New Jersey Board of Bar Examiners - February 2025 Questions and Sample Answers

February 2025 Questions and Sample Answers

February 2025 Questions

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MPT-1

MPT-2

MEE Questions

February 2025 Sample Answers

MPT-1

Sample Answer

MEMORANDUM

To: Elise Tan

From: Examinee

Date: February 25, 2025

Re: Peter Larkin -- Defense of housing discrimination claim

Elise,

I reviewed our client's case file and relevant precedent in connection with the pending housing discrimination claim. Please see below my thoughts on the possible arguments plaintiff-tenant may raise in support of his claim and analysis of the counterarguments to be raised in our client's defense:

I. Arguments with respect to Fair Housing Act ("FHA") threshold definitions

As an initial matter, it is important to clarify the scope of the Fair Housing Act ("FHA") as it relates to the current claim. In his HUD Administrative complaint, Plaintiff alleges that Defendant would not rent him the apartment as a result of discrimination due to his familial status. "Familial status" is a protected class under FHA Section 3604(a), and is defined in the act as "one or more individuals [below age 18] being domiciled with a parent. The unit being rented by our client is squarely covered by the FHA here, as the exemption from the foregoing Section 3604(a) for buildings with a minimal nuimber of units where one of those is the residence of the landlord (see FHA Section 3603(b)(2)) does not apply -- our client does not live in the apartment building at issue but rather in a townhoues a mile away, and the apartment building itself has 20 units, meeting the minimum number here. Thus, we will have to address the alleged discrimination on the basis of "familial status." We will want to focus efforts on showing that the issue was not "familial status" (and there was no discirmination based on familial status), but actually either marital status or a desire to keep out large numbers of young adults living in shared rooms, neither of which would be a protected category under the FHA.

II. Arguments for both Landlord and Tenant under McDonnell burden shifting test / Karns precedent.

Plaintiff will first seek to establish that the true motivation behind Defendant's refusal to negotiate a rental agreement was discrimination due to familial status, which fits squarely into the FHA, as discussed above. Plaintiff can argue this under the McDonnnell disparate impact burden-shifting test/Karns precedent set in the 15th cir. appellate court. The McDonnel disparate impact test is applied when courts are analyzing a facially neutral policy. (1) Plaintiff first must make prima facie showing that challenged practice caused or will predictably cause a discriminatory effect; (2) if Plaintiff makes this prima facie showing, burden then shifts to D-landlord to prove the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests; and (3) if D-landlord meets the burden at step two, the burden shifts back to P, who may then prevail only if they can show the substantial, legitimate, nondiscriminatory interests supporting the challenges practice could be served by another practice that had a less dsicriminatory effect. In the Karns precedent, there are some analogous facts to our instant case. For step 1, Plaintiff will claim that, again as noted above, the protected class at issue is familial status; that plaintiff is financially qualified and has good credit; that per Landlord's dismissal, failure to call back and continued efforts to rent the apartment, landlord refused to negotiate with them; and that the dwelling remained available (it was still listed on Craiglists for months after plaintiff's rejection). This first prong of the three-part disparate impact test under McDonnell should be met failry easily by Plaintiff on the facts.

The burden would then shift to Landlord to articulate legitiatme nondiscriminatory reasons not to rent to plaintiff. Landlord has provided several -- based on his ample experience as a landlord, he feels unmarried couples are more likely to have payment issues as tenants. Marital status is explicitly NOT protected under the FHA. Our client does make ample references to the importance, as a factor in his decisionmaking, of a renter's marital status -- comparatively, our client is actvely rening out another (larger) unit in the building to a tenant with children.

If the court is convinced by this, the burden shifts back to plaintiff, who would argue that if financial stability was the true motivating factor for which Landlord sees martial status as a proxy, Landlord should have asked questions relating to finances; yet, not one question was posed to plaintiff regarding credit history, savings, income, etc. Plaintiff "could have been a multimillionaire" for all Landlord knew; the court pointed this out in Karns on similar facts, and there is strong evidence that Landlord did not inquire at all on the allegedly root issue of finances.

III. Arguments under Baker and its distinct distinct disparate-impact test

Plaintiff will point to the Baker precedent and resulting disparate-impact test analysis for support. Under Baker, a facially neutral policy wil be analyzed as follows: (1) Plaintiff first must make a prima facie case that a challenged practice caused or will predictably cause discimrinatory effect; (2) plaintiff makes this showing, then burden shifts to defendant to prove the challenged practice is necsssary to achieve one or more substantive/legitimate/nondiscriminatory interests, and (3) if defendant landlord meets this burden, burden shifts back to plaintiff who may then only previal if they can show that the nondiscriminatory intersests supporting the challenged practice coudl be served by another practice with a less discrimatory effect.

In Baker, the court ultimately found against a landlord with a "bedrooms plus one" policy that had a disparate impact on familiies with small children. Other than marital status, a second avenue of defense for Landlord is that the true motive is to avoid renting to groups of college students, which the court in Baker found a legitimate nondiscriminatory reason. However, Plaintiff will point out that Centralia's municipal housing code stipulates that no dwelling of 451-700 square feet shall be occupied by more than four people -- and Plaintiff is seeking to rent a 500 square foot apartment here, with four tenants (well within the range cited above). This is not so wildly disproportionate, perhaps, as the disparity in Baker (4 occupants allowed by landlord, munipal code allowed for 8), and we may well succeed in arguing that here, the facts do not support that Landlord not wanting to rent out the 500 sq ft apartment to four renters as constituting a "signficiant mismatch" providing evidence that Landlord's policy is overbroad. However, plaintiff would likely have success arguing in the alternative that, regardless, Landlord coudl use a less restrictive means of meeting its stated foal of avoiding renting to large groups of young people.Thus, while we may succeed in persuading the court that Landlord's policy is not overbroad, it is likely that plaintiff could succesfully argue that this policy could be acheived with less restrictive means.

IV. Conclusion

In conclusion, there is ample support for the Plaintiff's claim that Landlord discriminated based on familial status, based on the facts presented. However, we likewise have strong fact-based evidence that the true motivation for Landlord's policy was not familial status, but marital status or keeping out large groups of college students. Ultimately, however, Centralia's housing code will cut against us in the Baker analysis (less restrictive means possible), and the lack of any questions whatsoever by Landlord to tenant with respect to finances is quite strong evidence against our client as well.

Sample Answer

MEMORANDUM

To: Elise Tan

From: Applicant

Date: Febuary 25, 2025

Re: Peter Larkin - Defense of housing discrimination claim

Under the Fair Housing Act, it is unlawful to "refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of...familial status." 42 U.S.C. 3601. There are two analyses used by the Fifteenth Circuit to evaluate claims of discrimination under the FHA, set forth and evaluated below.

1. Parker would likely not succeed on a claim that Larkin's reasons for nondiscrimination were pretexts for refusal to rent due to familial status.

The three part burden-shifting test set forth in McDonnell Douglas Corp v. Green

is applied to analyze claims that a landlord discriminated against a tenant through specific actions that may be ambiguous, but indicate a refusal to rent on the basis of familial status. Under this test, plaintiffs must show: (1) that they are a member of a protected class; (2) that they applied for and were qualified to rent the dwelling; (3) that they were denied housing or the landlord refused to negotiate with them; and (4) the dwelling remained available. Karns v. US Dep't of Housing and Urban Development (2006). If a plaintiff establishes a prima facie case of discrimination, a presumption of illegality arises and the burden shifts to the defendant to articulate legitimate nondiscriminatory reasons for the challenged policies.

a. Parker will be able to establish a prima facie case of discrimination.

The protections afforded against discrimination on the basis of familial status shall apply "to one or more individuals (who have not attained the age of 18 years) being domiciled with...a parent...of such individual(s) 3601(k)(1)." Parker is a member of the class afforded protections under the FHA.

The term "applied for" is interpreted broadly and includes inquiries into the availability of a dwelling, and "qualified to rent" means that the individual meets such factors as minimum credit score, rental and eviction history, minimum monthly income, criminal background, and landlord and professional references. Parker inquired into the availability of Larkin's rental appartment, and claims that he can easily afford the apartment on his income, has a good rental history, and good credit.

Because Larkin refused to negotiate with him and did not contact him further, all while the apartment was still listed for rent, the third and fourth elements for a prima facie case can be established. The burden thus shifts to Larkin to articulate legitimate nondiscriminatory reasons for his policy.

b. Larkin will likely be successful in articulating legitimate nondiscriminatory reasons for the challenged policy.

InKarns, plaintiff tenant who was unmarried with minor children successfully demonstrated that the landlord's asserted reasons for nondiscrimination were pretexts for refusal to rent due to familial status, because when the tenant later inquired representing again that she was unmarried but without minor children, the landlord then expressed a willingness to negotiate with her. While marital status is not protected class under 3604(a), the court in Karns found that the evidence demonstrated it was the representation she had no children, rather than the representation that she was single, that constituted the reason for landlord's refusal to rent to her.

