July 2016

New York State

Bar Examination

© 2016

National Conference of Bar Examiners

© 2016

National Conference of Bar Examiners

MEE 1

Two siblings, a brother and a sister, decided to start a bike shop with their cousin. They

filed a certificate of organization to form a limited liability company. The brother and the

sister paid for their LLC member interests by each contributing $100,000 in cash to the

LLC. Their cousin paid for his LLC member interest by conveying to the LLC five acres

of farmland valued at $100,000; the LLC then recorded the deed.

Neither the certificate of organization nor the members’ operating agreement specifies

whether the LLC is member-managed or manager-managed. However, the operating

Three months ago, purporting to act on behalf of the LLC, the brother entered into a

written and signed contract to purchase 100 bike tires for $6,000 from a tire

manufacturer. When the tires were delivered, the sister said that they were too expensive

and told her brother to return the tires. The brother was surprised by his sister’s objection

because twice before he had purchased tires for the LLC at the same price from this

manufacturer, and neither his sister nor their cousin had objected. The brother refused to

return the tires, pointing out that the tires “are perfect for the bikes we sell.” The sister

responded, “Well, pay the bill with your own money; you bought them without my

permission.” The brother responded, “No way. I bought these for the store, I didn’t need

your permission, and the company will pay for them.” To date, however, the $6,000 has

One week ago, the brother wrote in an email to his sister, “I want out of our business. I

don’t want to have anything to do with the bike shop anymore. Please send me a check

for my share.”

© 2016

National Conference of Bar Examiners

1. What type of LLC was created—member-managed or manager-managed?

Explain.

2. Is the LLC bound under the tire contract? Explain.

A defendant was tried before a jury for a robbery that had occurred at Jo-Jo’s Bar on

November 30. At trial, the prosecutor called the police officer who had investigated the

crime. Over defense counsel’s objection, the officer testified as follows:

Immediately after this testimony, the prosecutor showed the officer a handwritten

document. The officer identified the document as notes she had made on December 2

concerning her interaction with the defendant on December 1. The prosecutor provided a

copy of the document to defense counsel. The document, which was dated December 2,

stated in its entirety:

© 2016

National Conference of Bar Examiners

Over defense counsel’s objection, the officer was permitted to read the document to the

jury. The prosecutor also asked that the notes be received as an exhibit, and the court

granted that request, again over defense counsel’s objection. The testimony then

continued:

The defendant’s trial for robbery was held in a jurisdiction that has adopted all of the

Federal Rules of Evidence.

Were the following decisions by the trial court proper?

1. Admitting the officer’s testimony that the defendant started crying. Explain.

2. Permitting the officer to read her handwritten notes to the jury. Explain.

3. Admitting the officer’s handwritten notes into evidence as an exhibit. Explain.

© 2016

National Conference of Bar Examiners

4. Admitting the officer’s testimony recounting the defendant’s statement, “I have

some information that can really help you with this case.” Explain.

5. Admitting the officer’s testimony recounting the defendant’s statement, “I was

but the man stated that he did not want to start taking drugs because he preferred to try

dietary change and “natural remedies” first. The physician told the man that natural

remedies are not as reliable as prescription drugs and urged the man to come back in

three months for another blood test. The physician also told the man about a recent

research report showing that an herbal tea made from a particular herb can reduce

cholesterol levels.

The man purchased the herbal tea at a health-food store and began to drink it. The man

also began a cholesterol-lowering diet.

© 2016

National Conference of Bar Examiners

like the man, were all drinking the same type of herbal tea and the specialists reported

this fact to the local health department.

All commercially grown herbs used for this tea come from Country X, and are tested for

Packages of tea sold by different companies varied substantially in pesticide

concentration and toxicity, and some packages had no contaminants. Further

investigation has established that the levels of contamination and toxicity in the herbal tea

marketed by the five different U.S. companies were not consistent.

The man purchased all his herbal tea from the same health-food store. The man is sure

that he purchased several different brands of the herbal tea at the store, but he cannot

establish which brands. The store sells all five brands of the herbal tea currently marketed

in the United States.

2. Are any or all of the five U.S. companies that processed, packaged, and sold the

3. Is the health-food store liable to the man under tort law? Explain.

© 2016

National Conference of Bar Examiners

MEE 4

Two years ago, PT Treatment Inc. (PTT), incorporated in State A, decided to build a new

$90 million proton-therapy cancer treatment center in State A. The total cost to PTT for

purchasing the land and constructing the building to house the treatment facility was $30

million. PTT financed the purchase and construction with $10 million of its own money

and $20 million that it borrowed from Bank. To secure its obligation to Bank, PTT

granted Bank a mortgage on the land and all structures erected on the land. The mortgage

was properly recorded in the county real estate records office, but it was not identified as

a construction mortgage.

equipment to secure PTT’s obligation to pay the remaining purchase price. On the same

day, Ion filed a properly completed financing statement with the office of the Secretary of

State of State A (the central statewide filing office designated by statute), listing “PT

Treatment Inc.” as debtor and indicating the proton-therapy equipment as collateral.

