What Civil Procedure Covers on the Bar Exam
The Civil Procedure bar exam outline below covers the Federal Rules of Civil Procedure (FRCP) and the sections of Title 28 of the U.S. Code governing federal court jurisdiction, venue, and transfer. The exact scope differs between the Multistate Bar Examination (MBEĀ®) and the NextGen Uniform Bar ExaminationTM (NextGen UBE). Use the appropriate tab for the exam youāre sitting for.
MBEĀ® Civil Procedure Topic Breakdown
On the MBE, Civil Procedure is tested through 25 of the 175 scored questions, with approximately two-thirds of those questions drawn from jurisdiction and venue, pretrial procedures, and motions (Categories I, III, and V) and the remaining one-third from the other 4 categories.1 The 7 subcategories are:
| Civil Procedure Subtopics | % Tested | Number of Questions |
|---|---|---|
| Jurisdiction and Venue | 20% | 5-6 |
| Law Applied by Federal Courts | 10% | 2-3 |
| Pretrial Procedures | 20% | 5-6 |
| Motions | 20% | 5-6 |
| Jury Trials | 10% | 2-3 |
| Verdicts and Judgments | 10% | 2-3 |
| Appealability and Review | 10% | 2-3 |
| Total scored questions for Civil Procedure | 25 | |
The breakdown above reflects the National Conference of Bar Examiners (NCBEĀ®) published MBE subject matter outline. Civil Procedure is 1 of 7 subjects tested on the MBE alongside Criminal Law & Procedure, Constitutional Law, Contracts, Evidence, Real Property, and Torts.
Jurisdiction and Venue/State Law in Federal Court
You can expect 5ā6 questions on jurisdiction and venue, which often relate to the foundational concepts you learned in your first-year law classes. An initial determination in any case is whether it belongs in state or federal court.
State courts generally have broader subject-matter jurisdiction, hearing mostly cases involving individuals, contracts, torts, or state laws. Federal courts, in contrast, handle a narrower range of cases, including those involving the U.S. Constitution or federal law (federal question jurisdiction), bankruptcy, or disputes between states or foreign governments.2
An important exception to this is diversity jurisdiction, which applies if 2 conditions are met:3
- The opposing parties must reside in different states.
- The amount in controversy must exceed $75,000.
Federal courts may also assert supplemental jurisdiction over related state law claims if they arise from the same case or controversy as a federal claim.
Personal jurisdiction is another consideration. A court cannot exercise this authority unless the defendant has sufficient āminimum contactsā with the state, such as living, incorporating, or conducting business there.4 The plaintiff must also properly serve the defendant according to state law, either where the court sits or where the defendant resides. While personal jurisdiction can be waived or transferred, subject matter jurisdiction is nonnegotiable.
Service of process also varies depending on the court. State courts have unique rules for notifying defendants, so attention to detail is crucial. In federal cases, service can be carried out by any nonparty over the age of 18 using the SAID method: State law, Agent, Individual, and Dwelling.
Law Applied by Federal Courts
When a case is in federal court, one of the first questions to address is whether federal common law or state law applies. This concept is commonly tested on the MBE, with 2ā3 questions typically devoted to it.
In cases where a federal court sits in diversity, it must apply the substantive law of the state in which it is located, including that stateās conflict-of-laws rules. Procedural matters, however, are governed by federal common law.5 While this distinction might seem clear-cut, determining whether an issue is substantive or procedural can be challenging. Substantive issues impact the rights and duties of the parties, while procedural matters dictate how the case is conducted.
When in doubt, the Erie doctrine provides essential guidance. It resolves conflicts between state and federal law in diversity cases and helps clarify whether state or federal law should govern. Weāll explore this doctrine in greater depth in the study strategies section.3
Pretrial Procedures
Once jurisdiction and applicable law are determined, the next phase is pretrial proceduresāthe foundation for how a case proceeds. This stage begins with filing the complaint, serving the defendant, and addressing preliminary matters such as injunctions, pleadings, joinders, discovery, and pretrial conferences. Expect to encounter 5ā6 questions on this topic, with a strong emphasis on timing. Deadlines play a pivotal role, and creating a structured timeline can help you stay on track.6
Pretrial procedures introduce a range of legal terms, many of which relate to joinders, which is the process of adding claims or parties. Claims can be introduced through counterclaims or crossclaims, while additional parties may be joined through permissive joinder, impleader, intervention, or interpleader. Understanding the distinctions between these terms is essential for navigating procedural questions on the MBE.
The primary goal during the pretrial stage is to resolve as many issues as possible before trial, reducing costs and streamlining the legal process. Courts encourage parties to exchange evidence and disclosures early, allowing for settlements or narrowing down the contested issues. In cases where no genuine disputes of material fact exist, courts may issue rulings without proceeding to trial.
Motions
Motions account for roughly 20% of the Civil Procedure questions on the MBE, translating to about 5ā6 questions. Knowing when and how to file a motion is essential, as they often come with specific deadlines (much like pleadings). Building a timeline for each stage of litigation can help ensure nothing falls through the cracks.7
Motions are formal, written requests asking the court to issue a ruling at 3 key points in the litigation process: pretrial, during trial, and post-trial.
- Pretrial motions: Two of the most common motions filed before trial are motions to dismiss and motions for summary judgment. A motion to dismiss argues that there is no legal basis for the case to proceed, while a motion for summary judgment requests the court to decide based on the law, bypassing the need for a trial entirely. If the defense is challenging personal jurisdiction, insufficient service of process, or improper venue, the motion must be filed promptly, typically after the first responsive pleading.8
- Motions during trial: The primary motion at this stage is judgment as a matter of law (JMOL). This motion asks the judge to rule in favor of one party on the grounds that the opposing party lacks sufficient evidence to persuade the jury.
- Post-trial motions: After the trial concludes, parties can file motions to address errors made during the proceedings or to contest the courtās ruling. This might include a motion for relief from judgment or a request for a new trial if issues like a lack of subject-matter jurisdiction are discovered.
A thorough understanding of motions and their timing can significantly improve your ability to answer these questions on the exam.
Jury Trials
Jury trials may seem straightforward, but they can present nuanced questions on the MBE. You can expect to encounter 2ā3 questions covering the right to a jury trial, jury selection, and instructions.
The Seventh Amendment guarantees the right to a jury trial in civil cases where the amount in controversy exceeds $20.10 To exercise this right, a party must formally request a jury trial by serving a written demand to the opposing party. This demand must be made within 14 days after the last pleading is filed, ensuring all parties have adequate time to adjust their litigation strategy.
Jury selection, known as voir dire, allows the judge and attorneys to question prospective jurors to assess their impartiality. Both sides can eliminate jurors in 2 ways.
- For cause: Jurors can be struck if they have a clear interest in the case or demonstrate bias.
- Peremptory challenge: Each side may remove up to 3 jurors without stating a reason, provided the removal isnāt based on race or gender.11
Once jury instructions are delivered, any objections must be raised immediately. Failing to object on the spot may waive the right to challenge the instructions on appeal.
Verdicts and Judgments
Expect to see 2ā3 questions addressing what unfolds after a verdict or judgment is reached. This portion of Civil Procedure covers key concepts like default judgments, jury verdicts, judicial findings, and preclusion doctrines.
