Defaults & Dismissals Flashcards
Default Judgment Entered by Clerk P’s Claim Must Have…
sum certain or one done by computation
The Clerk May Enter the Default Judgment Based on…
an affidavit by P showing the amount due and no review by the judge is ready.
A Default Judgment Can Only Be Entered by a Judge When….
P’s claim is NOT for a sum certain and not for a sum that can be made certain by computation
When Do you Have to Give Advanced Notice For a Default Judgment to a D?
If the D appeared in the case either personally or by a representative, then D is entitled to 7 days advance written notice of any hearing by the judge
P May Voluntarily Dismiss the Action by Filing…
a notice of dismissal before D has served an answer or a motion for summary judgment
What is the 2 Dismissal Rule
The 1st voluntary dismissal is without prejudice (P can refile or can file a different claim based on the same underlying facts). But under the 2-dismissal rule, a second voluntary dismissal is with prejudice - so after 2 voluntary dismissals, P can no longer sue on the same claim or one arising out of the same circumstances.
True or False: The 1st voluntary dismissal is w/o prejudice?
True
What does without prejudice mean?
P can refile or can file a different claim based on the same underlying facts
What is the 2 Dismissal Rule?
A second voluntary dismissal IS with prejudice aka p can no longer sue on the same claim or one arising out of the same circumstances.
2 Dismissal Rule in Multiple Courts: Can P bring a second claim in either of these courts?
If suit 1 is in FED court and P dismissed;
Suit 2 is in STATE court, and P dismisses
P is NOT prevented from suing on the same claim in fed court.
The 2 dismissal rule operated only…
1) Where both dismissals were in federal court; AND
2) Where the 1st was in state court and the
2nd one was in federal court.
