Pretrial Adjudication Flashcards
P always has a right of voluntary dismissal before what?
D serves and answer or a MSJ.
If P timely dismisses, the case is dismissed without prejudice, meaning . . .
It can be refiled.
How many times can a P dismiss without prejudice?
Once
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.
21
60
If D does not respond to a complaint in time, P can move for . . .
Default
What is the effect of entry of default?
Cut off D’s right to respond.
Once P files for default, until when can D still respond to the complaint?
Until Default is entered
If P gets a default entered, what must she do before she can recover?
Get a default judgment
When can the CLERK of the court enter a default judgment? (4 needed)
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
If the clerk is not entitled to enter default judgment, where do P go?
Court
Does D get notice of a default judgment hearing?
Only if he has appeared in the case.
P sues D for damages. On default judgment, can P get an injunction, too?
No
How can D move to set aside a default or default judgment? (2 things)
Good cause AND
Viable defense
Motion to dismiss for failure to state a claim arises under FRCP
12(b)(6)
In ruling on a 12b6 motion, ignore what?
P’s legal conclusions
A 12b6 motion to dismiss for failure to state a claim looks only at P’s allegations of fact in the complaint and asks . . .
If these facts were true, would P win a judgment?
In ruling on a 12b6 motion, what evidence can the court examine?
none, just the complaint.
To defeat a 12b6 motion for failure to state a claim, P’s complaint need only support a ____ claim.
Plausible.
If D has answer then makes a motion to dismiss for failure to state a claim, it is called what?
Motion for judgment on the pleadings.
A motion for summary judgment requires a showing that (2):
There is no genuine dispute of material fact AND
That the moving party is entitled to judgment as a matter of law.
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?
No, always discretionary
Time limit on a MSJ?
30 days after the close of discovery
Can there be a partial MSJ?
Ye
In a MSJ, can the court look at evidence?
Yes
In a MSJ, the court views the evidence in a light most favorable to whom?
Nonmoving party
Are pleadings considered evidence?
No
Can pleadings be considered as evidence in a MSJ?
ONLY if verified (under oath)
How can an unverified pleading be relevant to MSJ?
If D failed to deny an allegation by P, it can be treated as fact
If evidence is based on HS, can it be used to determine a MSJ?
No
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?
Ignore it (discretionary)
In a MSJ, the court ordinarily does/doesn’t weigh the credibility of witnesses and the strength of the evidence.
Doesn’t
