Disposition without Trial - Dismissals Flashcards
Dismissals
This is where we are getting the case out because of the_________ rather than the _________.
plaintiff rather than the defendant
Rule 41 allows a Plaintiff to __________ __________ an action.
voluntarily dismiss
What happens if the Plaintiff doesn’t or can’t move the litigation forward?
A plaintiff may no longer wish to, fail to, or be unable to continue a litigation for many reasons – for example, the reason for the litigation may have dissipated, the plaintiff’s focus may have otherwise moved on, the plaintiff’s ability to litigate may have ceased, the litigation facts may have evolved in an unhelpful way, or the defense arguments may now persuade the plaintiff.
What rule does this refer to?
Rule 41
The first question for a Rule 41:
Does the plaintiff want to voluntarily dismiss the litigation?
Did the plaintiff file the dismissal before the opposing party filed its _________ or _______ ________ _________-? Rule 41(a)(1).
answer or summary judgment motion
A plaintiff may ___________ ___________ [“nonsuit’] an action:
Without a court order:
Before any party has filed an Answer or a Motion for Summary Judgment or at any time, if stipulated to all the parties FRCP 41(a)(1)(A).
The ________ _________ is proper (so long as no other rule or federal statute provides otherwise.)
Unless the __________ provides otherwise (or this is the second time this same claim is being dismissed), the ________ is ________ _________. Rule 41(a)(1)(B).
voluntarily dismiss
voluntarily dismissal
dismissal
dismissal is without prejudice
The voluntary dismissal is __________ __________(i.e., plaintiff may refile the same lawsuit later on) FRCP 41(a)(1)(B).
*A plaintiff may only voluntarily dismiss the action once: a second voluntary dismissal operates as an ___________ on the _________. FRCP 41(a)(1)(B).
without prejudice
adjudication on the merits
Voluntary Dismissals are___________ _________BUT only once in federal court. After the first time, if the case is voluntarily dismissed it is _______ _________. Called the “two dismissal rule.”
without prejudice
with prejudice
Voluntary Dismissals are without prejudice BUT only once in federal court. After the first time, if the case is voluntarily dismissed it is WITH prejudice. Called the ________ ________ __________.
two dismissal rule
If a plaintiff voluntarily dismisses a case and ___________ ___________, the court can order attorney’s fees paid to defendant from that first case. Rule 41(d).
subsequently refiles
If a plaintiff voluntarily dismisses a case and subsequently refiles, the court can order attorney’s fees paid to defendant from that first case. Rule 41(d). _______ _______ – if it was completely different it doesn’t apply. If I sue for IIED and then the second one I sue for BOC and negligence and also include IIED, it fits but if I don’t include IIED it doesn’t fit it has to include that one.
same claim
Costs of a previously Dismissed Action.
(b)Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court:
(2)May order the plaintiff to pay all or part of the costs of that previous action; and
(3)May stay the proceedings until the plaintiff has complied.
What rule?
FRCP 41(d)
Is the party seeking the dismissal not an original plaintiff, but a ___________, a ______ _________, or a _______ ______ ________? 41(c).
counterclaimant
cross-claimant
third-party claimant
Is the party seeking the dismissal not an original plaintiff, but a counterclaimant, a cross claimant, or a third-party claimant? 41(c).
Was it filed before a __________ ________ was served or, if none, before ________ is introduced at trial?
responsive pleading
evidence
Voluntary dismissal must be before a ___________ ___________ is served or, if there is no _________ ___________, before ________ is introduced at a hearing or trial. FRCP 41(c).
responsive pleading
responsive pleading
evidence
Is the party seeking the dismissal not an original plaintiff, but a counterclaimant, a cross claimant, or a third-party claimant? 41(c).
Was it filed before a responsive pleading was served or, if none, before evidence is introduced at trial?
Voluntary dismissal must be before a responsive pleading is served or, if there is no responsive pleading, before evidence is introduced at a hearing or trial. FRCP 41(c).
The _______ _______ is proper (so long as no other Rule or federal statute provides otherwise.)
Unless the dismissal provides otherwise (or this is the second time this claim is being dismissed), the ________ is without ________. Rule 41(a)(1)(B).
voluntary dismissal
dismissal
prejudice
Does the plaintiff want to voluntarily dismiss the litigation?
Did the plaintiff ________ ________ ______ _______ ____________? Rule 41(a)(2).
obtain permission from the court
Does the plaintiff want to voluntarily dismiss the litigation?
