Adjudicating the Dispute Flashcards
Boiled down, a PO in the Nature of a Demurrer says what?
Even if everything the P says in the complaint is true, there is no legal right to relief because P’s allegations do not make out any elements of any COA.
When is a motion for judgment on the pleadings made?
After the pleadings are closed, but not so late as to unreasonably delay trial
A MJOP is based on what?
The pleadings ONLY
A MJOP will be granted if what two things are true?
No genuine issue of material fact; and
Moving party is entitled to judgment as a matter of law
If you are D and have a great defense that is a sure winner, what two steps do you take?
Raise the affirmative defense in a pleading
Then file for MJOP
When can a party filed a MSJ?
Any time after pleadings are closed and early enough not to delay trial.
MSJ is only appropriate if what two things are true?
No genuine issue of material fact and
Moving party is entitled to judgment as a matter of law
In a MSK, all undisputed facts must be established by pleadings, discovery responses, depositions, and . . . .
Affidavits of parties or witnesses.
T or F? Affidavits must set forth admissible evidence to be considered for MSJ.
T
If the moving party files affidavits in support of MSJ, the responding party cannot just rely on allegations or denials contained within the pleadings. Instead, they must do what?
File affidavits or deposition testimony, etc., that establish facts for trial.
A MSJ can be filed with regard to which issues?
Any
A party may/may not obtain SJ based on the absence of evidence sufficient to permit the jury from finding an essential element of a claim or defense.
May
Explain the Nanty-Glo Rule?
SJ will NOT be granted IF . . .
The motion is supported ONLY by uncontradicted affidavits or dep. testimony AND
The granting of SJ would require the acceptance of the credibility of the moving party’s witnesses.
Where the COA or Defense is dependent on the credibility and demeanor of the witnesses who will testify at trial, oral testimony alone (through affidavits or depositions) of the moving party’s witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact. Generally, there must be ____ or ______ from other parties, in pleadings or discovery, to support a MSJ.
Documents or Admissions
A judgment of Non Pros may be entered when . . . (3)
P shows a lack of due diligence by failing to proceed with reasonable promptitude;
There has been no compelling reason for delay; and
The delay has caused actual prejudice to D
A D seeking Non Pros must come to the court with . . .
Clean Hands
When will court approval be required for P to dismiss his own case? (3 situations)
Cases where P is a minor or an incompetent
Actions for wrongful death where a minor or incompetent in a benef.
Class actions
A P may not discontinue an action as to less than all Ds except upon written consent of ___ ___ or ___ _ ___
All parties
Leave of court
While PA does not have mandatory pretrial conferences, parties MUST file a what listing, inter alia, ____ , ____, ___ , and _____
Pretrial Statement
Witnesses, Experts, Damages, and Exhibits
Deadline for demanding a jury trial?
20 days after the last pleading isfiled.
Verdict does/does not have to be unanimous in a civil trial
Does not
6 jurors, how many needed to make a valid verdict? 12?
5/6, 10/12
How may peremptory challenges?
4
Peremptory challenges may not be used to exclude jurors based solely on ____ , _____, or _____
Gender, race, or RELIGION (unique)
When can D make a motion for compulsory non suit?
After P has finished with all of his evidence on liability
What is D arguing when he makes a motion for compulsory nonsuit?
Even if the jury accepts all of P’s evidence, they P has failed to establish a right to relief on any COA
A motion for compulsory nonsuit will be granted if P has failed to do what?
Establish a right to relief.
When evaluating a motion for compulsory non suit, the court must assume what?
All of P’s evidence is true.
A JMOL is called what is PA?
Motion for Directed Verdict
When is a Motion for Directed Verdict made?
At the conclusion of the evidence but before judge charges the jury
What is D arguing in a Motion for a Directed Verdict?
Even if jury accepts all of P’s evidence as true, no reasonable jury could find for P based on the evidence which the P produced at trial.
When can the court grant a Motion for DV?
When ALL evidence has been introduced.
A court can Direct a Verdict when the evidence is such that . . .
Without weighing the credibility of the witnesses, there can be but one reasonable conclusion as to the verdict.
Plaintiff’s negligence will not bar recovery where such negligence is ____ _____ _____ the causal neg. of the Ds against whom recovery is sought, but any damages sustained by P will be reduced in proportion to P’s negligence.
Not greater than
PA has a pure/modified comparative negligence regime?
Modified.
Is P a ___% or more negligent, he cannot recover.
51%
In a negligence suit, the jury determines . .. (2)
The full value of damages sustained by P
The percentage of any comparative negligence attributable to P
Following a verdict, the court will do what with a negligence verdict?
Mold it by reducing it by the percentage of negligence attributable to P.
What is the only post-trial motion in PA?
Motion for Post Trial Relief.
Grounds for post-trial relief must be _____ by pre-trial motion or trial motion, objection, point for charge, or other appropriate method at trial.
Preserved.
A motion for post trial relief must be filed when?
Within 10 days after the verdict or nonsuit.
what is the moving party arguing n a Motion for PTR?
Even though the jury found for the other party, as a matter of law, the court should grant a new trial or enter judgment for the moving party