The landlord defendant in Karns asserted two nondiscriminatory reasons for her refusal to initially negotiate with the tenant: (1) she was concerned about Karns' finances and (2) she was concerned that Karns was unmarried. The court found both of these reasons pretextual, reasoning that the landlord declined to negotiate while possessing only the information that the tenant was unmarried with minor children and had asked no questions regarding finances or ability to pay, and that these circumstances indicate the landlord's ability to pay based on familial status rather than financial situation.

In our case, Larkin has a history of denying rental to prospective tenants that exceed the occupancy limit of his policy. He has approved tenants with minor children, and denied tenants without minor children that exceed the occupancy limit. In our interview with Larkin, he stressed his strong desire to rent to marital couples because of the unreliability of a single income, and the possibility that a single person could unexpectedly become unemployed. Thus, the evidence supports his nondiscriminatory reasons for refusal to initially negotiate.

Larkin may succeed in a claim that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests.

Parker must show the interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.

Where occupancy policy is facially neutral but has a disparate impact based on familial status, the The Fifteenth circuit applies a three-part analysis: (1) plaintiff tenant must first make a prima facie showing that a challenged practice caused or will predictably cause a discriminatory effect; (2) if the plaintiff establishes this prima facie showing, the burden shifts to the defendant to prove that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests; and (3) if the defendant landlord meets their burden, the burden shifts back to the plaintiff who may only prevail if they can show that the interests supporting the challenged practice could be served by another practice that has a less discriminatory effect. Baker v. Garcia Realty Inc. (1996).

b. Parker can establish a prima facie case of disparate impact

In Baker, tenants established prima facia case of disparate impact because policy impacts families with minor children more than the general population because minor children frequently share bedrooms and families with minor children tend to have larger households than families without minor children.

Here, Larkin's policy is facially neutral, but Parker would likely be successful in showing that an occupancy limit of 3 people has a disparate impact on families with minor children because families with minor children have larger households than families without minor children, though this is not always the case.

c. Larkin can demonstrate a substantial, legitimate, nondiscriminatory interest.

In Baker, the court found that defendant landlord who asserted that occupancy policy avoids risk of large group of college students overpopulating units to reduce rental payments had demonstrated a substantial, legitimate, and nondiscriminatory interest. Here, Larkin's interest would be sufficient to meet this burden of proof.

d. Overbroad and less restrictive means:

The occupancy policy at issue in Baker intended to avoid the risk of large group of college students overpopulating units to reduce rental payments, but was overbroad due to its general applicability and there were less restrictive means to achieve this interest.

In Baker, the court held that plaintiff tenant could have met their burden by showing that the policy is overbroad or that the goals of the policy can be achieved with a less restrictive means. In making this determination, the Fifteenth Circuit has held that "in cases of alleged familial-status discrimination, a significant mismatch between occupancy limits set by municipal code and those set by a landlord is evidence that the landlord's limit is overbroad." While significant mismatch is not clearly defined, case law indicates a significant mismatch would occur where a landlord limits occupancy to two people where the local housing code permits occupancy of four people.

Here, there is not a significant mismatch between Larkin's policy and the local municpal code. The rental unit at issue is 500 sq. ft., and Centralia Municipal Housing Code s. 15(A)(2) requires that dwellings between 301-450 square feet must be limited to no more than three people while (A)(3) requires dwellings between 451-700 square feet be limited to four people. Because Larkin's limit of 3 is not significantly less than the legal limit of 4, and because 500 square feet is just over the 450 square feet, the court is likely to find that the policy is not overbroad.

Parker may claim that there are less restrictive means to achieve Larkin's interest in preventing people cramming four people into a two-bedroom apartment, but unlike in Baker, it is not to prevent college students or anyone else specifically from overpopulating the apartment. Larkin's interest is mostly due to the small size of the apartment and the impracticability of fitting more than 3 people.

MPT-2

Sample Answer

To: Loretta Rodriguez, General Counsel

From: Examinee

Date: February 25, 2025

Re: Professor Eugene Hagen Matter

Memorandum

I. Summary of Findings

The University of Franklin must disclose the complaint lodged against Professor Hagen by Pamela Rodgers and parts of the active investigation into Professor Hagen's possession charge. The University does not have to disclose the performance review, and nor does it have to create a chart disclosing the names/identification of complaints.

II. Issues:

1. Must the University of Franklin produce each of the requested documents?

a. Are the documents public records?

1.Are they subject to any exceptions?

III. Statement of Facts (omitted)

IV. Analysis

1. The University is required to disclose public records requested by individuals who submit written IPRA requests. All of these documents qualify as public records, as it is a public institution. However, some of these documents are exempt from IPRA disclosure.

Paul Chen requests:

1. Professor Hagen's annual performance reviews completed by the Dean of UF School of Law from 2019 to present.

2. Any complaints submitted by members of the public to UF School of Law

3. A chart containing the names of anyone (faculty, stfaf, students, members of the public) who has made a complaint about Professor Hagen

4.) Any records involving Professor Hagen in the possession of the UF Campus Police Department.

First is must be determined which, if any, of these documents are considered public records, and thus subject to disclosure under IPRA.

Under Section 14-1 of the Franklin Inspection of Public Records Act, Franklin Civil Code, "public records" means all documents, papers, letters, books, etc., that are used, created, received, maintained, or helf by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained.

Under Section 14-2 of the Franklin Inspection of Public Records Act, Franklin Civil Code, every person in Franklin has a right to inspect these public records, except:

(1) records pertaining to physical or mental examinations and medical treatment of persons confined to an institution; (2) letters of reference concerning licensing or permits; (3) letters or memoranda that are matters of opinion in personnel files; (4) portions of any law enforcement record that reveal confidential sources or methods or that are related to individuals not charged with a crime, including any record from inactive matters or closed investigations to the extent that it contains the information listed in [this section]; or (5) trade secrets, attorney-client priviledged information.

Section 14-5 explains that in order to review these records, a person must submit a written request to the Inspection of Public Record Act (IPRA) custodian,, and nothing in this Act shall be construed to require a public body to creat a public record. Section 14-6 requires that IPRA Custodian seperate exempt and nonexempt information prior to providing these records to the person inspecting -- with the nonexempt information available.

The purposes of IPRA are to provide accesso to public information, and encourafe the accountability of public officials.

Both the University's and the Police Department's records are public information, as they are both public entities and related to public business.

Therefore, the issue is whether there are exmeptions from disclosure.

a. Professor Hagen's annual performance reviews completed by the Dean of UF School of Law from 2019 to present is exempt under Section 14-2(a)(3) of the Franklin Inspection of Public Records Act, Franklin Civil Code. This is because is classifies as "letters or memoranda that are matters of opinion in personnel files."

To determine what entails "matters of opinion in personnel files," the critical factor is the nature of the document itself. The legislature intended to exempt form disclosure "matters of opinion" that constitute personnel information of the type generally Found in a personnel file, I.E., information regarding the employer/employee relationship such as internal evaluations, disciplinary reports or documentation; promotion, demotion, or termination informatin; or performance reviews. The purpose of the exemption is to protect the employer/employee relationship from disclosure of any letters or memorabilia that is generated by the employer or employee in support of the working relationship between them.

In Newtown v. Centralia School District, the court helf that there is no distinction to be made between matters of fact and matters of opinion for letter or memoranda IN THIER ENTIRETY. This information is excluded wholley, and "overrides" the requirement to seperation of exempt and nonexempt information by the custodian.

As this exception explicably includes perfomace reviews, it is subject to the Section 14-2(a)(3) exception of IPRA. Therefore, the entirety of this document is exempt from disclosure .

b. Any complaints submitted by members of the public to UF School of Law are not exempt from disclosure.

Complaints made by members of the public are subject to disclosure.

In, Fox v. City of Brixton the court held that citizen complaints regarding a public official's conduct while performing his or her duities as a public official are not the type of "opinion material" the legislature intented to exclude from disclosure in Section 14-2(a)(3). Therefore, an exemption under that section is not available here.

Here, it is clear that the complaint is a matter of Hagen's personel record, and is not part of the listed exemptions. Therefore, the school is obligated to disclose it.

Further, the school must disclose an unredacted version of the paper, as it is not entitled to partial exemption (covering the complaintee's name)

c. The University is exempt from creating a chart containing the names of anyone (faculty, staff, students, members of the public) who has made a complaint about Professor Hagen.

The facts established that the University has no such chart in its possession.

As established above, the University is obligated to disclose citizen complaints made about Professor Hagen. However, Section 14-5 provides that nothing in this Act shall be construed to require a public body to creat a public record.

