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 the defendant has filed an 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.
3. A 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 depend. if it was dismissed with prejudice, then she may not. If it was dismissed without prejudice, then she may.

Question 3

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

Answer 3

Presume that a first dismissal is without prejudice 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 defendant fails to defend an action, then the clerk must enter a default

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

More Info: Steps for Default Judgment

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 an 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.

More Info: Motion to Dismiss

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

Answer 15

1. Dismiss
2. Transfer venue

Question 16

What defenses must be included in a defendant’s motion to dismiss/answeror else they arewaived?

Answer 16

1. Lack of personal jurisdiction
2. Improper venue
3. Insufficient process
4. Insufficient service of process

Question 17

What defenses must a defendant include before the trial ends or else 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 defendant 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 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: The non-movant must fail to provide evidence such that a reasonable jury would find in their favor

More Info: Summary Judgment

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 the opponent’s evidence

Or

2. Demonstrating that new evidence that shows 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 the 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 of the 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.