Pleadings: dispositive motions Flashcards
Motion to dismiss: insufficient service of process
A defendant generally has 21 days after the service of process to file a pre-answer motion to dismiss for insufficient service of process.
Motion to dismiss: failure to state a claim upon which relief could be granted
The court must take all well-pleaded facts in the complaint as true and resolve all doubts and inferences in the complainant’s favor.
In resolving the motion, the court may only consider the allegations and exhibits in the complaint or matters subject to judicial notice.
It can be raised after the answer is filed.
Pre-answer motion to dismiss: waiver
Certain defenses (such as improper venue) must be raised along with other defenses (such as lack of personal jurisdiction) in a pre-answer motion to dismiss where such a motion is made:
- they are waived if subsequently raised for the first time in the answer;
- but courts generally have allowed parties to amend a motion to dismiss to add an omitted ground if the party:(i) acts promptly and
(ii) before the court rules on the original motion.
If a defendant’s pre-answer motion is granted before it files a pleading (i.e., an answer), it does not waive its compulsory counterclaims against the plaintiff.
Default judgment
When a party has failed to plead or otherwise defend an action, and that failure is shown by affidavit or otherwise, the court clerk must enter the party’s default.
Once a default is entered against a party, the plaintiff may seek a default judgment.
Default judgment: relief sought
If the relief sought is a sum certain or an amount that can be made certain by computation, the default judgment can generally be entered by the court clerk on the plaintiff’s request, accompanied by an affidavit showing the amount due.
Otherwise, the plaintiff must apply to the court for a default judgment.
Voluntary dismissal: two-dismissal rule
If a plaintiff has voluntarily dismissed an action based on a claim without court approval, a subsequent voluntary dismissal of an action based on the same claim is a dismissal with prejudice and thus has preclusive effect.
Pre-answer motion to dismiss: deadline to file answer
When a defendant files a pre-answer motion under Rule 12, such as a motion to dismiss for lack of personal jurisdiction, the defendant has 14 days after receiving notice of the court’s decision on this motion to file its answer.
Voluntary dismissal: cross claims, counterclaims, and third-party claims
A party may voluntarily dismiss a cross-claim–-or a counterclaim or third-party claim—without the approval of the court or the consent of the parties and before evidence is introduced at a hearing or trial if:
(1) If the voluntary dismissal is before a responsive pleading is served; or
(2) If there is no responsive pleading.
The service of a summary judgment motion by a co-party with respect to a cross-claim—or counterclaim or third-party claim—does not cut off a party’s ability to voluntarily dismiss the claim without court approval or the consent of the other parties. This occurs only after evidence is introduced at the court hearing on the motion.
Motion to dismiss: summary judgment
If the court considers new evidence in its review of a motion to dismiss, it should treat the motion as a motion for summary judgment rather than a motion to dismiss.
