Pretrial Adjudication

Question 0

Voluntary Dismissal - Prejudice on future litigation

Answer 0

If stipulated in notice of dismissal, plaintiff is bound by stipulation whether with or without prejudice.

If no stipulation, first dismissal is without prejudice. Subsequent dismissals are presumed with prejudice

Question 1

Voluntary Dismissal Options

Answer 1

unilateral dismissal - claimant files notice of dismissal any time before defendant has filed answer or motion for SJ.
Stipulation of Dismissal - signed by all parties - where unilateral dismissal not available.
Permissive Dismissal - where counterclaim is filed, dismissal will be allowed only were counterclaim remains

Question 2

Involuntary Dismissal

Answer 2

plaintiff fails to prosecute or refuses to comply with court order
D may move to dismiss action
dismissal is always with prejudice
can be used as sanction for discovery violation

Question 3

2 steps in a default judgement

Answer 3

1. entry of default

2. entry of default judgement

Question 4

entry of default

Answer 4

defending party fails to defend action, clerk must enter a default

clerical

Question 5

default judgement

Answer 5

after a default has been entered, a default judgement may issue

may be entered by clerk or court

Question 6

Default judgement entered by clerk

Answer 6

claim for sum certain (or made certain by computation)

may not issue against minor or incompetent

Question 7

Sum Certain

Answer 7

An amount that is readily determinable and not speculative

Question 8

Entry of Default Judgment by court

Answer 8

Requires application of Plaintiff to court where clerk cannot issue default judgement

minor or incompetent - only if D is represented by guardian or other competent person

appearance but later default - requires service of notice of application of default 7 days prior to entry

hearings - may be held to determine damages

Question 9

Relief from entry of default or default judgement

Answer 9

clerk entered default may be set aside for good cause.

default judgement may be set aside in accordance with Rule 60b

Question 10

Motion to Dismiss - timing

Answer 10

Must be filed before answer is filed

21 (process was served) days or 60 days (process waived)

Question 11

motion to dismiss - grounds (7)

Answer 11

lack of SMJ
lack of PJ
Improper Venue
Insufficient process
Insufficient Service of Process
Failure to state a claim upon which relief can be granted
Failure to join an indispensable party

Question 12

What must be raised on first response (answer or motion to dismiss) or WAIVED

Answer 12

1. lack of PJ
2. Improper Venue
3. Insufficient process (constitutional)
4. Insufficient service of process (statutory)

Question 13

Defenses that must be raised before trial or WAIVED

Answer 13

1. Failure to state a claim on which relief can be granted

2. failure to join a necessary party

Question 14

Defenses that are never waived

Answer 14

Subject matter jurisdiction

Question 15

Motion of Summary judgement

Answer 15

No genuine dispute as to any material fact

and am entitled to judgement as matter of law

Question 16

Analysis of Motion for Summary Judgement

Answer 16

1. Argues that movant has shown that non-movant lacks sufficient facts/law to prevail on the claim or defense in question.
2. Court will look at non-movant must adduce evidence so that a reasonable jury could find in her favor.

Question 17

Materials Used in SJ

Answer 17

Pleadings
discovery documents
affidavits

Evidence needs to be admissible in court, even if not presently in an admissible form

Question 18

When can motion for SJ be made

Answer 18

anytime before 30 days after the close of discovery