Adjudication (Pretrial, Conferences, Trial)

Question 1

What are the procedural steps in a voluntary dismissal?

Answer 1

The plaintiff may dismiss her case without prejudice once before the defendant serves her answer or motion for summary judgment.

If the plaintiff dismisses the second** by written notice, its is **with prejudice

• even if the first case was filed in state court

Question 2

How may a defendant achieve to have a default or default judgment set aside?

Answer 2

With a showing of good cause** and a **viable defense:

• Good cause=excusable neglect

Question 3

What does a 12(b)(6) motion test?

Answer 3

From the face of the complaint**, if **what the plaintiff says is true, would she win a judgment?

• tests the legal sufficiency of a plaintiff’s allegations
• if the answer is no, the court might let the plaintiff amend her complaint

NOTE: this motion is called a Judgment on the Pleadings if made after the Defendant has answered

Question 4

What is the legal standard for a motion for summary judgment?

Answer 4

There is no genuine dispute on a material fact; and

That the movant is entitled to judgment as a matter of law.

• parties proffer evidence in the form of affidavits or declarations
• verified pleadings will work too, as they are made under oath
• evidence must be made w/ personal knowledge
• the court will not make credibility judgments on the evidence

Question 5

What is the significance of a pretrial conference?

Answer 5

It determines:

• the issues to be tried; and
• evidence to be proferred

It supersedes the pleadings

Question 6

When does the right to a jury trial attach?

Answer 6

The 7th Amendment preserves** the right to jury trial in **civil actions at law**, and **NOT** at **equity

In a suit with both equitable and legal issues, legal issues are determined first, with common facts determined at the jury trial

Must demand** for a jury trial **in writing no later than 14 days** after service of the **last pleading raising a jury triable issue

• waived otherwise

Question 7

How many jurors are constitutionally necessary?

Answer 7

No less than 6**, no more than **12

• no alternate jurors

Question 8

During voir dire, peremptory strikes must be exercised in a neutral way for which classes of people?

Answer 8

On the basis of race** or **gender

• otherwise, this is state action in violation of the 14th Amendment

Question 9

Define a judgment as a matter of law.

Answer 9

No reasonable person could deisagree on the result.

• acts to take the case away from the jury
• may only be brought after the other party has been heard at trial

Question 10

When does renewed motion for judgment as a matter of law occur?

Answer 10

Only after the jury comes back with the verdict.

• the standard is the same as a motion for judgment as a matter of law.
• must move within 28 days after entry of judgment
• must move for a judgment as a matter of law as a pre-requisite

Question 11

What is the standard for a motion for new trial?

Answer 11

Prejudicial error at trial** that makes the **judgment unfair;

New evidence** that could **not have been obtained with due diligence for the original trial;

Prejudicial misconduct of a party or attorney or third party or juror;

Judgment is against the weight of the evidence; OR

Excessive or inadequate damages

NOTE: must move within 28 days of the judgment

Question 12

What are the grounds for a successful motion to set aside judgment?

Answer 12

Clerical error

Mistake, excusable neglect

• must be raised within a reasonable time but never more than a year after judgment

New evidence** that could **not** have been **discovered** with **due diligence for a new trial motion

• must be raised within a reasonable time but never more than a year after judgment

Judgment is void

Question 13

When may an appellate court take a n appeal?

Answer 13

Only from final judgments from the trial court

• the ultimate decision by the trial court of the merits of the entire case

NOTE: a party must file a notice of appeal in the trial court within 30 days after entry of final udgment

Question 14

Identify exceptions to the final judgment rule when non-final review is available.

Answer 14

Interlocutory orders as of right:

• injunctions
• receivers
• patent infringement where only an accounting is left to be accomplished
• orders affecting possession of property

Interlocutory Appeals Act:

• where a trial judge certifies that involves a controlling issue of law as to which substantial ground for difference of opinion; and
• court of appeals agrees to hear it

Collateral order exception–appellate court has discretion to hear ruling on an issue if:

• distinct from merits of the case;
• involves an important legal question; and
• is essentially unreviewable if parties must away a final judgment

When more than one claim** is presented in a **case or multiple parties**, trial court may **expressly direct entry of a final judgment** as to one or more of them if makes an **express finding that no just reason for delay

Extraordinary writs

Class actions:

• court of appeals has discretion to review order re certification of class action
• must seek review within 14 days of the order