Pretrial Adjudication

Question 1

What are three options for voluntary dismissal?

Answer 1

1. Unilateral dismissal by filing notice any time before D has filed an answer or motion for summary judgment
2. Stipulation of dismissal signed by all parties (settlement)
3. Permission of the court. Generally will grant, but if D filed a counterclaim, court will not dismiss unless that claim can remain pending for independent adjudication

Question 2

How can you tell if a claim was dismissed with or without prejudice?

Answer 2

If notice, speculation, or court order specifies, bound by that

If silent, presumed without prejudice in first dismissal, subsequent dismissals are presumed with prejudice

Question 3

What are the rules for involuntary dismissal?

Answer 3

If P fails to prosecute her case or refuses to comply with a court order or any of the FRCP, D can move to dismiss

Operates as an adjudication on the merits (with prejudice) unless the order states otherwise or it’s a dismissal for lack of jurisdiction, improper venue, or failure to join a party under Rule 19

Question 4

When does a default judgment occur?

Answer 4

P properly serves D, but D never responds

Question 5

What are the two steps for a default judgment?

Answer 5

1. entry of default by clerk of court
2. entry of default judgment

Question 6

How is a default judgment issued?

Answer 6

If claim for a “sum certain” (or by math) and P requests the default judgment, clerk must enter and assess damages and costs against the D

However, if the clerk cannot do it, the court will, but P must ask for it

Question 7

Is a default judgment effective if D initially appeared but failed to appear later?

Answer 7

If D initially appeared but failed later, court can issue only if D served with written notice of application for default 7 days before hearing

Question 8

What is a motion to dismiss?

Answer 8

Motion filed by defending party seeking dismissal of a claim against them

Question 9

When must a motion to dismiss be filed?

Answer 9

Must be filed before an answer is filed (within 21 days if process served, or 60 days where process was waived)

Question 10

What are the grounds for a motion to dismiss?

Answer 10

1. Lack of SMJ;
2. Lack of PJ;
3. Improper venue;
4. Insufficient process (constitutional claim);
5. Insufficient service of process (statutory claim);
6. Failure to state claim upon which relief can be granted
7. Failure to join necessary party

Question 11

What is required to properly state a claim?

Answer 11

Must be plausible, not probable (needs some facts).

Question 12

Which defenses must be raised in the first response (either motion to dismiss or answer) or else they are waived?

Answer 12

1. lack of PJ
2. improper venue
3. failure of constitutional process
4. failure of statutory process

Question 13

Which defenses must be raised at any time before the trial ends, or else they are waived?

Answer 13

1. failure to state claim
2. failure to join necessary party

Question 14

Which defense may never be waived (so it can be raised at any time, even on appeal)?

Answer 14

Lack of SMJ

Question 15

What does a motion for summary judgment claim?

Answer 15

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

Question 16

When may a motion for summary judgment be made?

Answer 16

Motion for SJ may be made any time before 30 days after the close of discovery

Question 17

What are the two main steps for assessing a motion for summary judgment?

Answer 17

1. assess only the arguments advanced by the movant: movant must show that the non-movant lacks sufficient facts and/or law to prevail on claim or defense
2. examine the non-movant’s response: they must bring evidence sufficient for a reasonable jury to find in their favor on the claim or defense

Question 18

Are any credibility issues considered at the motion for summary judgment stage?

Answer 18

The court will assume that the witnesses used by either party are truth tellers (no credibility issues)