A common pitfall for test-takers is misunderstanding the difference between default and default judgment. A default occurs when the defendant fails to respond within the required timeframe, but this doesnāt automatically hand victory to the plaintiff. For the case to conclude in their favor, the plaintiff must file a motion for default judgment and obtain the courtās approval.
Once a final judgment is entered, 2 doctrines, res judicata and collateral estoppel, prevent relitigation of settled matters.
- Res judicata (claim preclusion): This doctrine bars parties (or their privies) from bringing a new claim based on the same transaction or occurrence after a final judgment. It ensures that once a case is decided, it cannot be refiled by the same parties in the same roles.
- Collateral estoppel (issue preclusion): While res judicata addresses entire claims, collateral estoppel narrows the focus to individual issues. If a particular issue was already litigated and essential to the outcome of a prior case, that issue cannot be reargued in a new proceeding.12
Appealability and Review
You can expect 2ā3 questions on appealability and review. While final judgments are generally the only appealable orders, the NCBE frequently tests the exceptions. In certain jurisdictions, appeals may be allowed for temporary orders, collateral judgments, or cases involving unresolved claims or parties. Orders granting or denying a judgment notwithstanding the verdict (JNOV), directed verdict, or motion for a new trial may also be subject to appeal.
Additionally, questions may focus on the standards appellate courts apply when reviewing cases. Legal questions are reviewed de novo, factual determinations are examined for clear error, and discretionary rulings are assessed under the abuse-of-discretion standard.
NextGen UBE Civil Procedure Topic Breakdown
On the NextGen UBE, Civil Procedure is 1 of 8 Foundational Concepts and Principles tested across multiple-choice questions, integrated question sets, and performance tasks. The NCBE has not published a fixed weighting per Foundational Concept. Within Civil Procedure, the 7 subcategories are:
- Jurisdiction and Venue
- State Law in Federal Court
- Pretrial Procedures
- Preserving the Right to a Jury Trial
- Dispositive Motions
- Judgments
- Appealability and Review
Jurisdiction and Venue
Jurisdiction and venue tests federal court authority over a case and its parties. Federal courts have limited subject-matter jurisdiction. The NextGen UBE tests 4 subcategories.
- Federal question jurisdiction: covering claims arising under federal law and applying the well-pleaded complaint rule
- Diversity jurisdiction: requiring complete diversity of citizenship (determined by domicile, with entities being citizens of both their state of incorporation and principal place of business) and an amount in controversy exceeding $75,000, with aggregation of claims permitted
- Supplemental jurisdiction: covering related state-law claims from the same case or controversy as a federal claim
- Concurrent and removal jurisdiction: addressing which cases are removable, the procedure for removing and remanding, and the proper district
The NextGen UBE tests 2 types of personal jurisdiction.
- Specific in personam: minimum contacts, claim arising from those contacts, and reasonableness (International Shoe Co. v. Washington); includes stream-of-commerce and e-commerce claims
- General in personam: defendant is āat homeā (domicile for individuals; state of incorporation and principal place of business for corporations, per Daimler AG v. Bauman)
The NCBE also tests long-arm statutes, consent, and waiver. Service of process must comply with FRCP 4, which permits service via state law, personal delivery, dwelling delivery, or an authorized agent (Rule 4(e)); NextGen also tests waiver of service under Rule 4(d).
Venue is proper where any defendant resides or where a substantial part of the events occurred. Courts may dismiss for improper venue (§ 1406), transfer for convenience (§ 1404), or dismiss under forum non conveniens. Personal jurisdiction defects are waivable (FRCP 12(h)(1)); subject-matter jurisdiction defects are not (FRCP 12(h)(3)).
State Law in Federal Court
State law in federal court tests when a federal court must apply state law instead of federal law. The doctrine traces to Erie Railroad Co. v. Tompkins (1938), where the Supreme Court held that federal courts sitting in diversity must apply state substantive law and federal procedural law. The Rules of Decision Act codifies this principle: State laws are the rules of decision in civil actions in federal court except where federal law (the Constitution, federal statutes, or federal treaties) requires otherwise.
The central question is whether the disputed rule is substantive or procedural. Substantive rules govern the rights and duties of the parties. Procedural rules govern how a case proceeds through the court. Classic examples of state substantive law applied in federal diversity cases include:
- statutes of limitations
- burden of proof and elements of state-law claims
- state choice-of-law rules
When no federal rule is on point, courts use the modified outcome-determinative test from Hanna, which incorporates Erie’s twin aims of discouraging forum shopping and avoiding inequitable administration of the laws. If applying the federal practice would lead to different outcomes and undermine these aims, state law applies.
Pretrial Procedures
Pretrial procedures covers everything from filing the complaint to trial preparation. The NextGen UBE tests 5 subareas.
- Preliminary injunctions and temporary restraining orders (TROs): Preliminary injunctions and TROs maintain the status quo pending adjudication (FRCP 65). A TRO can be issued ex parte for up to 14 days when irreparable harm would otherwise occur. Preliminary injunctions require notice and a hearing and can become permanent after a full trial on the merits.
- Pleadings: Pleadings and amendments are governed by FRCP 7ā10 and 15. The relation-back doctrine (Rule 15(c)) allows an amended pleading to relate back to the original pleadingās date if the amendment arises from the same conduct, transaction, or occurrence or, if changing parties, the new party had timely notice and knew the action would have been brought against them.
- Rule 11: The rule imposes obligations on attorneys and parties signing court papers, including reasonable inquiry into the facts and law, a legal and evidentiary basis for claims and defenses, good-faith arguments for changes in existing law, and a proper purpose (no harassment, delay, or needless cost). The NextGen UBE also tests the timing and procedures for Rule 11 sanctions, including the 21-day safe-harbor under Rule 11(c).
- Joinder: Joinder rules govern who and what can be combined in a lawsuit, including joinder of claims (Rule 18), permissive and required joinder of parties (Rules 19, 20), counterclaims and crossclaims (Rule 13), third-party practice (Rule 14), and severance (Rule 21). The NextGen UBE specifically tests intervention under Rule 24, including permissibility, the right to intervene, and when intervention may not be permitted.
- Discovery: Discovery (FRCP 26ā37) covers scope and limits, the Rule 26(f) conference (parties confer to develop a discovery plan), tools (depositions including corporate representatives, interrogatories, requests for admission, requests for production, and physical or mental examination), and electronically stored information (ESI), including metadata. Discovery motions include protective orders, privilege claims, and motions to compel; sanctions are available for noncompliance.
Preserving the Right to a Jury Trial
This category tests the means of preserving the constitutional right to a jury trial under the Seventh Amendment and the consequences of failing to do so (waiver). The NCBEās NextGen scope is narrow but specific: Candidates must understand how the right is asserted, when it must be asserted, and how it is waived.
The Seventh Amendment preserves the right to a jury trial in civil suits at common law where the amount in controversy exceeds $20. The right generally applies to legal claims for money damages, not equitable claims (injunctions, specific performance, declaratory judgment). In mixed legal-and-equitable cases, the legal issues must be tried first to a jury (Beacon Theatres, Inc. v. Westover; Dairy Queen, Inc. v. Wood).