Shortly thereafter, Ion delivered the equipment to PTT and PTT’s employees installed it.

The equipment was attached to the building in such a manner that, under State A law, it is

considered a fixture and an interest in the equipment exists in favor of anyone with an

interest in the building.

technicians have not attracted enough business to fully utilize the cancer treatment center

or generate sufficient billings to meet PTT’s financial obligations. PTT currently owes

Ion more than $30 million and is in default under the security agreement. Ion is

concerned that PTT will soon declare bankruptcy.

© 2016

National Conference of Bar Examiners

In a few days, Ion will be sending a technician to the PTT facility to perform regular

maintenance on the equipment. Ion is considering instructing the technician to complete

the maintenance and then disable the equipment so that it cannot be used by PTT until

PTT pays what it owes.

© 2016

National Conference of Bar Examiners

The homeowner, who was facing cash-flow problems of his own, decided to offer the

neighbor a deal that would help them both. The homeowner said that, for $500, the

homeowner would allow the neighbor to take over the homeowner’s rights under the

contract. The homeowner said, “You’ll pay me $500 and take the contract from me; the

Later that day, the homeowner and the neighbor told the painter about the deal pursuant

to which the neighbor had taken over the contract from the homeowner. The painter was

unhappy with the news and stated, “You can’t change my deal without my consent. I will

honor my commitment to paint the house I promised to paint, but I won’t paint someone

else’s house.”

There is no difference in magnitude or difficulty between the work required to paint the

homeowner’s house and the work required to paint the neighbor’s house.

1. If the painter refuses to paint the neighbor’s house, would the neighbor succeed in

would arguably be apparent authority because the manufacturer and brother have entered

into two other contracts for tires without any objection from sister and cousin/the LLC,

thus the LLC held out Brother as able to enter into the contract, by taking the benefit of

the contract. Then the manufacturer relied on this apparent authority and entered into a

property includes anything that the LLC paid for with its own money. Additionally,

contributions become LLC property when they are transferred over to the LLC in return

for an interest in the LLC. However where there is apparent authority, which is when the

company holds out/cloaks its agents as their own with the authority to act on behalf of the

LLC, and a third party relying on the cloaking of the company and enter into the contract.

Here, Cousin conveyed to the LLC Five acres of farmland valued at $100,000 in

return for his membership interest in the LLC. The farmland then became LLC property

when they completed the transfer and recorded the deed. At that point the land is the

LLC's and is not able to be transferred without the written consent of all of the members.

party to believe that Cousin could enter into a land sale contract for a bike shop, there

was no apparent authority. The contract was outside the scope of Cousin's authority, was

LLC property, and thus not transferrable without the written consent of all of the

4. The legal effect of Brother's email is that he is a dissociating member.

The issue is whether Brother is unequivocally giving up his interest in the

membership. A member will be dissociating when they unequivocally express their intent

to end their interest in the LLC. A dissociating member will remain liable on the debts

and obligations of the LLC until notice is given to all creditors of the dissociating

member, OR until 90 days after filing with the secretary of state the intent to dissociate.

Here brother is unequivocally expressing his intent to end his interest in the LLC because

he has clearly stated that he wants out of the business, does not want to have anything to

do with the bike shop anymore and wants to be paid out for his share of the LLC. This is

clearly expressed intent of dissociation, thus he will remain liable on the debts and

obligations of the LLC until notice is given to all creditors of his dissociation or until

after 90 days from the filing with the secretary of state.

ANSWER TO MEE 1

The first issue is whether the LLC is member-managed or manager-managed in

course of business. Assuming the LLC is member-managed, the members will operate as

agents of the LLC, and can act to bind the LLC in contracts in the ordinary course of

business unless the operating agreement or certificate of organization specify otherwise.

A principal is bound on the authorized contracts of its agents. Authorization can be

express actual authority, implied actual authority, apparent authority, or based on

ratification. In this case, the brother's contract to purchase 100 bike tires for $6000 is

within the ordinary course of business, because the LLC is a bike shop. Thus, he has

actual authority as an agent to bind the LLC to this contract. This can be implied from the

fact that he has entered into the same contract with the same manufacturer twice before,

and neither his sister nor cousin objected. Therefore, based on his prior dealings with the

by the contract, and will have to pay for the tires.

The third issue is whether the LLC will be bound on a contract made outside the

ordinary course of business. The sale of farmland is outside the ordinary course of

business for a bike shop. Therefore, the members must agree to enter into such a contract.

