Pretrial Adjudication

Question 1

What does it mean if a case is dismissed with prejudice?

Without prejudice?

Answer 1

With prejudice: adjudication on the merits, cannot relitigate.

Without prejudice: no adjudication on the merits, can religitate.

Question 2

When may P voluntarily dismiss an action without a court order?

Answer 2

P can voluntarily dismiss without court order by either:

1. Filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment, whichever comes first; or
2. Filing a stipulation of dismissal signed by all parties who have appeared

Rule 41(a)(1)(A)

Question 3

Can a plaintiff relitigate a claim after dismissal if claim was dismissed by:

1. Court order or stipulation?
2. By plaintiff herself?
3. Settlement?

Answer 3

1. Yes, because dismissal by court order or stipulation is without prejudice
2. Yes, dismissal by plaintiff is without prejudice unless it is the P’s second dismissal on the claim (which is dismissed with prejudice)
3. No, dismissal as a result of settlement is with prejudice

Question 4

After D has answered, can P file for voluntary dismissal?

Answer 4

No, only the court can dismiss the suit (at its discretion)

FRCP 41(a)(2)

Question 5

What is involuntary dismissal under Rule 41(b)?

Answer 5

When D seeks to dismiss the action because P has violated the rules or court order

FRCP 41(b)

Question 6

Involuntary dismissal under Rule 41(b) is ____ prejudice

Answer 6

With prejudice.

Question 7

What is a default under Rule 55(a)?

Answer 7

Occurs when D fails to timely respond to the complaint (within 21 days of service or 60 days after waiver)

⚠️ Note: This is not the same as a default judgment, which is when the court enters the default into the record

Question 8

What is a default judgment under Rule 55(b)?

Answer 8

Judgment on the record that D defaulted

Question 9

Difference between a default and a default judgment?

Answer 9

Default: D’s failure to respond (stage 1)

Default judgment: judgment entered into the record after D defaults (stage 2)

Question 10

When can the court clerk enter a default judgment?

Answer 10

If P shows that:

1. D was properly served;
2. Deadline to respond has expired;
3. D failed to respond;
4. D is not a minor or incompetent; and
5. Sum owed is certain (by affidavit)

Question 11

What can P do if the sum of damages is uncertain when seeking a default judgment?

Answer 11

P can seek default judgment from the court and judge will hold a hearing to determine damages

⚠️ Note: Court clerk cannot enter default if damages are uncertain - must be done by a judge

Question 12

When can the court set aside a default judgment?

Answer 12

For good cause within 1 year (typically shown if there was an honest mistake, fraud, or some circumstance outside of D’s control). FRCP 55(c), FRCP 60

Question 13

Is a default judgment appealable?

Answer 13

Yes, considered a final judgment on the merits.

Question 14

Does failure to give D proper notice invalidate a default judgment?

Answer 14

Yes, a default judgment cannot be entered against a D who did not have adequate notice of the proceedings against him, even though the same result would be entered on retrial. D does not need to prove he would have had a successful defense.

FRCP 60(b); Peralta v. Heights Medical Center

Question 15

What is a 12(b)(6) motion to dismiss?

Answer 15

A motion to dismiss the case before discovery because the P has failed to state a claim upon which relief can be granted. FRCP 12(b)(6)

Question 16

When will a motion to dismiss be granted?

Answer 16

Generally, it will be granted when a complaint does not contain enough specific allegations to make it plausible that P could be entitled to relief.

⚠️ Exception: Remember that claims of fraud or mistake must be pled with particularity, rather than only plausibilty.

Question 17

What is summary judgment?

Answer 17

Allows dismissal of a suit to be granted when the record shows “that there is no genuine issue as to any material fact” then the movant is entitled to judgment as a matter of law”

FRCP 56(c)

Question 18

What does it mean for there to be no genuine issue of material fact?

Answer 18

When no reasonable jury/person return a verdict in favor of the non-moving party.

Question 19

When a party file a motion for summary judgment?

Answer 19

Within 30 days after the close of all discovery. FRCP 56(b)

Question 20

How must a party claiming that a fact cannot be or is genuinely disputed support their assertion?

