Trial, Judgment, & Post-Trial Motions Flashcards
Voluntary dismissal, what it is? consequences?
P may voluntarily dismiss her case, either with or without court approval (i.e leave of court)
It finish the case
Voluntary Dismissal without leave of court? Requirements?
Dismissal without leave of court - allowed before D serves an answer or motion for summary judgment (“MSJ”)
P voluntarily dismisses by filing written notice of dismissal or stipulation signed by all parties who have appeared
Dismissal is without prejudice, i.e., P can bring claims again (exceptions apply)
When a voluntary dismissal with leave of court (court needs to accept leave) is required?
Dismissal with leave of court - required if there has been an answer, motion, or prior dismissal.
- Court has discretion to grant dismissal on terms and conditions it deems proper
- Dismissal is without prejudice unless court states otherwise
- Pending counterclaim requires are also D’s consent - if D has filed a counterclaim, P cannot voluntarily dismiss without D’s consent
When a voluntary dismissal is without prejudice
General rule: always, Unless:
- Dismissal is with prejudice if P previously filed and dismissed the same claims
- Dismissal can also be with prejudice if it is a condition of parties’ settlement agreement
- When court states otherwise (when dismissal is made with leave from court)
What is a Default Judgement?
Default judgment against D may be entered when D fails to plead or otherwise defend a properly served complaint
Procedure to filing (Default judgment)
P files a motion for default judgment against D
- Clerks enter default on docket if P shows that D failed to respond within 21 days of being served (60 days if service waived)
What are the effects of the clerk entering the default (Default judgment)
Default does not automatically entitle P to recovery; clerk or judge must enter judgment of default
This means that even when the D is on default, he can expose a good cause and no default judgement will be entered
Requirements for a Default Judgement by a court clerk
May be entered if:
- D has not responded at all (as soon as D answers, the judgment cannot be entered by clerk);
- Claim is for money damages;
- P gives an affidavit stating the sum owed; and
- D is not a minor or incompetent
Default Judgement by judge, when?
if elements for default judgment by clerk are not met, judge may still enter default
judgment
» Judge will hold hearing on provable damages
What is the amount of a default judgment?
The amount of recovery is limited to the amount demanded in complaint
The amount that is given by P in the affidavit (entry by the clerk)
The judge will hold a hearing on provable damages
Can a default judgment be set aside?
Yes, Court may set aside default judgment for good cause shown within one year
That means D can show some excusable neglect, mistake or fraud
What is a failure to state a claim
it is a rule 12 defense, when D move to dismiss for failure of P to state a claim on the complaint
What is a motion for judgment on the pleadings
It is a motion by D after he filed an answer, requiring judgment on all the pleadings until that moment.
Generally, a motion for judgment on the pleadings is like a mash up of a 12(b)6 (failure to state a claim) and rule 56 motion (Summary J). Defendants want to file this when it is clear from the pleadings that there is insufficient factual support, or just no redressability, for the causes of action asserted. However, if the factual support can be found outside the pleading, as suggested in Rule 12(d), the motion can be converted to a Rule 56 summary judgment by the court
Similarity between: Failure to state a claim vs motion for judgment on the pleading
Similar: Happens when D moves to dismiss for failure to state a claim or move for judgment on the pleadings due to P’s failure to bring a plausible claim. D argues that even assuming all allegations in P’s complaint or pleadings are true, P cannot win. If granted, P will usually be given leave to amend her complaint
Differences between: Failure to state a claim vs a motion for judgment on the pleading
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Timing of filing:
- Before D files answer = Rule 12(b)(6) motion to dismiss
- After D files answer = Rule 12(c) motion for judgment on the pleadings
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Materials reviewed by the court:
- Rule 12(b)(6) - Court reviews sufficiency of P’s complaint alone
- Rule 12(c) - Court reviews all pleadings
Summary Judgment overview
A motion of either party asking the court to enter judgment without giving the case to the jury.
- The motion can be supported by affidavits, declarations (not hearsay), interrogatories and other materials in records
- Can be done in all civil actions
- Can it be parcial
Motion for Summary Judgment, timing?
Must be filed no later than 30 days after close of discovery
What a moving party (and a non-moving) must show in a MSJ?
Burden for moving party - must show that based on pleadings and evidence submitted:
- There is no genuine dispute of material fact ( I.e., no reasonable person could find for nonmoving party); and
- Moving party is entitled to judgment as a matter of law
Burden for non-moving party:
- if party moves for summary judgment, burden shifts to non-moving party to show that a triable issue exists
How is evidence examined in a MSJ?
Examined in the light most favorable to the non-moving party
- Court can look at the whole record of admissible evidence (e.g., affidavits, verified pleadings, discovery materials, etc.)
- Evidence must be admissible to be considered
Difference between:
- pre-answer motion to dismiss for failure to state a claim
- motion for judgement on the pleadings
- Motion for Summary judgment
A MSJ looks into the pleadings and the evidence shown in discovery - this distinguishes MSJ from Rule 12(b) (pre-answer motion to dismiss for failure to state a claim) or 12(c) motions (motion for judgement on the pleadings), in which court may only look at the complaint or pleadings
Alternate Dispute Resolution (ADR)?
Means any of settling disputes outside the courtroom, including arbitration and mediation.
Fed court must have an ADR program, and the Federal Rules of CP actively enorugaes settlements.
What is a mandatory settlement conference
A court-appointed advisor meets with parties privately and offers evaluation of the weakness of their respective cases
Settlement offers. Timing? Consequence if failed?
Settlement offers - a party defending a claim may make a formal settlement offer at least 14 days before the date set for trial
- Settlement for less than offer - if claimant rejects settlement offer and obtains judgment less favorable than the unaccepted offer, the claimant must pay costs incurred by the offering party after the offer was made
When do you have a right to a trial by jury,
The seventh amendment provides a right to a jury trial in all actions at law (7th amendment)
The Seventh Amendment provides the right to a jury trial in federal courts for the determination of facts in all suits at common law where the amount in controversy exceeds $20.