Under FRCP 38, a party who wants a jury trial must:
- serve a written demand on the other parties no later than 14 days after the last pleading directed to the issue (Rule 38(b)(1))
- file the demand with the court within a reasonable time (Rule 38(b)(2))
- specify the issues for which a jury is demanded (or the demand covers all triable issues by default)
Failure to properly serve and file the demand waives the right to a jury trial on those issues (Rule 38(d)). Waiver is the central testable point. Even after waiver, the court may, on motion, order a jury trial on any issue for which a jury might have been demanded (Rule 39(b)). FRCP 39 governs the trial itself. When a jury trial has been properly demanded, the action is tried by a jury unless the parties stipulate to a nonjury trial or the court finds no federal right to a jury trial exists.
Dispositive Motions
Dispositive motions can end a case before or during trial. The NextGen UBE tests 4 motion types. Motion to dismiss under Rule 12 covers multiple grounds:
- subject-matter jurisdiction
- personal jurisdiction
- improper venue
- insufficient service of process
- failure to state a claim
Failure to state a claim is given the most detail in the NextGen UBE scope. The NCBE tests the timing and procedures for asserting the defense as well as the standards for prevailing on it. The current standard is the plausibility standard, which requires the complaint to plead enough facts to state a plausible claim for relief.
A motion for judgment on the pleadings is functionally similar to a motion to dismiss for failure to state a claim but is made after the pleadings are closed. The court treats well-pleaded factual allegations as true and decides whether judgment is warranted on the pleadings alone.
Summary judgment is granted when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The NextGen UBE tests timing, procedure, and standards, as well as conversion. When a motion to dismiss for failure to state a claim presents matters outside the pleadings that the court does not exclude, the motion is converted to one for summary judgment.
Motion for judgment as a matter of law (JMOL) covers both directed verdict (granted before the case is submitted to the jury if a reasonable jury would lack a legally sufficient evidentiary basis to find for the nonmovant) and judgment notwithstanding the verdict (JNOV).
Judgments
This category covers how cases end without a trial and the binding effect of judgments on future litigation. Entry of default and default judgment occur when a defendant fails to plead or otherwise defend. The clerk first enters the defendant's default; the plaintiff may then seek a default judgment, which is entered by the clerk when the claim is for a sum certain and the defendant has not appeared, or by the court in all other cases. A defaulted party who has appeared must receive written notice before any hearing. Default and default judgment can be set aside for good cause.
Effect of judgment covers the doctrines of claim preclusion (res judicata) and issue preclusion (collateral estoppel). Claim preclusion bars a party from relitigating a claim that was, or could have been, brought in a prior action. The elements are:
- same parties or those in privity with them
- same claim, judged under the transactional test (claims arising from the same transaction or occurrence)
- a final judgment on the merits in the prior action
Issue preclusion bars relitigation of a specific issue already decided. The elements are:
- The issue was actually litigated in the prior action.
- The issue was determined by a valid, final judgment.
- The determination was essential to that judgment.
- For nonmutual issue preclusion, the party against whom it is asserted had a full and fair opportunity to litigate in the prior action.
Appealability and Review
This category covers when a federal court decision can be appealed and the level of deference appellate courts give to trial court rulings. A "final decision" generally ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.
Interlocutory review is available in limited circumstances. Orders granting, modifying, refusing, or dissolving injunctions are appealable as of right, as are orders appointing receivers and certain admiralty matters. District courts may certify a controlling question of law for immediate appeal when there is substantial ground for difference of opinion and immediate appeal may materially advance the litigation.
Partial final judgments are available in cases with multiple claims or parties when the court expressly determines there is no just reason for delay. Orders granting or denying class certification may be appealed at the court of appeals' discretion. Orders that conclusively determine a disputed question, resolve an important issue separate from the merits, and would be effectively unreviewable on appeal from final judgment may also qualify for immediate appeal.
The NextGen UBE explicitly tests 5 standards of review.
- De novo: questions of law (no deference)
- Clearly erroneous: factual findings made by a judge
- Abuse of discretion: discretionary rulings (such as evidentiary admissions, discovery decisions, and sanctions)
- Plain error: errors not preserved at trial, reviewed only if obvious and affecting substantial rights
- Harmless error: no reversal even if there was error, unless it affected substantial rights
MBE vs. NextGen UBE Civil Procedure: Key Differences
The main differences between MBE and NextGen UBE Civil Procedure are format, scope, and skills tested. The MBE uses 200 closed-book multiple-choice questions, while the NextGen UBE uses multiple-choice questions, integrated question sets, and performance tasks, with legal resources provided for certain topics. The table below compares the 2 exams.
| Component | MBE | NextGen UBE |
|---|---|---|
| Format | 200 multiple-choice questions across 2 sessions | Multiple-choice questions, integrated question sets, and performance tasks across 3 sessions |
| Civil Procedure Weighting | 25 of the 175 scored questions; 1 of 7 equally weighted MBE subjects | 1 of 8 Foundational Concepts and Principles; NCBE has not published per-concept weighting |
| Closed book vs. Provided Resources | Entirely closed-book; rule recall required for all questions | Closed-book for starred (★) topics; may be tested with provided legal resources for unstarred topics |
| Skills Tested | Rule recall and application in multiple-choice question format | Issue spotting and analysis, investigation and evaluation, client counseling and advising, negotiation and dispute resolution, client relationship and management, legal research, and legal writing and drafting |
| Subject-matter Jurisdiction | Tested broadly across 4 subtypes (federal question, diversity, supplemental, removal) | 4 explicitly enumerated subcategories with detailed subelements (well-pleaded complaint rule, complete diversity, same case or controversy, concurrent and removal procedure) |
How to Study Civil Procedure for the Bar Exam
Studying Civil Procedure for the bar exam comes down to 4 core habits:
- Master the FRCP.
- Prioritize the highest-weighted topics.
- Learn from detailed answer explanations.
- Add NextGen-specific practice if youāre sitting for the NextGen UBE.
The plan below works for both MBE and NextGen UBE candidates, with adjustments where they differ.
Master the FRCP
The FRCP is the foundation of every Civil Procedure question on both the MBE and NextGen UBE. The NCBE assumes candidates know the FRCP as currently in effect, plus the relevant sections of Title 28 of the U.S. Code on federal court jurisdiction, venue, and transfer. Effective FRCP study combines:
- reading rule text in context, not isolated rule numbers
- understanding structural logic (e.g., why a motion to dismiss for failure to state a claim converts to summary judgment when matters outside the pleadings are introduced)
- drilling the most common testing patterns through multiple-choice questions and short-answer questions
Plan to revisit the FRCP throughout the bar prep cycle, especially the rules tied to the highest-weighted topics.
Focus on Highly Tested Topics
On the MBE, the NCBE explicitly states that approximately two-thirds of the 25 Civil Procedure questions come from 3 topic areas: jurisdiction and venue, pretrial procedures, and motions. This is the most actionable data point in MBE Civil Procedure prep: 16 to 17 of the 25 questions come from these 3 categories.
MBE candidates should spend approximately 60% of Civil Procedure study time on:
- jurisdiction and venue
- pretrial procedures
- motions
The NCBE has not published comparable per-category weighting for NextGen UBE Civil Procedure, so NextGen candidates should study all 7 categories. That said, the same 3 areas (jurisdiction and venue, pretrial procedures, and dispositive motions) carry substantial scope detail in the NCBE NextGen Content Scope, making them reasonable focus areas for NextGen prep.
