class 8 Resolution Without Trial and Avoiding Adjudication:Default and Default Judgments

Question 1

how suits end with adjudication

Answer 1

Motions Practice
Motions to dismiss under Rule 12 (review)
Motions for summary judgment under Rule 56 (preview)
Motions for judgment as a matter of law under Rule 59 (preview)
Jury or Non-Jury Verdict

Question 2

how suits end without adjudication

Answer 2

Rule 41(a): Voluntary dismissal by plaintiff
Contractual resolution
Another forum: arbitration
Settlement
Arrived at by parties alone
Assisted by mediation, or similar third-party

Question 3

dismissal as a sanction

Answer 3

Default Judgments Under Rule 55
Defendant does not “appear”
Abandonment by Plaintiff
Rule 41(b):  Involuntary dismissal for failure to prosecute

Question 4

default rule 55

Answer 4

Entering a Default: When a party against whom a judgment is sought has failed to plead or otherwise defend . . . the clerk must enter the party’s default.
Entering a Default Judgment
If the P’s claim is for a sum certain or a sum that can be made certain by computation, the clerk – on P’s request, with an affidavit showing the amount due – must enter judgment for that amount and costs against a D who has been defaulted and is neither a minor nor an incompetent person.
In all other cases, the P must apply to the court for a default J. [Limitation on minors or incompetent persons; requirement of notice to a person who has appeared]. The court may conduct hearings to determine damages, establish truth of allegations, etc

Question 5

rule 55 cont

Answer 5

(c) The court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b).
(d) A default judgment may be entered against the US only if the claimant establishes its claim by evidence that satisfies the court.

Question 6

rule 60 relief from a judgement or order

Answer 6

Corrections based on clerical mistakes; oversights and omissions
On motion and just terms, the court may relieve a party from a final J, order or proceeding for the following reasons:
mistake, inadvertence, surprise or excusable neglect;
newly discovered evidence;
fraud, misrepresentation or misconduct by opponent;
the judgment is void;
the judgment has been satisfied, released or discharged . . ., or
any other reason that justifies relief.
Timing: a motion under 60(b) must be made within a reasonable time and, for ##1, 2 and 3, no more than a year after entry of J or date of proceeding.

Question 7

rule 41 dismissal of actions

Answer 7

a) Voluntary Dismissal. (1) By the Plaintiff:
(A) Without a court order (i) by filing notice of dismissal before opposing party serves either an answer or motion for SJ; or (ii) by filing stipulation of dismissal signed by all parties who have appeared.
(B) Unless provided otherwise or is not the first time P has dismissed the same claim, is without prejudice.
(2) By Court Order: “on terms that the court considers proper”. A counterclaim can remain pending. Unless court states otherwise, dismissal is without prejudice

Question 8

rule 41 cont

Answer 8

(b) Involuntary Dismissal. If the P fails to prosecute or to comply with these rules or a court order, a D may move to dismiss the action or any claim against it. Unless stated otherwise, any dismissal except for lack of jurisdiction, improper venue, or failure to join a party under Rule 19, operates as an adjudication on the merits.
(c) Similar rule for dismissing a counterclaim, crossclaim or third-party claim
(d) Costs of a Previously Dismissed Action.