Friday, August 22, 2014

Questioning the Sample MBE Civil Procedure Questions

In response to yesterday's posting regarding the NCBE's release of Sample Civil Procedure Test Questions for the MBE, Professor Kevin Clermont in dialogue with others points out that the answer to Sample Question 9 is "probably wrong."

Question 9 is:

9. A motorcyclist was involved in a collision with a truck. The motorcyclist sued the truck driver in state court for damage to the motorcycle. The jury returned a verdict for the truck driver, and the court entered judgment. The motorcyclist then sued the company that employed the driver and owned the truck in federal court for personal-injury damages, and the company moved to dismiss based on the state-court judgment.
If the court grants the company’s motion, what is the likely explanation?
(A) Claim preclusion (res judicata) bars the motorcyclist’s action against the company.
(B) Issue preclusion (collateral estoppel) establishes the company’s lack of negligence.
(C) The motorcyclist violated the doctrine of election of
(D) The state-court judgment is the law of the case.

The NCBE's Answer Key states that "A" is the correct answer.  If you, like me, thought that B was the correct answer, you're not alone.  Here is Professor Clermont's email:

I think you could argue for Answer 1 (CP) or Answer 2 (IP), but in no way is Answer 1 right and Answer 2 wrong.  I would have answered Answer 2.

I can’t say that Answer 1 is wrong, however.   And the examiners do make the point that one shouldn’t reach IP if CP is available. 

Nonetheless, the argument for CP is not theirs, resting on claim and privity.  The claim against employer is a different claim from the one against employee, and the E’er and E’ee are not in privity.

The argument for CP is nonmutual CP.  See W&M 4464.1.  If you sue the indemnitor first and then the indemnitee, the latter can use CP.  This would be the way to go if the plaintiff lost the first suit by failure to prosecute, so that no issues were litigated and determined.  But here there is no need to push the frontiers of the law (where nonmutual CP resides).  Every court I have seen goes the standard nonmutual IP route if it is available.

. . .   A court would go [with] Answer 2.  But I think an academic could construct an argument for Answer 1.

He concludes that Question 9 is not, therefore, an ideal bar question. 

Thanks to Professor Clermont for sharing his thoughts on this.

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