This would normally require majority consent. Here, the LLC's operating agreement

expressly states that the LLC's farmland may not be sold without approval of all three

members, so sale of the farmland would require unanimous consent. Thus, the cousin's

sale of the farmland was not done with actual authority, because the brother and the sister

did not approve of it, and they objected once they found out. The sale was to a third party

LLC's behalf. However, nothing the LLC did would have given the cousin the appearance

of authority to sell the farmland from the third-party's perspective, so there is no apparent

authority here. If there were apparent authority (if the third-party buyer reasonably relied

on the LLC's purported cloaking the cousin with authority by virtue of the fact that he

suppression on 5th Amendment grounds or hearsay grounds. Hearsay is defined as an

out of court statement offered for the truth of the matter asserted. Under the Federal

Rules of Evidence, all hearsay must be excluded unless it falls within an exception found

in FRE 803. However, excluded from the definition of hearsay is a statement by a party

opponent (a statement made by the party not seeking to introduce it). Here, if this were

found to be a statement, the defendant made it and therefore its admission would not be

barred on hearsay grounds. However, bodily responses like crying are not likely to be

deemed statements anyway as crying under ordinary circumstances would not be meant

to convey an idea or express something but rather a reaction that is physical and can be

observed by anyone within sight.

Even if the crying was found to be a statement, it was still properly admitted. At

issue is whether the defendant was in custody when he began crying. Miranda warnings

warn a suspect or defendant that anything they say can be used against them in a court

and that they have a right to an attorney and that one will be provided for them if they

cannot afford it. Miranda warnings must be given prior to custodial interrogation for the

resulting statements to be admissible in court. For a statement to be suppressed because

it was Miranda deficient, it must have been made as a result of custodial interrogation. A

person will be found to be in custody if a reasonable innocent person in their situation

would not feel free to leave. Here, the defendant invited the officer into his home.

Unless the officer was there pursuant to a warrant or entered with some sort of force or

intimidation, it is unlikely that a person will be found to be in custody within the confines

of their home absent some additional facts like handcuffing. Interrogation is found when

the item used to refresh the witnesses' recollection. If a witness's own notes or writing is

used to refresh the witness's recollection but it is unable to successfully do so, it may be

read to the jury under the hearsay exception of past recollection recorded. A witness is

able to read their prior notes or writing if it was written contemporaneously or soon after

the event in question and if it was accurate. Here, the officer testified that he knew the

defendant said something but couldn’t remember what. He testified that the notes did not

refresh his recollection but he knew that he wrote them only two days after the incident

and that he was careful to write everything down accurately. This is enough to satisfy the

requirements for a past recollection recorded and therefore was properly admitted.

procedure as only the defense could introduce this into evidence should they choose to do

so.

4. It was proper to admit the testimony regarding the defendant's statement, "I have

some information that can really help you with this case." At issue is whether admission

violates defendant's Miranda rights. As discussed above, statements made in violation of

a defendant's Miranda rights should be suppressed. However, as discussed above

statements are only suppressed if they are the product of custodial interrogation. This

means that if a defendant voluntarily says something not in response to questioning or

actions by the police, that statement is not going to be suppressed under Miranda because

it was a voluntary statement not made in response to interrogation. Police must

scrupulously honor invocations of Miranda, but after voluntarily reinitiating discussions

with the police suspects may waive Miranda after having previously waived it. Here,

even though the defendant had invoked Miranda, he spontaneously stated as he arrived at

the police station that he had information the police wanted. He was then re-read

Miranda and at that point waived his rights and made the statement in question. The

defendant was aware of his rights and waived them voluntarily. Conversation was

reinitiated by the defendant and not the police - the police scrupulously honored his

and therefore the interrogation that followed was not Miranda deficient.

Hearsay is an out of court statement offered to prove the truth of the matter

asserted. The statement does not have to be verbal, non-verbal acts can also qualify by

statements if they are intended to be an assertion of fact (for example, nodding one's head

in response to a question). However, statements by a party are not hearsay when offered

against that party at trial. In this case, the defendant bursting into tears in response to the

question "Did you rob Jo-Jo's Bar last night?" is likely not a statement, and thus not

hearsay, because it was not intended to be an assertion of fact in response to the question,

but rather was a spontaneous physical act. This point is highlighted by the defendant's

continued denial of involvement in the robbery, it was not intended to be an affirmative

statement in response to the question. Thus the crying is not hearsay but is rather is a

not yet in custody. Miranda warnings need only be given to a defendant during a

custodial interrogation, and an individual is not in custody for the purposes of

interrogation when a reasonable person would feel free to leave and end questioning at

any time under the circumstances. While the officer was asking the defendant about his

potential involvement in the robbery, the questioning was conducted in the defendant's

home. The defendant himself invited the officer inside. The defendant would not

reasonably feel that he was not free to leave or end questioning in these circumstances, as

the defendant himself invited the officer in and could easily ask him to leave. Therefore

witness can now recall the forgotten events, the attorney would then instruct the witness

to set the document aside and to testify to the fact from her own memory. However, if

after reviewing the document, the officer still cannot recall the previously known fact, the

attorney may then read to the jury a previously recorded recollection of the events made

by the witness at a time when she could accurately recall the events in question. Here, the

witness testified that she could not remember what was said by the defendant at the

police station. Even after being shown a copy of her notes, the officer still could not

recall the events, but testified that the notes were an accurate reflection of the events

written at a time when she could recall them. As a result, the notes are a recorded

recollection, an exception to the bar against hearsay, and may be read to the jury.

examination, but only on cross examination. Here, the document was entered by the

prosecution, the proponent of the evidence, over the objection of the defense. This makes

the exhibit improper and the judge's ruling erroneous.

