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 are the subject and 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.
Show the MBE Question...
Civil Procedure MBE Question
In March, a man and a woman got into a car accident in State A. The man is a resident of State A and the woman is a resident of State B. Although the man does not reside in State B, he does have continuous and systematic connections with the state such that personal jurisdiction would be proper in State B. Thirteen months following the accident, the woman decided to sue the man for negligence in State B, asking for $80,000 in damages. For many reasons, the man seeks to transfer the case to the federal court in State A. The relevant statute of limitations in State A is one year, and it is two years in State B. The man timely files the relevant transfer motion and raises the statute of limitations as an affirmative defense. Assume both State A and State B are composed of only one federal district each.
Which of the following best describes the most likely outcome?
(A) If in the interest of justice, the judge shall transfer the case to State A and the case will be dismissed as violating the statute of limitations.
(B) If in the interest of justice, the judge shall transfer the case to State A and the case will proceed accordingly.
(C) If in the interest of justice, the judge has discretion transfer the case to State A and if the judge does, the case will be dismissed as violating the statute of limitations.
(D) If in the interest of justice, the judge has discretion transfer the case to State A and if the judge does, the case will proceed accordingly.
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: Venue and Transfer
Legal Rule and Analysis: Venue is proper where any defendant resides if all defendants reside in the same state or where a substantial part of events or omissions giving rise to the claim occurred. The defendant does not reside in State B and the car accident did not occur in State B. Thus, the federal court in State B is not a proper venue. The relevant motion filed by the man therefore is a motion to transfer to a proper venue under 28 USC 1406. Under this statute, the court shall either dismiss the case itself, or transfer it to a proper venue if it is in the interest of justice. If the case is transferred, the law of the transferee court applies.
Conclusion: If the interests of justice require it, the judge must transfer the case to State A and the statute of limitations of State A will apply. This makes the case untimely, and it will ultimately be dismissed for violating the statute of limitations.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
The answer choice (A) is therefore correct. (B) is incorrect because it implies that the law of State B will still apply. This is not true, as the law of the transferee court will apply when transfer to a proper venue is granted. (C) is incorrect because the relevant statute associated with a motion for a transfer to a proper venue uses the word “shall.” The judge does not have discretion as it would if this were a motion for a transfer to a more appropriate forum. (D) is incorrect for the same reason that (C) is incorrect. Further, it also implies that the law of State B would apply, and this is not accurate with a motion to transfer to a proper venue.
MBE Tip: Think through the rationales for the law of which forum to apply as it will help you memorize the rule! For transfer to a proper venue, the law of the state where the transferee court is located applies. If you have trouble remembering this, think of the rationale behind the rule. It would be unfair of the woman could have State A law apply by filing the case in the wrong court! If this were a case, a plaintiff could simply choose which state’s law would apply by filing the case in the wrong court anywhere in the United States. So it makes sense that the law of the state where the transferee court is located applies. For transfer to a more appropriate forum, the law of the state where the transferor court is located applies.
Show Summary of the Two Key Takeaway Points for the Day
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: When a case is filed in an improper venue, a motion to transfer to a proper venue should be filed. The court shall either dismiss the case or, if the interests of justice require, transfer the case to a proper venue. The law of the transferee cour will apply
MBE Tip: Use the rationales behind the rules that determine which law to apply as a memorization tool!
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.
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