Further, employee complaints and citizen complains differ in regards to IPRA requests. Co-worker complaints can be categorized as internal evaluations or addressed in performance reviews, which are subject to exemptions from IPRA.

However, the reality is: the University is not required to create this information. Chen is welcome to create his own chart with the information disclosed.

d. Parts of the records involving Professor Hagen in the possession of the UF Campus Police Department are exempt from disclosure under Section 14-2(a)(4). Other parts are not exempt and must be disclosed.

The entirety of law enforcement records are not exempt when relating to an ongoing criminal investigstion. Instead, Section 14-2(a)(4) exempts portions of any law enforcement record that reveal confidential sources or methods or that are related to individuals not charged with a crime, including any record from inactive matters or closed investigations to the extent that it contains the information listed in [this section].

Here, the courts found the legislautre was concerned with the specific conent of the records. It explained that in law enforcement files, the custodian must sepereate the exempt and nonexempt files, and then disclose the non-exempt files to the requesting party.

The issue here is what portions of the Police department records are subject to disclosure. The nonexempt information is "information that did not reveal confidential sources or methods or that [did not relate] to individuals not charged with a crime."

Regarding Professor Hagen's DUI arrest, the police department asserts they do not have any records relating to that request. Section 14-5 provides that nothing in this Act shall be construed to require a public body to creat a public record. Therefore, the police department is not required to create nor disclose the information. Chen is welcome to request this information from the township where the DUI Occured. However, he may run into trouble as the investigation is closed.

The recent arrest for the possession of marijuana is a different story. as established, Section 14-2(a)(4) exempts portions of any law enforcement record that reveal confidential sources or methods or that are related to individuals not charged with a crime, including any record from inactive matters or closed investigations to the extent that it contains the information listed in [this section].

The police received a confidential tip that Professor Hagen was in smoking marijuana in his office and an officer responded immediately. Upon arrival, the officer discovered Hagen and another professor smoking in hagen's office. That other professor was not arrested nor charged with any crime.

The records that are in the departments possession is the incident report and two photos. The incident report contains details about the incident such as time, location, date, and the name of the confidential source, in addition to observations by the officer and the statements of both the professoors. The photographs show selfies of both professors utilizing the bong that night.

This information will need to be sorted prior to disclosure. The exempted information per Section 14-2(a)(4) is (1) the confidential informant; and (2) the information regarding professor Sykes, as she was not charged with a crime.

The information regarding the crime is subject to disclosure, so long as the CI and Professor Sykes are not included. This could be established by redacting the CI's name and the portion of the pictures/statement of Professor Sykes -- along with any portion of the officer's description of the events or Hagen's statement that mention Sykes.

The Department is obligated to disclose that remaining information as the investigation is ongoing.

V. Conclusion

For the aforementioned reasons, the University does not have to produce all of the documents. However, it must produce, parts of the above-described active police investigation and the complaint lodged by Pamela Rodgers.

Sample Answer

Memorandum

To: Loretta Rodriguez, General Counsel

From: Examinee

Date: February 25, 2025

Re: Professor Eugene Hagen matter

The purpose of IPRA is to ensure that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees. The legislatrue has limited this general rule by providing specific exemptions to the right to inspect public records in §14-2(a)(1-8). The University of Franklin is subject to IPRA requests as a public institution. Here, the issues are whether the documents requested would be exempted.

1. Professor Hagen's annual performance reviews completed by the Dean of the UF School of Law from 2019 to the present are NOT required to produce.

§14-2(a)(3) states that "letters or memoranda that are matters of opinion in personnel files are exempted from disclosure under IPRA. The location of a record in a personnel file is not dispositive of whether the exemption applies; rather, the critical factor is the nature of the document itself. To hold that any matter of opinion could be placed in a personnel file, and avoid disclosure under IPRA would violate the broad mandate of disclosure embodied in the statute. Construing §14-2(a)(3) in a manner that gives effect to the presumption in favor of disclosure, the court of appeal in Fox v. City of Brixton concluded that legislature intended to exempt from disclosure "matters of opinion" that constitute personnel information of the type generally found in a personnel file, i.e., information regarding the employer/employee relationship such as internal evaluations; disciplinary reports or documentation; promption, demotion, or termination informationl or performance reviews.

Here, the performance reviews in Professor Hagen's personnel file was completed by Professor Hagen's employer Dean Cheryl Williams. Information found in the reviews contains students' opinions on Professor Hagen's courses, evaluations on the quality of his teaching, the committees he served on, publications he completed, and the quality of his publications. These information are exempted under §14-2(a)(3) becuase they are information regarding the employer/employee relationship. Therefore this document does not need to be produced.

2. Any complaints about Professor Hagen submitted by members of the public to the UF School of Law are required to produce.

The requested complaints are similar to the complaints in Fox v. City of Brixton, that are unsolicited complaints voluntarily generated by the very public that now requests access to those complaints. While public complaints may lead the law school to investigate the professor's job performance and could eventually result in disciplinary action, this fact by itself does not transmute such records into "matters of opinion in personnel files" for purpose of §14-2(a)(3).

Letter from Pamela Rogers is the only complaint submitted by members of the public here. Although it is in Professor Hagen's personnel file, it still needs to be produced under the circumstances.

3. A chart containing the names of anyone (faculty, staff, students, or members of the public) who has made a complaint about Professor Hagen is NOT required to produce.

§14-5(b) provides that "nothing in this Act shall be construed to require a public body to create a public record."

According to Dean Cheryl Williams, the school doesn't have a chart containing the names of people who have made a complaint about Professor Hagen and is not required to create such a record under IRPA.

4. Any records involving Professor Hagen in the possession of the UF Campus Police Department should be redacted before production.

In Newton v. Centralia School District, the Franklin Supreme Corut described §14-2(a)(3) exemption as applying to letter or memoranda in their entirety, and the full document exemption under §14-2(a)(3) overrides the requirement in §14-6 that nonexempt matter in that document be disclosed. When an exemption applies to a document as a whole, as §14-2(a)(3) does, the entire document is exempt from disclosure and matters of fact in that document do not have to be seperated from matters of opinion and disclosed. But section 14-6(a) requires the custodian of records to seperate exempt records from nonexempt records. When an exemption applies only to certain portions of a document, such as the §14-2(a)(4) exemption related to portions of law enforcement records, then seperating the exempt from nonexempt material demands redaction of the exempt material in that document. Read together, the plain language of §§14-2(a) and 14-6(a) provides that UF school of law is required to review the requested law enforcement records, seperate information that did not "reveal confidential sources or methods or that did not relate to individuals not charged with a crime from that which did, and provide the nonexempt information for inspection. Nowhere does §14-2(a)(4) exempt all law enforcement records relating to an ongoing criminal investigation.

Here, Professor Hope Sykes was not arrested by the UF Campus Police Department and nor was she charged with a crime. Therefore any information related to Professor Hope Sykes or the confidential source in the incident report should be redacted before production. The two photographs that has Professor Sykes and the statements made by Professor Sykes should be excluded. Chief Chip Craft and Franklin City Police Department's ongoing investgation is immaterial.

MEE-1

Sample Answer

1. At issue is whether Kim was an agent of Comet Fitnes when she purchased the treadmill:

A principal/agency relationship is created when an agent manifests assent to become the principal's agent, for the benefit of the principal, and subject to the principal's control. An employer/employee relationship may, by the very nature of the relationship, create an agnecy relationship.

In this case, Kim was not an agent of Comit Fitness because she was merely given an offer of employment. There is nothing to suggest that Kim manifested assent to work on behalf of Comit Fitness. When offered with a job for employment at Comit Fitness, Kim replied that she would think about it. There is nothing to suggest in the facts that Kim manifested assent to work on behalf of Comit Fitness, for the benefit of Comit Fitness, and subject to Comit Fitness' control. She was merely given an offer for employment.

2(a): At issue is whether Kim had actual authority to purchase the treadmills:

Actual authority exists when the principal either express or impliedly manifests affirmative assent for the agent to act on his or her behalf. Through actual authority, the agent must reasonably believe, based on the manifestations of the principal, that he or she is doing what is necessary to carry out the principal's wishes.

Here, Kim did not have actual authority because she only overheard Bill and Nancy talking about their need for more treadmills. This conversation was between Bill and Nancy, not Kim. There is nothing in the facts to suggest the Comit Fitness meant to give Kim the authority to act on its behalf. Thus, Kimd did not have the actual authority to purchase the treadmills.

2(b): At issue is whether Kim had the apparent authority to purchase the treadmill:

Apparent authority exists when, based on the principal's manifestations to a third party, an third-party could reasonably believe that the agent was acting on behalf of the principal. In this case, Kim did not have the apparent authority because, even though she told the sporting-goods store that she was acting on behalf of Comit Fitness, there is nothing to suggest that Bill and Nancy made any manifestations to lead the sporting-goods store that Kim had the authority to bind Comit Fitness. Kim was neither a partner in the partnetship nor had she accepted the offer of employment. Nothing indicates that Kim had entered into these kinds of transactions with the sporting goods store on behalf of Comit Fitness in the past. Therefore, because there were no manifestations on behalf of Comit Fitness (Bill and Nancy) to lead the sporting-goods store to believe Kim had the authority, there is no apparent authority.