4) The court was proper in admitting the defendant's statement "I have some

information that can really help you with this case." At issue is whether the statement

violates the bar against hearsay or the defendant's Miranda Rights. As previously

discussed, hearsay is an out of court statement offered to prove the truth of the matter

asserted, however statements made by a party offered against that party at trial are not

hearsay under rule 801(d)(2). Here, the statement is made by the defendant and offered

against the defendant at trial, therefore it is not hearsay.

The defendant's Miranda Rights also were not violated because the defendant

himself reinitiated questioning. After a successful invocation of one's Miranda Rights, the

police must cease questioning and may not reinitiate questioning to try to get a waiver out

of the defendant until a sufficient amount of time has passed. Here, the defendant did

successfully invoke Miranda at his home and the officer ceased questioning. However, at

the station, the officer did not attempt to reinitiate questioning. Instead, the defendant

offered against the defendant at trial, therefore is a statement by a party opponent and not

hearsay.

The defendant's Miranda Rights were also not violated because a sufficient time

had elapsed between the conclusion of his last invocation of his rights to reinitiate

questioning. After a defendant invokes his Miranda Rights, officers may not attempt to

reinitiate questioning until after 14 days, as ruled by the Supreme Court. After that time

elapses, officers may again try to question the defendant, and if a new waiver of Miranda

is granted, the evidence of that conversation will not be barred as a violation of the

defendant's rights. In this case, the defendant asked for and received a lawyer on

ANSWER TO MEE 3

1. The physician is not liable to the man under tort law. At issue is whether the

physician breached any duty to the man. In order to be liable in negligence, four things

are required: (1) the defendant must have had a duty to the plaintiff, (2) the defendant

rely on that report. Moreover, his treatment of the man's inflamed liver with tests and

referral to a specialist is in keeping with standard medical practice. It does not appear

that he negligently failed to diagnose the illness's source: even liver specialists were only

able to discover the pesticide contamination as a result of seeing several patients

2. None of the five U.S. companies that processed, packaged, and sold the herbal

tea to the health food store will be liable to the man under tort law. At issue is

whether a product that varies from batch to batch is susceptible to suit on a theory of

market share liability.

Market share liability is a doctrine that arises in the context of strict products

liability. Under the doctrine of strict products liability, a commercial seller of products is

liable for harm caused by a defective product that leaves its hands in an unreasonably

dangerous condition. Here, contaminated food products are unreasonably dangerous by

manufacture, in that they deviate from the expected form of a product in a way that (1)

cannot be prevented by the exercise of reasonable care, and (2) is likely to cause harm to

tea. Unlike the processing companies, it is certain that the health-food store sold the

defective tea that caused the man harm. The man will have no trouble showing that the

store caused his harm, because he can prove that that store was the only source from

which he purchased herbal tea. There is no requirement that the man identify the

ANSWER TO MEE 3

(1) Man v. Physician

The physician is probably not liable to the man under a theory of negligence. The

issue is whether it was foreseeable that the herbal tea that the doctor told the patient about

would be contaminated.

the man that his cholesterol was high and that he should take a drug that lowers

cholesterol, but since the man insisted on trying "natural remedies" first, the physician,

after much insistence that prescription drugs are much more effective, referred the man to

a report that an herbal tea has been shown to reduce cholesterol levels in a recent research

report. He could be considered to have breached his duty by relying on alternative

medicine since he is a licensed physician. Though this argument is weak considering the

fact that alternative remedies such as teas can be recommended even by physicians.

However, three months later, the man had an increased white blood cell count as well as

an inflamed liver. At this point, it could be argued that the doctor breached a duty by

failing to tell the man to stop drinking the herbal tea. Although, generally, there is not

The man must also proof, in addition to a breach of duty, that the breach was the

actual and proximate cause of his injuries. Actual cause requires a showing that but for

the breach, the injury would not have occurred. Proximate cause requires a showing that

the injury was within the increased risk and natural incidents of the defendant's conduct.

(2) Man v. Five US Companies

The companies are not liable to the man under any tort theory. The issue turns on

whether he can hold them liable under strict liability since they have been found to be not

negligent by investigators.

