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.
When is a motion for summary judgment proper?
When, after the close of discovery, when the pleadings and evidence submitted show no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
When does no genuine issue of material fact exist?
When no reasonable jury/person could return a verdict in favor of the non-moving party.
Upon filing a motion for summary judgment, the moving party must:
Make a prima facie showing that:
1. No genuine issue of material fact exists; and
2. Moving party is entitled to judgment as a matter of law
After the moving party shows that summary judgment is proper, what is the second step?
Burden then shifts to non-moving party to present evidence showing that a genuine issue of material fact exists.
Can the moving party rely on his own complaint to show summary judgment is proper?
No, must put forth other evidence showing there is no genuine issue of material fact.
What is the deadline to file a motion for summary judgment?
30 days after discovery has ended.
Define: partial summary judgment
Issued when only some material facts are not at issue.
Define: declaratory judgment
Ruling that informs parties of a legal relationship between parties or their rights. Often filed prior to a lawsuit to prevent one from occuring later.
