Pretrial Adjudication

Question 1

Voluntary Dismissal Options

3

Answer 1

Option 1: (before answer) A claimant can unilaterally dismiss her suit simply by filing a notice of dismissal anytime before ∆ has filed (1) an answer; or, (2) summary judgment

Option 2: (settlement) If a claimant cannot unilaterally dismiss (or simply chooses not to), she can dismiss her claim by filing a stipulation of dismissal signed by all parties. This is what typically happens when a case settles.

Option 3: If a claimant cannot dismiss under options 1 or 2 (or chooses not to), she can dismiss only with the permission of the court. Generally, a court will grant permission, but if the defendant has filed a counterclaim, the court will not allow dismissal unless the counter claim can remain pending

Question 2

May the plaintiff, after dismissing her claim, re-litigate it?

Answer 2

It depends upon if it was dismissed with or without prejudice

Question 3

If a dismissal does not address address whether a dismissal is without prejudice?

Answer 3

Presume the first is without; and,

The second is with prejudice

Question 4

When may a defendant may move for dismissal the action?

Answer 4

If the plaintiff

1. fails to prosecute her case or
2. refuses to comply with a court order or
3. any of the Federal Rules of Civil Procedure

Question 5

Default judgments involve two steps

Answer 5

1. Entry of default: if a ∆fails to defend an action, the clerk must enter a default
2. After default has been entered, a default judgment may be issued

Question 6

Clerks may not enter default judgments against:

Answer 6

minors or incompetent persons

Question 7

What default judgments may clerks enter?

Answer 7

claim is for a “sum certain” (or a sum that can be made certain by computation) — it is not debatable that it is the amount of harm

Question 8

How to get a court to enter a default judgment

Answer 8

A plaintiff must make an application to the court

Question 9

If the defendant is a minor or incompetent person, the court will issue a default judgment only if the defendant is

Answer 9

represented

Question 10

If the defendant initially appeared in the case but later refused to defend the action, the court may issue a default judgment only if

Answer 10

Must give them notice seven days before issuing

Question 11

What relief is available from default judgment

Answer 11

The court can set a clerks default or a defualt judgment aside for good cause

Question 12

What is a motion to dismiss?

Answer 12

A motion to dismiss is a motion filed by a defending party seeking the dismissal of a claim filed against him.

Question 13

When must a motion to dismiss be filed?

Answer 13

Before the answer is filed

either 21 days (where process was served) or 60 days (where service of process was waived),

Question 14

What grounds may the motion to dismiss be made upon?

6

Answer 14

1. Lack of subject matter jurisdiction
2. Lack of personal jurisdiction
3. Improper venue
4. Insufficient process
5. Failure to state a claim upon which relief can be granted (assuming allegations are true)
6. Failure to join an indispensable party

Question 15

When motion to dismiss is grounded in improper venue, what may the court do?

Answer 15

1. dismiss

2. transfer venue

Question 16

What defenses must be included in a ∆’s motion to dismiss/answers or else they are forfeited?

Answer 16

1. Lack of personal jurisdiction
2. Improper Venue
3. Insufficient Process
4. Insufficient Service of Process

Question 17

What defenses must a ∆ include before the trial ends or they forfeit them?

Answer 17

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

2. Failure to join a necessary party

Question 18

What defenses does ∆ never lose?

Answer 18

Subject Matter Jurisdiction

Question 19

Steps in evaluating a motion for summary judgment

Answer 19

Step 1
Does the non-movant lacks sufficient facts and/or law to prevail on the claim or defense in question in front of a jury?

Step 2

Question 20

Step 1 in Summary Judgment Analysis

Answer 20

The court considers whether the movant has shown—based on the movant’s arguments alone—that the non-movant lacks sufficient facts and/or law to prevail on the claim or defense in question

1. Pinpoint gaps in opponents evidence
2. Demonstrate new evidence showing that claims cannot be true

Question 21

Step 2 in Summary Judgment Analysis

Answer 21

To survive summary judgment, the non-movant must provide evidence such that a reasonable jury would find in their favor

Question 22

How does the court weigh the evidence in summary judgment

Answer 22

It does not weigh credibility of evidence against either party or witnesses

Question 23

One summary judgment argument commonly used—pointing out, with citations to the record, the gaps in the claimant’s evidence—is unavailable to??

Answer 23

Plaintiffs

Question 24

Information/materials offered to the court for summary judgment motions must be

Answer 24

Admissible at trial

-even if not presently admissible

Question 25

A party may move for summary judgment when?

Answer 25

Anytime before 30 days post discovery

Question 26

What is the magic number for discovery time periods?

Answer 26

30 days