3. At issue is whether Nancy, as a partner, had the authority to bind Comit Fitness to the contract to purchase the two treadmills:

A partnership is an association of two or more persons to carry on a for profit business as co-owners. A partner in a partnership has the ability to bind the partnership to transactions that are in the ordinary course of the partnership's business. Additionally, a partner is an agent of the partnership, and can thus act on behalf of the partnership. Absent anything to the contrary in the partnership agreement, partners have equal rights in the management of the business.

Here, Nancy had the authority to bind Comit Fitness to the treadmills because she had both actual and apparent authority. Nancy had the actual authority becauseBill said to Nancy that the gym needs two more treadmills. Given this fact, it is reasonably for Nancy to believe that she had the actual authority to carry out the purchase of treadmills on behalf of the partnership.

Nancy also had apparent authority because Bill and Nancy are acquainted with the store owner. Bill also told the store owner that he would try and get over there and check them out. Taking into consideration that Bill and Nancy are general partners who are acquainted with the sportings-goods store owner, it is reasonable for the sporting-goods store owner to believe that Nancy had the authority to enter into a transaction on behalf of Comit Fitness. Finally, Bill was wrong to conclude that Nancy did not have the authority because, in her position as a partner in the partnership, she has the actual authority to bind the partnership to a contract. Thus, in conclusion, Nancy had both actual and apparent authority.

Sample Answer

1. Whether Kim is an agent of Comet Fitness when she purchased the treadmill.

The Issue here is whether Kim was an agent of Comet Fitness when she purchased the treadmill. Agency requires (1) mutual assent by both parties (2) Benefit conferred to the principal, and (3) that the principal has control over the agent.

When it comes to agency there are also a few other ways to confer it. First, there is express or implied agency. Express is as it sounds, the principal is holding the agent out to be their representative. Implied means that the principal is not holding them out to be an agent but it is implied though prior dealings or customs.

There is also apparent agency, in which again, a third party would reasonable believe that an agent is working on behalf of the principal, either through prior dealings or them holding themselves out as representatives of the company/business. the last topic we can talk about is ratification. This is essentially a fallback to where there is NO agency relationship but the prinicpal accepts the benefits of what is gained through the transaction.

Here, Kim fit none of these criteria. Kim is someone that Nancy, one of the part owners of Comet Fitness had not seen for months. She was told that she should consider coming to work as a personal trainer. This should not be construed as a job offer, more of like an invitation to come and check out the workplace. Even if we did consider it a job offer, Kim never expressly accepted it. Also, being a personal trainer is not the kind of posititon that would enable her to be in a poistion to buy gym equipment of that caliber. A treadmills is sbustnatial purchase and normally not within the purview of a regaulr employee. normally that would be reserved for someone with more purchasing power. Lastly, there is nothing in the prompt to suggest that Bill and Nancy even directed any comment towards here. She overheard them talking about the need for a treadmill but no one should consture that as an invitiation to use their initiative to buy one of their own volition. Therefore, it is very likely that Kim was not an agent of Comet Fitness.

2. Kim's actual authority to purchase.

Actual authority would require an express or implied relationship between Kim and the coowners. it wold require the ratifiying of the 3 factors mentioned above. however, there is no mutual assent, no benefit to the business because it is not the type of treadmill that they need, and no control over Kim's purchase power because the coowners never even gave her any.

Here, Kim has done nothing to show that she has actual authority to purchase these treadmills. First, there was no mutual assent between the parties. Kim took it upon her own "initiative to make these purchases." bill and Nancy never agreeed to this. Second, there is no conffered benefit to the coowners of the gym. the treadmills that Kim bought are ones that the gym does not have. It is likely that Bill or Nancy would have rejected these purchases because they were so different. lastly, Bill and nancy have no control over Kim. Bill and Nancy cannot control someone that they do not even know is acting on their behalf. It would be impossible to control this transaction when Kim never gave the slightest hint that should be be partaking in this endeavor. Therefore, it is very likely that Kim had no actual authority.

3. Kim's apparent authority to purchase.

As stated above, apparent agency is when a third party would reasonable believe that an agent is working on behalf of the principal, either through prior dealings or them holding themselves out as representatives of the company/business.First, she never had the express permission from the coowners to make these purchases. she took it upon her own "initiative to make these purchases." Second, the prompt makes no mention of Kim ever telling the sporting goods store that she was a representative of the business. This is information and would be crucial to knowing what the sporting goods store owner knew. And most importantly, there is no prior existing relationship between the gym and Kim for any reasonable person to conclude that Kim had actual authoity to bind the gym with these purchases. therefore, it is very likely that Kim has no apparent authority to purchase.

4. Nancy's purchase

The issue here is whether Nancy had the authoity to bind Comet Fitness. the gym is a partnership. a general partnership is 2 co-owners holding themsevles out as partners for profit. as part of the general partnership, partners are allowed to make purchases in the ordianry course of business, subject to any restrictions in the partnership agreement. Here, there is no mention of any restriction. Nancy was buying treadmills for the good of the business and it is an item that is normal in a gym. There was also an agreemtn buy both parties that they "desparately needed" treadmills. Because Nancy was doing this for the good of the business, the purchase should be binding on the gym. It is normal for partners to go out and buy things in the regular course of business. if nancy were to have bought 10 treadmills then that would be different. But she bought the amount contemplated by the two parties before. the fact that they are not the same color should have no bearing on the ability of Nancy to make this purhcase. Therefore, it is likely that Nancy did have the authority to make this purchase and it would be binding on the gym.

MEE-2

Sample Answer

1) The first issue is what type of First Amendment forum is the pedestrian median strip. There are three types of forums that include public forums, designated public forums and non-public forums. A public forum consists of public parks, sidewalks, streets, that allows public speech, where content-based restrictions on the freedom of speech are not permitted and content neutral restrictions of speech may be subjected to time, place, and manner restrictions. A designated public forum is a private facility that designates public speech in circumstances, such as private facilities hosting events. A designated public forum is also subject to time, place, and manner restrictions. A non-public forum is a forum where freedom of speech may be limited such as miliatary bases. Non-public forums may limit speech so long as it is viewpoint neutral.

The pedestrian median strip is located between the roadway of the town which is covered with grass and trees, except for the 10-foot segments on each end that are part of the crosswalk and are marked for use by pedestrians. A sidewalk is a public forum where freedom of speech reguations are subject to strict scrutiny. Since the 10-foot segments of each part are marked for use by pedestrians, this is considered a sidewalk and would be considered a public forum. The ordinance also uses the language the "pedestrian median strip" which further demonstrates that it may be classified as a sidewalk for public forum purposes. The median as a whole may also be considered a public forum.

2) The second issue is if the Town ordinance is a content-based or content-neutral regulation of speech. A content based regulation is a regulation that solely focuses on the content of the speech itself in order to regulate it. Content-based regulations are subject to strict scrutiny are rarely upheld. A content-neutral regulation is a regulation that does not regulate on the content of speech, but on the time, place, or manner of the speech.

Here, the ordinance states that (1) no person on a pedestrian median strip on Main Street shall communicate or attempt to communicate with the occupants of vehicles passing by or stopped near the pedestrian median strip. This is not a content-based regulation as it does not intend to prohibit a certain type of speech. It is regulating the manner in which speech may be used, in this case, prphibiting speech with occupants of vehicles. Therefore, it is a content-neutral regulation.

3) The third issue is assuming the Town ordinance is content-based, if applying it to the man would violate his First Amendment rights. A content-based speech is subject to strict scrutiny. This means that the government has the burden to show that the ordinance is substantially related to a compelling government objective and that this ordinance is the least restrictive means to obtain that objective. As stated above, content-based regulations are rarely upheld. Certain types of speech are not protected under the First Amednment such as obscenity and words incting violence which also include fighting words.

Here, the Town's interest is that there had been numerous complaints from Town from residents about people who stood in the paved protion of the medians and tried to solicit money and these solicitations were annoying and unwelcome. The Town will likely have a difficult time proving their burden that this nuisance of soliciting money from drivers outweighs the right to the man by holding a sign stating his opposition to a condidtate for town council. Further, this is not the least restrictive means that the Town could take in this regard. Existing town ordianances already permit posting approved signs on trees and utility poles in the median strips. The Town could have at least allowed for that type of expression from the man in the median. Therefore, the man's First Amendment rights are likely violated.

