Pretrial Adjudication Flashcards
Voluntary Dismissal
3 options when a claimant wants to drop the case:
- Unilateral dismissal by filing notice any time before the defendant has filed an answer or motion for summary judgment.
- settlement signed by all parties
- Permission of the court.
–Generally will grant, but if the D filed a counterclaim, the court will not dismiss
P gets 1 vountary dismissal without prejudice, but second time it gets dismissed with prejudice
re-litigating after dismissal
P’s ability to re-litigate will depend on whether the claim was dismissed “with prejudice” or “without prejudice.”
-With prejudice = you don’t get to sue again
-without prejudice = you do get to sue again
Involuntary dismissal
If P fails to prosecute their case, or refuses to comply with a court order or any of the FRCP, D can move to dismiss.
*Operates as a dismissal 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.
Default judgments
P properly serves D, but the D never responds.
2 Steps:
Step 1 - Entry of Default: Clerk must enter a default.
Step 2 - Entry of a Default Judgment: Issued only after a default has been entered.
-Entry can be by Clerk, or by the Court
Entry of a Default Judgment by Clerk
If the claim is for a “sum certain” (or by math), and P requests the default judgment, the clerk must enter and assess damages and costs against D.
*Clerks may not enter default judgments against minors or incompetent persons.
Entry of a Default Judgment by the Court
If Clerk cannot enter, Court must. P must make an application to the court.
-If the D is a minor or incompetent person: the court will only issue a judgment if D is represented by a guardian or other competent person.
-If D initially appeared but later refused to defend the action: the court can issue default judgment only if D was served with written notice of application for default 7 days before the hearing.
-The judge may hold hearings to calculate money damages or other matters.
Relief from an entry of default and default judgment
If a clerk enters a default, the court may set it aside for good cause.
If the clerk or court enters a default judgment, the court may set it aside in accordance with Rule 60(b)—a post-trial motion for relief from a judgment
motion to dismiss
a motion filed by D seeking dismissal of a claim against them.
**must be filed BEFORE an answer is filed
*within 21 days where process was served
*within 60 days where process was waived
grounds for motion to dismiss
- lack of SMJ
*never waived, can always be raised, even on appeal - lack of PJ
*must be first responsive pleading, or else waived - improper venue
*must be first responsive pleading, or else waived - insufficient process
(not serving the complaint and summons together)
*must be first responsive pleading, or else waived - insufficient service of process
*must be first responsive pleading, or else waived - failure to state a claim upon which relief can be granted
*must be raised before trial ends, or else waived - failure to join a necessary party
*must be raised before trial ends, or else waived
motion for failure to state a claim 12(b)(6)
a court will dismiss a complaint for failure to state a claim upon which relief can be granted if the complaint:
- fails to state a recognizable claim
- provides insufficient facts, OR
- contains an allegation that negates one or more elements of the cause of action
motion for summary judgment
no genuine dispute of material fact, and movant is still entitled to judgment as a matter of law.
*a party may move for Sj anytime up until 30 days after the close of discovery.
P or D can file SJ.
materials included in motion for summary judgment
The rule allows the parties to present, and the court to refer to on its own, the pleadings, discovery documents, materials produced in mandatory disclosure, and affidavits.
the court must consider any cited materials, but may consider other materials in the record.
-If the court chooses not to consider the testimony that neither side cited, the court may enter summary judgment because the record so viewed shows that the plaintiff cannot produce admissible evidence of a fact without which the plaintiff cannot win.
-Information offered to the court needs to be admissible at trial, even if it is not presently in a form that would be admissible.
analysis for motion for SJ
step 1:
assess arguments made by movant- have they shown that the non-movant lacks sufficient facts and/or law to prevail on the claim/defense in question?
step 2:
examine non-movants response- they must bring evidence sufficient for a reasonable jury to find in their favor on a claim or defense.
In a motion for summary judgment, can the parties rely solely on the pleadings and prevail?
No. -In a motion for summary judgment, the parties cannot rely solely on the pleadings and expect to prevail.
Particularly when a defendant brings a motion for summary judgment against a plaintiff, it is important to note that the plaintiff’s pleading–the complaint–contains mere allegations. No matter how specific the allegations, they are simply that, and do not constitute proof of what they allege.
Therefore, the plaintiff cannot rely on those mere allegations to defeat a motion for summary judgment.
