Pretrial Adjudication Flashcards
What is a voluntary dismissal?
A P may voluntarily dismiss an action by filing a notice of dismissal at any time prior to service of D’s answer or motion for summary judgment.
A P may voluntarily dismiss an action before or after a responsive pleading by filing a stipulated signing by all the parties.
If the P cannot get another party’s agreement, the P may make a motion for voluntary dismissal. The court has broad discretion.
Upon a voluntary dismissal, there is a presumption that it is without prejudice. However, if this is the second voluntary dismissal, it is with prejudice. Additionally, the voluntary dismissal may make it with prejudice.
What is an involuntary dismissal?
Dismissal for failure to state a claim
When an action is dismissed based on a failure to state a claim, the dismissal is with prejudice unless the court states otherwise.
Dismissal for failure to prosecute
If a P fails to prosecute or to comply with the FRCP or a court order, a D may move to dismiss. A dismissal for failure to prosecute is a dismissal with prejudice unless the court states otherwise.
What is default judgment?
There are two steps:
- the entry of default; and
- the entry of the default judgment.
An entry of default must be entered on behalf of a party against whom a judgment for affirmative relief is sought when the party has failed to plead or otherwise defend the claim and that failure is shown by affidavit or otherwise.
Next, a default judgement can be entered by the clerk or the court.
If the P’s claim is for a sum certain, the clerk must upon request enter default judgment. A clerk cannot enter default judgments against minors or incompetent persons.
In all other cases, the party must apply to the court for a default judgment to be entered. If the party has filed an appearance, then written notice of the application must be served at least seven days before the hearing.
The court may set aside an entry of default for good cause.
What is a settlement?
They may be achieved through counsel and the parties themselves, or through alternative dispute resolution methods such as arbitration or mediation.
