Chapter 6: Pretrial and Trial

Question 1

Motion for judgment on the pleadings

Answer 1

A motion for judgment on the pleadings can be made when there are no facts contested by the parties.

Question 2

Voluntary dismissal by P or stipulation of parties

Answer 2

By P or by stipulation of the parties

P may dismiss an action w/out leave of the court by filing a notice of dismissal at any time before the P rests her case or by filing a stip of dismissal signed by all the parties who have appeared in the action

Unless otherwise stated in notice or stip, it is w/out prejudice. If however, based on same claim, dismissal is w/ prejudice (2 bites of the apple not 3 )

A P may not voluntarily dismiss w/out prejudice if D has counterclaimed on a matter that arose out of same tx.

A P who voluntarily dismisses an action or claim is taxed w/ costs of the action unless it was brought in forma pauperis.

Question 3

Voluntary dismissal by court order

Answer 3

Except as provided w/ a voluntary dismissal by P or stip of the parties, an action may be dismissed at P’s request only by the court, on terms the court considers proper.

Any voluntary dismissal is w/out prejudice unless the order states otherwise.

Question 4

New action after a voluntary dismissal

Answer 4

If the original action was timely filed, the P will have 1 year to commence a new action based on the same claim, unless a shorter time is set forth by stipulation of the court.

But the refiled action does not extend the SOL to other causes of action to the refiled claim.

P gets longer of original SOL or 1 year extension

Question 5

Involuntary dismissal

Answer 5

A D may move to dismiss any claim or action against it and the court may on its own motion dismiss any P’s claim or action.

The court may dismiss P’s action for failure to prosecute or comply w/ rules of a court order.

Mere passage of time does not justify failure to prosecute

Unless the dismissal specifies otherwise, dismissal is w/ prejudice and operates as an adjudication on the merits.

However, a dismissal based on lack of jx, improper venue or failure to join and indispensable party under R. 19, does not operate as an adjudication on the mertis.

Question 6

Default

Answer 6

When a D has failed to plead or defend, D may be subject to default.

(i) entry of default and (ii) judgment by default; may be heard at the same time

Entry of default: most show failure to plead/defend by affidavit or otherwise and P must also filed an affidavit or present other evidence establishing PJ over the D if the D failed to appear in the action.

Judgment by default: determines the relief P is entitled to. If the damages are liquidated (sum certain) and default is based on failure to appear, the clerk of the court may enter the judgment for the appropriate amount. If the damages are not liquidated, or P seeking equitable or declaratory relief, court must hold a hearing to assess the damages.

If D has appeared, D must receive at least 3 days notice of the hearing. A judgment by default can’t be different in kind than asked for in the demand for judgments.

Question 7

Relief from default

Answer 7

A court may set aside an entry of default on a showing of good cause (discretion of the court).

Abuse of discretion standard

Defaulted party must show mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, misrepresentation, or misconduct by opposing party.

Question 8

Summary judgment

Answer 8

SJ should be granted if there is no genuine issue of material fact and the party is entitled to judgment as a matter of law.

May be rendered against the moving party and in favor of non-moving party in NC.

An issue is genuine if it is supported by substantial evidence, which is that amount of relevant evidence necessary to persuade a reasonable mind to accept a conclusion.

FRCP: no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law; court will construe all evidence in the light most favorable to the nonmoving party and resolve all doubts in favor of the nonmoving party.

Movant has the burden of persuasion to show prima facie case before the burden shifts to opposing party to set forth the specific evidence showing the existence of a genuine issue of fact.

may be field anytime until 30 days after close of all discovery.

Question 9

Evidence for summary judgment

Answer 9

In deciding a motion for SJ, the court may consider affidavits, pleadings, depositions, interrogatory answers, admissions, and stipulations filed by the party, so long as the facts contained are admissible at trial.

Affidavit’s must be made on personal knowledge and must establish the affiant’s competency to testify on the matters stated.

The moving party has the burden of showing that: there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

An affidavit that states it is based “on information and belief” cannot be considered for SJ because it is not based on personal knowledge.

Court may grant partial SJ as well as full SJ.

Opposing party may not rely merely on allegations or denials in its own pleading, but must set out specific facts showing a genuine issue for trial.

Question 10

When can a party move for summary judgment

Answer 10

A party may move for SJ on all or part of the claim at any time after 30 days have passed from commencement of the action, or after the opposing party serves a motion for SJ.

A D may move at any time for SJ on all or part of a claim.

The non-moving party must be served w/ the motion at least 10 days before a hearing, and must serve a response at least 2 days before the hearing.
A party may move for SJ on all or part of the claim at any time after 30 days have passed from commencement of the action, or after the opposing party serves a motion for SJ.

Question 11

Jury demand

Answer 11

Any party can make a demand for a jury trial

Action at law tried on demand to a jury, but for state-law claims in diversity actions, federal law will determine whether there is a right to a jury trial.

Must be in writing and may be in the pleading

It must be served w/in 10 days after service of the last pleading directed to the issue sought to be tried by a jury.

FRCP 14 days

A party waives a jury trial unless its demand is properly served and filed. Though a court in its discretion may order a jury trial.

