MBE Tip of the Day: Civil Procedure MBE Tips

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.