Pretrial Adjudication

Question 1

How may a claimant drop a case?

Answer 1

1. unilateral dismissal by filing notice any time before D has filed an answer or motion for summary judgement
2. stipulation of dismissal signed by all parties (settlement offer)
3. permission of the court

Question 2

When will court grant permission to drop a case

Answer 2

Generally court will grant permission to drop a case, unless D filed a counterclaim in whic hcase court will not dismiss the action unless the claim can remain pending for independent adjudication

Question 3

When will a case be dismissed with (or without) prejudice

Answer 3

If there has been notice, speculation, or specification in a court order, the dismissal is bound as being with (or without) prejudice

Question 4

When are dismissals presumed to be with prejudice?

Answer 4

If court is silent then a dismissal is presumed to be without prejudice for a first dismissal, and with prejudice in a subsequent dismissal

Question 5

When is a case involuntarily dismissed?

Answer 5

If P fails to prosecute their case or refuses to comply with a court order or any of the FCRP, D can move to dismiss and the case will be involuntarily dismissed

Question 6

When is an involuntary dismissal an adjudication on the merits

Answer 6

An involuntary dismissal based on P failing to prosecute case or refusing to comply with court orders is generally treated as adjudicated on the merits unless order states otherwise

Question 7

When is involuntary dismissal not treated as an adjudication on the merits

Answer 7

Involuntary dismissal won’t be treated as adjudication on the merits if it’s a dismissal for
1. lack of jurisdiction
2. improper venue
3. failure to join a party under Rule 19

Question 8

When are default judgements issued?

Answer 8

Default judgements issued why P properly serves a D, and D never responds

Question 9

How are default judgements rendered?

Answer 9

1. Clerk enters default
2. Default judgement entry issued after default has been entered

Question 10

Types of default judgements

Answer 10

1. entry by clerk: if claim is for “sum certain” and P requests the default judgement the clerk must enter and assess damages and costs against the D
2. entry by the court: if clerk can’t enter judgement then P may ask court to enter judgement in which case judge may hold hearings to calculate money damages or other matters

Question 11

Court-entered default judgements

Answer 11

If D initially appeared in court but failed to appear later, a court can issue a default judgement only if D is served with written notice of application for default 7 days before hearing

Question 12

What is a 12(b) motion to dismiss?

Answer 12

Motion filed by defending party seeking dismissal of a claim against them

Question 13

When must motion to dismiss be filed?

Answer 13

Must be filed before an answer is filed either within 21 days where process is served, or within 60 days where process is waived

Question 14

What are grounds for motion to dismiss

Answer 14

1. lack of SMJ
2. lack of PJ
3. Improper venue
4. insufficient process
5. insufficient service of process
6. failure to state a claim upon which relief can be granted
7. failure to join an indispensable party

Question 15

Which 12(b) defenses are waivable?

Answer 15

Certain 12(b) defenses will be waived if they’re not raised in the first response to a complaint including:
2. lack of PJ
3. improper venue
4. insufficient process
5. insufficient service of process

Question 16

When are waivable 12(b) defenses deemed to have been waived?

Answer 16

If 12(b)(2)-(5) motions aren’t raised immediately upon receiving complaint, either in motion to dismiss or answer to complaint, they are permanently forfeited

Question 17

Which 12(b) defenses are forfeited if not raised before the end of trial?

Answer 17

Defenses that must be raised any time before the end of trial are:
6. failure to state a claim upon which relief can be granted
7. failure to join a necessary party

Question 18

Which motions can never be waived

Answer 18

Defense of lack of SMJ is never forfeited and can be raised any time, even on appeal

Question 19

When is motion for summary judgement appropriate

Answer 19

Motion for summary judgement is appropriate where there’s no genuine dispute of material fact and movant is entitled to judgment as a matter of law

Question 20

What is standard for refusing SJ

Answer 20

Non-movant brings sufficient evidence for a reasonable jury to find in their favor on a claim or defense

Question 21

Are pleadings considered evidentiary for summary judgement purposes?

Answer 21

Generally pleadings are not considered evidentiary, unless the pleadings are under oath, in which case they will be considered evidentiary

Question 22

When may motion for SJ be made?

Answer 22

Motion for SJ may be made any time before 30 days after the close of discovery