Pre-Trial Procedure Flashcards
Dismissal
A case can be dismissed with:
- Voluntarily or
- Involuntarily
Voluntary Dismissal
Defendant can vol. dismiss her case once w/out prejudice by filing notice of dismissal b/f ▵ serves answer or moves for Summary Judgment
- After, dismissed with prejudice
Voluntary Dismissal - Without Prejudice
Plaintiff can file suit again
- BUT if re-files & vol. dismiss again, it’s w/ prejudice
Voluntary Dismissal - With Prejudice
Plaintiff can’t reassert her claim again (Doctrine of preclusion applies)
Voluntary Dismissal - Procedure
- Court Order - Plaintiff may be req. to pay ▵’s costs OR
- Written Notice - Plaintiff can dismiss by filing a written notice of dismissal
Involuntary Dismissal
Operates as an adjudication on the merits (w/ prejudice)
- Occurs when:
- Party doesn’t comply with court order,
- Party doesn’t pursue the action, or
- Motion to dismiss is granted
Default Judgment - Default
Plaintiff can get a default by showing to the clerk that ▵ didn’t respond
- Plaintiff can’t recover just from getting default
- Default judgment is needed
Default Judgment
By Clerk - Clerk can enter a default judgment only if:
- No response by ▵
- Monetary Damages - Award sought must be for monetary damages
- Affidavit by ∏ of amount owed by ▵
- Affidavit - vol. declaration of facts written down & sworn to by declarant b/f an officer auth. to administer oaths (Notary Public) ➞ Made under penalty of perjury (can be used as ev.) AND
- ▵ not minor or incompetent OR
By Court - Otherwise Default judgment must be issued by the judge
Default Judgment - Relief from Default
Before Default Judgment - ▵ can get relief from default by making a showing of good cause & a viable defense
After Default Judgment - Motion to set aside judgment - ▵ can get relief by making a showing of good cause and a viable defense
Failure to State a Claim
Before Answer - ▵ makes motion to dismiss based on failure by Plaintiff to state claim upon which relief can be granted
- Ct. assumes everything alleged by Plaintiff is true & determines if plaintiff would win j-ment against ▵
- Court only look to the face of the complaint
- NO evidence considered
Motion for Judgment on the Pleading
Same as failure to state claim BUT made after ▵ answered Plaintiff’s complaint
Summary Judgment
No triable Issue of Material Fact
- Motion for Summary J must be filed with supporting evidence
- P must have done discovery and/or submitted ev. to the court
What does a court look to in deciding if Summary Judgment is proper?
Court can Pierce the Pleadings - Can look at the evidence
- Admissible Evidence Only
- Unver. Plead. - NOT ev.
- Pleadings are relevant to show admission (or fail to deny)
Evidence is viewed in light most favorable to the non-moving party
When is Summary Judgment Proper?
No reasonable trier of fact Standard - SJ proper when:
- Theres no triable issue of material fact, AND
- After viewing the evidence in light most favorable to non-moving P
- Court concludes that no reasonable trier of fact could find in favor of the non-moving P
Summary Judgment Deadlines
- Motion May be Brought anytime up until 30 days after close of discovery
- Opposing P must file response within 21 days of being served with motion
- Moving P may file response within 14 days BUT not required to
Rule 26(f) Conference
Timing - Parties must meet as soon as practicable
- at least 21 days b/f a scheduling conference is to be held or scheduling order is due
Discovery Plan - Attorneys of record and unrep. Ps that have appeared in the case are jointly responsible for:
- Arranging the conference,
- Attempting in GF to agree on proposed discovery plan, and
- For submitting to court within 14 days after the conference a written report outlining the plan
What are the reasons for a Pretrial Conference
- Expedite disposition of the case
- help the court est. managerial control over the case
- discourage wasteful pretrial activities
- improve the quality of the trial with thorough preparation, and
- facilitate a settlement of the case
What happens after the conference?
Judge or magistrate issues order that reflects the results of the conf. and the order controls the future course of the case
Can a pretrial order be amended?
Pretrial Order may be amended
- To prevent Manifest Injustice - Ct. can modify the order issued after final pretrial conf. only to prevent manifest injustice (Difficult std. to meet) OR
- Variance without objection (Implied Consent) - if issue is brought up at trial and no objection is made, theres implied consent
What occurs in a civil pretrial conference ?
In civil pretrial conf. the judge or magistrate, w/ help of attorneys can:
- formulate and simplify the issues in the case
- eliminate frivolous claims or defenses
- get admissions of fact and documents to avoid unecc. proof
- identify witnesses and documents
- make schedules for the submission of pretrial briefs and motions
- make rulings on motions submitted b/f the conference
- set dates for further conferences
- discuss the possibility of a settlement, and
- discuss the consolidation or management of large, complex cases
What elements are required for a preliminary Injunction?
- Notice on adverse party
- Likelihood that the P will succeed on the merits
- Irreparable harm to the P is imminent
- Balance of hardships favors an injunction (harm to P if denied > harm to defendant if granted)
- Injunction is in the pub. int.
- Payment of sec. deposit (P must put up a sec. dep. to compensate the D for harm against him due to the injunction)
What elements are required for a TRO?
- Notice on adverse party
- likelihood that the P will succeed on the merits
- Irreparable harm to the P is imminent
- Balance hardships favors the injunction (harm to P if denied > harm to D if granted)
- Injunction is in the pub. int
- Payment of sec. dep. (P must put a sec. dep. to compensate the D for harm against D due to the restraining order)
What is the duration of a preliminary injunction?
The entirety of the lawsuit
What is the duration of a TRO?
14 days
What are the notice requirements for a TRO?
TRO can be granted ex parte. For ex parte granting of a TRO, the P must show tht they:
- Tried to give notice and
- there will be an immediate irreparable harm to the P w/out the TRO
