pretrial adjudication

Question 1

dismissal without leave of court

Answer 1

allowed before D serves an answer or MSJ; dismissal is without prejudice if this is the first time that P has dismissed her case

Question 2

dismissal with leave of court

Answer 2

required if there has been an answer, motion, or prior dismissal; dismissal without prejudice unless court states otherwise; second voluntary dismissal is with prejudice

Question 3

default procedure

Answer 3

clerk enters default on docket if P shows that D failed to respond within 21 days of being served (or 60 days if service waived)

Question 4

default judgment by court clerk

Answer 4

may be entered if:
1) D has not responded at all
2) claim is for money damages
3) P gives an affidavit of sum owed and
4) D is not a minor or incompetent

Question 5

failure to state a claim vs motion for judgment on the pleadings

Answer 5

before D files answer = 12(b)(6) motion to dismiss

after D files answer = 12(c) motion for judgment on the pleadings

Question 6

MSJ timing

Answer 6

must be filed no later than 30 days after close of discovery

Question 7

MSJ burden for moving party

Answer 7

1) no genuine dispute of material fact, and
2) moving party is entitled to judgment as a matter of law

Question 8

MSJ burden-shifting

Answer 8

if party moves for SJ, burden shifts to non-moving party to show that a triable issue exists

Question 9

MSJ evidence

Answer 9

examined in light most favorable to non-moving party; court can look at the whole record of admissible evidence