Voluntary and Involuntary Dismissal and Summary Judgment Flashcards
Rule 41(a)(1)(A) Voluntary Dismissal by the Plaintiff
A plaintiff may dismiss an action without a court order by filing
- A notice of dismissal before the defendant files an answer or motion for summary judgment or
- A stipulation of dismissal signed by all the parties
Rule 41(a)(1)(B)
Effect of Voluntary Dismissal by the Plaintiff
The dismissal is without prejudice. But if the plaintiff previously dismissed any federal or state court action based on or including the same claim, the notice operates as an adjudication on the merits, meaning an action based on the same claims cannot be brought again in the same court.
Rule 41(a)(2)
Voluntary Dismissal by Court Order
Except as provided in Rule 41(a)(1), a plaintiff may dismiss an action only by requesting a court order. If a defendant has made a counterclaim before being served with the motion to dismiss, the court may grant the motion only if the counterclaim can remain pending for independent adjudication. A dismissal by court order is issued without prejudice.
Rule 41(b)
Involuntary Dismissal
If the plaintiff fails to prosecute or fails to comply with a court order, a defendant may move to dismiss any claim or action against it. A dismissal under this section and any dismissal not under this rule – except one for lack of subject matter jurisdiction, improper venue or failure to join a party under Rule 19 – operates as an adjudication on the merits, which means an action based on the same claims cannot be brought again in the same court
Summary Judgment
A motion for summary judgment effectively previews, usually in documentary form, the evidence the parties would put on at trial to determine if it would establish any dispute that requires trial
Checklist for Summary Judgment
- What is the rule of substantive law applicable to the motion?
- What facts are material to applying the rule?
- What evidence may the court consider in ruling on the motion?
- Has the movant shown there is no genuine issue of material fact and that it is entitled to judgment?
- Has the non-movant shown evidence to create a genuine issue of material fact?
- How should the court rule?
Slaven v. City of Salem
Genuine Issue of Material Fact
In order to survive summary judgment, the non-movant must provide a genuine issue of material fact.
Materials for Summary Judgment
The materials must be admissible under the rules of evidence to be considered for summary judgment
Standard of Proof
The determination whether there is a genuine dispute must be guided by the standard of proof applicable to the issue in the case.
Reasonable Inferences
The court must draw any reasonable inferences in favor of the non-movant.
Genuine Issue of Material Fact
Whether there is a genuine issue of material fact depends on whether a reasonable fact-finder could decide an issue of material fact for the non-moving party.
Slightest Doubt Standard
It would deny summary judgment if there was a slightest doubt that there wasn’t a genuine issue of material fact. SCOTUS has rejected this test.
Rule 56(a)
Summary Judgment or Partial Summary Judgment
A party many move for summary judgment or partial summary judgment. The court shall grant summary judgment if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
Rule 56(b)
Time to File a Motion
A party may file any time until 30 days after the close of discovery.
Rule 56(c)(1)
Supporting Factual Positions
A party asserting a fact is or is not genuinely disputed must support its assertion by
- Citing to particular parts of the materials in the record, including depositions, documents, ESI, affidavits or declarations, stipulations, admissions, interrogatory answers or other materials; or
- Showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
