Pg 31

Question 1

What is a motion to dismiss for failure to state a claim?

Answer 1

The defendant moved to dismiss for failing to state a claim that entitles the plaintiff to any form of relief. Basically the wrong that the plaintiff put forth in the complaint is not recognized as a violation of any legal rights, or he just failed to allege the necessary elements of the claim.

Question 2

If someone puts forth a motion to dismiss for failure to state a claim, and the court decides it was just oversight, what happens?

Answer 2

The court allows an amendment and the suit proceeds

Question 3

When a court is considering a motion to dismiss for failure to state a claim, what is the only thing that they consider?

Answer 3

The four corners of the complaint

Question 4

If you were going to make a motion to dismiss for failure to state a claim, when must you do it?

Answer 4

Long before the close of discovery

Question 5

What is the question to ask when you are bringing a motion to dismiss for failure to state a claim?

Answer 5

If the plaintiff’s claims can be proven, do they state a claim that the court might grant relief for?

Question 6

What are the two ways for a defendant to file a motion to dismiss for failure to state a claim?

Answer 6

• by saying the P didn’t meet the plausibility standard
  – even though all of the plausibility stuff was met, there was still not a legal claim because all the elements were not met

Question 7

When the court is considering a motion to dismiss for failure to state a claim, who do they give the benefit of the doubt to?

Answer 7

The plaintiff because a dismissal would be serious. The court does not consider the likelihood of proving the allegations, they just assume that the plaintiff will prove them

Question 8

If it is unlawful for a boss to fire anyone over the age of 40 because of their age, and the plaintiff is fired from his job and says it is age related, but he is only 39 years old, what would be brought up by the defense?

Answer 8

Motion to dismiss for failure to state a claim because there is no claim for which relief can be granted

Question 9

What is a default judgment?

Answer 9

A special type of judgement that is imposed on a party that wilfully violates rights or orders by the court. This is given when the defendant fails to plead or otherwise defend a case. If he made an appearance in the case, he must be given three days’ notice of application for judgement by default.

Question 10

What are the two different ways that a default judgement can be entered?

Answer 10

• by the clerk

– by the court

Question 11

How can a default judgement be entered by the clerk?

Answer 11

If the sum is certain or it can be computed by the clerk, or the plaintiff’s request shows the amount due, the court can enter judgement for that amount against the defendant that has defaulted for not appearing and isn’t a minor or incompetent

Question 12

How can a default judgement be entered by the court?

Answer 12

If the party applies to the court for a default judgement then the party that the judgement is sought against must be served with notice seven days before the hearing. The court must do an accounting, determine damages, and show the truth of any obligation or investigate any other matter

Question 13

What is dismissal for failure to prosecute?

Answer 13

Courts have discretionary power to dismiss if the plaintiff doesn’t proceed to trial with due diligence

Question 14

What is a voluntary dismissal?

Answer 14

The plaintiff can extricate himself from a suit before significant resources have been expended. This puts the parties in the positions they occupied before the suit begin and doesn’t affect the plaintiff’s legal rights

Question 15

What is the common law and the modern approach to a voluntary dismissal?

Answer 15

• common law: can dismiss any time before judgement is made without prejudice to re-file the action
  – modernly: the right to dismiss is governed by the rule or statute that allows it before start of the trial or before submission of the case to a jury or court for decision

Question 16

If there is a voluntary dismissal, what can the court order the plaintiff to do?

Answer 16

Pay all or part of the cost of the action

Question 17

What is involuntary dismissal?

Answer 17

If a plaintiff failed to prosecute, the defendant can move the court to dismiss or can do it on his own motion. It doesn’t usually happen unless there has been wilful or repeated delay or noncompliance

Question 18

What amendment applies to a trial by jury?

Answer 18

The seventh

Question 19

What does the seventh amendment say with regard to trial by jury?

Answer 19

For suits at common law [which means damages, not equitable suits] where the AIC exceeds $20, the right of a trial by jury is preserved. The seventh amendment depends on the nature of the issue to be tried and not the character of the overall action

Question 20

How does the seventh amendment apply to mixed cases that involve both damages and equitable issues?

Answer 20

Empanel the jury to hear and decide all legal issues of the case and don’t use the jury for the equitable issues. The court tries all equitable issues on its own

Question 21

What is the situation where a federal court can deny a jury trial?

Answer 21

If the case is too complicated for a jury to understand or give a verdict on then the judge can take it away from the jury and be the trier of fact

Question 22

Does the seventh amendment apply to administrative proceedings?

Answer 22

No

Question 23

If an award is money, does that mean it is a common law damages award?

Answer 23

No, it could be equitable because it could be backpay which is a remedy of restitution. Restitutionary damages are equitable and money awards that are incidental to or intertwined with injunctive relief can be equitable

Question 24

How do you deal with the seventh amendment right to a jury trial on an essay?

Answer 24

• ask if the person has a right to a jury trial and say it comes from the seventh. “Seventh amendment is protected by the US Constitution and applies to the civil court right to jury.“
  – identify the procedural issues and see if the plaintiff properly invoked his right to a jury trial and look at the content

Question 25

What is involved in the right to a trial by jury?

Answer 25

A right declared by the seventh amendment or provided by federal statute is preserved to parties and any issue that is triable of right by a jury, a party can demand a jury trial by serving the other parties with a written demand no later than 14 days after the last pleading, or filing the demand according to FR5. Either the plaintiff or the defendant can demand this on all legal issues even if the court has to consider equitable issues as well.

Question 26

Is every case eligible for a jury trial?

Answer 26

No. If in federal court, you have the right to a jury trial but the request must be made in the complaint

Question 27

Is the right to a jury trial considered to be waivable?

Answer 27

Yes, so it’s better to always demand a jury because you can always waive it later

Question 28

What’s the timing for requesting a jury trial?

Answer 28

The request must be in the pleading or the party must’ve made a written demand on the other party within 14 days.

Question 29

Do equitable actions have a right to trial by jury?

Answer 29

No

Question 30

In cases that involve both legal and equitable issues, what do the federal courts do?

Answer 30

They try the legal issues first before a jury and then the equitable ones without a jury. If it has equitable overtones, the presumption is that legal issues will be tried to a jury and equitable ones to a judge

Question 31

If no jury demand is made, what happens?

Answer 31

The case is tried by the court

Question 32

In federal court how must you make the request for a jury trial?

Answer 32

Either in the plaintiff’s pleading or in a written demand. If there is no demand, it is waived

Question 33

How does both the plaintiff and the defendant file for a jury trial?

Answer 33

• Plaintiff: endorse a demand for jury trial on the face of the complaint
• Defendant: put a jury demand on your answer

** or file a separate paper called a jury demand and serve it on the other side and file it with the court