Pre-Trial Ajudication

Question 1

Voluntary Dismissal

Answer 1

P may voluntarily dismiss his case, either with or without court approval — i.e., leave of court

Two ways

• (1) Leave of Court
  
  • Court has discretion to grant
  • P can make a motion for voluntary dismissal at any time
    
    • Pending Counterclaim — if D has filed a counterclaim, P cannot voluntarily dismiss without D’s consent
  • Dismissal is Without Prejudice
    
    • unless court specifies otherwise
• (2) P has a right to take a voluntary dismissal by filing a “Notice of Dismissal”
  
  • But P must do so before D serves
    
    • (a) Answer or
    • (b) MSJ
  • Dismissal Without Prejudice — P can refile
    
    • can only do this once

Question 2

Involuntary Dismissal

Answer 2

Sua Sponte or on D’s, the court may order an involuntary dismissal against P for Failure to:

• (1) Prosecute
• (2) Comply with the Federal Rules, or
• (3) Comply with a Court Order.

With Prejudice

• With prejudice, meaning that it operates as adjudication on the merits
  
  • unless the court orders otherwise

Question 3

Default & Default Judgment

Answer 3

Default judgment against D may be entered when D fails to plead or otherwise defend a properly served complaint

_________________________________________

ENTRY OF DEFAULT
Default is a notation by the court clerk on the docket sheet in the case

Clerk must enter default on docket if

• P shows D failed to respond within 21 days of being served with the complaint (60 days if service waived)
• Does not happen automatically on 22nd day after service of complaint — P must request entry of default
  
  • D can respond by motion or answer before default entered — even after the 21 day mark

Effect of Default — cuts of D’s right to respond

• Default doesn’t automatically entitle P to recovery
  
  • Clerk or Judge must enter judgment of default (default judgement)

_________________________________________

DEFAULT JUDGEMENT

(A) Default Judgment by Court Clerk

May be entered if:

• (1) D has not responded at all,
• (2) Claim is for money damages (of sum certain)
• (3) P gives an affidavit of sum owed, and
• (4) D is not a minor or incompetent

(B) Default Judgment by Judge

• If elements above not met, judge may still enter default judgment

Hearing

• Judge will hold a hearing (on provable damages) and has discretion to enter judgment

Notice of Hearing

• D has right to notice of this hearing only if he made an Appearance in the case
• Example of default despite D’s Appearance
  
  • P sues D.
  • D files a motion to dismiss for lack of PJ. The motion is denied.
  • D fails to answer within 14 days after notice that the motion to dismiss was denied.
  • P has the court enter D’s default.
    
    • Here, D gets notice of the motion for entry of default because he made an appearance in the case.

Recoverable Relief (type & amount)

• Cap — Most P can recover is amount pleaded — i.e., requested in complaint
• P can’t get different relief than pleaded — e.g., if P didn’t request injunction, he can’t get it
• Note — these rules don’t apply if cases go to trial — P can recover more (and a different kind of relief) than put in complaint

_________________________________________

Setting Aside Default / Default Judgment

• D can make a Motion to Set Aside
  
  • default / default judgement
• Court may set aside default judgment for Good Cause shown within One Year
  
  • Usually satisfied if D can show some excusable neglect, and a viable defense — e.g., mistake, or fraud

Question 4

Entry of Default

Answer 4

ENTRY OF DEFAULT
Default is a notation by the court clerk on the docket sheet in the case

Clerk must enter default on docket if

• P shows D failed to respond within 21 days of being served with the complaint (60 days if service waived)
• Does not happen automatically on 22nd day after service of complaint — P must request entry of default
  
  • D can respond by motion or answer before default entered — even after the 21 day mark

Effect of Default — cuts of D’s right to respond

• Default doesn’t automatically entitle P to recovery
  
  • Clerk or Judge must enter judgment of default (default judgement)

_________________________________________

DEFAULT JUDGEMENT

(A) Default Judgment by Court Clerk

May be entered if:

• (1) D has not responded at all,
• (2) Claim is for money damages (of sum certain)
• (3) P gives an affidavit of sum owed, and
• (4) D is not a minor or incompetent

(B) Default Judgment by Judge

• If elements above not met, judge may still enter default judgment

Hearing

• Judge will hold a hearing (on provable damages) and has discretion to enter judgment

Notice of Hearing

• D has right to notice of this hearing only if he made an Appearance in the case
• Example of default despite D’s Appearance
  
  • P sues D.
  • D files a motion to dismiss for lack of PJ. The motion is denied.
  • D fails to answer within 14 days after notice that the motion to dismiss was denied.
  • P has the court enter D’s default.
    
    • Here, D gets notice of the motion for entry of default because he made an appearance in the case.

