Disposition without trial

Question 1

Rule 55(a)

Answer 1

Entering default

If D’s failure to plead or defend has been proven: clerk must enter default

Question 2

Rule 55(b)

Answer 2

entering into default judgment

1. By a clerk if it is for something certain
2. By a judge otherwise

Question 3

Rule 54(c)

Answer 3

Damages limited to amount prayed for (cannot exceed) and has to be of the kind sought in the prayer to relief (only for default judgments)

Question 4

Rule 55(c)

Answer 4

setting aside a default

Question 5

Rule 60(b)

Answer 5

Setting aside a default judgment

Question 6

When can a clerk not enter a default judgment?

Answer 6

for minors or incompetents

Question 7

Rule 41(a)

Answer 7

Voluntary dismissal

P can dismiss own claim

Question 8

When do P’s not need permission for a voluntary dismissal?

Answer 8

if they file the notice of dismissal prior to answer or summary judgment motion

Question 9

When do P’s need permission for a voluntary dismissal?

Answer 9

If it’s not prior to the answer or summary judgment motion, they need consent of all parties or court’s permission

Question 10

2 dismissal rule

Answer 10

P can only voluntarily dismiss only once without prejudice

Question 11

does the 2 dismissal rule apply if the voluntary dismissal was court ordered?

Answer 11

no it does not apply

Question 12

Rule 41(b)

Answer 12

Involuntary dismissal

P failing to prosecute, D can dismiss

court can also do it sua sponte

dismissal without prejudice

Question 13

Rule 16

Answer 13

Pretrial conferences, scheduling, management

encourages settlement
sanctions for not complying

Question 14

Rule 68

Answer 14

Offer of judgment

encourages D to make settlement offer
If P refuses and collects less from trial, P must pay D’s costs after offer was made

Question 15

Arbitration

Answer 15

Parties can choose forum 
avoids PJ and other analyses 
confidential (trials are public) 
usually faster and cheaper 
can choose the arbitrator

Question 16

Summary judgment

Answer 16

When facts are not in dispute and judge can just apply law to resolve

usually D must show no genuine issue of material fact (lacks element to claim)

either party can move for summary judgment though

Question 17

timing for moving for summary judgment

Answer 17

before 30 days after close of discovery

Question 18

What is P’s burden of proof when faced with a summary judgment request?

Answer 18

P must show that there is a genuine issue of material fact (which is not about credibility).

Exception to when it is about credibility: when you contradict yourself from an earlier time, it is clear you are serving a self serving affidavit in order to survive a summary judgment motion.