Pretrial Adjudication

Question 1

P always has a right of voluntary dismissal before what?

Answer 1

D serves and answer or a MSJ.

Question 2

If P timely dismisses, the case is dismissed without prejudice, meaning . . .

Answer 2

It can be refiled.

Question 3

How many times can a P dismiss without prejudice?

Answer 3

Once

Question 4

If D does not respond to a complaint in time, this means he has failed to respond ____ days after being served with process OR ___ days from mailing of waiver if service was waived.

Answer 4

21

60

Question 5

If D does not respond to a complaint in time, P can move for . . .

Answer 5

Default

Question 6

What is the effect of entry of default?

Answer 6

Cut off D’s right to respond.

Question 7

Once P files for default, until when can D still respond to the complaint?

Answer 7

Until Default is entered

Question 8

If P gets a default entered, what must she do before she can recover?

Answer 8

Get a default judgment

Question 9

When can the CLERK of the court enter a default judgment? (4 needed)

Answer 9

D made no response at all

The claim itself is for a sum CERTAIN in money

Claimant gives an affidavit of the sum owed; AND

D is not a minor or incompetent

Question 10

If the clerk is not entitled to enter default judgment, where do P go?

Answer 10

Court

Question 11

Does D get notice of a default judgment hearing?

Answer 11

Only if he has appeared in the case.

Question 12

P sues D for damages. On default judgment, can P get an injunction, too?

Answer 12

No

Question 13

How can D move to set aside a default or default judgment? (2 things)

Answer 13

Good cause AND

Viable defense

Question 14

Motion to dismiss for failure to state a claim arises under FRCP

Answer 14

12(b)(6)

Question 15

In ruling on a 12b6 motion, ignore what?

Answer 15

P’s legal conclusions

Question 16

A 12b6 motion to dismiss for failure to state a claim looks only at P’s allegations of fact in the complaint and asks . . .

Answer 16

If these facts were true, would P win a judgment?

Question 17

In ruling on a 12b6 motion, what evidence can the court examine?

Answer 17

none, just the complaint.

Question 18

To defeat a 12b6 motion for failure to state a claim, P’s complaint need only support a ____ claim.

Answer 18

Plausible.

Question 19

If D has answer then makes a motion to dismiss for failure to state a claim, it is called what?

Answer 19

Motion for judgment on the pleadings.

Question 20

A motion for summary judgment requires a showing that (2):

Answer 20

There is no genuine dispute of material fact AND

That the moving party is entitled to judgment as a matter of law.

Question 21

If a party moving for summary judgment shows that There is no genuine dispute of material fact AND That the moving party is entitled to judgment as a matter of law, must the court enter SJ?

Answer 21

No, always discretionary

Question 22

Time limit on a MSJ?

Answer 22

30 days after the close of discovery

Question 23

Can there be a partial MSJ?

Answer 23

Ye

Question 24

In a MSJ, can the court look at evidence?

Answer 24

Yes

Question 25

In a MSJ, the court views the evidence in a light most favorable to whom?

Answer 25

Nonmoving party

Question 26

Are pleadings considered evidence?

Answer 26

No

Question 27

Can pleadings be considered as evidence in a MSJ?

Answer 27

ONLY if verified (under oath)

Question 28

How can an unverified pleading be relevant to MSJ?

Answer 28

If D failed to deny an allegation by P, it can be treated as fact

Question 29

If evidence is based on HS, can it be used to determine a MSJ?

Answer 29

No

Question 30

Say that P has a witness that saw the scene and testifies in P’s favor. D has a video surveillance tape (authenticated) that discredits the witness. How may the court treat the witness testimony for MSJ?

Answer 30

Ignore it (discretionary)

Question 31

In a MSJ, the court ordinarily does/doesn’t weigh the credibility of witnesses and the strength of the evidence.

Answer 31

Doesn’t