Pretrial adjudication Flashcards
Voluntary dismissal - 3 options
Unilateral dismissal - available any time before DFT has filed an answer or SJ motion
Stipulation of dismissal signed by all parties (settlement)
Permission of the court - generally will get permission, but if DFT has a counterclaim, court won’t dismiss unless it can remain pending for independent adjudication
Prejudice on future litigation
Dismissal WITH prejudice - cannot relitigate the issue
WITHOUT prejudice - can relitigate this issue
If notice/stipulation/ruling is silent w/r/t prejudice, FIRST dismissal presumed without prejudice and SUBSEQUENT dismissals presumed with prejudice
Involuntary dismissal
If PLN fails to prosecute case or refuses to comply w court orders/FRCP, DFT can move to dismiss
This is an adjudication on the merits, with prejudice, unless order states otherwise or it’s for lack of jx/improper venue/failure to join a party
Default judgment
PLN properly serves and DFT never responds. 2 steps:
1) clerk enters a default
2) entry of default judgment. two ways this can happen
- if claim is for sum certain or computable and PLN requests the default, clerk must enter and assess damages. clerk may not enter against minors/incompetent persons
- if clerk can’t enter, must be entered by the court, PLN must apply. Court will only enter judgment against minors and incompetents if represented by guardian. If DFT appeared once and later refused to defend, can only enter if DFT was served w written notice of application for default 7 days in advance. Judge may hold hearings to calculate damages
Relief from entry of default - if entered by clerk, court can set aside for good cause. If clerk or court enters, court can set aside for 60b post-trial motion
Motion to dismiss
Never waivable:
- SMJ
Waivable if not raised BEFORE ANSWER:
- PJ
- venue
- insufficient process
- insufficient service
Waivable if not raised before end of trial:
- failure to state a claim
- failure to join an indispensable party
