Resolution without Trial (Ch. 8)

Question 1

What two actions may the court take if a defendant fails to respond to a summons?

Answer 1

Either:
(a) the clerk will enter a default notice or
(b) the judge will issue a default judgement

Question 2

What two actions may a plaintiff take if a defendant fails to respond to a summons?

Answer 2

Either:
(a) file a notice of dismissal or
(b) a signed stipulation of dismissal

Question 3

What happens if a plaintiff fails to act after initiating suit?

Answer 3

Defendant may move to dismiss, which will count as a judgement on the merits

Question 4

If defendant moves to dismiss following plaintiff’s failure to act, is the case dismissed with or without prejudice?

Answer 4

With prejudice.

Question 5

If a default judgement is issued regarding a complaint with “sum certain” or an ascertainable sum, what happens if it is issued by the clerk?

Answer 5

The clerk must enter judgement for that amount against the defendant unless that defendant is a minor or mentally incompetant.

Question 6

How do parties obtain default judgments?

Answer 6

The parties must apply to the court for default judgements

Question 7

What rule did we learn from Peralta?

Answer 7

Defendant is entitled to proper notice even if evidence exists that indicates they would not have won their case.

Question 8

What are 5 ways to avoid adjudication?

Answer 8

1. Pre-litigation Negotiation
2. Party initiated Negotiation
3. Mediation
4. Non-binding Arbitration
5. Summary Jury by Trial

Question 9

What term is generally included in settlement agreements regarding Rule 41?

Answer 9

Settlement agreements generally include a term that plaintiff won’t seek to refile the case once settlement has been reached.

Question 10

What is the effect of the Federal Arbitration Act?

Answer 10

It makes arbitration legally binding.

Question 11

What 3 options does a defendant have when served with a complaint?

Answer 11

1. Move to dismiss
2. Answer the complaint
3. Ignore the complaint

Question 12

What happens if a defendant ignores a complaint received?

Answer 12

A default judgement will be issued.

Question 13

How long does a plaintiff have to dismiss a complaint on their own once filed?

Answer 13

They can dismiss at anytime until a defendant responds.

Question 14

May a plaintiff dismiss a complaint after a defendant has answered?

Answer 14

Yes, but they will need court permission.

Question 15

For what three reasons might parties choose to settle?

Answer 15

1. So that there is a definitive end to the controversy
2. To save money
3. Settlement may yield more positive results

Question 16

When can parties appeal arbitration decisions in court?

Answer 16

When parties suspect an issue of fundamental fairness or bribery.

Question 17

What determines whether arbitration is an option for parties?

Answer 17

State law.

Question 18

Who bears the initial burden of proof in summary judgement action?

Answer 18

The moving party.

Question 19

What must a moving party establish in a summary judgement action?

Answer 19

That there is no genuine issue of material fact.

Question 20

Once a moving party has carried its burden, what must the other party demonstrate?

Answer 20

The nonmoving party must then show that there is an issue of material fact and in so doing, the specific trumps the general.

Question 21

What happened in the Bias case motion for summary judgement?

Answer 21

The specific trumped the general. D established 3 instances of Bias’ cocaine use which prevailed over all of the general indication of nonuse.

Question 22

Under what two circumstances will a court enter summary judgement for a defendant?

Answer 22

1. If D demonstrates through discovery that there is no evidence that would permit a jury to find for P on causation
2. If P does not offer enough evidence of causation in opposition.

Question 23

Pursuant to Ferguson, when is an arbitration clause of an employment agreement determined to be unconscionable?

Answer 23

An agreement is unconscionable when it is both procedurally and substantively unconscionable.

Procedural unconscionability is comprised of oppression (inequality of bargaining power) + surprise (hidden terms in agrmt drafted by empowered party)

Substantial inequality (when the empowered party seeks an advantage by tilting the playing field)

Question 24

What makes an agreement to arbitrate unconscionable?

Answer 24

Procedural unconscionability
Surprise (hidden terms) + Oppression (unequal bargaining power)

Substantive Unconscionability
Drafting Party’s Unfair Advantage