4) The fourth issue is if assuming the Town ordinacne is content-neutral, if applying it to the man would violate his First Amendment right. A content-neutral regulation can be consitituional if it properly subjects to time, place and manner restrictions and leaves open alternative channels of communication.

Here, the ordinance appears to be content-neutral as it is regulating anyone from speaking with occupants of vehicles passing by or stopped by the median strip. The ordinance would likely violate the man's rights if it does not allow for alternative channels of communication. The existing town ordinances state that permit approved signs are allowed on trees and utility poles in median strips including pedestrian median strips as well as the posting of carrying of signs on sidewalks adjacent to public roadways. This town is a small municipality and has two lanes of traffic running on each side. An alternative channel of communication can be the sidewalks on either side of the road from the small two lane highway or the other locations that permit posting and carrying of signs that the man could hold his sign up at. Therefore, since this can be considered an alternative channel of communication, Town would likely not violate the rights of the man as a content-neutral regulation.

Sample Answer

1. The issue is whether the pedestrian median strip is a traditional public forum, designated public forum, or nonpublic forum.

A traditional public forum is an area that is traditionally held to public rights, such as sidewalks, parks, and streets. A designated public forum is an area that can be considered belonging to the public, such as a civil auditorium, where the the public are allowed in and out. A nonpublic forum is an area not traditionally given to the public or designated to the public, such as a military base.

Here, the town main street is an eight-block public road that runs through the center of town. Main street would be considered a traditional public forum. The roadway has two lanes of traddic in each direction, separated by a 10-foot wide median strip on each block. The median strip is also connected to the public crosswalk for use by pedestrians. All of this information constitutes a traditional public forum where public citizens are allowed freely to use.

2. The issue is whether the town ordinance is a content-based or content-neutral regulation of speech.

Under the First Amendment, all citizens have a right to free speech. Under only certain circumstances can the government infringe on the right to free speech. Content-neutral regulations are ones that are neutral on its face and as applied, often called time, place, manner regulations. These ordinances regulate broad when and where speech can be made, but not the content of the speech. Content-neutral regulations are subject to intermediate scrutiny, meaning they must be substantially related to an important government interest. Lastly, they must leave open alternate channels of communication.

Content-based restrictions are ones that regulate the content of the speech itself and is subject to strict scrutiny. Under strict scrutiny, a regulation must be necessary to acheive a compelling government interest and is likely to be struck down.

Here, the town ordinance provides that no person on the pedestrian median strip shall communicate with the occupants of vehicles stopped or passing by the strip. It does not regulate any specific type of speech or any specific content. As such, this regulation would be a content-neutral time, place, manner regulation.

3. If content-based, the issue is whether the application of the ordinance to the man violates his First Amendment rights.

In order to restrict content-based speech, the government must show that the regulation is necessary to achieve a compelling government interest. Under only certain circumstances can the government restrict content-based speech, such as inciting violence, obscenity, or fighting words.

Here, town residents have complained about people standing on the paved portion of the median strip to solicit money. The town asserts the ordinance purpose is to promote traffic safety, but there are no records of any traffic incidents made from the solicitations. Therefore, there is no compelling government interest. Further, the residents only assert the solicitations to be annoying. There are also no reports that the solicitations are aggressive, threatening, or distracting to drivers, so the regulation would not apply under any exceptions to the content-based restrictions as listed above. Therefore, its regulation violates the man's First Amendment rights.

4. If content-neutral, the issue is whether the application of the ordinance to the man violates his First Amendment rights.

In order to restrict content-neutral speech in a public forum, the town must show that the restriction is neutral on its face and as applied, leaves open alternate channels of communication, and is substantially related to an important government interest.

Here, the town ordinance provides that no person on the pedestrian median strip shall communicate with the occupants of vehicles stopped or passing by the strip. The strip is described as the paved portion of the median. As the pedestrian median strip is a public forum, the ordinance must comply with the requirements noted above.

First, the ordinance is neutral on its face and as applied because it does not restrict any specific speech or person other than not to solicit on the paved median strip. The restriction also allows posting signs on the median strip and also to carry signs on the sidewalks adjacent to the public road. It is also lawful to solicit money while standing on the sidewalk. Therefore, there are alternate channels of communication open. However, there must be an important government interest. As noted above, the town asserts the ordinance purpose is to promote traffic safety, but there are no records of any traffic incidents made from the solicitations. It is unlikely a court will consider this regulation substantially related to their interest in traffic safety. Therefore, the town is likely unable to meet its burden of proving the ordinance meets intermediate scrutiny and it likely violated the man's First Amendment rights.

MEE-3

Sample Answer

1. The issue is whether Brenda can assert negligence per se action against Alan based on his breach of the school bus law.

Negligence per se is established when a tortfeasor's negligence is established based on a violation of the law. This is different than a typical negligence action because it determines liability not based on whether the defendant owed a duty to the plaintiff, but based on whether the defendant breached the law. Negligence per se can be found when (i) there is a law on record, (ii) the defendant violated the law, (iii) the plaintiff was part of the class protected by the law, and (iv) the law sought to prevent the harm established. There must be causation between the harm incurred and the policy behind the law. If the plaintiff makes such a showing, there is a prima facie case for negligence. A defendant can defend against this type of action in the rare cases that the law was not widely circulated or disseminated, the law was ambiguous, etc.

Here, Brenda cannot assert negligence per se against Alan. The school bus law prohibits vehicles from passing a stopped school bus when the bus flashes its red lights, stops, and extends the side-mounted stop sign. This law was designed to protect children and other passengers riding on school buses. Thus, the protected class of people under this law are school children, not necessarily those stopped behind the school bus. Moreover, Alan's breach of the school bus law does not establish his duty against Brenda. Alan's truck hit Brenda's car when he was attempting to pass her. Though this happened while Brenda was sitting behind the school bus, this in itself is not the harm that the law sought to protect or prevent. The law was not seeking to prevent cars from hitting each other as they went around each other, but it was to prevent cars from hitting school bus passangers as they crossed the street or otherwise got off and on the bus. Thus, Brenda's harm and Brenda as a plaintiff are not covered under the school bus law.

2. The issue is whether Brenda can assert a claim against Alan for the intentional tort of false imprisonment.

Under the common law, a person can assert a claim of the intentional tort of false imprisonment when they show that (i) the the defendant intended to trap or otherwise confine the plaintiff without his or her consent, (ii) that the defendant's conduct resulted in the confinement, and (iii) that the plaintiff was aware of the confinement. False imprisonment can include the use of force or threat of force to keep someone in a certian area or can also occur when the tortfeasor refuses to let the plaintiff out of an area.

Here, there is evidence to suggest that Brenda can make an intentional tort claim against Alan for false imprisonment. After Alan was aggressively driving behind Brenda on the highway, Brenda had to get off the highway. She noticed that Alan was following her, so she decided to pull into a gas station and lock herself in the bathroom to get away from Alan. Though Brenda locked herself in the bathroom, and thus Alan did not forcefully or threaten to use force to keep her in the bathroom, Alan constructively kept Brenda in the bathroom by threatening her. Alan pounded on the door and shouted that she should "come out so you and I can have a talk, if you know what I mean." Brenda replied that she would not come out until he left, and Alan stated that he "had all day" and told her to get comfortable. Since Brenda expressed that she would not leave until his presence, and threat of violence, was gone, Alan's staying there, even for two minutes, effectively kept Brenda confined.

3. The issue is whether Alan's admission is sufficient for the patient's family to prevail in a motion for partial summary judgment based on the family's wrongful death claim.

In order to proceed in a negligence action, one must prove that the defendant (i) had a duty of care to the plaintiff, (ii) breached the duty, (iii) that the breach was the actual and proximate causation of the plaintiff's injury, and (iv) that the plaintiff suffered injuries. In this jursidcition, a family is allowed to bring a wrongful death action based on negligence. According to the Federal Rules of Civil Procedure, a case is ripe for summary judgment when there is no genuine issue of material fact and the movant is entitled to relief as a matter of law. The judge must view the facts in the light most favorable to the non-movant.

There are two theories regarding when a defendant owes a duty of care. The majority view is that the defendant owes a duty of care only to those who would be reasonably foreseeable as injured parties, whereas the minority of courts find that if the defendant can foresee anyone being injured, then the defendant owes a duty to everyone. A breach is typically judged by whether the defendant acted as a reasonably prudent person would, though some jurisdictions adhere to the risk-benefit analysis, and consider the cost of the defendant's compliance against the risk of his failure to comply with certain conduct. Actual cause asks whether the the plaintiff's injury would have happened but-for the defendant's actions, and proxomate cause asks whether the injury is foreseeable.

