MBE Tip of the Day: Civil Procedure