In order to find a distributor liable under a strict liability theory of products

liability, there must be: (1) a commercial seller; (2) a defective product; (3) that was

defective when it left the hands of the defendant; (4) that was foreseeably used; (4) that

undisputed. However, the man will be unable to prove which of the US distributors were

responsible for the herbal tea that he drank. Therefore, though he actually suffered

damages, he will be unable to hold them liable unless he could prove which of the US

companies supplied him his herbal tea. However under one theory of causation from

Summers v. Tyce, when all defendants are culpable, the burden would shift to them to

show that each was not culpable for that particular product. However, that theory was

used in a negligence case, and here, it's a strict liability theory. Moreover, the

investigators concluded that the companies were not negligent. In addition, some

packages had no contaminants whatsoever. Therefore, given the inability to pinpoint

which of the companies supplied the man his tea, he will unlikely be able to find them

liable as a group.

to benefit from better property values, that general benefit is insufficient for official 3P

status. Nor was the retiree specifically in the mind of the neighbor when he paid the

consideration for his house to be painted. The neighbor was thinking mainly of his

relatives and only remembered the retiree later, after the contract was made. That the

Painter Paints:

can sue.

When assignees are given full rights and duties under a contract, they must fulfill

their duties to receive their rights. Being assigned "the contract" means taking both rights

and duties. Here, the assignee accepted "the contract", and for consideration, and thus

took both rights and duties. If he does not fulfill the duty of payment, the painter must sue

him to enforce his right to be paid against the neighbor.

Assignors generally remain liable for contracts that they assign. Here, the home

owner assigned the contract but remains liable.

assignment. Therefore, the home owner remains liable in addition to the assignee

neighbor.

statute and such exercise comports with the constitutional requirements for personal

jurisdiction. The Constitution requires that the defendant have sufficient contacts with the

state so that exercise of personal jurisdiction over him is fair and reasonable. Specific

jurisdiction involves a connection between the defendant and the particular claim at issue.

since his domicile is State A, which is the only state with general jurisdiction over him.

Turning to specific personal jurisdiction, although the man's visiting state C is unrelated

to the woman's claim (after all, the events giving rise to the claim occurred in State A; he

was merely visiting her at the hospital to which she was airlifted in State C), personal

jurisdiction is clearly satisfied here because the man voluntarily visited State C and was

served with a complaint and summons there. When a defendant voluntarily visits a state

and is served in that manner, the courts of that state automatically have personal

jurisdiction over him. Therefore, the court in State C may exercise personal jurisdiction

over the man.

jurisdiction, meaning that the plaintiff's well-pleaded complaint states a claim arising

under federal law. However, if a case contains a claim under federal question jurisdiction

and another claim that fails to meet diversity jurisdiction, the latter claim may be brought

into the case under supplemental jurisdiction. Supplemental jurisdiction exists where the

claim, which fails diversity or federal question jurisdiction, arises from the same nucleus

of operative fact as the claim that is properly subject to federal-court jurisdiction. A court

may refuse to entertain the state-law claim if it deems it inappropriate to do so, because

the state-law claim is very complex or for other reasons. The only exceptions to

supplemental jurisdiction apply in cases of diversity jurisdiction, which is not applicable

here.

Here, the State C court clearly has federal question jurisdiction over the woman's

federal claim under the Safety Act. That claim involves the woman attempting to assert a

federal right against the man for harming her as a result of an alteration of the safety

features of a gun that has traveled in interstate commerce. The claim therefore arises

under federal law, and it can be brought in the State C District Court. However, the man's

state-law negligence claim is neither a federal question claim nor a diversity claim. It

asserts no federal rights, and it fails to satisfy diversity because, while the amount in

over the woman's entire case.

Finally, venue is not proper in State C District Court. The issue here is whether

venue is proper in a state where the victim of an accident receives treatment for injuries

suffered in another state. Venue is proper in those districts where a substantial part of the

events giving rise to a claim occurred, or in any district where all defendants reside. Here,

the man resides in State A, so venue in State C would not be proper on that basis. The

only way in which the State C court could be the proper venue would be if a substantial

part of the events giving rise to the claim occurred in State C. However, that is simply not

the case. After all, the event giving rise to woman's claim was the injury she suffered

Lack of Personal Jurisdiction

The State C court can properly assert personal jurisdiction over the man. The issue

is whether service of process in State C, without other sufficient contacts, is enough for

the court to exert personal jurisdiction over the defendant.

Personal jurisdiction describes a court's power over parties to a litigation. For

personal jurisdiction to be proper, a court's exercise of jurisdiction must both:

1) Be proper under the state's long-arm statute, and 2) Comport with the constitutional

requirements of the Due Process Clause, which only allows courts to assert jurisdiction

over a defendant if the defendant has such minimum contacts with the state such that the

exercise of jurisdiction would not offend traditional notions of fair play and substantial

justice. Under the due process clause, if a defendant is "at home" in the forum state,

usually meaning the forum state is the state of domicile if the defendant is an individual

process, the forum state's interest in the litigation, the interstate judicial system's interest

in the efficient resolution of controversies, and the plaintiff's interest in litigating in a

convenient forum). Ordinarily, service of process on the defendant within the state is, in

itself, sufficient to confer personal jurisdiction, even if the above tests are not met, though

states usually grant immunity from this rule for defendants who are in a state solely to

testify in another judicial proceeding.