Question 12

Can a party specify issues for the jury?

Answer 12

A party may specify the issues she wishes tried by the jury. Otherwise the court deems all issues to be tried by the party. Though other party may move to have the remaining issues tried by a jury.

Trial court has wide discretion to bifurcate trial if it will further convenience or avoid prejudice.

Question 13

Withdrawal of jury demand

Answer 13

Once a demand for jury trial is made, it may not be w/drawn except on consent of all the parties.

Question 14

Jury size

Answer 14

12, except when authorized by statute or reduced by stip of the parties.

FRCP: at least 6, no moret than 12; once selected must prticipate in verdict unless dismissed for good cause. No provisions for alternate jurors.

Must be unanimous unless other stipulation
FRCP: must be returned by at least 6 jurors

Question 15

Preemptory challenges

Answer 15

NC allows 8 preemptory challenges, no person can be excluded based on race or gender.

FRCP 3 peremptory challenges for each party in civil cases but unlimited number of challenges are permitted for cause.

Question 16

Jury instructions

Answer 16

At the close of the evidence or an earlier time as directed by the court, parties may filed proposed instructions for the court to give the jury.

The court has discretion to consider requests, regardless of the time they are made.

Prior to final arguments the court must inform the parties of any instructions it plans to give the jury; the parties may object on the record out of the jury’s hearing.

Unless a party objects on the record to an erroneous instruction it generally can’t be raised on appeal.

Question 17

May a judge comment on a verdict

Answer 17

Not in open court in the presence or hearing of any jury member.

Question 18

Bench hearing

Answer 18

A case will be tried by the court w/out a jury if no right to a jury trial exists or if the parties have waived their rights to a jury trial.

The court is the finder of fact; it must find the facts specially and state its conclusions of law separately.

Question 19

Motion for Directed Verdict

Answer 19

FRCP motion for judgment as a matter of law = directed verdict (before the case is sent to the jury.

Motion for judgment notwishsanding the verdict (after the jury gives verdict.

A party may make a motion for directed verdict after the close of the opponents case or at the close of all the evidence.

The motion asks the court to rule as a matter of law that there is insufficient evidence from which a jury could reasonably find for the opposing party, and that therefore the moving party is entitled to a verdict, as a matter of law.

A directed verdict takes the case out of the jury’s hands and places it in the judge’s hands for decision.

Question 20

Standard for directed verdict and JNOV

Answer 20

The court must view the evidence in the light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of the opposing party.

It may not consider the credibility of the witnesses or evaluate the weight of the evidence and must disregard all evidence favorable to the moving party that the jury is not required to believe.

If reasonable persons can draw different inferences, then the issue is for the jury to decide and a motion cannot be granted.

Question 21

Grant or denial of a motion for directed verdict

Answer 21

If the D makes the motion at the close of P’s evidence, then the court can rule at that point or delay decision on the motion until the close of evidence,

If the court denies the motion at the close of P’s evidence, then D proceeds w/ his case and can renew the motion at the close of all the evidence.

Question 22

Motion for judgment notwithstanding the verdict (JNOV)

Answer 22

No later than 10 days after the entry of judgment, the movant may file a motion for JNOV.

FRCP: no later than 28 days after entry of trial judgment
The standard is the same as directed verdict

Question 23

Grounds for motion for a new trial

Answer 23

Jury misconduct
Irregularities that prevent a party from having a fair trial
Newly discovered evidence
The jury’s disregard of the court’s instructions
The verdict is contrary to law or
Any other reasons previously recognized as grounds for a new trial

Generally rests w/ the sound discretion of the trial court ; the court must disregard all errors and defects that do not affect any party’s substantial rights. The harmless error rule.

A court will not grant a new trial on the ground that a verdict is against the clear weight of the evidence unless the record shows a jury verdict resulted in a miscarriage of justice

A court may order a new trial on its own motion, the parties must be given notice and a hearing must be held.

Question 24

Remittitur

Answer 24

If the court determines that a verdict was excessive, then the court may offer a reduction of the verdict.

In NC prevailing party must agree

Question 25

Timing to alter a judgment or for a new trial

Answer 25

Must be served w/in 10 days after entry of judgment

Question 26

Declaratory judgment

Answer 26

The court tells the parties the rights and responsibilities w/out awarding damages or ordering parties to do or refrain from doing anything.

Question 27

Forms of verdict

Answer 27

Special: written finding made by the jury on each issue of ultimate fact; judge determines the legal consequences of the findings.

General: typically a decision by the jury as to the prevailing party and, if the plaintiff is the prevailing party, the amount of damages.

General w/ special interrogatories: couples a general verdict w/ special verdict; used to ensure the jury independently considered the material facts of the case in arriving at its verdict.

Question 28

Juror msiconduct

Answer 28

Concealing facts relating to his qualifications or giving false testimony during voir dire: must show failed to answer honestly and proper response would have provided a valid basis for challenge for cause

Violating the confidentiality of deliberations, being improperly influenced by non-jurors, or investigating facts outside of those presented at trial.

Court may dismiss a juror or order a new trial

A juror may testify about whether extraneous prejudicial info was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear on a juror.