In this case, it is unlikely that Alan's admission is sufficient to prove the plaintiff's family's wrongful death action. Though Alan owed a duty to act as a reasonably prudent person would act, both on the road and to Brenda, the plaintiff was not a reasonably foreseeable plaintiff. Moreover, even if Alan owed a duty to the plaintiff, the plaintiff could not prove that the plaintiff would have died but-for Alan's behavior. The facts suggest that Brenda remained in the bathroom for 20 minutes after Alan left and that she took back roads to make sure that Alan was no longer following her. Though Alan technically caused this behavior, it was not reasonably foreseeable that the extent of Alan's actions would lead to the patient dying. However, an argument could be made that Alan noticed Brenda's license plate, that she was a doctor, and that he could have technically forseen she may have had to go and help a patient. However, the facts suggest that Alan did not reasonably foresee this because he noted that Brenda was likely going to bandage a scraped knee.

Since there are genuine issues of material fact as to whether Alan owed the plaintiff a duty, whether Alan's actions were the actual and proximate cause, and whether the plaintiff's death was reasonably foreseeable, summary judgment would not be proper.

Sample Answer

(1) NEGLIGENCE & NEGLIGENCE PER SE

The issue is whether Brenda can establish that Alan breached his duty of care based solely on his violation of the school-bus law.

Negligence per se allows a plaintiff to recover if a statute was created to protect a specific class of people and that breach was of the kind the statute intended to protect.

To recover for a neglience action, a plaintiff must prove that a duty was owed, that duty was breached, the breach was the actual cause of the harm, and proximate causation (forseeable). Drivers on the road owe a general duty to act as a reasonable driver (objective standard).

Here, Brenda was traveling behind a school bus which had flashing red lights on and extended its side-mounted stop sign. The law prohibits passing a stopped school bus under such circumstances. To recover under negligence per se, the negligence would have had to result from the type of harm the law intended to protect. The law to stop behind a school bus as it has its flashers and stop sign out is to protect children coming in/off the bus from being struck by a vehicle. The law was not designed to prevent vehicle damage from an agressive driver. Thus, Brendan would not be able to recover under a theory of negligence per se.

Under a traditional negligence theory, Brenda may be able to recover, but it would not bear relevance to the violation of the school bus law. Brenda would have to show that Alan owed a duty of care to drive as a reasonable driver, he breached such duty, it was the actual cause of the harm, and his conduct was forseeable.

However, based solely on Alan's violation of the school-bus law, Brenda is unlikely to establish negligence per se.

(2) FALSE IMPRISONMENT

The issue is whether Brenda can establish Alan's liability based on the allegations that he detained her against her will.

False imprisonment is an intentional tort. The actor must have intentionally, confined someone, caused physical injury or with no reasonable means of escape. The victim must have been aware that they were confined. Courts have found that fear of embarassment (taking someone's clothes away in a locker room) was sufficient to establish no reasonable means of escape.

Here, Brenda was being chased by Alan and pulled off into a gas station and ran into the restroom and locked the door. Alan then proceeded to pound on the restroom door and shout to come out, among other threats, such as "come out so you and me can have a talk, if you know what I mean!" Alan left after two minutes however Brendan waited in fear inside the restroom for twenty (20) minutes until she saw that he was gone. To recover for an intentional tort, there must be intent for there to be false imprisonment. Brenda will likely have difficulty proving intent as she was the one who ran into the bathroom. However, intent can also mean knowledge of substantial likelihood. There was a substantial liklihood that Brenda would be confined without reasonable means of escape when he was outside the door making threats. However, Brenda could have released herself after two minutes. It is unlikely that Brenda will be successful, as the tort of false imprisionment requires intentional confinement and no reasonable means of escape. Alan did not intentionally confine her into the bathroom, she put herself there. Although she was threatened, he left shortly therafter and she was free to leave. However, a court may find that Alan's conduct was intentional and she had no reasonable means for escape in those two minutes and thus he should be liable.

Therefore, it is unlikely that Brenda will be successful in her claim against Alan for intentional false imprisonment as he did not act with intent to confine.

(3) MOTION FOR SUMMARY JUDGMENT

The issue is whether Alan's admissionis sufficent for the patient's family to prevail on a motion for partial summary judgment establishing that Alan is liable on the family's wrongful death claim.

A motion for summary judgment provides that there is no genuine issue of material fact and the court should rule in the favor of the moving party as a matter of law. A summary judgment motion is accompanied by discovery such as affidavits, depositions, photographs, prior pleadings, ect. A court should view the evidence in light most favorable to the non-moving party. If a dispute of material fact exists, a judge should deny the motion for summary judgment and leave the matter for a jury to decide.

A wrongful-death claim is a negligence claim that the death of a person was caused by the negligence of the defendant. The claim allows the estate to recover to pain and suffering. A plaintiff must show there was a duty owed, that duty was breached, it was the actual and proximate cause of the harm (death). A superceding cause will cut off liability if it outside the realm of forseeability, for example, a natural disaster or a third party intentional tort.

Here, Alan admitted to the facts that were presented by Brenda. A motion for summary judgment requires that there be no genuine issue of material fact. The patient's family must show that Alan owed a duty to the patient, he breached such duty, it was the actual cause, and proximate cause of the harm. It is unlikely that Alan owed the plaintiff a duty, which was breached, and was the actual and proximate cause of the death of the patient. The causal nexus between the negligent road rage incident and the death of the patient is too remote for a court to rule in favor of the patient's family for summary judgment as a matter of law. Alan's defense would likely submit opposition papers to this effect. There would remain geniune issues of material fact as to causation of the wrongful death of the patient.

Therefore, Alan's admission is unlikely to be sufficent for the grant of a summary judgment in favor of the patient's family - it should be left for a jury to decide.

MEE-4

Sample Answer

1. The issue is whether the federal court should remand the case to state court in State A on the ground that the federal court lacks subject matter jurisidction

A federal court has jurisdcition to hear a case if there is either (1) federal question jurisdcition or (2) diverity jurisidction. Supplemental jutisidction may only follow if one of the two are met. Federal question is when a plaintiff brings a cause of action based off a violation of a federal statute and this is well plead in the plaintiff's complaint. Diversity jurisidction is met when a plaintiff asserts a cause of action, where the amount in controversy exceeds $75,000 and the two parties are diverse (two different domiciles). A case may be removed from state court to federal court, if done timely within the 30 days, and removal is proper. Removal may only be made by a defendant who is not dimiciled in the state court where the cause of action is sought. Moreover, if the case is removed and the court has concurrent jurisidction to hear the case, the case will not be remanded back to state court.

Here, a state claim was asserted by the plaintiff in her complaint. Moreover, her state court claim asserts $74,999. Even though the parties are diverse in the matter and are domiciled in two different states, the case may be remanded necause the court does indeed lack subkect matter jurisdiction. Although her state claim asserts that she lost $130,000 in wages due to Fran's defamartory statements, the plaintiff made it clear she was not seeking those damages in excess of the amount stated on her complaint. That stipulation was binding under State A law, and thus is valid. Moreover, federal question is not met, because the plaintiff is aserting a state law claim, Thus, the case should be remanded back to state court for lack of subject matter jurisdiction.

2. The issue is whether the federal court should dismiss the case for lack of personal jurisidction over Fran

Jurisidction is proper so long as it does not offend the traditional notions of fair play and jusitce. Moreover, jursidiction can also be obtained through analyzing the long arm staute the state provides and how far it comports with due process under the 14th amendment. In order to have personal jurisidction over a defendant, the courts look at two ways where it can be obtained (1) geneal jursidction or (2) specific Jurisdiction. One of the ways general jurisidction is obtained is through transient jurisdiction. Transient jurisdction is proper when a defendant avails himself to the forum state voluntartily and is served with process there. Transient jurisdiction is proper and it does not matter if the defendant only availed themself to a short period of time. Thus, so long as they were there voluntarily, this will be proper.

Here, Fram purposefully availed herself to State A to attend a baseball game. She was properly served with process by a process server who handed her the summons and complaint. Even though she was there for less than a day, and has never been to state A prior to this, she stilll is deemed to have availed herself volunatily, thus triggering transient jurisidction. Consquently, the Court will have personal jurisdcition over Fran.

3. The issue is whether State A is an improper venue to litigate the matter

Venue is proper wherever all defendant is domiciled or wherever the injujry or subsantial part of the events occured, or lastly wherever is conveniant for the parties if the first two elements do not apply.

Here, Fran is domiciled in State H. Thus, the court will look at the second prong. Here, a substantial amount of the injury suffered was in State A. The state A newspaper published the story about the allegations, and as a result, Coach was unable to find any jobs as a result of this. Thus, the injury suffered of Coach was in State A. Although the ineraction between the two parties happened in State H, the overall injury and detriments occured on the plaintiff occured in State A. Thus, venue will be proper.

Sample Answer

1. Federal court should remand the case to state court in State A based on a lack of subject matter jurisdiction.

The issue is whether there is complete diversity and the amount in controversy is met.