Practice with Explanations, Not Just Correct Answers
Reviewing the correct answer is only half the work. The bigger learning gains come from understanding why an answer is correct, why the other 3 options are incorrect, and what rule or principle ties them all together.
Effective multiple-choice question review involves:
- reading the full explanation for the correct answer
- reading the wrong-answer analysis for each distractor
- identifying the specific rule, statute, or case principle being tested
- flagging any rule you didn't recall correctly for re-review
Bar candidates who skip this step often see a score improvement plateau. Candidates who consistently work through incorrect-answer reasoning typically reach a higher accuracy ceiling. UWorld's MBE QBank includes detailed answer explanations for every Civil Procedure question (the rule, the reasoning, and the incorrect-answer analysis), designed for exactly this review pattern.
Build NextGen Skills with Mixed Practice
NextGen UBE candidates need exposure beyond standard multiple-choice questions. The NextGen format includes integrated question sets (longer fact patterns with short-answer questions) and performance tasks (extended written work like editing complaint sections, drafting affidavits, or revising discovery documents). Studying only multiple-choice questions leaves a meaningful skill gap.
A mixed-format weekly practice plan should include:
- multiple-choice questions for rule recall and fast application
- short-answer or integrated question set practice for applied analysis
- drafting practice (or guided rewriting of provided drafts) for performance task readiness
- review of the closed-book (★) vs. provided-resource distinction so you know which topics require pure recall
MBE-only candidates can skip the drafting practice but should still work on some applied-analysis problems. Even MBE Civil Procedure questions reward candidates who can think through fact patterns the way NextGen questions are written.
Civil Procedure Practice Questions and Answers
Think you're prepared to tackle Civil Procedure on the bar exam? Below are sample questions from UWorld's Civil Procedure question bank, carefully crafted to mirror the style and complexity of NCBE questions:
A husband and wife were married in State A and lived there for 10 years before separating. One month later, the wife permanently moved to State B and immediately filed for divorce in a federal court in State B. The wife claims that she is entitled to $300,000 in alimony. The husband appeared in the action and has filed a motion to dismiss for lack of subject-matter jurisdiction.
Should the court grant the motion?
| A. | No, because the court has diversity jurisdiction over the case | |
| B. | No, because the husband waived a subject-matter jurisdiction challenge by appearing in the case | |
| C. | Yes, because state courts have exclusive jurisdiction over this type of action | |
| D. | Yes, because the wife did not establish a domicile in State B |
A pharmaceutical company sued its competitor for patent infringement in federal court. The competitor's attorney hired a pharmacist to examine the case and testify as an expert at trial. The pharmacist studied the case and submitted an initial draft of her report to the attorney. After reading the draft report, the attorney noticed that certain facts and data were missing. To correct this issue, the attorney emailed the pharmacist and provided additional facts and data to include in the report. The pharmacist then revised her report based on this additional information.
After receiving this revised report from the competitor's attorney, the pharmaceutical company served a request for production on the attorney to produce the email exchanged with the pharmacist.
Must the attorney produce the email?
| A. | No, because attorney communications with expert witnesses are privileged. | |
| B. | No, because the contents of the email are discoverable through interrogatories served on the pharmacist. | |
| C. | Yes, because a draft of an expert report is discoverable. | |
| D. | Yes, because the email contained facts and data that the pharmacist relied on to revise her report. |
A corporation has been the subject of several news reports charging that the pollution emitted by its factory endangers the health of hundreds of residents in a subdivision. The corporation filed an action in federal court against the residents to obtain a declaratory judgment that it complied with environmental regulations and is not responsible for any subsequent harm. A federal statute authorizes this suit.
The state in which the federal court is located permits service of process by mail or by publishing notice of the suit in a newspaper. The corporation obtained the name and address of each resident in the subdivision from the county tax assessor. To avoid the expense of mailing service to each resident individually, the corporation published notice of the suit in the subdivision's community newspaper pursuant to the state's procedural rules.
Did the corporation properly serve the residents with process?
| A. | No, because service by publication was unreasonable since the corporation knew the name and address of each resident. | |
| B. | No, because the residents were not personally served with process. | |
| C. | Yes, because service by publication was reasonable due to the expense associated with mailing service to each resident. | |
| D. | Yes, because the newspaper publication provided the residents with reasonable notice of the action. |
You represent the owner of a restaurant that was recently served with a complaint alleging intentional infliction of emotional distress. The owner has explained that the restaurant's host refused to seat a large family without a reservation, during a busy time when all the tables were full or reserved. One family member yelled at the host, charged into the restaurant, and sat at an empty table with a "reserved" sign on it. The host then asked the restaurant's security guard to escort the family out of the restaurant. The complaint alleges that the family member has suffered from severe anxiety as a result of the incident and now refuses to eat in restaurants.
The owner is concerned about bad publicity and the cost of litigation, so it wishes to prevail quickly in the action on the merits to show that it did nothing wrong. The owner has asked if that can be done prior to filing an answer and before discovery begins.
Which of the following topics are the most important for you to research to answer the owner's question?
Select two response options.
- Motion for default judgment.
- Motion to dismiss for failure to state a claim.
- Motion for judgment as a matter of law.
- Motion for summary judgment.
- Physical-injury damages.
- Reckless and outrageous conduct.
Explanation:
FRCP 12 allows a defendant to make several pre-answer motions (see table above). One basis for such a motion is that the plaintiff failed to state a claim on which relief can be grantedāe.g., failed to allege facts sufficient to support a cognizable claim.* A cognizable claim for intentional infliction of emotional distress (IIED) requires a showing that the defendant, by extreme and outrageous conduct, intentionally or recklessly causing the plaintiff severe emotional distress.
Here, a motion to dismiss for failure to state a claim could be used to achieve the owner's goal of prevailing quickly on the merits prior to filing an answer and before discovery begins if such a motion is warranted. This type of motion challenges the sufficiency of the facts supporting the elements of the alleged claim (IIED) rather than a procedural defect, and it is a pre-answer motion. Therefore, it is important for you to research this type of motion and the elements of IIEDāincluding reckless and outrageous conductāto answer the owner's question.
*The other basis for a motion to dismiss for failure to state a claim is that the claim fails to assert a legal theory of recovery that is cognizable at law.
(Choice A) A default judgment may be entered against a party on the ground that the party failed to respond to or otherwise defend an action; it is not based on the merits of the underlying claim. And here, the owner wants to prevail on the merits and show that it did nothing wrong.
(Choice C) A motion for judgment as a matter of law is filed during trial, before the case is submitted to the jury. This type of motion would not achieve the owner's goal.
(Choice D) A motion for summary judgment must be granted if the pleadings, the discovery, and any affidavits show that (1) there is no genuine issue of material fact and (2) the movant is entitled to judgment as a matter of law. But here, the owner wants to resolve the case before discovery begins.
(Choice E) Physical injury is not an element of IIED, so physical-injury damages are irrelevant.
Educational objective:
FRCP 12 allows a defendant to make a pre-answer motion to dismiss for failure to state a claim. To state a claim for intentional infliction of emotional distress, the plaintiff must allege facts showing that the defendant, by extreme and outrageous conduct, intentionally or recklessly caused the plaintiff severe emotional distress.
Bluebook Citations :
- Fed. R. Civ. P. 12(b)(6) (motion to dismiss for failure to state a claim).
