Pre-Trial Adjudication

Question 1

Voluntary Dismissal

Answer 1

● Sometimes, a claimant wants to drop the case. 3 Options:
o Option 1: Unilateral dismissal by filing notice any time before the defendant has filed an answer or motion for summary judgment.
o Option 2: Stipulation of dismissal signed by all parties (settlement).
o Option 3: Permission of the court. Generally a court will grant permission to dismiss, but if the defendant filed a counterclaim, the court will not dismiss unless that claim can remain pending for independent adjudication.

Question 2

Prejudice on Future Litigation

Answer 2

The plaintiff’s ability to re-litigate will depend on whether the claim was dismissed “with prejudice” or “without prejudice.”
o If the notice, stipulation, or court order specifies with or without prejudice, the plaintiff is bound by that.
o If the notice or stipulation is silent, the first dismissal is presumed to be without prejudice; subsequent dismissals are presumed to be with prejudice.

Question 3

Default Judgments

Answer 3

The plaintiff properly serves the defendant, but the defendant never responds. 2 Steps:
● Step 1 - Entry of Default: Clerk must enter a default.
● Step 2 - Entry of a Default Judgment: Issued only after a default has been entered. How it is issued depends on the nature of the plaintiff’s claim:

Question 4

Default Judgments Entry by Clerk

Answer 4

o Entry by Clerk: If the claim is for a “sum certain” (or by computation) and the plaintiff requests the default judgment, the clerk must enter and assess damages and costs against the defendant.
▪ Clerks may not enter default judgments against minors or incompetent persons.

Question 5

Default Judgments Entry by Court

Answer 5

o Entry by the Court: If the clerk can’t enter a default judgment, it must be entered by the court, and the plaintiff must make that application to the court.
▪ If the defendant is a minor or incompetent person, the court will only issue a judgment if the defendant is represented by a guardian or other competent person.
▪ If the defendant initially appeared but later refused to defend the action, the court can issue default judgment only if the defendant was served with written notice of application for default 7 days before the hearing.
▪ The judge may hold hearings to calculate money damages or other matters.

Question 6

Default Judgments - Relief from Entry of Default and Default Judgment

Answer 6

o If a clerk enters a default, the court may set it aside for good cause. If the clerk or court enters a default judgment, the court may set it aside in accordance with Rule 60(b)—a post-trial motion discussed later in this outline.

Question 7

Motion to Dismiss

Answer 7

Motion filed by the defending party seeking dismissal of a claim against them.
● Must be filed before an answer is filed within 21 days (where process was served) or 60 days (where service of process was waived).
Grounds:
- Lack of SMJ;
- Lack of PJ;
- Improper venue;
- Insufficient service of process;
- Failure to state a claim upon which relief can be granted;
- Failure to join an indispensable party.
- Insufficient process;
Waiver:
- The federal rules require certain defenses be raised at certain times (use them or lose them). - - The defendant must include the following defenses in their first response (either motion to dismiss or answer) or they are forfeited:
- Lack of PJ;
- Improper venue;
- Insufficient process;
- Insufficient service of process.
The defendant must raise the following defenses any time before trial ends, or they are forfeited:
- Failure to state a claim upon which relief can be granted;
- Failure to join a necessary party.
- The defense of lack of SMJ is never forfeited. It may be raised anytime, even on appeal.

Question 8

Motion for Summary Judgment (SJ)

Answer 8

No genuine dispute of material fact, and movant is entitled to judgment as a matter of law.

Question 9

Motion for Summary Judgment (SJ) (Step1)

Answer 9

Step 1 – Assess only the arguments advanced by the movant. Have they shown that the non-movant lacks sufficient facts and/or law to prevail on the claim/defense in question?

Two ways:
- Pointing out - with citations to the record - holes in the opposing party’s claims or defenses; or
- Adducing new evidence to demonstrate that the claim or defense cannot be proven.

Question 10

Motion for Summary Judgment (SJ) (Step2)

Answer 10

Step 2 – Examine the non-movant’s response – they must bring evidence sufficient for a reasonable jury to find in their favor on a claim or defense.
- The court will look only at the non-movant’s evidence (won’t weight it against the moving party’s) and assume the witnesses are truth tellers – no credibility issues.
- If the non-movant does not produce evidence, but just talks pleadings, they’ll lose, but if the pleadings are under oath, they will count as being evidentiary.

Question 11

Assume witnesses tell the truth – no credibility issues.

Answer 11

• Either the plaintiff or the defendant can move for summary judgment.
• Materials used: The rule allows the parties to present, and the court to refer to on its own, the pleadings, discovery documents, materials produced in mandatory disclosure, and affidavits.
• Information offered to the court needs to be admissible at trial, even if it is not presently in a form that would be admissible.
• A motion for SJ may be made any time before 30 days after the close of discovery.