Civil Procedure: Pretrial Adjudication Flashcards
What does it mean if a case is dismissed with prejudice?Without prejudice?
With prejudice: adjudication on the merits, cannot relitigate.
Without prejudice: no adjudication on the merits, can relitigate.
When may P voluntarily dismiss an action without a court order?
P can voluntarily dismiss without court order by either:
1. Filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment, whichever comes first; or
2. A stipulation of dismissal signed by all parties who have appeared
Can a plaintiff relitigate a claim after dismissal if claim was dismissed by court order or stipulation?
Yes, because dismissal by court order or stipulation is without prejudice.
Can a plaintiff relitigate a claim after dismissal if claim was dismissed by the plaintiff herself?
Yes, dismissal by plaintiff is without prejudice unless it is the P’s second dismissal on the claim (which is dismissed with prejudice).
Can a plaintiff relitigate a claim after dismissal if claim was dismissed by settlement?
No, dismissal as a result of settlement is with prejudice.
What is involuntary dismissal under Rule 41(b)?
When D seeks to dismiss the action because P has violated the rules or court order
Involuntary dismissal under Rule 41(b) is ____ prejudice
With prejudice.
What is a default under Rule 55(a)?
Occurs when D fails to timely respond to the complaint (within 21 days of service or 60 days after waiver)
⚠️ Note: This is not the same as a default judgment, which is when the court enters the default into the record
What is a default judgment under Rule 55(b)?
Judgment on the record that D defaulted
Difference between a default and a default judgment?
Default = D’s failure to respond (stage 1)Default judgment = judgment entered into the record after D defaults (stage 2)
When can the court clerk enter a default judgment?
If P shows that:
1. D was properly served;
2. Deadline to respond has expired;
3. D failed to respond;
4. D is not a minor or incompetent; and
5. Sum owed is certain (by affidavit)
What can P do if the sum of damages is uncertain when seeking a default judgment?
P can seek default judgment from the court and judge will hold a hearing to determine damages
⚠️ Note: Court clerk cannot enter default if damages are uncertain - must be done by a judge
When can the court set aside a default judgment?
For good cause within 1 year (typically shown if there was an honest mistake, fraud, or some circumstance outside of D’s control).
What is a 12(b)(6) motion to dismiss?
A motion to dismiss the case before discovery because the P has failed to state a claim upon which relief can be granted
When will a motion to dismiss be granted?
Generally, it will be granted when a complaint does not contain enough specific allegations to make it plausible that P could be entitled to relief
⚠️ Exception: Remember that claims of fraud or mistake must be pled with particularity, rather than only plausibilty.