- Restatement (Third) of Torts: Liability for Physical & Emotional Harm Ā§ 46 cmt. m (Am. L. Inst. 2012) (defining intentional infliction of emotional distress).
You recently brought a federal civil action on your client's behalf. Initial pleadings have been filed. Opposing counsel has stalled the discovery process, refusing to produce required disclosures that have been duly requested. Opposing counsel has now filed a motion for summary judgment on behalf of the opposing counsel's client. Your first impression upon reading the brief was that it asserts multiple legal arguments that are not supported by the law. When you reviewed the cases cited in support of the arguments, you found that the courts' rulings in those cases are directly contradictory to opposing counsel's arguments. You cannot be sure that the facts in the brief are accurate because you did not receive the requested documents. You believe that opposing counsel should be sanctioned for this conduct.
Which of the following search terms would be the most likely to produce resources that would explain the procedures for seeking sanctions against opposing counsel under these circumstances?
Select two response options.
- Default judgment.
- Discovery sanctions under Rule 37.
- Interlocutory review.
- Motion for judgment as a matter of law.
- Motion to strike.
- Rule 11.
Explanation:
Attorneys may be sanctioned for failing to comply with certain procedural rules. For example, Federal Rule of Civil Procedure 37 sets forth the procedures and grounds for sanctions based on the failure to make required disclosures during the discovery process. And Rule 11 sets forth the procedures and grounds for sanctions against an attorney who has filed a pleading, motion, or other document that is not supported by law or made factual claims without evidence to support them (see table above).
Here, opposing counsel failed to produce duly requested, required disclosures during discovery, which implicates discovery sanctions under Rule 37. And opposing counsel filed a motion containing legal arguments that are not supported by the law and possibly made unsubstantiated factual claims. This conduct implicates Rule 11 and its sanctions. Therefore, "Discovery sanctions under Rule 37" and "Rule 11" are the search terms that would be the most likely to produce resources that would explain the procedures for seeking sanctions against opposing counsel.
(Choice A) A default judgment is a judgment entered against a party who has failed to respond to or otherwise defend an action (not seen here).
(Choice C) Interlocutory review, which refers to an appellate court's review of a trial court order while the case is ongoing in the trial court, is irrelevant to the topic you wish to researchāthe procedures for seeking sanctions under the circumstances.
(Choice D) Once a party has been fully heard on an issue at a jury trial, the opposing party can move for judgment as a matter of law on the ground that insufficient evidence exists for a jury to reasonably find for the nonmoving party on that issue. This midtrial motion is irrelevant to the sanctions issue presented.
(Choice E) A motion to strike requests that the court (1) delete all or part of the opposing party's pleading, (2) delete evidence from the court record, or (3) instruct the jury to disregard evidence. Although grounds for a motion to strike may exist here, it has no bearing on the sanctions issue presented.
Educational objective:
Federal Rule of Civil Procedure 37 governs sanctions for the failure to make required disclosures during discovery. And Rule 11 governs sanctions against an attorney who has filed a pleading, motion, or other document that is not supported by law or who has made factual claims without evidence to support them.
Bluebook Citations :
- Fed. R. Civ. P. 37(c)(1) (sanctions for failure to make mandatory disclosures).
- Fed. R. Civ. P. 11(c) (sanctions for violating this rule).
Integrated Question Set: Task Materials
You are an associate at a general litigation firm that primarily assists business organizations. One of your clients is a trade association. The client's executive is currently organizing a trade conference and has enlisted a new employee, a former event planner, to help. However, the executive has encountered some issues regarding the employee's handling of hotel reservations and is seeking your advice.
The executive forwarded you an email exchange between her and the employee that reads in relevant part as follows:
To: [Employee]
From: [Executive]
Re: Conference hotel
As we discussed, I am fully entrusting you with organizing this year's conference. Given your expertise, I'm sure you'll make it a memorable experience. Please move forward with all necessary arrangements, including booking the hotel and conference room. As long as the price is within the budget provided last week, you can go ahead and sign an agreement. I trust your judgment.
To: [Executive]
From: [Employee]
Re: Conference hotel
Good news! I was able to book a hotel. They gave us a great deal for lodging and use of the conference room. But to take advantage of the deal, we had to buy the hotel's refreshment package, which includes coffee and snacks. Even with this package, the price was well below the provided budget. The hotel insisted that I pay an extra deposit for the refreshment package, so I paid it out of my own pocket to make sure we could get the deal. I've submitted all required paperwork for reimbursement for the deposit.
End of excerpt
The executive tells you that she does not want to use the hotel's refreshment package because the client has a preferred caterer for its trade conferences. She also tells you that she does not want to reimburse the employee for the out-of-pocket deposit.
Now answer Component 1.
After learning that the client's preferred caterer has retired, the executive decides to use the hotel's refreshment package and reimburses the employee for the deposit. The executive then calls you to discuss another matter. The transcript of your conversation reads in relevant part as follows:
[You]: What can we help you with?
[Executive]: At our annual trade conference, we usually give the attendees a small gift with the trade association's logo. But this year, there was a misunderstanding in preparing them.
[You]: What happened?
[Executive]: I had a meeting with [employee] and one of our managers, who is occasionally tasked with ordering the attendee gifts for our events. I told [employee], "I want you to order the gifts." But because I didn't address [employee] by name, the manager thought I was assigning the task to him.
[You]: Did they both order gifts?
[Executive]: Yes. [Employee] ordered 500 custom-made mugs. The manager also ordered 500 custom-made tumblers. By the time I realized what had happened, we had already received the shipment of tumblers. I told the manager that he never had any authority to purchase anything for the event.
[You]: So, you couldn't cancel either order?
[Executive]: No. In fact, both suppliers are saying we can't cancel because the orders are for custom-made goods. The tumbler supplier said it had no idea that the manager didn't have authority to order the tumblers. Is there anything I can do to avoid either contract?
[You]: We'll look into it and get back to you.
End of excerpt
You begin by investigating whether the manager's agreement with the tumbler supplier is enforceable against the client.
Component 1: Briefly explain why the employee may be entitled to reimbursement despite the executive's objection to using the hotel's refreshment package.
Answer
Explanation:
An agent's conduct binds the principal when the agent acts with actual authority (express or implied) or apparent authority. Express actual authority refers to the principal's express manifestation of intent, often through oral or written words. But an agent may bind the principal based on implied actual authority if the agent reasonably believes the act is necessary, usual, and proper to achieve the principal's objectives. And in the absence of instructions to the contrary, an agent has implied authority to act based on:
- accepted business customs or general trade usage within an industry
- the agent's position that customarily has certain authority (e.g., vice president or treasurer)
- acquiescence or
- reasonably necessary actions taken in cases of emergency.
Here, the executive did not expressly authorize the employee to purchase a refreshment package. However, she told the employee to move forward with all necessary arrangements to organize the conference. It is likely that the employee reasonably believed that purchasing the hotel's refreshment package to get the best deal furthered this objective. Therefore, it is likely that the employee had implied actual authority to purchase the refreshment service, entitling her to reimbursement.
Educational objective:
An agent may bind the principal based on implied actual authority if the agent reasonably believes the act is necessary, usual, and proper to achieve the principal's objectives.
