Pretrial Adjudication

Question 1

When can a voluntary dismissal occur?

Answer 1

1. A claimant can unilaterally dismiss her suit by filing a notice of dismissal anytime before ∆ has filed their answer;
2. A claimant can dismiss her claim by filing a stipulation of dismissal signed by all parties. This is what typically happens when a case settles; and,
3. The claimant can dismiss by getting the permission of the court.

Question 2

May the plaintiff, after dismissing her claim, litigate the claim again?

Answer 2

It depends upon if it was dismissed with or without prejudice.

Question 3

What is the default if a dismissal does not address address whether a dismissal is without prejudice?

Answer 3

Presume the a first dismissal is without; and, a second is with prejudice.

Question 4

When may a defendant move for a dismissal of the action?

Answer 4

If the plaintiff:

1. Fails to prosecute her case;
2. Refuses to comply with a court order; or,
3. Fails to comply with any of the Federal Rules of Civil Procedure.

Question 5

What are the two steps for a default judgment?

Answer 5

Step 1: Entry of default: if a ∆ fails to defend an action, the clerk must enter a default; then,

Step 2: After default has been entered, a default judgment may be issued.

Question 6

Who can clerks not enter default judgments against?

Answer 6

Minors or incompetent persons.

Question 7

What default judgments may clerks enter?

Answer 7

When the claim is for a sum certain. A sum certain is an amount that is not debatable.

Question 8

What must be done 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, when will the court issue a default judgment?

Answer 9

When the defendant is represented.

Question 10

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

Answer 10

The court may issue a default judgment after giving the defending party 7 days notice.

Question 11

What relief is available from a default judgment?

Answer 11

The court can set a clerk’s default or a default 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:

1. 21 days, if process was served; or
2. 60 days, if service of process was waived.

Question 14

What are the grounds for a motion to dismiss?

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;
6. Failure to join an indispensable party.

Question 15

When motion to dismiss is grounded in improper venue, what are the court’s options?

Answer 15

1. Dismiss; or,
2. Transfer venue.

Question 16

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

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 are waived?

Answer 17

1. Failure to state a claim upon which relief can be granted; and,
2. Failure to join a necessary party.

Question 18

What defenses does a ∆ never lose?

Answer 18

Lack of subject matter jurisdiction.

Question 19

What are the steps in evaluating a motion for summary judgment?

Answer 19

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

Step 2: The non-movant must fail to provide evidence such that a reasonable jury would find in their favor.

Question 20

What is step 1 in a 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. The movant can do this by:

1. Pinpointing gaps in opponent’s evidence; or,
2. Demonstrate new evidence showing that the claims cannot be true.

Question 21

What is step 2 in a 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 credibility of 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 which party?

Answer 23

Plaintiffs.

Question 24

What is required for information/materials offered to the court to support a summary judgment motion?

Answer 24

The materials must be admissible at trial.

Question 25

A party may move for summary judgment when?

Answer 25

Up to 30 days after discovery has closed.

Question 26

What is the general deadline in discovery?

Answer 26

30 days.