Adjudicating the Dispute: Pretrial Adjudication

Question 1

Voluntary Dismissal

Answer 1

• May be allowed on court order (and P may have to pay D’s costs). But sometimes P has a right to dismiss simply by filing a written notice of dismissal.
• P may voluntarily dismiss “without prejudice” before D serves her answer or a motion for summary judgment.

Question 2

Default Judgment

Answer 2

• Default is a notation by the court clerk on the docket sheet of the case. A claimant gets a default by showing the clerk that D has failed to respond within 21 days after being served with process. D can respond anytime before the default is entered.

Question 3

Entering a Default Judgment

Answer 3

• Getting the default does not entitle the claimant to recover. She needs a judgment to enforce and recover money or other remedies. The clerk of court can enter judgment if
  
  • D made no response at all
  • The claim itself if for a sum certain in money;
  • Claimant gives an affidavit (sworn statement) of the sum owed; AND – D is not a minor or incompetent.
• But if any of those four is not true, the claimant must go to the court itself (the judge, not the clerk) for the judgment. The judge will hold a hearing and has discretion to enter judgment. D gets notice of that hearing only if she made some appearance in the case.

Question 4

Recovery on Default Judgment

Answer 4

• cannot exceed what the claimaint demanded in her complaint

Question 5

Setting aside default judgment

Answer 5

• Must show good cause and a viable judgment
• Usually means excusable neglect

Question 6

Failure to State a Claim 12(b)(6)

Answer 6

• Failure to state a claim. Allegations in complation must be sufficient
• Ignores legal conclusions
• must have “enough factual matter” to “nudge[] their claims across the line from conceivable to plausible . . . .”
• Court will only look at the face of the claim
• If made after defendant has answered, then it is a motion for judgment on pleadings

Question 7

Summary Judgment R 56

Answer 7

• Must show
  
  • (1) there’s no genuine dispute on a material fact and
  • (2) that she is entitled to judgment as a matter of law.
• Move within 30 days of close of discovery. Can be for “partial” judgment (e.g., one of several claims).

Question 8

What can the court look at in Sum Judgment

Answer 8

• Yes, can look at evidence
• The parties proffer the evidence, usually affidavits or declarations, deposition testimony or interrogatory answers – these are under oath, so they can be considered as evidence here. The court views the evidence in the light most favorable to the nonmoving party.
• Weeds out cases that doen’t need to go to trial