Answer 20

By:

1. Citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
2. Showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact

FRCP 56(c)(1)

Question 21

Upon filing a motion for summary judgment, the moving party must:

Answer 21

Make a prima facie showing that:

1. No genuine issue of material fact exists; and
2. Moving party is entitled to judgment as a matter of law

FRCP 56

Question 22

After the moving party makes a prima facie showing that summary judgment is proper, what is the next step?

Answer 22

Burden then shifts to non-moving party to present evidence showing that a genuine issue of material fact exists.

FRCP 56

Question 23

When deciding whether to grant summary judgment, can the court consider materials in the record that were not cited in the motion?

Answer 23

Yes, the court need consider only the cited materials, but it may consider other materials in the record.

FRCP 56(c)(3)

Question 24

Can the moving party rely on her own complaint to show summary judgment is proper?

Answer 24

No, must put forth other evidence showing there is no genuine issue of material fact.

FRCP 56(c)

Question 25

# Define partial summary judgment

Answer 25

Issued when only *some* material facts are not at issue.[FRCP 56(d)(1)](https://www.law.cornell.edu/rules/frcp/rule_56)

Question 26

# Define declaratory judgment

Answer 26

Ruling that informs parties of a legal relationship between parties or their rights. Often filed prior to a lawsuit to prevent one from occuring later. [FRCP 57](https://www.law.cornell.edu/rules/frcp/rule_57)

Question 27

If a Rule 12(b)(6) motion is granted, can P **appeal**?

Answer 27

Yes, because a Rule 12(b)(6) effectively ends the case.

Question 28

# Define stipulation

Answer 28

to make an express demand or arrangement as a condition of agreement

Question 29

What is a **settlement**?

Answer 29

Pre-trial agreement by the parties on how the dispute will be handled. ⭐️ Most cases are resolved by settlement.

Question 30

Do the parties need **judicial approval** to settle?

Answer 30

Generally no, unless: 1. Case involves minors; or 2. Case is a class action ([FRCP 23(e)](https://www.law.cornell.edu/rules/frcp/rule_23))

Question 31

What are the ways a settlement agreement can **terminate** the suit?

Answer 31

1. Voluntary dismissal by the parties (without prejudice unless specified otherwise) 2. Consent decree: court states terms of settlement as a final judgment (meaning res judicata will apply)

Question 32

Are **confidentiality** provisions in settlements enforceable?

Answer 32

Yes, confidentiality can be stipulated. If breached, party can be liable for breach of contract & liquidated damages. ⚠️ **Exception**: Confidentiality agreement cannot bar disclosure of substantive facts in future judicial proceedings. The agreement must have the clause *“except as required by judicial process, or as otherwise required by law,”* or else risk the entire agreement’s validity to be questioned. However, the agreement can prevent the party from disclosing settlement terms in future judicial proceedings. [Kalinauskas v. Wong, 808 F. Supp. 1469 (D. Nev. 1992)](https://law.justia.com/cases/federal/district-courts/FSupp/808/1469/1478724/)

Question 33

What is **mediation**?

Answer 33

When a third party, a mediator, helps the parties come to a mutually acceptable agreement.

Question 34

What is **arbitration**?

Answer 34

When a third party, an arbitrator, renders an enforceable decision in the dispute. Conducted outside the formal procedures of the court.

Question 35

What is the difference between mediation and arbitration?

Answer 35

A mediator has no enforcement or judgment power, whereas an arbitrator renders an enforceable decision (unless arbitration is nonbinding).

Question 36

What is **nonbinding** arbitration?

Answer 36

Parties will not bound be by settlement unless both agree.

Question 37

What is the **Federal Arbitration Act**?

Answer 37

Requires courts to uphold arbitration agreement if the proceeding involves a contract about **interstate commerce** (even if the arbitration agreement is otherwise unenforceable) [Federal Arbitration Act, Code § 2.](https://www.law.cornell.edu/uscode/text/9/2)

Question 38

Is an arbitrator bound the FRCP?

Answer 38

No, the standard procedural and evidentiary rules do not apply to arbitration proceedings.

Question 39

Can the court **review** an arbitrator's decision?

Answer 39

Yes, but only whether the arbitrator acted within the **scope** of their authority. The court cannot review the merits of the decision.