Here, the state's long-arm statute specifies that a court may assert personal

jurisdiction so long as the exercise of jurisdiction is allowed under the U.S. Constitution,

so the only question is whether the court's exercise of jurisdiction complies with Due

to the litigation arose out of that visit (in fact, they happened well before). However,

because the man was served process by the woman's attorney while visiting her in the

hospital in State C, the court may properly exercise personal jurisdiction. Note that, even

if this state grants immunity to defendants who are in the state solely for judicial

proceedings, this immunity does not apply here because the defendant was in State C for

business, not to testify in a proceeding.

Therefore, the exercise of personal jurisdiction is proper.

Federal courts are courts of limited jurisdiction, meaning they generally may only

hear cases for which they have been granted subject-matter jurisdiction by statute. By

statute, federal courts have been granted jurisdiction in two main types of cases: 1)

Federal question cases, and 2) Diversity cases. In addition, a court may exercise

argument based on federal law in anticipation of a defense in plaintiff's complaint, is not

sufficient to confer jurisdiction.

Here, the plaintiff's federal claim under the Federal Gun Safety Act clearly arises

under a federal statute, while her state law claim for negligence clearly arises only under

state law. Therefore, the court has federal question jurisdiction over the FGSA claim, but

not the state-law negligence claim.

Diversity

Here, the amount in controversy requirement is clearly met, as the plaintiff seeks

$220,000 in damages when both causes of action are combined (in fact, each action

individually would be sufficient to meet this requirement), and there is no suggestion that

these sets of damages are not pled in good faith. However, complete diversity is lacking.

Individuals' "citizenship" for diversity purposes is determined by the individuals'

domicile, and here, both the plaintiff and the defendant are domiciled in State A.

Therefore, the court cannot properly exert diversity jurisdiction here.

Supplemental Jurisdiction

As stated above, a court may exercise supplemental jurisdiction over claims

arising from the same core nucleus of operative facts as a case over which it has subject

matter jurisdiction. A claim arises from the "same core nucleus of operative facts" when

it arises from the same transaction or occurrence as a claim over which the court has

jurisdiction.

Conclusion

Therefore, the court has federal question jurisdiction over the federal law claim,

and supplemental jurisdiction over the state law claim.

Venue is improper here, and the court should transfer the case to a proper venue.

The issue is whether the court's exercise of jurisdiction meets the requirements of the

that meets one of the above requirements, where any defendant is subject to personal

jurisdiction. If venue is improper, a court may dismiss for lack of venue, or transfer to a

court where venue is proper in the interests of justice (usually, transfer is preferable).

Here, venue would be proper either in the district where the defendant resides in

State A, the district where the accident giving rise to the claim occurred in State A, or,

arguably, the district where the defendant bought the gun in State B (though this is

debatable, as the claim really arises from the accident and the defendant's alteration of the

safety features, both of which occurred in State A). State C does not meet either of the

tests laid out above; it is merely the state where the woman went to the hospital after

being injured in State A. This activity alone did not give rise to the cause of action at

issue in the case, and no defendant resides there, so it is improper.

Accordingly, venue is improper in the District of State C; however, rather than

dismiss the case, the court should most likely transfer the case to a district in State A

where it could have been brought, so that the plaintiff can continue to pursue her claim in

the proper forum with a legitimate interest in the litigation.

ANSWER TO MPT 1

Dear Ms. Gregson,

Ms. Whirley has complained that the toilet in her second bathroom of the house

she is renting has been leaking. The leak at first revealed itself with some water on the

bathroom floor, but over time the leak continued to get worse. She then had to place a

bucket by the toilet to catch the leaking water and after around two months of no repair,

the leak got to the point where Ms. Whirley had to empty the plastic bucket twice a day

and sometimes the toilet never flushed. Ms. Whirley first contacted her landlord, Mr.

Sean Spears about the leak on February 19, 2016, and continued to notify him about the

leak for the next three months. After, her landlord did nothing about it she finally called a

handyman to fix it, for which she paid $200.

render the building untenantable. Similarly, in Burk v. Harris (Fr. 2002), the court found

that a dwelling was untenantable if a substantial breach of the warranty of tenantability

has occurred. The court cited §541 of the Franklin Code in its determination of what is

considered a substantial breach. Therefore, it is unquestionable, from both the statutory

law and the case law that the landlord breached his warranty of tenantability to Ms.

Whirley and thus was required to make the necessary repairs resulting from the breach.

With regards to the remedies available to Ms. Whirley, Franklin Code §542 has presented

four possible options available to tenants, whose landlords have neglected to repair

conditions, warranting the premises untenantable. With regards to the repairs to the toilet,

the first option is most appropriate. Option one states that if the cost of such repairs does

from the rent when due”. Here, the cost of fixing the toilet was #200 and her monthly rent

was $1,200. Therefore, one option for Ms. Whirley is for paying only $1,000 on her next

month’s rent, deducting the $200 cost. Furthermore, Ms. Whirley could vacate the

premises and be discharged from paying further payment, but she expressly stated that

Additionally, in order for a tenant to recover for conditions in her dwelling, the

tenant must also prove that she was not at fault in causing the defective condition and

must provide documentation proving that the expenses were in fact covered by the tenant.

