PRETRIAL ADJUDICATION

Question 1

Options in Pretrial Adjudication

Answer 1

1. Voluntary Dismissal
2. Default and Default Judgment
3. Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)).
4. Motion for Summary Judgment (FRCP 56).

Question 2

What is Voluntary dismissal and when can it be raised?

Answer 2

P wants to withdraw the case. P can make a motion for voluntary dismissal anytime.

P has a right to take a voluntary dismissal by filing a “notice of dismissal.” But she must do so before Defendant serves her answer or motion for Summary Judgment

Question 3

If P files a timely notice of dismissal, the case is dismissed “without prejudice.” What does that mean?

Answer 3

P can refile the case

But you only get to do it without prejudice once

Question 4

What if P files a notice of dismissal in the second case? That dismissal is “with prejudice.” What does that mean?

Answer 4

P cannot refile the case

Question 5

Involuntary dismissal

Answer 5

A court’s directive discharging a pending action due to the plaintiff’s failure to pursue the action or to comply with the rules or a court order, or as a result of granting a defendant’s motion under Rule 12
- Presumed to be with prejudice

Question 6

Timing for and implication for Default and Default Judgment

Answer 6

The type of judgment entered against a party that has failed to make an appearance or otherwise defend itself in the action
- D does not respond to the complaint in time (21 days
after being served with process; 60 days from mailing of waiver if you waived service).

Question 7

Default is…

Answer 7

a notation by the court clerk on the docket sheet of the case.

Question 8

Does the court enter default automatically on the 22nd day after service of process on D?

Answer 8

No - P must move for it

Question 9

What does P have to demonstrate for default and what may D do?

Answer 9

P must demonstrate that D failed to respond in time. Until default is entered, D can respond by motion or answer (even beyond 21 days).

Question 10

What is the effect of entry of default?

Answer 10

It cuts off Ds right to respond

Question 11

Does entry of default entitle the P to recover?

Answer 11

Entry of default does not entitle P to recover.

Question 12

What does P need to do before she can recover from D?

Answer 12

Get a default judgment

Question 13

How to get a default judgment.

Answer 13

• The clerk of court can enter judgment if:
  
  • D made no response at all;
  • The claim itself if for a sum certain in money;
  • Claimant gives an affidavit (sworn statement) of the sum owed; AND
  • D is not a minor or incompetent.
• If any of those is not true, You apply to the court itself - there you got to see the judge
  
  • The judge will hold a hearing and has discretion to enter judgment.

Question 14

Does D get notice of this hearing for default?

Answer 14

Only if he appeared in the case

Question 15

What is the max you can recover for a default judgement and what can’t you recover? What if the case goes to trial?

Answer 15

You are limited to what you plead

You also cannot get a different type of relief than what you pleaded

If the case goes to trial, P can recover more (and a different kind of relief) than she put in her complaint.

Question 16

D may move to have the court set aside a default or default judgment

What must the D show for a Motions to set aside?

Answer 16

1. by showing good cause (like excusable neglect) and
2. must state a viable defense

Question 17

Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)).

Answer 17

This is about whether the case belongs in the litigation stream at all.

If P’s complaint fails to state a claim, the case can be dismissed.

Question 18

In ruling on a Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)), what does and doesn’t the court look at? And what does the court ask?

Answer 18

In ruling on this motion, the court ignores P’s legal conclusions. It looks only at P’s allegations of fact in the complaint and asks: If these facts were true, would P win a judgment?

• If the answer is no, there is no sense letting the case proceed, because the law does not recognize a claim on these facts. Court might let P amend to try to state a claim, though.

It also does not look at evidence, just the face of the complaint

Question 19

The facts in a claim must be…

Answer 19

plausible

Question 20

Motion for Summary Judgment (FRCP 56)

Answer 20

Summary judgment weeds out cases in which we don’t need trial.

Why do we ever have a trial?

• To resolve disputes of material fact

Question 21

Party moving for summary judgment must show:

Answer 21

(1) There is no genuine dispute on a material fact and
(2) That she is entitled to judgment as a matter of law.

If the moving party shows these things,the court has discretion to grant SJ

Question 22

Timing for summary judgment

Answer 22

Any party can move for summary judgment no later than 30 days after close of discovery

Question 23

Can the motion for summary judgment be for “partial” judgment – say, on one of several claims?

Answer 23

Yes

Question 24

In summary judgment, can the court look at evidence?

Answer 24

Yes - this is different from 12(b)(6)

The court views the evidence in the light most favorable to the nonmoving party.

Question 25

How can parties proffer evidence for summary judgment?

And why can these be considered evidence?

Answer 25

(1) affidavits or
(2) declarations or
(3) deposition testimony or
(4) interrogatory answers.

Because they are under oath

Question 26

Can a pleading ever be treated as evidence for summary judgement?

Answer 26

Only if it is verified

Usually, pleadings are not under oath and so are not considered evidence.

But pleadings might be relevant for summary judgment in this way: if D failed to deny an allegation by P, it can be treated as fact on summary judgment.

Question 27

What is a Rule 26(f) Conference and timing?

Answer 27

Unless court order says otherwise, at least 21 days before
scheduling conference, parties “meet and confer.”

They discuss production of required initial disclosures, claims, defenses, settlement, and issue about preservation of discoverable information.

Question 28

What else must parties present at Rule 26(f) Conference

Answer 28

A detailed discovery plan

Question 29

what must be in the detailed discovery plan for the Rule 26(f) Conference?

Answer 29

The plan must include views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it (e.g., deleted files), etc.

Question 30

Scheduling Order

Answer 30

Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, completion of discovery, etc.
This is a roadmap for how the litigation proceeds up to trial

Question 31

Pretrial Conference

Answer 31

A meeting a court may hold before a trial to (1) expedite resolution of the case; (2) set a schedule to avoid protracted delay; (3) discourage wasteful pretrial activities; (4) improve trial preparation; and (5) facilitate settlement

Question 32

Final Pretrial Conference

Answer 32

The final pretrial conference will determine the issues to be tried and evidence to be proffered at trial. This is recorded in the pretrial conference order

Question 33

What is the signifigance of a final pretrial conference order?

Answer 33

It supersedes the pleadings

Order that court must issue after pretrial conference to set forth (1) decisions concerning claims and defenses, (2) stipulations of facts, (3) evidentiary rulings, (4) timing for summary judgment motions, (5) discovery schedule, (6) identification of witnesses and documents, (7) timing for pretrial briefs, (8) decisions to refer matters to magistrate, (9) details of any settlements made, and (10) disposition of pending motions

Question 34

What is the point of a pretrial conference order?

Answer 34

So there are no surprises at trial