Resolution without Trial (Ch. 8) Flashcards
What two actions may the court take if a defendant fails to respond to a summons?
Either:
(a) the clerk will enter a default notice or
(b) the judge will issue a default judgement
What two actions may a plaintiff take if a defendant fails to respond to a summons?
Either:
(a) file a notice of dismissal or
(b) a signed stipulation of dismissal
What happens if a plaintiff fails to act after initiating suit?
Defendant may move to dismiss, which will count as a judgement on the merits
If defendant moves to dismiss following plaintiff’s failure to act, is the case dismissed with or without prejudice?
With prejudice.
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?
The clerk must enter judgement for that amount against the defendant unless that defendant is a minor or mentally incompetant.
How do parties obtain default judgments?
The parties must apply to the court for default judgements
What rule did we learn from Peralta?
Defendant is entitled to proper notice even if evidence exists that indicates they would not have won their case.
What are 5 ways to avoid adjudication?
- Pre-litigation Negotiation
- Party initiated Negotiation
- Mediation
- Non-binding Arbitration
- Summary Jury by Trial
What term is generally included in settlement agreements regarding Rule 41?
Settlement agreements generally include a term that plaintiff won’t seek to refile the case once settlement has been reached.
What is the effect of the Federal Arbitration Act?
It makes arbitration legally binding.
What 3 options does a defendant have when served with a complaint?
- Move to dismiss
- Answer the complaint
- Ignore the complaint
What happens if a defendant ignores a complaint received?
A default judgement will be issued.
How long does a plaintiff have to dismiss a complaint on their own once filed?
They can dismiss at anytime until a defendant responds.
May a plaintiff dismiss a complaint after a defendant has answered?
Yes, but they will need court permission.
For what three reasons might parties choose to settle?
- So that there is a definitive end to the controversy
- To save money
- Settlement may yield more positive results
When can parties appeal arbitration decisions in court?
When parties suspect an issue of fundamental fairness or bribery.
What determines whether arbitration is an option for parties?
State law.
Who bears the initial burden of proof in summary judgement action?
The moving party.
What must a moving party establish in a summary judgement action?
That there is no genuine issue of material fact.
Once a moving party has carried its burden, what must the other party demonstrate?
The nonmoving party must then show that there is an issue of material fact and in so doing, the specific trumps the general.
What happened in the Bias case motion for summary judgement?
The specific trumped the general. D established 3 instances of Bias’ cocaine use which prevailed over all of the general indication of nonuse.
Under what two circumstances will a court enter summary judgement for a defendant?
- If D demonstrates through discovery that there is no evidence that would permit a jury to find for P on causation
- If P does not offer enough evidence of causation in opposition.
Pursuant to Ferguson, when is an arbitration clause of an employment agreement determined to be unconscionable?
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)
What makes an agreement to arbitrate unconscionable?
Procedural unconscionability
Surprise (hidden terms) + Oppression (unequal bargaining power)
Substantive Unconscionability
Drafting Party’s Unfair Advantage