In Shea v. Willowbrook (Fr. 2012), the court denied a tenant’s claim for reimbursement of

rent payments when his apartment was infested with bed bugs and the tenant vacated the

premises as a result of those bed bugs. The court denied an award to the tenant because

he failed to demonstrate that the bed bug infestation was solely the fault of the landlord

and resulted from no fault of his own. The tenant in that case also failed to give the

landlord proper notice of the issue for the landlord to have an opportunity to resolve the

an invoice of her $200 expense for fixing the toilet. Furthermore, although no direct proof

exists that she did not contribute to the leakiness of the toilet condition, it is likely that no

reasonable tenant, which Ms. Whirley has not proven that she isn’t, would commit acts

that break their own toilet. Therefore, in summation Ms. Whirley’s best option is to

recover the $200 on her next month’s rent.

B. Outdoor Sprinkler System

Next, Ms. Whirley has requested payment for her outdoor sprinkling system that

she has paid $300 to repair. Ms. Shirley first notified her landlord about the condition on

March 31 and complained that because it does not work. She now must water her flowers

by hand 2-3 times a week, taking up about 15-20 minutes of her time. By the end of May,

the landlord had still not repaired the condition, two months later. Although she gave the

landlord a reasonable amount time to repair the condition after giving him notice, Ms.

Whirley will unlikely be able to recover the $300 cost in repairing the condition. A faulty

sprinkling system is not included under any of the conditions put forth in §541 of the

Code and cannot be interpreted as a substantial breach of the implied warranty of

tenantability as discussed in Burk because the condition does not make the house itself

carpet’s wet conditions, mold has started to grow and a smell has resulted that is so bad

that she can no longer make any use of that bedroom. Ms. Whirley has tried to close the

door but it has not budged and has placed plastic along the door frame to try to keep the

moisture out but to no avail. This activity would satisfy her duty to try to mitigate

damages as is necessary under a tenant’s duties set forth by the court in Shea. Ms.

Whirley first notified her landlord of this condition on May 26, 2016. She then paid to fix

the condition less than a month later on June 23

windows and doors”. Additionally, the condition has caused mold to grow which is not

safe and healthy, satisfying the requirements of a substantial breach as set forth in Burk.

The issue though is less than one month a reasonable amount of time for the landlord to

repair the condition. Given the danger to her health and safety resulting from this

condition, the landlord should still be responsible to pay. Under §542(c) of the Code, if

the tenant has acted more than 30 days after giving the landlord notice, she has acted after

a reasonable time and the landlord would be liable for the damages. However here, the

tenant made repairs less than 30 days after giving notice. The Code states that a tenant

may make repairs after shorter notice if the circumstances require shorter notice. Having

mold growing in your house would satisfy the circumstances requiring shorter notice

which exceeds her monthly rent of $1,200. Under §542(2), if the cost of repairs exceeds

one month’s rent, the tenant can make repairs and sue the landlord for cost of repairs, or

under subsection (4) the tenant may withhold all the rent until the landlord makes the

repairs if the conditions substantially threaten the tenant’s health and safety, which the

condition here does. However, Ms. Whirley already repaired the condition herself.

Option 2 would best suit her and thus she should sue the landlord for the $1,800.

D. Damage To Wall And Baseboard In Laundry Room

Finally, Ms. Whirley alleges that her dog has chewed away a two foot strip of the

baseboard in her laundry room and damaged the wall in the process and has asked if the

landlord can recover the repairs to those as well. Ms. Whirley will likely not be able to

recover for these damages. First of all, she never notified the landlord about the need to

To: Della Gregson

From: Examinee

Date: July 26, 2016

Re: Barbara Whirley matter

As you noted in your earlier memo, our client, Barbara Whirley ("Whirley"),

would like to know what her options are in seeking to have several issues with her rental

house repaired. I have reviewed the relevant Franklin law, and have commented on her

various options below.

cost from her rent. The Franklin Supreme Court has held that an implied warranty of

tenant ability exists in each residential lease. Gordon v. Centralia Properties Inc. (Fr.

Sup. Ct. 1975). This warranty has been codified, and Lessors such as Whirley’s Landlord

Sean Spears ("Spears") are required to put the rental building "into a condition fit for

such occupation and repair all subsequent conditions that render it untenantable."

Franklin Civil Code §540. One way in which a dwelling is deemed untenantable is if the

plumbing is not maintained in good working order. Franklin Civil Code §541(2). A

landlord should repair any such conditions within a reasonable amount of time, or the

tenant may seek a variety of remedies. Here, Whirley can show that Spears failed to

maintain the plumbing in good working order. Barbara's toilet began leaking in early

dual-use for personal and business purposes does not meet that standard. In the Lynn

case, two dwellings were considered. One, which had an area physically separated from

the living area of the home, was held to be for business use and subject to the deduction.

