Pretrial - Dispositions without Trial

Question 1

What are the three ways a claim is disposed without trial?

Answer 1

1. Voluntary dismissal
2. Involuntary dismissal
3. Summary judgment

Question 2

What rules?

Answer 2

16
72
41
56

Question 3

How is a voluntary dismissal made? What rule?

Answer 3

P voluntarily dismisses by serving/filing notice of dismissal

41(a)

Question 4

What action does a voluntary dismissal require of the court or defendant?

Answer 4

Nothing, it is automatic upon notice

Question 5

What is the effect of P’s (voluntary) notice of dismissal?

Answer 5

Claim is dismissed without prejudice

Question 6

Two Dismissal Rule

Answer 6

1. May only voluntarily dismiss once
2. Second voluntary dismissal = adjudication on merits
3. Claim preclusion = second voluntary dismissal is with prejudice

Question 7

Bright-Line Test

Answer 7

Points of no return (dismissal may not be voluntary)

1. D served answer
2. D filed motion for summary judgment (or turned motion to dismiss into motion for summary judgment by presenting materials outside of pleadings)

Question 8

What is the court’s discretion in determining timeliness in a voluntary dismissal?

Answer 8

Terms that court considers proper = clear legal prejudice

Question 9

Reasons to seek voluntary dismissal

Answer 9

1. Avoid determination on merits
2. File in a different jurisdiction
3. Change judges

Question 10

What does an involuntary dismissal operate as? What rule?

Answer 10

Adjudication on merits = with prejudice

R.41(b)

Question 11

What two failures allow for involuntary dismissal?

Answer 11

1. Failure to prosecute

2. Failure to comply with FR

Question 12

When can a party file for summary judgment? What rule?

Answer 12

Up until 30 days after close of discovery, unless set by scheduling order

R.56

Question 13

Who can file a motion for summary judgment?

Answer 13

Either party

Question 14

What is the standard for summary judgment?

Answer 14

1. Movant has shown no issues of material facts

2. Movant is entitled to judgment as a matter of law

Question 15

Material fact

Answer 15

Those that might affect outcome under applicable substantive law

Question 16

What is the proper record for summary judgment?

Answer 16

Evidence that parties plan to put on at trial, must be admissible under rules of evidence with exception for affidavits and declarations

Question 17

What are the three types of summary judgment BOP?

Answer 17

1. Proof of the elements
2. Disproof of an element
3. Absence of evidence

Question 18

Proof of the elements motion

Answer 18

1. Moving party who have BOP on claim or defense at trial

2. Must present undisputed facts supporting each and every material element of claim/defense

Question 19

Who usually makes proof of the elements motion for summary judgment?

Answer 19

P

Question 20

When does D made proof of the element motion for summary judgment?

Answer 20

affirmative defense

Question 21

Disproof of the elements motion

Answer 21

1. Moving party would not have BOP at trial

2. Must present undisputed facts negating/proving nonexistence of essential element of non-moving party’s claim

Question 22

Who usually makes disproof of element motion for summary judgment?

Answer 22

D

Question 23

Absence of evidence motion

Answer 23

1. Moving party would not have BOP at trial
2. Must demonstrate that there is no evidence whatsoever in the record by the which the non-moving party could establish existence of an essential element of his claim