Integrated Question Set: Task Materials
You are an associate at a general litigation firm that primarily assists business organizations. One of your clients is a trade association. The client's executive is currently organizing a trade conference and has enlisted a new employee, a former event planner, to help. However, the executive has encountered some issues regarding the employee's handling of hotel reservations and is seeking your advice.
The executive forwarded you an email exchange between her and the employee that reads in relevant part as follows:
To: [Employee]
From: [Executive]
Re: Conference hotel
As we discussed, I am fully entrusting you with organizing this year's conference. Given your expertise, I'm sure you'll make it a memorable experience. Please move forward with all necessary arrangements, including booking the hotel and conference room. As long as the price is within the budget provided last week, you can go ahead and sign an agreement. I trust your judgment.
To: [Executive]
From: [Employee]
Re: Conference hotel
Good news! I was able to book a hotel. They gave us a great deal for lodging and use of the conference room. But to take advantage of the deal, we had to buy the hotel's refreshment package, which includes coffee and snacks. Even with this package, the price was well below the provided budget. The hotel insisted that I pay an extra deposit for the refreshment package, so I paid it out of my own pocket to make sure we could get the deal. I've submitted all required paperwork for reimbursement for the deposit.
End of excerpt
The executive tells you that she does not want to use the hotel's refreshment package because the client has a preferred caterer for its trade conferences. She also tells you that she does not want to reimburse the employee for the out-of-pocket deposit.
Now answer Component 2.
Two days before the conference, the executive sends the employee to the hotel to receive a delivery of floral arrangements for the conference.
On the way to the hotel, the employee takes a detour to visit her sister, who lives in the opposite direction. While the employee is on her way to her sister's house, the florist calls and states that the delivery driver will arrive at 3:00 p.m. and will wait for no more than 10 minutes. The employee, realizing she will not have much time to visit her sister, begins driving her vehicle five miles per hour above the posted speed limit. The employee then fails to see that traffic has stopped because of construction and strikes another driver's vehicle, causing an accident that injures the other driver. The executive is concerned that the driver will file suit against the client based on the employee's negligence.
Question
Component 2:If the tumbler supplier attempts to enforce the agreement that the manager signed on the client's behalf through litigation, is it likely to succeed?
Select one response option.
- No, because the executive only granted express authority to the employee to purchase gifts.
- No, because the executive provided the manager with notice that she did not assent to his purchase of the tumblers.
- Yes, because the manager reasonably believed that he had the authority to purchase the tumblers.
- Yes, because the supplier did not know that the manager lacked the authority to order the tumblers.
Explanation:
A principal can be bound to contracts and promises made by an agent who has actual authority (express or implied) or apparent authority. Express actual authority is created by the principal's express manifestation through (1) oral or written words, (2) clear, direct, and definite language, or (3) specific, detailed terms and instructions.
A principal's manifestation intended for one agent and given to another agent in error may nevertheless bind the principal if:
- the principal expressly manifests authority to act to one agent and
- the mistaken agent reasonably believes that the principal granted express authority for the mistaken agent to act.
Here, the executive told the employee to "order the gifts" but did not address the employee by name. As a result, the manager, who was also present and occasionally handled this type of task, reasonably believed that the executive granted him the authority to purchase the tumblers (i.e., express actual authority). Therefore, if the tumbler supplier attempts to enforce the agreement that the manager signed on the client's behalf through litigation, it will likely succeed.
(Choice A) The executive granted both the employee and the manager express actual authorityādespite the manager's mistaken belief. This is because both the employee and the manager reasonably believed that the executive granted them the authority to act based on her oral statement.
(Choice B) The executive did not provide notice that she did not assent to the manager's purchase of the tumblers until after the manager purchased the tumblers with actual authority. Therefore, the client is still bound by the manager's contract with the supplier.
(Choice D) Apparent authority results when the principal causes a third party to reasonably believe that the agent has authority to act. But a third party's mere ignorance that an agent lacks authority to act is insufficient to create apparent authority.
Educational objective:
A principal's manifestation intended for one agent and given to another in error may bind the principal if (1) the principal expressly manifests authority to act to one agent and (2) the mistaken agent reasonably believes that the principal granted express authority for the mistaken agent to act.
Integrated Question Set: Task Materials
You are an associate at a general litigation firm that primarily assists business organizations. One of your clients is a trade association. The client's executive is currently organizing a trade conference and has enlisted a new employee, a former event planner, to help. However, the executive has encountered some issues regarding the employee's handling of hotel reservations and is seeking your advice.
The executive forwarded you an email exchange between her and the employee that reads in relevant part as follows:
To: [Employee]
From: [Executive]
Re: Conference hotel
As we discussed, I am fully entrusting you with organizing this year's conference. Given your expertise, I'm sure you'll make it a memorable experience. Please move forward with all necessary arrangements, including booking the hotel and conference room. As long as the price is within the budget provided last week, you can go ahead and sign an agreement. I trust your judgment.
To: [Executive]
From: [Employee]
Re: Conference hotel
Good news! I was able to book a hotel. They gave us a great deal for lodging and use of the conference room. But to take advantage of the deal, we had to buy the hotel's refreshment package, which includes coffee and snacks. Even with this package, the price was well below the provided budget. The hotel insisted that I pay an extra deposit for the refreshment package, so I paid it out of my own pocket to make sure we could get the deal. I've submitted all required paperwork for reimbursement for the deposit.
End of excerpt
The executive tells you that she does not want to use the hotel's refreshment package because the client has a preferred caterer for its trade conferences. She also tells you that she does not want to reimburse the employee for the out-of-pocket deposit.
Now answer Component 3.
After learning about the accident, the executive immediately fires the employee. Before being fired, the employee had initiated negotiations, at the behest of the executive, with a venue to hold the client's anniversary party later that year. The venue had copied the executive on all of its emails with the employee.
After being fired, the employee attempts to earn her job back by negotiating a deal to rent the venue for substantially less than the initially anticipated cost. The employee then signs a contract with the venue on the client's behalf and presents it to the executive. The executive rejects the contract, saying that she wants nothing to do with the employee or the contract.
Question
Component 3:How should you respond to a potential argument that the client should be held vicariously liable for the accident caused by the employee?
The length of the answer should be about two to four sentences.
Answer
Submit
Explanation:
Under the doctrine of respondeat superior, a principal may be vicariously liable to a third party harmed by an employee who is acting within the scope of employment. An employee acts within the scope of employment when she performs work assigned by the employer or engages in conduct subject to the employer's control.
An employer is liable for torts committed by an employee who is on a detour (i.e., performing a personal errand that involves a minimal departure from the assigned route). However, the employer bears no vicarious liability for torts committed during an employee's frolic (i.e., a significant deviation from the path that would otherwise be taken to complete a work assignment). This is because a frolic is considered outside the scope of employment.
Here, the executive sent the employee to the hotel to receive a delivery. However, when the accident occurred, the employee had deviated from this assignment to visit her sister, who lives in the opposite direction of the hotel. This likely qualifies as a frolic and, as a result, falls outside the employee's scope of employment. Therefore, you should respond that the client is not vicariously liable for the accident for that reason.
Educational objective:
An employer is not vicariously liable for torts committed during an employee's frolic (i.e., a significant deviation from the path that would otherwise be taken to complete a work assignment).