Subject matter jurisdiction in a case in federal court is established by complete diversity or the federal question doctrine. For diversity jurisidction, all plaintiffs must be completely diverse from all defendants. No two plaintiff and defendant can be domiciled in the same forum.

Additionally, the amount in controversy requirement must be met. The well pleaded complaint must on its face seek an award in excess of $75,000. If the amount in controversy is met and the parties are completely diverse then the case can be brought in federal court or removed to federal court by a defendant. If improperly removed to federal court, the case can be remanded to the state court the case was removed from.

Here, Fran is domiciled in State H because that is where she lives and intends to remain. Coach is domiciled in State A because that is where she lives and intends to remain. Based on their domiciles, Fran and Coach are diverse from one another.

Turning to the amount in controversy, Coach is only seeking $74,999 in damages from Fran. This does not meet the excess of $75,000 requirement for complete diversity. It does not matter that Coach could "assert $130,000 in lost wages" and admitted that in an attached affidavit. It is within a party's discretion how much damages to seek in their suit and she is not required to seek lost wages in this claim.

Additionally, the attahced stipulation is "binding under State A law" and therefore Coach cannot seek those damages after she waived them. Because coach is clearly under the minimum amount in controversy requirement of $75,000.01, this claim does not meet complete diversity and should be remanded to State A court.

Therefore, Federal court should remand the case to state court in State A based on a lack of subject matter jurisdiction.

2. The Federal court should not dismiss the case for lack of personal jurisdiction over Fran.

To have personal jurisdiction over a defendant there is a statutory hurdle as well as a constitutional due process hurdle. The statutory hurdle is usually satisfied by way of a long arm statute.

A way to obtain personal jurisdiction over a defendant and satisfy the due process prong is by way of "tag jurisdiction." Tag jurisdiction is when someone is served with service of process within the confines of the jurisdiction the case is laid in and this satisfies the due process requirement for personal jurisdiction over a defendant. The person cannot be lured into the jurisdiction for purposes of service and the person cannot be served at any sort of judicial proceeding. The Defendant must come into the jurisdiction willingly. It does not matter whether they are in the jurisdiction for as little as 30 minutes.

Here, Fran was "handed a summons and a copy of the complaint while attending a basketball game in State A" by a process server. This was appropiate process and process of service under the Federal Rules of Civil Procedure. Fran was willingly in State A for a basketball game and not at any sort of judicial proceeding. She was not lured into the jurisdiction for service purposes. It does not matter that Fran was in State A for "less than a day" and had no other connections to State A.

Fran was properly served and State A can now exercise personal jurisdiction over Fran. Assuming there is a long-arm statute that meets the statutory requirement for personal jurisdiction the tag jurisdiction satisfies the due process prong for personal jurisdiction.

Therefore, the Federal court should not dismiss the case for lack of personal jurisdiction over Fran.

3. The Federal court should not dismiss the case for improper venue.

The issue is whether venue placed in State A is properly laid.

A case needs to be brought in the proper venue in order to properly exercise jurisdiction over a defendant. Venue is proper in any jurisdiction wherein the defendant is domiciled or where the injury ocurred. A person is domiciled where they currently live and intend to remain. Venue for a federal case is proper as long as the federal court sits in a state that would also be a proper venue.

Here, Fran is domiciled in State H because that is where she lives. Because Fran is domiciled in State H, State H would be a proper venue. However, the defamation claims in this case arose from a publication by a State A newspaper. Because the newspaper circulates in State A and the newspaper has "quotations from Fran" the actual claim in this complaint arose in State A. Because the claim arose in State A, Coach was actually "injured" by the alledged defamatory statements in State A making State A a proper choice of venue.

Therefore, venue is proper in State A and the Federal court should not dismiss the case for improper venue.

MEE-5

Sample Answer

1. Bank's video recording

The issue is whether Bank's original video recording is admissible.

Relevance

In order for evidence to be admissible, it must be relevant. Evidence is relevant if it is material (of consequence to the issue) and probative (has the tendency to make a fact more or less likely than without the evidence).

Here, Bank's original video recording of its lobby, counters, and tellers from April 18, 2024 is relevant because it is essential to the issue of who was present at the bank that day (the same day the customer's accoutn was fraudulently charged for $1000) and is probative in that it makes it more or less liekly whether David was there or not.

Authentication

In order for images, videos, or other recordings to be admissible, they must be authenticated by someone who was present at the location or familiar, based on personal knowledge, of the scene or events set forth in the image, viedo, or recording, as to the time, location, and other personal-knowlesge based details. Images, videos, and recordings can also be authenticated by supplement of any time and date that is automatically associated or attached to the evidence in question.

Here, Bank's video of the lobby, counters, and teller and David's appearnace is relevance, but it must still be authenticated by someone with personal knowledge of the lobby, the counters, and the tellers. If the video indicates the date and time, and if someone from Bank can otehrwise authenticate it, which is likely, the video is admissible.

In conclusion, the video recording is admissible.

2. investigator's testimony

The issue is whether the investigator's testimony about the Customer's complaint is admissible.

Relevance

Here, the investigator's testikmony about the Customer's complaint is relevant beause it is essential to the issue of whether $1,000 was fraudently obtained from a customer account on April 18, 2024, and it is probative in that it has the tendency to make it more or less likely that the customer did not, herself, commit the fraud, and that another actor was involved.

Hearsay

Hearsay is an out of court statement by a declarant offered to prove the truth of the matter asserted. Absent any exceptions or exclsuions, hearsay is inadmissible.

Here, the Investigator's testimony about the cutomer's comments are hearsay, because the statements of the declarant - the customer - were made outside of court and are being offered to prve the truht of the matter they're asserted for - that the customer did not write the check.

Excited Utterance Exception

One exception to hearsay is the excited utterance exception. An excited utterance is a statement (that, although it is hearsay, is admissible) made by a declarant during or immediately after perceiving a shcoking event, and made while the declarant is stil under the stress or excitement of the event. Whether the declarant is available to testify in court is immaterial to an excited utterance's admissibility.

Here, the customer's statements fall under the exicted utterance exception. The facts indicate that when the $1,000 was withdrawn, Cutomer received a n otification on her banking app alerting her of the trasnaction, and that she "promptly" called Bank, was trafnerred to a fraud investigator, and "immediately exclaimed, 'I didn't write that $1,000 check that you just charged to my account!'" Furthermore, "Customer was noticeable frustrated and agry." As such, invetigator's testimony about this statement by Customer falls under the excited utterance exception because Customer had just perceived a shocking evnt, and made tha statement immediately thereafter whil still uhnder the stress and excitement of the event (the notification of the $1,000 charge). And since declarant avaialability is immaterial, it is of no consequence that the customer is not available to testify.

Present sense impression

The present sense impression exception to hearsay allows a declarant's testimony to be admissible despite being hearsay when the statement was made concurrent with or immediately after observing an event as it occurred, and the statement relates to the event by describing it. Whether the declarant is available to testify in court is immaterial to admissibility of a statement that falls under the present sense impression exception.

Here, Customer's statement that the investigator measn to testify to could alternatively fall under the present sense exception to hearsay. this is because, again, the customer recevied a notification of the trasnaction afte rit happened, promptly called the bank, and so, immediately after the event, made a statement about the event - that the Customer did not approve "that $1,000 check that you just charged to my account!" And since declarant availability is immaterial, it is of no consequence that Customer is not available to testify.

In conclusion, the investigator's testimony about the Customer's complaint is admissibvel because it is relevant and falls under the excited utterance and present sense impression exceptions to hearsay.

3. Investigator's written report

The issue is whether the investigator's written report (if the investigator testifies that he is unable to recall the details of the investigation ro writign the report) is admissible, assuming it is relevant and not admissible as a bsuiness record.

Hearsay

Hearsay is an out of court statement by a declarant offered to prove the truth of the matter asserted. Absent any exceptions or exclsuions, hearsay is inadmissible.

Here, the investigator's written report would be hearsay because it consists of statements made out of court, which are now being offered for their truth - detailing the fraudulent transaction and the customer's complaints and allegations. However, as discussed below, it falls under a hearsay exclusion.

Recollection Recorded

Under the Recollection Recorded hearsay exlcusion, a party may use a recorded recollection to refresh a witness's memory. Recorded recollection is allowed when 1) the witness is unable to remember the details of the event and 2) the witness made a record of the event based on personal knowledge when it was still fresh in his mind. Declarant availability is material to recorded recollection's admissibility - and the decalrant must be available to testify for the exclusion to be applicable. However, while the party using recorded recollection may read the record to the court/jury, only the opposing party may introduce it as evidence.

Here, the investigator's written report is admissible as reocrded recollection. THis is because the investigator wrote the rpeort when all the details were still fresh in his mind, as he had just conducted the investigatio, and the report detailed the customer's complaint, described the video recording, and had copies of the chck at issue and the customer's signature from Bank's records. Moreover, the report was accoridngly based on the investigator's personal knowledge, as he himself conducted the investigation and spoke with the Customer about the fraudulent transaction in question. And finally, the invetigator is available to testify. However, while the government may read it to the court for its case i chief, only David/defendant may intorduce it as an exhibit into evidence.