Recoverable Relief (type & amount)

• Cap — Most P can recover is amount pleaded — i.e., requested in complaint
• P can’t get different relief than pleaded — e.g., if P didn’t request injunction, he can’t get it
• Note — these rules don’t apply if cases go to trial — P can recover more (and a different kind of relief) than put in complaint

_________________________________________

Setting Aside Default / Default Judgment

• D can make a Motion to Set Aside
  
  • default / default judgement
• Court may set aside default judgment for Good Cause shown within One Year
  
  • Usually satisfied if D can show some excusable neglect, and a viable defense — e.g., mistake, or fraud

Question 5

Default Judgment

Answer 5

(A) Default Judgment by Court Clerk

May be entered if:

• (1) D has not responded at all,
• (2) Claim is for money damages (of sum certain)
• (3) P gives an affidavit of sum owed, and
• (4) D is not a minor or incompetent

(B) Default Judgment by Judge

• If elements above not met, judge may still enter default judgment

Hearing

• Judge will hold a hearing (on provable damages) and has discretion to enter judgment

Notice of Hearing

• D has right to notice of this hearing only if he made an Appearance in the case
• Example of default despite D’s Appearance
  
  • P sues D.
  • D files a motion to dismiss for lack of PJ. The motion is denied.
  • D fails to answer within 14 days after notice that the motion to dismiss was denied.
  • P has the court enter D’s default.
    
    • Here, D gets notice of the motion for entry of default because he made an appearance in the case.

Recoverable Relief (type & amount)

• Cap — Most P can recover is amount pleaded — i.e., requested in complaint
• P can’t get different relief than pleaded — e.g., if P didn’t request injunction, he can’t get it
• Note — these rules don’t apply if cases go to trial — P can recover more (and a different kind of relief) than put in complaint

_________________________________________

Setting Aside Default / Default Judgment

• D can make a Motion to Set Aside
  
  • default / default judgement
• Court may set aside default judgment for Good Cause shown within One Year
  
  • Usually satisfied if D can show some excusable neglect, and a viable defense — e.g., mistake, or fraud

Question 6

Setting Aside

Default & Default Judgment

Answer 6

• D can make a Motion to Set Aside
  
  • default / default judgement
• Court may set aside default judgment for Good Cause shown within One Year
  
  • Usually satisfied if D can show some excusable neglect, and a viable defense — e.g., mistake, or fraud

_________________________________________

ENTRY OF DEFAULT
Default is a notation by the court clerk on the docket sheet in the case

Clerk must enter default on docket if

• P shows D failed to respond within 21 days of being served with the complaint (60 days if service waived)
• Does not happen automatically on 22nd day after service of complaint — P must request entry of default
  
  • D can respond by motion or answer before default entered — even after the 21 day mark

Effect of Default — cuts of D’s right to respond

• Default doesn’t automatically entitle P to recovery
  
  • Clerk or Judge must enter judgment of default (default judgement)

_________________________________________

DEFAULT JUDGEMENT

(A) Default Judgment by Court Clerk

May be entered if:

• (1) D has not responded at all,
• (2) Claim is for money damages (of sum certain)
• (3) P gives an affidavit of sum owed, and
• (4) D is not a minor or incompetent

(B) Default Judgment by Judge

• If elements above not met, judge may still enter default judgment

Hearing

• Judge will hold a hearing (on provable damages) and has discretion to enter judgment

Notice of Hearing

• D has right to notice of this hearing only if he made an Appearance in the case
• Example of default despite D’s Appearance
  
  • P sues D.
  • D files a motion to dismiss for lack of PJ. The motion is denied.
  • D fails to answer within 14 days after notice that the motion to dismiss was denied.
  • P has the court enter D’s default.
    
    • Here, D gets notice of the motion for entry of default because he made an appearance in the case.

Recoverable Relief (type & amount)

• Cap — Most P can recover is amount pleaded — i.e., requested in complaint
• P can’t get different relief than pleaded — e.g., if P didn’t request injunction, he can’t get it
• Note — these rules don’t apply if cases go to trial — P can recover more (and a different kind of relief) than put in complaint

Question 7

12(b)(6)

Motion to Dismiss for Failure to State a Claim

Answer 7

If P’s complaint fails to state a claim, the case can be dismissed.

Analysis

In ruling on this motion, the court ignores P’s legal conclusions and evidence

It looks only at P’s allegations of fact in the complaint and asks:

• Assuming these facts are true, do they state a plausible claim?
  
  • No — If answer is no — P has not stated a plausible claim — there is no sense letting the case proceed, because the law does not recognize a claim on these facts.
  • The court might let P amend to try to state a claim, though.
• Judge uses his experience and common sense to see if the facts state a plausible claim

Timing of Motion

• The same motion, if made after D has answered is — 12(c) – Motion for Judgement on the Pleadings

Question 8

If 12(b)(6) Motion to Dismiss for Failure to State a Claim

is made after D has answered it is called:

Answer 8

12(c) – Motion for Judgement on the Pleadings

If P’s complaint fails to state a claim, the case can be dismissed.