Did the plaintiff obtain permission from the court? Rule 41(a)(2).
Before the dismissal request, had a ___________ asserted a counterclaim against the ___________, which defendant now refuses to dismiss?
defendant
plaintiff
Does the plaintiff want to voluntarily dismiss the litigation?
Did the plaintiff obtain permission from the court? Rule 41(a)(2).
Before the dismissal request, had a defendant asserted a counterclaim against the plaintiff, which defendant now refuses to dismiss?
meaning:
On terms that the court considers _______. FRCP 41(a)(2).
proper
Does the plaintiff want to voluntarily dismiss the litigation?
Did the plaintiff obtain permission from the court? Rule 41(a)(2).
Before the dismissal request, had a defendant asserted a counterclaim against the plaintiff, which defendant now refuses to dismiss?
On terms that the court considers proper. FRCP 41(a)(2).
Can the counterclaim remain pending?
If the ________ has pleaded a counterclaim before being served with the _________ _______ to ________, the action can still be dismissed but the defendant’s counterclaim can remain pending for_________ __________ FRCP 41(a)(2).
defendant
plaintiff’s motion to dismiss
independent adjudication
Does the plaintiff want to voluntarily dismiss the litigation?
Did the plaintiff obtain permission from the court? Rule 41(a)(2).
Before the dismissal request, had a defendant asserted a counterclaim against the plaintiff, which defendant now refuses to dismiss?
* On terms that the court considers proper. FRCP 41(a)(2).
Can the counterclaim remain pending?
- If a defendant has pleaded a counterclaim before being served with the Plaintiff’s motion to dismiss, the action can still be dismissed but the Defendant’s counterclaim can remain pending for independent adjudication. FRCP 41(a)(2)
Yes, the court may grant a voluntary dismissal, upon_______ ________.
proper terms
Does the plaintiff want to voluntarily dismiss the litigation?
Did the plaintiff obtain permission from the court? Rule 41(a)(2).
Before the dismissal request, had a defendant asserted a counterclaim against the plaintiff, which defendant now refuses to dismiss?
* On terms that the court considers proper. FRCP 41(a)(2).
Can the counterclaim remain pending?
- If a defendant has pleaded a counterclaim before being served with the Plaintiff’s motion to dismiss, the action can still be dismissed but the Defendant’s counterclaim can remain pending for independent adjudication. FRCP 41(a)(2)
Yes, the court may grant a voluntary dismissal, upon “proper” terms.
Unless the order provides otherwise, the dismissal is ________ __________. Rule 41(a)(2).
Plaintiff can dismiss once, then bring it again if they dismiss, they can never bring it again. 1 free bite the 2nd 1 is going to cost you.
without prejudice
Does the plaintiff want to voluntarily dismiss the litigation?
If no, the court may _________ _______ the litigation.
involuntarily dismiss
Does the plaintiff want to voluntarily dismiss the litigation?
If no, the court may involuntarily dismiss the litigation.
Has the plaintiff failed to press forward or failed to comply with the rules?
This is sometimes called ___________________________.
“Failure to prosecute”
Does the plaintiff want to voluntarily dismiss the litigation?
If no, the court may involuntarily dismiss the litigation.
Has the plaintiff failed to press forward or failed to comply with the rules?
Sometimes called “failure to prosecute.”
________ _________ by a _________, the court may dismiss the lawsuit, involuntarily (i.e., against the plaintiff’s wishes). Rule 41(b).
upon motion by a defendant
___________ may move to dismiss the action or any claims against it. FRCP 41(b).
________ may also dismiss an action ______ _________ for failure to prosecute; must issue a “______ ________” order.
defendant
courts
sua sponte
show cause
Courts may also dismiss an action sua sponte for failure to prosecute; must issue a “show cause” order.
Why might they do this?
Judges have an incentive to clear their docket
Show cause order the judge is saying you need to tell me what is going on.
What is a show cause order for?
Show cause order the judge is saying you need to tell me what is going on.
An ______________ __________ will generally give rise to res judicata.
involuntary dismissal
An involuntary dismissal (usually) = _______ on the _______.
adjudication on the merits.
An involuntary dismissal (usually) = adjudication on the merits. Adjudication on the merits = case is _________. Case resolved means that you cannot try it again. Res Judicata [aka ______ ________]
“resolved”
claim preclusion
res judicata is AKA what?
claim preclusion
