8) Pretrial Adjudication

Question 1

voluntary dismissal: kinds

Answer 1

1) unilateral notice of dismissal
2) stipulation signed by all parties
3) dismiss w permission of court

Question 2

voluntary dismissal: unilateral: when

Answer 2

ONLY can do before D has filed answer or msj

Question 3

voluntary dismissal: permission of court: rule

Answer 3

court usually grants permission, but if D has filed counterclaim, court will not allow dismissal unless counterclaim can remain pending for independent adjudication

Question 4

voluntary dismissal: can P relitigate?

Answer 4

“with prejudice”: no

“w/o prejudice”: yes

Question 5

voluntary dismissal: is it w/, or w/o, prejudice?

Answer 5

--notice, stipulation, or court order might say.
if not:
1) first dismissal presumed WITHOUT
2) subsequent dismissals presumed WITH
3) involuntary dismissal = ALWAYS WITH

Question 6

involuntary dismissal: def

Answer 6

D can move to dismiss

Question 7

default judgment: steps

Answer 7

1) entry of defaul

2) entry of default JUDGMENT

Question 8

default: entry of default: how

Answer 8

clerk enters

Question 9

default: default judgment: how

Answer 9

1) by clerk IF for “sum certain” (or can be made certain by computation).
2) or court, upon P’s application

Question 10

default” sum certain: ex

Answer 10

NOT ex medical damages alleged re car accident. (certain amt, but not “certainly” amt suffered)

Question 11

default: default judgment: if D is minor or incompetent

Answer 11

clerk can’t enter judgment

court will req be rep’d by guardian

Question 12

default: default judgment: what if appears before default

Answer 12

court can only issue default if served w written notice of application for default 7 days before hearing

Question 13

default: getting it set aside

Answer 13

if default (but no j.): court can set aside for good cause

if judgment: can only set aside on post-trial mxn

Question 14

mxn dismiss: def

Answer 14

filed by defending party seeking dismissal of claim filed against him.

Usu by Ds but could be any party w a claim against it

Question 15

mxn dismiss: timing

Answer 15

must file before answer (so 21 / 60 days)

Question 16

mxn dismiss: grounds (list)

Answer 16

1) lack of SMJ
2) lack of PJ
3) improper venue
4) insufficient process
5) insufficient service of process
6) failure to state a claim on which relief can be granted
7) failure to join indispensable party

Question 17

mxn dismiss: insufficient process: def

Answer 17

either didn’t include summons AND complaint, or info on there is defective enough that not sufficient notice to D

Question 18

mxn dismiss: insufficient service of process: def

Answer 18

something wrong w the way it was served

Question 19

mxn dismiss: failure to state a claim on which relief can be granted: rule

Answer 19

12(b)(6)

1) court assumes claimant’s allegations are true
2) but must be PLAUSIBLE: enough factual support for plausibility

Question 20

waiver: timing / def

Answer 20

if don’t raise defense at proper time, forfeit the right to raise it later (use em or lose em)

Question 21

waiver: must be raised in first repsonse: def

Answer 21

in first mxn dismiss OR answer – whatever first pleading is

Question 22

waiver: must be raised in first repsonse: list

Answer 22

1) lack of PJ
2) improper venue
3) insufficient process
4) insufficient service of process

Question 23

waiver: Must be raised before trial ends: list

Answer 23

1) 12(b)(6)

2) failure join nec party

Question 24

waiver: never lost

Answer 24

1) subject matter jurisdiction

Question 25

MSJ: rule

Answer 25

1) no genuine dispute of material fact AND

2) moving party entitled to judgment as MOL

Question 26

MSJ: 2-step analysis

Answer 26

1) court considers moving party’s arguments (not questioning credibility) – do they show that NMP lacks sufficient facts or law to prevail?
(if clears 1)
2) NMP’s response: to survive summary judgment, NMP must adduce evidence sufficient for a reasonable jury to find in her favor (not questioning credibility, and looking only at NMP’s evidence: not weighing against each other)

Question 27

MSJ: step 1: 2 ways to show

Answer 27

• -by pointing out using citations to the record holes in the opposing party’s claims or defenses, or
• -by adducing new evidence demonstrating the claim or defense can’t be true

Question 28

MSJ: step 2: qualifiers

Answer 28

consider NMP’s evidenc eonly (so NMP can’t have NO evidence, unless MP failed at step 1)
(exception)

Question 29

MSJ: step 2 qualifiers: exception

Answer 29

if P in state where signed pleadings are like affidavits, that’s like some evidence that P did adduce

Question 30

MSJ: differences for Ps or Ds

Answer 30

P: to prevail must adduce evidence sufficient for reasonable jury to find in her favor on every element of the claim

D: just has to poke big enough hole in 1 element

Also: P dnh option of pointing out gaps in D’s evidence w citations to the record

Question 31

MSJ: dl

Answer 31

30 days after close of dy

Question 32

MSJ: evidence standard

Answer 32

must be admissible at trial, but ok if not currently in admissible form (affidavit –> testimony)