Analysis

In ruling on this motion, the court ignores P’s legal conclusions and evidence

It looks only at P’s allegations of fact in the complaint and asks:

• Assuming these facts are true, do they state a plausible claim?
  
  • No — If answer is no — P has not stated a plausible claim — there is no sense letting the case proceed, because the law does not recognize a claim on these facts.
  • The court might let P amend to try to state a claim, though.
• Judge uses his experience and common sense to see if the facts state a plausible claim

Question 9

56 — Motion for Summary Judgement (MSJ)

Answer 9

Timing

• Any party can move for this no later than 30 days after close of discovery

Analysis

• Here, P has stated a claim (plausible claim on paper)
• But we might not need a trial. MSJ weeds out cases in which we don’t need trial.
• Why do we ever have a trial? To resolve disputed of material fact
• Standard — Party moving for summary judgment must show that:
  
  • (1) there is no genuine dispute on a material fact and
  • (2) he is entitled to judgment as a matter of law

Discretion to Deny

• If the standard is met, the court is not required to enter summary judgment, it has to discretion to deny

Partial MSJ

• Motion can be for “partial” judgment
  
  • e.g., as to liability, but allow the case to go to trial on damages

Evidence

• Court can look at evidence
  
  • Court views that evidence in the light most favorable to the non-moving party
  • Court doesn’t assess credibility of evidence (first hand knowledge / witness)
    
    • Exception — an authenticated videotape of the accident scene discredits P’s witness’s version of the facts. The court can ignore P’s evidence and grant summary judgment.
• Parties proffer the evidence, usually:
  
  • (1) affidavits
  • (2) declarations
  • (3) deposition testimony
  • (4) interrogatory answers
• To be considered “evidence” for SJM, it must be
  
  • Admissible in Evidence
  • Made on Personal Knowledge
    
    • Hearsay (even if admissable) isn’t considered
  • Show the Affant is Competent to Testify
• Pleadings (e.g., complaint or answer) NOT usually considered evidence
  
  • Pleadings are not given by parties Under Oath
    
    • Only signed by the lawyers under Rule 11
    • Pleading can only be treated as evidence if they are Verified (i.e., under oath)
  • Exception — pleadings might be relevant if D Failed to Deny an allegation by P
    
    • it can be treated as fact on SJM

Non-Movant Needs More Time to Find Evidence

• If the party opposing summary judgment needs more time to find evidence to oppose the motion, he may file an affidavit or declaration with the court stating what that evidence would be
• Court can allow more time for the party to obtain the evidence

Question 10

For Summary Judgement (MSJ)

Can Pleadings be treated as “Evidence”?

Answer 10

No

See below

• Court can look at evidence
  
  • Court views that evidence in the light most favorable to the non-moving party
  • Court doesn’t assess credibility of evidence (first hand knowledge / witness)
    
    • Exception — an authenticated videotape of the accident scene discredits P’s witness’s version of the facts. The court can ignore P’s evidence and grant summary judgment.
• Parties proffer the evidence, usually:
  
  • (1) affidavits
  • (2) declarations
  • (3) deposition testimony
  • (4) interrogatory answers
• To be considered “evidence” for SJM, it must be
  
  • Admissible in Evidence
  • Made on Personal Knowledge
    
    • Hearsay (even if admissable) isn’t considered
  • Show the Affant is Competent to Testify
• Pleadings (e.g., complaint or answer) NOT usually considered evidence
  
  • Pleadings are not given by parties Under Oath
    
    • Only signed by the lawyers under Rule 11
  • Pleading can only be treated as evidence if they are Verified (i.e., under oath)
• Exception — pleadings might be relevant if D Failed to Deny an allegation by P
  
  • it can be treated as fact on SJM

Non-Movant Needs More Time to Find Evidence

• If the party opposing summary judgment needs more time to find evidence to oppose the motion, he may file an affidavit or declaration with the court stating what that evidence would be
• Court can allow more time for the party to obtain the evidence

_________________________________________

Timing

• Any party can move for this no later than 30 days after close of discovery

Analysis

• Here, P has stated a claim (plausible claim on paper)
• But we might not need a trial. MSJ weeds out cases in which we don’t need trial.
• Why do we ever have a trial? To resolve disputed of material fact
• Standard — Party moving for summary judgment must show that:
  
  • (1) there is no genuine dispute on a material fact and
  • (2) he is entitled to judgment as a matter of law

Discretion to Deny

• If the standard is met, the court is not required to enter summary judgment, it has to discretion to deny

Partial MSJ

• Motion can be for “partial” judgment
  
  • e.g., as to liability, but allow the case to go to trial on damages