The other, which was a "computer office room" that had both personal and business use,

ANSWER TO MPT 2

APPELLATE BRIEF

The fact that a taxpayer is carrying out the activities in a businesslike manner,

maintaining complete and accurate records of the books and records is an indication that

they are a for profit venture. Here, Mr. Nash has testified that they keep all their books

and records in an exclusive home office, further Mr. Nash has shown that they are

In addition to the changes in the business activity, Mr. Nash has done thorough

research and looked to increase his acumen in the business of Christmas Tree Farming.

Mr. Nash has taken classes on forest management, read numerous books on raising trees,

and met a nearby Christmas tree farmer and spent an entire vacation on that farm.

Further, he has kept in touch with that farmer and continued to seek his advice and

growing and blossoming business.

TIME OUTSIDE OF HIS FULL TIME JOB AT A LOCAL SCHOOL

The CFR and the courts have stated that whether an individual is solely engaged in

the business, and derives no additional income, can show that the taxpayer is engaged in

the business for profit. Here, it is correct that Mr. Nash is a full time associate principal at

a local school; however Mrs. Nash is working full time within the venture. She retired

from her job around the time where the Nash's decided to engage in this venture as a

business, at the same time where they changed their entire business plan and modified it

in a way where they can expect future profits.

As such, despite Mr. Nash's full time job, Mrs. Nash's full-time devotion to the

venture as well as Mr. Nash's weekends and free-time devotion shows they intend this to

be a profitable venture. To penalize an individual for having a job and hoping to start a

business is not the manner in which the tax code works, this factor is looking for the

4. THE NASH'S EXPECT AN APPRECIATION IN VALUE OF ASSETS,

PARTICULARLY OF THE ACERAGE WHICH HAS RECENTLY BEEN

PLANTED THAT THEY ARE WAITING TO BE READY TO SELL TO THEIR

CUSTOMERS

Not only have the Nash's invested in costly equipment (which is the main reason

for their lack of profits) which they expect to appreciate, they have also planted many

additional acres of trees which they expect will appreciate as they continue to grow and

once they are ready to be cut and sold, their income and profits will significantly

increase. They have loyal customers, including some commercial customers, who eagerly

have been conducting this venture like a business and are holding themselves out as

business people.

The Nash's are easily differentiated from the case of Stone v. FDR, where the

7. THE NASH'S HAVE EXPERIENCED INCOME, HOWEVER IT HAS GONE

TO RECOVER FROM THEIR LOSSES IN THE PURCHASE OF SPECIALIZED

Mr. Nash has stated that the reason they are not experiencing profits is because

they have to pay their debts from the purchase of equipment, including the specialized

equipment, and maintenance on the farm. They also have to pay the newly hired workers

2011 as conceded by Mr. Nash was a very bad year for the venture. In Stone, they never

took a salary for 20 years. That is four times as long. They are not equivalent at all. For

the Nash's to take a profit would harm the venture and it is clear that they hope for it to

continue growing and to be profitable in the future.

9. WHILE MR. NASH HAS STATED HE ENJOYS CHRISTMAS TREE

Nash stated that he enjoys tree farming and is fascinated by it does not show that this is a

hobby. Mr. Nash specifically stated that he and his wife saw the potential and that is

when he became interested in it, by taking classes and reading books with the very intent

to run this business. Mr. Nash's activities clearly show an intent for this venture to be

profitable, and as such it is not a hobby or recreational. It is not dis-allowed to enjoy

something you are doing while you are doing it for profit, the IRC does not require

misery to equate with profit, Mr. Nash can enjoy his work in a for profit venture, which

this is.

As such, the Nash's should be deemed to be a for-profit venture, and are therefore

The Internal Revenue Code and Code of Federal Regulations state that generally,

there is no allowed deduction with respect to a personal residence of a taxpayer.

However, there is an exception for expenses allocated to a portion of that residence which

is used exclusively and on a regular basis as the principal place of business for any trade

or business of the taxpayer. This exception is outlined in the case of Lynn v. Franklin

Department of Revenue, where the case looks to legislative history and the case of

McBride v. FDR to lay out the "exclusive use" requirement and test. It states that the

portion being claimed for a tax deduction must be used solely for the purpose of carrying

on the trade or business. In Lynn v. FDR, the court determined that the first residence,

where the plaintiff made (1) a physical separation from living areas; and (2) a physical

conversion from residence to office; and (3) had a separate entrance constituted as an

Here, Mr. Nash has testified that they have a room which they physically

converted from a bedroom (before forming this business venture) into a home-office.

They took out the bed and have a desk and two chairs in the office, as well as a television

which is used to watch the weather channel for business purposes of growing trees.

Additionally, Mr. Nash testified that they keep records, catalogues, and books that they

consult in the room and that the computer in the office is for business use, and nothing

else. He affirmatively stated in his testimony that nothing happens there but business.

As such, based on Mr. Nash's testimony and the fact that there was physical

conversion (which the court in Lynn stated is a factor in identifying an exclusive use) the