Integrated Question Set: Task Materials
You are an associate at a general litigation firm that primarily assists business organizations. One of your clients is a trade association. The client's executive is currently organizing a trade conference and has enlisted a new employee, a former event planner, to help. However, the executive has encountered some issues regarding the employee's handling of hotel reservations and is seeking your advice.
The executive forwarded you an email exchange between her and the employee that reads in relevant part as follows:
To: [Employee]
From: [Executive]
Re: Conference hotel
As we discussed, I am fully entrusting you with organizing this year's conference. Given your expertise, I'm sure you'll make it a memorable experience. Please move forward with all necessary arrangements, including booking the hotel and conference room. As long as the price is within the budget provided last week, you can go ahead and sign an agreement. I trust your judgment.
To: [Executive]
From: [Employee]
Re: Conference hotel
Good news! I was able to book a hotel. They gave us a great deal for lodging and use of the conference room. But to take advantage of the deal, we had to buy the hotel's refreshment package, which includes coffee and snacks. Even with this package, the price was well below the provided budget. The hotel insisted that I pay an extra deposit for the refreshment package, so I paid it out of my own pocket to make sure we could get the deal. I've submitted all required paperwork for reimbursement for the deposit.
End of excerpt
The executive tells you that she does not want to use the hotel's refreshment package because the client has a preferred caterer for its trade conferences. She also tells you that she does not want to reimburse the employee for the out-of-pocket deposit.
Now answer Component 4.
You meet with the executive to discuss the contract with the venue. The transcript of your conversation reads in relevant part as follows:
[Executive]: The venue hasn't backed down about the contract.
[You]: What are your concerns?
[Executive]: Well, we certainly want to avoid litigation, because we can't afford it. Also, the venue isn't well-suited for our anniversary party. Parking is too expensive, and their catering menu is below our standards.
[You]: Is the venue well-suited for other events?
[Executive]: Yes. And it's close to our office, so we often have smaller retreats there. In fact, we have several upcoming retreats that it would be perfect for.
[You]: Have you discussed the matter directly with the venue?
[Executive]: Yes. The venue manager is sympathetic, but he doubts they can find someone else to host an event on the dates covered by the contract. I know they need a certain number of events each year for their business to be profitable.
End of excerpt
To help avoid litigation, you suggest that the client agree to hold a certain number of events at the venue in exchange for the venue releasing the client from the current contract.
Question
Component 4: Which of the following facts, if true, does NOT support the argument that the employee had apparent authority to sign the contract on the client's behalf?
Select one response option.
- The employee believed that she was acting as a gratuitous agent by negotiating the contract on the client's behalf.
- The employee previously possessed the authority to enter into contracts with the venue on the client's behalf.
- The terms of the contract with the venue were beneficial to the client.
- The venue lacked notice of the employee's lack of authority.
Explanation:
A principal can be bound to contracts and promises made by an agent with actual authority (express or implied) or apparent authority. Apparent authority results when the principal causes a third party to reasonably believe that the agent has authority to act. To determine whether a third party's belief is reasonable, the following factors are relevant:
- past dealings between the principal and agent of which the third party is aware
- trade customs regarding how a similar transaction is normally accomplished
- relevant industry standards
- the principal's written statements of authority
- transactions that do not benefit the principal
- extraordinary or novel transactions for the principal or similar types of principals
Here, (1) contract terms that were beneficial to the client, (2) prior dealings for which the employee was authorized to enter into contracts with the venue, and (3) the venue's lack of notice that the employee lacked authority because of her termination all support a finding of apparent authority (Choices B, C, and D). These facts provide a basis for the venue's reasonable belief that the employee had authority to sign the contract on the client's behalf.
However, the employee's belief that she was acting as a gratuitous agent is irrelevant because it does not support the venue's reasonable belief that the employee had authority to sign the contract on the client's behalf.
Educational objective:
Apparent authority results when a principal's conduct causes a third party to reasonably believe that an agent has authority to bind the principal.
Integrated Question Set: Task Materials
You are an associate at a general litigation firm that primarily assists business organizations. One of your clients is a trade association. The client's executive is currently organizing a trade conference and has enlisted a new employee, a former event planner, to help. However, the executive has encountered some issues regarding the employee's handling of hotel reservations and is seeking your advice.
The executive forwarded you an email exchange between her and the employee that reads in relevant part as follows:
To: [Employee]
From: [Executive]
Re: Conference hotel
As we discussed, I am fully entrusting you with organizing this year's conference. Given your expertise, I'm sure you'll make it a memorable experience. Please move forward with all necessary arrangements, including booking the hotel and conference room. As long as the price is within the budget provided last week, you can go ahead and sign an agreement. I trust your judgment.
To: [Executive]
From: [Employee]
Re: Conference hotel
Good news! I was able to book a hotel. They gave us a great deal for lodging and use of the conference room. But to take advantage of the deal, we had to buy the hotel's refreshment package, which includes coffee and snacks. Even with this package, the price was well below the provided budget. The hotel insisted that I pay an extra deposit for the refreshment package, so I paid it out of my own pocket to make sure we could get the deal. I've submitted all required paperwork for reimbursement for the deposit.
End of excerpt
The executive tells you that she does not want to use the hotel's refreshment package because the client has a preferred caterer for its trade conferences. She also tells you that she does not want to reimburse the employee for the out-of-pocket deposit.
Now answer Component 5.
The driver injured in the accident caused by the employee sues the client in federal district court on diversity grounds. The driver properly serves the client's agent with the summons and complaint. The agent then forwards the summons and complaint to the client's general counsel, who has just left on a two-month medical leave, unbeknownst to the agent. Two months later, the agent is served with an entry of default, which he promptly forwards to the executive. The executive asks you if there is anything the client can do to avoid liability in this matter.
Question
Component 5: Aside from avoiding litigation and its associated costs, identify two benefits of the proposed resolution that might make it a workable solution for both parties.
Provide one answer in each answer field. The length of each answer should be about one sentence.
Answer 1:
Answer 2:
Submit
Explanation:
When determining potential benefits of a proposed resolution, you must first examine your client's objectives, interests, and constraints in light of the resolution. Next, you must compare those objectives, interests, and constraints to those of the other party, considering any common interests the parties might share. Then, evaluate possible compromises based on the parties' objectives and any concessions they are willing to make.
Here, the proposed resolution is for the client to hold a certain number of events at the venue in exchange for the venue releasing it from the current contract. This would allow the client to avoid the contract while still ensuring it can use the venue for other eventsāwhich the client has said it would like to do. And it would address the venue's revenue concerns by guaranteeing multiple events rather than just one. Therefore, these are two benefits of the proposed resolution that might make it a workable solution for both parties.
Educational objective:
To determine the potential benefits of a proposed resolution, (1) examine the client's objectives, interests, and constraints in light of the proposed resolution and (2) compare them to those of the other party, considering any common interests between the parties.
Integrated Question Set: Task Materials
You are an associate at a general litigation firm that primarily assists business organizations. One of your clients is a trade association. The client's executive is currently organizing a trade conference and has enlisted a new employee, a former event planner, to help. However, the executive has encountered some issues regarding the employee's handling of hotel reservations and is seeking your advice.