In conlusion, while the investigator's written report falls under a hearsay exclusion and may be read, only David/the defendant may admit it as an exhibit into evidence.

Sample Answer

1. Bank's video recording

The issue is whether Bank's original video recording is admissible.

Relevance

Authentication

In conclusion, the video recording is admissible.

2. investigator's testimony

The issue is whether the investigator's testimony about the Customer's complaint is admissible.

Relevance

Hearsay

Hearsay is an out of court statement by a declarant offered to prove the truth of the matter asserted. Absent any exceptions or exclsuions, hearsay is inadmissible.

Excited Utterance Exception

Present sense impression

3. Investigator's written report

Hearsay

Hearsay is an out of court statement by a declarant offered to prove the truth of the matter asserted. Absent any exceptions or exclsuions, hearsay is inadmissible.

Recollection Recorded

In conlusion, while the investigator's written report falls under a hearsay exclusion and may be read, only David/the defendant may admit it as an exhibit into evidence.

MEE-6

Sample Answer

1. The issue is whether the trust is revocable or irrevocable in the absence of any trust language indicating the settlor's intent

The traditional rule held thad trusts were presumed irrevocable unless a settlor expressly provided for such revocation in the language creating the trust. However, under the Uniform Trust Code, a majority of jurisdictions now follow the modern rule which presumes a trust is freely revocable unless the settlor demonstrated intent to make it irrevocable. A settlor can therefore revoke a trust through any proper means without having to reserve the right to do so through express language.

Here, despite Alice not expressly reserving the right to revoke, she can do so under the modern approach to revocation adopted by the UTC and a majority of jurisdictions.

2a. The issue is whether Shirley has any interest in the trust

Under the traditional rule, the life beneficiary was entitled to trust income while the remaindermen were entitled to trust principal. However, the UTC and modern law jurisdictions provde that a trustee is to treat both life beneficiaries and remaindermen equitably and is to consider both interests when administering the trust, investing assets, and making distributions.

Alice created the trust naming herself as trustee but also provided for Shirley to receive all trust principal upon Alice's death. Shirley therefore has an interest in the trust since the Bank, as trustee, has a duty of loyalty and care to both a remainderman and the life beneficiary under the modern approach to trusts.

2b. The issue is what type of interest Shirley has in the trust

Remainder interests can be vested or contingent upon the occurrence of a condition precedent. Vested remainders are those who are ascertainable at the time of the trust and do not take present possession only upon occurrence of an event. Shirley here is ascertainable at the time Alice created the trust and she will be given principal once Alice is deceased.

Her interest is therefore a vested remainder.

3. The issue is whether Shirley, as a remainderman, has any right to challenge the Bank for making the imprudent investment

The duty of the prudent investor requires that a trustee exercise reasonable care and skill of a trustee when investing trust property. A trustee with special care, like a bank, carries a higher burden of utilizing special skill when conducting trustee duties. A trustee is to diversify investments to spread the risk of loss. Violating these duties may constitute a violation of the trustee's duty of care to all beneficiaries.

Here, the Bank invested 30%, a substantial amount, of the trust's assets in a stock of a company that shortly thereafter went bankrupt. The facts indicate that this is a violation of the prudent investor duty, however, under the presumption that trusts are freely revocable and modifiable under the UTC modern approach, the trustee may not be liable for this investment due to Alice's approval of the investment at a time when she was still competent to make such a decision.

It is therefore more likely that Shirley cannot raise a claim under a violation of duty of care for failure to prudently invest.

4. The issue is whether John or Shirley has the legal authority to direct the doctor whether to remove Alice from life support

A durable health-care power of attorney generally valid and will not be undone unless the opponent of such appointment can prove that the trustee revoked such power for the agent to act. Courts will generally not substitute the power of attorney absent evidence that the agent entrusted mah have acted with undue influence or fraud or duress in becoming the one appointed. The burden would be on the opponent to evidence such undue influence.

Here, there are no facts indicating that John was improperly appointed. Shirley's relationship also appears less directly tied to Allice, despite the two maintaining a close relationship. Because the two live very far apart, a court may be hesitant to undo Alice's original appointment under the facts, especially considering that John is Alice's good friend and next-door neighbor.

Therefore, Shirley likely cannot point to facts demonstrating that the power of attorney was improper.

Sample Answer

1) The issue is whether the trust is revocable or irrevocable when the trust instrumental itself is silent as to the matter of revocability?

Generally, under the common law when it came to trusts, trusts were deemed to be irrevocable unless explicitly stated otherwise in the Trust. However, under the modern approach, which is also adopted by the Uniform Trust Code, the presumption is that trusts that are revocable, unless it explicitly states otherwise in the trust itself. This grants the settlor greater power and flexibility, should they decide to revoke the trust for any reason. It also would allow beneficiaries greater power to revoke the trust, grante that it is unanimous (after the death of the settlor) and would not violate the express purpose of the trust, as set out by the settlor.

Here, the trust that Alice created is silent as to revocability. Therefore, under the common law approach, the presumption would be that it is irrevocable. However, under the modern UTC approach accepted by many states, the trust would be freely revocable, as that would be the presumption.

Therefore, depending on which jurisdiction Alice created this trust, it would determine the revocability of the trust. Likely, if in a UTC jurisdiction, it would be revocable.

2) The second issue is whether Shirly maintains an interest in the trust, given that upon Alice's death, she trust principal would be distributed to her?

Generally, a trust is established when a settlor designates a trustee to carry out the trust purpose for the benefit of the beneficiaries in the trust. There are several elements to create a valid trust include i) the intent and capacity of the settlor to enter into the trust and establish it; furthermore, legal duty and responsibility is made in the trustee to carry out his fiduciary duty for the settlor and in the interest of the trust's beneficiaries ii) an indetifiable corpus or trust property is outlined iii) ascertainable beneficiaries are desginated who would acquire equitable title iv) the trust is made for a proper purpose that is lawful and v) the formalities and mechanics are followed. The settlor can make themselevs one of the beneficiaries, but they cannot be the sole trustee and beneficiary. The trustee has legal title whereas the beneficiary obtain equitable title in the trust's property.

Here, Alice as the settlor created a valid trust designating the Bank as a trustee and making herself one of the beneficiary's of the trust's income. As such, the Bank woudl have legal title and Alice would have equitable title in the income. Shirly, would also obtain valid title as an ascertainable beneficiary since shewould otbain the principal of the trust, upon the death of Alice. Shirly, therefore, also obtains equitable title, and the Bank would owe a duty of care to ensure that the trust income and principal is distributed to both Alice and Shirly respectively in their proper times.

The interest of Shirly, would be charachterized as a vested future interest in the principal of the trust's property. This is because the Bank also owes Shirly a duty to ensure that adeqaute principal is kept in tact and not too much of the trust income should dip into the principal that in the future would be Shirly's.

Thus, Shirly would obtain an equitable title to the trust's future principal when it vests, when Alice passes away.

3) The third issue is whether Bank violated its duty to Shirly by possibly violating the Uniform Prudent Investor Act when it imprudently invested 30% of the trust's assets in a sotck of a company that later went bankrupt?

Generally, a trustee owes several duties to the beneficiary's of a trust. These include a duty to adminsiter the trust in a proper manner, the duty of care, the duty of loyaylty to not compete with or self-deal in any of the trusts assets or property, and to preserve the trust property. A part of the last duty mentioned is to invest as a reasonably prudent investor would. The Uniform Prudent Investor Acts provides that a trustee must act with the care, caution, and skill that a reasonably prudent investor would when investing for the benefit of the Trust's beneficiary's. The entire portfolio taken as a whole will be considered in order to determine whether this was done properly. A trustee is required under this Act, to diversify the portfolio unless there is valid reason not to such, as a directive from the settlor to invest in a particular company stock. Moreover, a trustee would not be liable for any loss of assets due to a company merely losing value if the investment was not still done with proper care and consideration.

Here, Shirly would likely be unable to bring an action against the Bank, since the Bank, while owing a duty to preserve the trust property to the beneficairy and Shirly, also owes a duty to the settlor and to carry out the settlor's express wishes. After all, it is the settlor who appoints the trustee. Here, the Bank invested 30% in a company that went bankrupt, but this was on the directive of Alice, and alice was fully competent when she gave this directive. The company's stock value dropping was also likely a natural result and not due to any intentionally wrongful act by the Bank.

As such, recovery would liekly be be successful.

4) John would have the legal authority to direct the doctor whether to remove Alice from Life support since Alice provided him the health-care power of attorney, which is recognized under the UTC. Also she could possibly survive.