Pretrial Adjudication Flashcards
Voluntary Dismissal
P may voluntarily dismiss her case, either with or without court approval (i.e., leave of court)
Dismissal will be without prejudice (i.e., P can bring claims again), unless an exception applies
Dismissal without leave of court
> allowed before D serves an answer or motion for summary judgment (“MSJ”)
> P voluntarily dismisses by filing written notice of dismissal or stipulation signed by all parties who have appeared
> Dismissal is without prejudice provided this is the first time that P has dismissed her case; otherwise it is with prejudice
Dismissal with leave of court
> required if there has been an answer, motion, or prior dismissal
> Court has discretion to grant dismissal on terms and conditions it deems proper
> Dismissal is without prejudice unless court states otherwise; the second voluntary dismissal is “with prejudice”
> Pending counterclaim—if D has filed a counterclaim, P cannot voluntarily dismiss without D’s consent
Default/Default Judgement
When D fails to plead or otherwise defend a properly served complaint
Default judgment by court clerk—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
Default judgment by court
> If elements above are not met, court must enter default judgment and court will hold a hearing on damages
> D may be entitled to hearing—If D has appeared at some point in response to P’s complaint, D must get 7 days notice of a hearing on default motion
Recovery is limited to the amount set forth in the complaint
Failure to State a Claim & Motion for Judgement on the Pleadings
D may move to dismiss for failure to state a plausible claim or move for judgment on the pleadings due to P’s failure to bring a plausible claim
> I.e., D arguing that even assuming all allegations in P’s complaint or pleadings are true, P cannot win
> If granted, P will usually be given leave to amend her complaint
Failure to state a claim vs. motion for judgment on the pleadings
Timing of filing:
Before D files answer = Rule 12(b)(6) motion to dismiss
After D files answer = Rule 12(c) motion for judgment on the pleadings
Materials reviewed by court:
Rule 12(b)(6) motion—court reviews sufficiency of P’s complaint alone
Rule 12(c) motion—court reviews all pleadings
Summary Judgement
Must be filed no later than 30 days after close of discovery
Burden for moving party—must show:
1) There is no genuine dispute of material fact; and
2) Moving party is entitled to judgment as a matter of law
I.e., no reasonable person could find for non-moving party
Motion is based on pleadings and evidence submitted
Burden-shifting
If party moves for summary judgment, burden shifts to non-moving party to show that a triable issue exists
> Non-moving party may submit request for more time to take discovery (must specify discovery sought and how it will help)
Evidence—examined in the light most favorable to non-moving party
Court can look at the whole record of admissible evidence
Note—this distinguishes MSJ from Rule 12(b) or 12(c) motions, in which court may only look at the complaint or pleadings
Alt Dispute Resolution and Settlement
ADR—generally refers to any means of settling disputes outside the courtroom, including arbitration and mediation
Mandatory settlement conference—court-appointed advisor meets with parties privately and offers evaluation of the weaknesses of their respective case
Formal “offer of judgment”—a party defending a claim may make a formal settlement offer at least 14 days before the date set for trial
> Settlement for less than offer—if claimant rejects settlement offer and obtains judgment less favorable than the unaccepted offer, claimant must pay costs incurred by the offering party after the offer was made
> Ordinarily costs do not include attorney fees. The exception involves litigation in situations where federal fee- shifting statutes define fees to be part of costs
