Pre Trial disposition Flashcards
If D is properly served with process but fails to respond that will result in a
default judgement
The consequences of a Default judgment is that D
1) Waives a right to jury trail
2) D may no longer contest his liability on the merits (but still many contest the value of damages)
3) D is not entitled to any further notice of proceedings in the case, unless D has an attorney, in which case notice must be given to the attorney
What is the first step in the procedure for a default judgement
1) Entry of default- Clerical records of D’s failure to respond does not automatically entitle P to judgment
What is the second step in the procedure for a default judgement
Entry of Default Judgement- After Clerical entry, P must move for default judgement
1) If damages are pleading on the face of the complaint, the court will order those damages
2) if damages are not self-evident, the court will hold a hearing to set damages which D may come to
If The default has been recorded, but default judgment has not been recorded
Then D can file a motion for leave to file a responsive pleading. The motion must show good cause for D’s failure to respond and the court may grant condition the grant on D accepting any costs caused by the delay.
If default judgement has already been entered
Then D should file a motion to set aside the default judgment which must be made within 21 days of entry unless the judgment was fraudulent or without jurisdiction
A non suit is
dismissal without prejudice, and the first nonsuit is of right
Subsequent nonsuits requires
leave of court, the court court may award fees and costs to opposing party
When can P file a nonsuit
1) Before the case is submitted to the fact finder
2) Before a motion to strike the evidence has been sustained
3) with permission of the opposing party if a counterclaim, cross claim, or impleader claim has been filed (if opposing party will not grant a nonsuit, then only option is to dismiss with prejudice)
P must refile a nonsuit
1) In the same venue and
2) within 6 months or remainder of SOL whichever is longer
When determining a summary judgement motion, the court
1) Determines if there is a genuine dispute as to any material fact; and
2) Determines if the law determines the movant should win
3) Does do in the light most favorable to the non movant
On a summary judgement motion, the evidence is presented to the court in
document form
A movant cannot use a deposition in a SJ motion, unless
1) the movant contests the availability of punitive damages
2) The claim is between 2 business entities for more than 50k
3) The parties agree to use deposition experts
A movant cannot use a deposition in a SJ motion, unless
1) the movant contests the availability of punitive damages
2) The claim is between 2 business entities for more than 50k
3) The parties agree to use deposition experts
on a SJ motion, A non movant
can use depositions