The executive forwarded you an email exchange between her and the employee that reads in relevant part as follows:
To: [Employee]
From: [Executive]
Re: Conference hotel
As we discussed, I am fully entrusting you with organizing this year's conference. Given your expertise, I'm sure you'll make it a memorable experience. Please move forward with all necessary arrangements, including booking the hotel and conference room. As long as the price is within the budget provided last week, you can go ahead and sign an agreement. I trust your judgment.
To: [Executive]
From: [Employee]
Re: Conference hotel
Good news! I was able to book a hotel. They gave us a great deal for lodging and use of the conference room. But to take advantage of the deal, we had to buy the hotel's refreshment package, which includes coffee and snacks. Even with this package, the price was well below the provided budget. The hotel insisted that I pay an extra deposit for the refreshment package, so I paid it out of my own pocket to make sure we could get the deal. I've submitted all required paperwork for reimbursement for the deposit.
End of excerpt
The executive tells you that she does not want to use the hotel's refreshment package because the client has a preferred caterer for its trade conferences. She also tells you that she does not want to reimburse the employee for the out-of-pocket deposit.
Now answer Component 6.
Question
Component 6: To prevail on a motion to set aside the entry of default, what must the client demonstrate to the court?
The length of the answer should be about one sentence.
Answer
Submit
Explanation:
A default refers to a party's failure to timely plead or otherwise defend a lawsuit. A default generally occurs when a defendant fails to timely file an answer. When a party shows this failure by affidavit or otherwise, the court clerk must enter the default into the record of the case. However, a defendant will prevail on a motion to set aside the entry of default for good cause if:
- the failure to timely respond was not willful
- the defendant presents a meritorious defense and
- reopening the case would not substantially prejudice the plaintiff.
Therefore, to prevail on the motion to set aside the entry of default, the client must demonstrate these elements to the court.
Educational objective:
An entry of default may be set aside for good cause if (1) the failure to timely respond was not willful, (2) the defendant presents a meritorious defense, and (3) reopening the case would not substantially prejudice the plaintiff.
Frequently Asked Questions
How much of the MBE is Civil Procedure?
Civil Procedure makes up 25 of the 175 scored questions on the MBE, or 1 of 7 equally weighted MBE subjects. Each MBE is administered with 200 questions total: 175 scored and 25 unscored pretest questions. The NCBE has stated that approximately two-thirds of those 25 Civil Procedure questions come from 3 topic areas: jurisdiction and venue, pretrial procedures, and motions.
What is the difference between MBE and NextGen Civil Procedure?
The MBE tests Civil Procedure through 25 closed-book multiple-choice questions. The NextGen UBE tests Civil Procedure as 1 of 8 Foundational Concepts across multiple-choice questions, integrated question sets, and performance tasks, with legal resources provided for certain topics. NextGen drops voir dire, jury instructions, and posttrial motions (all tested on the MBE) and adds skills-based testing including drafting and applied analysis.
What Civil Procedure topics are tested on the NextGen UBE?
The NextGen UBE Civil Procedure scope covers 7 categories per NCBE: (1) jurisdiction and venue, (2) state law in federal court, (3) pretrial procedures, (4) preserving the right to a jury trial, (5) dispositive motions, (6) judgments, and (7) appealability and review. The NCBE assumes examinees know the FRCP and the relevant sections of Title 28 of the U.S. Code on jurisdiction, venue, and transfer.
Read About Other Bar Exam Subjects
Constitutional LawHow far does the Commerce Clause reach? Master MBE and NextGen UBE constitutional law: judicial review, federalism, and individual rights.
ContractsWas there mutual assent? Get the Contracts breakdown for the MBE and NextGen UBE: formation, defenses, performance, and remedies.
Criminal Law & ProcedureMurder or manslaughter? Walk through homicide, theft, inchoate crimes, and constitutional protections for the MBE and NextGen UBE.
EvidenceHearsay or an exception? Master MBE and NextGen UBE Evidence: relevance, privileges, impeachment, and expert testimony.
Real PropertyEasement or license? Cover estates, future interests, mortgages, recording acts, and adverse possession for the MBE and NextGen UBE.
TortsWhen does strict liability apply? Master intentional torts, negligence, products liability, and defenses for the MBE and NextGen UBE.
References
- National Conference of Bar Examiners. (2023). MBE subject matter outline. Retrieved from https://www.ncbex.org/sites/default/files/2023-01/MBE_Subject_Matter_Outline.pdf
- FindLaw. (n.d.). Federal vs. state courts: Key differences. Retrieved from https://www.findlaw.com/litigation/legal-system/federal-vs-state-courts-key-differences.html
- Legal Information Institute. (n.d.). Diversity jurisdiction. Cornell Law School. Retrieved from https://www.law.cornell.edu/wex/diversity_jurisdiction
- Constitution Annotated. (n.d.). Fourteenth AmendmentāSection 1āDue process. Congress.gov. Retrieved from https://constitution.congress.gov/browse/essay/amdt14-S1-7-1-1/ALDE_00000907/
- Constitution Annotated. (n.d.). Article IIIāSection 2āClause 1āCase or controversy requirements. Congress.gov. Retrieved from https://constitution.congress.gov/browse/essay/artIII-S2-C1-16-7/ALDE_00013247/
- American Bar Association. (n.d.). How courts work: Casesāpretrial. Retrieved from https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/cases_pretrial/
- Justia. (n.d.). Pre-trial and post-trial motions. Retrieved from https://www.justia.com/trials-litigation/lawsuits-and-the-court-process/pre-trial-and-post-trial-motions/
- CaseFleet. (n.d.). How to file and write a motion to dismiss. Retrieved from https://www.casefleet.com/blog/how-to-file-and-write-a-motion-to-dismiss
- Legal Information Institute. (n.d.). Rule 4: Summons. Cornell Law School. Retrieved from https://www.law.cornell.edu/rules/frcp/rule_4
- Constitution Annotated. (n.d.). The Seventh AmendmentāRight to a jury trial. Congress.gov. Retrieved from https://www.govinfo.gov/content/pkg/GPO-CONAN-2022/pdf/GPO-CONAN-2022-21.pdf
- Legal Information Institute. (n.d.). Collateral estoppel. Cornell Law School. Retrieved from https://www.law.cornell.edu/wex/collateral_estoppel
- Legal Information Institute. (n.d.). Supplemental jurisdiction. Cornell Law School. Retrieved from https://www.law.cornell.edu/wex/supplemental_jurisdiction
- Federal Rules of Civil Procedure. (n.d.). 2020ā2021 updates to the Federal Rules of Civil Procedure. Retrieved from https://www.federalrulesofcivilprocedure.org/2020-2021-updates-to-the-federal-rules-of-civil-procedure/
- Constitution Annotated. (n.d.). Article IIIāSection 2āClause 1āJudicial power. Congress.gov. Retrieved from https://constitution.congress.gov/browse/essay/artIII-S2-C1-11-6/ALDE_00013331/
- National Conference of Bar Examiners. (2025). NextGen UBE content scope (August 2025). Retrieved from https://www.ncbex.org/sites/default/files/2025-07/NCBE%20NextGen%20UBE%20Content%20Scope-Aug%202025.pdf
- National Conference of Bar Examiners. (n.d.). About the Multistate Bar Examination (MBE). Retrieved from https://www.ncbex.org/exams/mbe/about-mbe/
- National Conference of Bar Examiners. (n.d.). NextGen bar exam. Retrieved from https://www.ncbex.org/exams/nextgen
