dispostion without trial

Question 1

what is rule 55 defalut;default judgment all about

Question 2

what is 55a default? who enters it?

Answer 2

enterd by the CLERK OF COURT but the attonery has to let the clerk know

it denotes a change in the status of the defenant in a pending case from active to in default

it signifies that the d has failed to respond to the complaint, and that the p can move for a default judgment

Question 3

what is 55b default judgment

what does some certain mean in the defintion?

Answer 3

Some certain= an amount that doesn’t have to be proven and can be proven by some document evidence

a judgmnet that is rendered against the d on the merits, due to the ds failure to defend

Question 4

can a defalut and a default judgment be set aside?

Answer 4

default – yes, requires good cause

default judgment - yes but only for the reasons that any other final judgment might be set aside under rule 60b

Question 5

what is rule 60b about

Answer 5

tells us when we can set aside a default judgment !

the first three have to be made no more than a year after judgment, the rest you have forever!

Question 6

Stephonson – what is the good cause test found in the case that tells us if good cause exsists for a default to be set asise

Answer 6

the court should consider whether

1. the conduct of the defaulting party was blameworthy or culpable
2. whether the defaulting party has a mertious defense and
3. whether the other party would be prejudiced if the default were excused

Question 7

what does rule 12b allow you to do? when can you assert it?

Answer 7

its a motion to try to get a case dismissed!

you can assert a 12b motion to dismiss even before you answer the complaint (but you dont have to)

Question 8

why wouldnt a party want to immediatly move for a 12b6 motion to dismiss(ie motion to dismiss on the failure to state a claim)

Answer 8

because the other party would just file a leave to ammend their complaint; youd essentially be telling them how to make their complaint better

Question 9

what does rule 12e allow you to make a motion for (ie the alterative for immedialty making a 12b6 motion to dismiss on the faiure to state a claim)

Answer 9

youre making a motion for the party to ammend their complaint without educating

happens when the complaint is kinda vague but you didn’t want to educate the opposer as to what’s wrong and allow them to amend their complaint

Question 10

when would you raise a 12f motion to strike?

who can move for it?

keep in mind the restrictions on time

Answer 10

when their are portions of the complaint that shouldnt see the light of day

The compliant might contain extra matter that has nothing to do with the actual harm
The court can do this or you can move for this

Question 11

what does rule 12g tell us?

what is the excpetion under 12g2

Answer 11

all of your rule 12 motions can be included in the same motion

12g2 exception - if you decide to make a rule 12 motion, you cant make another one UNLESS new info comes to light;

Question 12

what does rule 12(h)(1) tell us

Answer 12

tells us that 12b(2-5) are waivable by either omitting it from a 12b motion that you filed OR failing to make it a motion/include it in a responsive pleading

Question 13

if you dont make a rule 12b motion, and you still have a defense, where should your defense be to keep it from being waived

Answer 13

in your answer

The first thing you file should include 12b(2-5) in either the 12b motion or your answer

Question 14

what does rule 12(h)(2) tell us

Answer 14

You can make the motion for 12b6 and 7 at trial
You prob shouldn’t but you can if you need to
More favorable defenses
they still need to be in your answer though

Question 15

what does rule 12b3 tell us

Answer 15

Lack of smj – ie 12b1
Most favorable defense

the court has to dismiss if we lack smj, no matter when it is discovered in the case

Question 16

what does a movant for rule 56 summary judgment have to show

Question 17

celotex key takeaway

Answer 17

if the moving party is the defenant, they dont need to bring affirmative evidnce, just needs to show no genuine issue of mateiral fact (they can but dont need to)

if the moving party is the plantiff, they NEED to bring affirmative evidence that is so overwhelmeing that a jury couldnt possibly rule against them

Question 18

how do you defeat summary judment

Answer 18

1. show that there IS a genuine dispute of material fact – thus sending it to trial
2. showing that even if the facts are undisputed, that neither party is entilted to judgment as a matter of law, and that a jury needs to decide the issue based on the undisputed facts

Question 19

anderson v liberty

Facts
Liberty Lobby sued a magazine for libel because it published articles that made their founder look like a neo-Nazi and a racist. The magazine showed that they tried to check the information in the articles. Liberty Lobby showed that the articles were based on unreliable sources. The district court granted summary judgment for the magazine, and the appellate court agreed with some parts and disagreed with others.

Issue
The question is whether a court should think about the level of proof needed for trial when deciding on a motion for summary judgment.

Answer 19

In deciding a motion for summary judgment, the court should consider the substantive evidentiary standard of proof that would apply at a trial on the merits.

we have to look forward to see what the trial will be about im a motion for summary judgment

we cant do summary judgment analysis without reffering to what burden of evidnce would be if it were to go to trial