Pretrial Adjudication & Conferences and Meetings

Question 1

Options in Pretrial Adjudication

Answer 1

1. Voluntary Dismissal
2. Default and Default Judgment
3. Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)).
4. Motion for Summary Judgment (FRCP 56).

Question 2

What is Voluntary dismissal and when can it be raised?

Answer 2

P wants to withdraw the case. P can make a motion for voluntary dismissal anytime.

P has a right to take a voluntary dismissal by filing a “notice of dismissal.” But she must do so before Defendant serves her answer or motion for Summary Judgment

Question 3

If P files a timely notice of dismissal, the case is dismissed “without prejudice.” What does that mean?

Answer 3

P can refile the case

But you only get to do it without prejudice once

Question 4

What if P files a notice of dismissal in the second case? That dismissal is “with prejudice.” What does that mean?

Answer 4

P cannot refile the case

Question 5

Timing for and implication for Default and Default Judgment

Answer 5

D does not respond to the complaint in time (21 days
after being served with process; 60 days from mailing of waiver if you waived service).

Question 6

Default is…

Answer 6

a notation by the court clerk on the docket sheet of the case.

Question 7

Does the court enter default automatically on the 22nd day after service of process on D?

Answer 7

No - P must move for it

Question 8

What does P have to demonstrate for default and what may D do?

Answer 8

P must demonstrate that D failed to respond in time. Until default is entered, D can respond by motion or answer (even beyond 21 days).

Question 9

What is the effect of entry of default?

Answer 9

It cuts off Ds right to respond

Question 10

Does entry of default entitle the P to recover?

Answer 10

Entry of default does not entitle P to recover.

Question 11

What does P need to do before she can recover from D?

Answer 11

Get a default judgment

Question 12

How to get a default judgment.

Answer 12

• The clerk of court can enter judgment if:
  
  • D made no response at all;
  • The claim itself if for a sum certain in money;
  • Claimant gives an affidavit (sworn statement) of the sum owed; AND
  • D is not a minor or incompetent.
• If any of those is not true, You apply to the court itself - there you got to see the judge
  
  • The judge will hold a hearing and has discretion to enter judgment.

Question 13

Does D get notice of this hearing for default?

Answer 13

Only if he appeared in the case

Question 14

What is the max you can recover for a default judgement and what can’t you recover? What if the case goes to trial?

Answer 14

You are limited to what you plead

You also cannot get a different type of relief than what you pleaded

If the case goes to trial, P can recover more (and a different kind of relief) than she put in her complaint.

Question 15

D may move to have the court set aside a default or default judgment

What must the D show for a Motions to set aside?

Answer 15

1. by showing good cause (like excusable neglect) and
2. must state a viable defense

Question 16

Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)).

Answer 16

This is about whether the case belongs in the litigation stream at all.

If P’s complaint fails to state a claim, the case can be dismissed.

Question 17

In ruling on a Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)), what does and doesn’t the court look at? And what does the court ask?

Answer 17

In ruling on this motion, the court ignores P’s legal conclusions. It looks only at P’s allegations of fact in the complaint and asks: If these facts were true, would P win a judgment?

• If the answer is no, there is no sense letting the case proceed, because the law does not recognize a claim on these facts. Court might let P amend to try to state a claim, though.

It also does not look at evidence, just the face of the complaint

Question 18

The facts in a claim must be…

Answer 18

plausible

Question 19

Motion for Summary Judgment (FRCP 56)

Answer 19

Summary judgment weeds out cases in which we don’t need trial.

Why do we ever have a trial?

• To resolve disputes of material fact

Question 20

Party moving for summary judgment must show:

Answer 20

(1) There is no genuine dispute on a material fact and
(2) That she is entitled to judgment as a matter of law.

If the moving party shows these things,the court has discretion to grant SJ

Question 21

Timing for Summary Judgement

Answer 21

Any party can move for this no later than 30 days after Discovery

Question 22

Can the motion for summary judgment be for “partial” judgment – say, on one of several claims?

Answer 22

Yes

Question 23

In summary judgment, can the court look at evidence?

Answer 23

Yes - this is different from 12(b)(6)

The court views the evidence in the light most favorable to the nonmoving party.

Question 24

How can parties proffer evidence for summary judgment?

And why can these be considered evidence?

Answer 24

(1) affidavits or
(2) declarations or
(3) deposition testimony or
(4) interrogatory answers.

Because they are under oath

Question 25

Can a pleading ever be treated as evidence for summary judgement?

Answer 25

Only if it is verified

Usually, pleadings are not under oath and so are not considered evidence.

But pleadings might be relevant for summary judgment in this way: if D failed to deny an allegation by P, it can be treated as fact on summary judgment.

Question 26

What is a Rule 26(f) Conference and timing?

Answer 26

Unless court order says otherwise, at least 21 days before
scheduling conference, parties “meet and confer.”

They discuss production of required initial disclosures, claims, defenses, settlement, and issue about preservation of discoverable information.

Question 27

What else must parties present at Rule 26(f) Conference

Answer 27

A detailed discovery plan

Question 28

what must be in the detailed discovery plan for the Rule 26(f) Conference?

Answer 28

The plan must include views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it (e.g., deleted files), etc.

Question 29

Scheduling Order

Answer 29

Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, completion of discovery, etc.
This is a roadmap for how the litigation proceeds up to trial.

Question 30

Pretrial Conferences

Answer 30

The court may hold “pretrial conferences” to process the case and foster settlement.

Question 31

Final Pretrial Conference

Answer 31

The final pretrial conference will determine the issues to be tried and evidence to be proffered at trial. This is recorded in the pretrial conference order.

Question 32

What is the signifigance of a final pretrial conference order?

Answer 32

It supersedes the pleadings

The pretrial conference order is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc.

Question 33

What is the point of a pretrial conference order?

Answer 33

So there are no surprises at trial