Terminating the Case w/o Trial

Question 1

Voluntary Dismissal

Answer 1

(1) Plaintiff can voluntary dismiss without prejudice 1x before the first witness is sworn in at trial; or (2) by stipulation of both parties.

Question 2

VD - SOL

Answer 2

Plaintiff can refile an action within the SOL period, or even if the SOL period has expired P can refile within 6 months of the dismissal.

Question 3

VD - what if a counterclaim is pending?

Answer 3

P cannot voluntary dismiss if there is counterclaim pending that is capable for remaining for independent adjudication (usually counterclaims for indemnity or contribution cannot remain independent)

Question 4

Involuntary Dismissal

Answer 4

Court can dismiss case for failure to prosecute or failure to comply with CPA or court orders. Failure to prosecute is not an adjudication on the merits (without prejudice).

Question 5

Automatic Dismissal

Answer 5

5 years with no written order filed. P can refile within 6 months and case is ok for SOL purposes

Question 6

Default and DJ

Answer 6

1) No answer then D is in default;
2) 15 day grace period to reopen and pays costs as a matter of right;
3) After 15 day grace period, P can move to set aside default anytime before entry of judgment. Court has discretion upon these grounds: (1) providential cause prevented filing (illness); (2) excusable neglect (someone else’s fault); (3) convinced from facts it would be proper to set aside (D has adequate defense (not just any defense).

Question 7

Default Judgment

Answer 7

Establishes liability and liquidated damages. Any damages that can be disputed must still be determined by the court. Either side may demand a jury to determine damages following a hearing.

Plaintiff is limited to recovering whatever they demanded in the complaint.

Question 8

Motion to set aside judgment

Answer 8

After final judgment is entered, the bases are:

1) lack of smj;
2) fraud, accident, or mistake; or
3) a nonamenable defect on the face of the pleadings.