Pretrial - Dispositions without Trial Flashcards
What are the three ways a claim is disposed without trial?
- Voluntary dismissal
- Involuntary dismissal
- Summary judgment
What rules?
16
72
41
56
How is a voluntary dismissal made? What rule?
P voluntarily dismisses by serving/filing notice of dismissal
41(a)
What action does a voluntary dismissal require of the court or defendant?
Nothing, it is automatic upon notice
What is the effect of P’s (voluntary) notice of dismissal?
Claim is dismissed without prejudice
Two Dismissal Rule
- May only voluntarily dismiss once
- Second voluntary dismissal = adjudication on merits
- Claim preclusion = second voluntary dismissal is with prejudice
Bright-Line Test
Points of no return (dismissal may not be voluntary)
- D served answer
- D filed motion for summary judgment (or turned motion to dismiss into motion for summary judgment by presenting materials outside of pleadings)
What is the court’s discretion in determining timeliness in a voluntary dismissal?
Terms that court considers proper = clear legal prejudice
Reasons to seek voluntary dismissal
- Avoid determination on merits
- File in a different jurisdiction
- Change judges
What does an involuntary dismissal operate as? What rule?
Adjudication on merits = with prejudice
R.41(b)
What two failures allow for involuntary dismissal?
- Failure to prosecute
2. Failure to comply with FR
When can a party file for summary judgment? What rule?
Up until 30 days after close of discovery, unless set by scheduling order
R.56
Who can file a motion for summary judgment?
Either party
What is the standard for summary judgment?
- Movant has shown no issues of material facts
2. Movant is entitled to judgment as a matter of law
Material fact
Those that might affect outcome under applicable substantive law
What is the proper record for summary judgment?
Evidence that parties plan to put on at trial, must be admissible under rules of evidence with exception for affidavits and declarations
What are the three types of summary judgment BOP?
- Proof of the elements
- Disproof of an element
- Absence of evidence
Proof of the elements motion
- 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
Who usually makes proof of the elements motion for summary judgment?
P
When does D made proof of the element motion for summary judgment?
affirmative defense
Disproof of the elements motion
- 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
Who usually makes disproof of element motion for summary judgment?
D
Absence of evidence motion
- Moving party would not have BOP at trial
- 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
