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Civil Procedure > Disposition without Trial > Flashcards

Disposition without Trial Flashcards

1
Q

What are the four methods of disposition without trial? With their rule?

A
  1. Default judgment (Rule 55)
  2. Dismissal (voluntary or involuntary) (Rule 41)
  3. Settlement
  4. Summary judgment (Rule 56)
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2
Q

What rule governs entering a default?

A

Rule 55(a)

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3
Q

What rule governs entering a default judgment?

A

Rule 55(b)

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4
Q

When must a default judgment be entered by a clerk?

A

(1) PL’s claim is for a sum certain or can be computated
(2) with an affidavit proving the amount
(3) DF has been defaulted for not appearing

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5
Q

When must a default judgment be entered by the court?

A

In all other cases

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6
Q

When may a court conduct hearings or make referrals in entering a default judgment?

A

When it needs to (1) conduct an accounting, (2) determine the amount of damages, (3) establish the truth of any allegation by evidence, or (4) investigate any other matter.

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7
Q

Who must a party seek to enter a default?

A

the clerk

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8
Q

Who can default be entered against?

A

a party against whom a judgment for affirmative relief is sought that does not plead or otherwise defend

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9
Q

What are the two steps for obtaining default judgment?

A
  1. Seek clerk’s entry of default
  2. Seek default judgment from the court OR seek default judgment from clerk if sum certain (and DF is not minor or incompetent)
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10
Q

What are the rules regarding default judgment against minors and incompetent persons? Rules?

A

No default judgment may be entered by the clerk against a minor or incompetent person. Rule 55(b)(1). Default judgment entered by the court against a minor or incompetent person only if they are represented by a general guardian, conservator, or other like fiduciary duty who has appeared. Rule 55(b)(2).

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11
Q

What notice requirements are there for default judgment? Rule?

A

If a party has appeared personally or through a representative, the party must be served with written notice of the application to the court at least 7 days before the hearing. Rule 55(b)(2).

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12
Q

What are two protections afforded for default judgment? Rule/Statute?

A

For the United States (absent proof) (Rule 55(d)) and members of the military if service prevents an appearance (50 USC 3931)

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13
Q

How else may limits be imposed on default judgments?

A

Other statutes may impose limits on default judgments.

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14
Q

what kind of acts are required to prevent a default judgment?

A

Acts that show an intent to defend have frequently prevented a default judgment even though not connected to any particular rule.

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15
Q

What rule governs setting aside a default or default judgment?

A

Rule 55(c)

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16
Q

What are the 6 “good cause shown” factors in deciding whether to set aside an entry of default?

A
  1. Whether the moving party has a meritorious defense
  2. Whether the moving party has acted with reasonable promptness
  3. The personal responsibility of the moving party
  4. The prejudice to the non-moving party
  5. Whether there is a history of dilatory action
  6. The availability of sanctions less drastic
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17
Q

What rules allow a final default judgment to be set aside?

A

Rule 55(c) and 60(b)

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18
Q

What are the 6 (with subparts) potential steps in default/default judgment?

A
  1. Defendant does not answer (or appear in court after answer)
  2. Plaintiff obtains default (clerk or court - as applicable)
  3. Defendant moves to set aside entry of default: (A) if successful - case proceeds (B) if unsuccessful - move to next step
  4. Plaintiff obtains default judgment
  5. Defendant moves to set aside default judgment: (A) if successful - case proceeds (B) if unsuccessful - move to next step
  6. Plaintiff executes on their judgment
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19
Q

What rule governs damages for default judgments?

A

Rule 54(c)

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20
Q

What rules governs volunary dismissal by the plaintiff?

A

Rule 41(a)(1)

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21
Q

What rule governs voluntary dismissal by court order?

A

Rule 41(a)(2)

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22
Q

What is the two dismissal rule?

A

If the plaintiff or court voluntarily dismisses without prejudice for a second time, it operates as an adjudication on the merits (with prejudice)

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23
Q

When can a plaintiff volintarily dismiss an action?

A

Before any party has filed an answer or a motion for summary judgment or at any time if stipulated to by all the parties.

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24
Q

When may a plaintiff voluntarily dismiss an action by court order?

A

On terms that the court considers proper

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25
Q

What rule governs involuntary dismissal?

A

Rule 41(b)

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26
Q

How are counterclaims/crossclaims/third-party claims handled in regard to voluntary or involuntary dismissals?

A

Governed by Rule 41(c), the rest of the voluntary/involuntary dismissal rules apply as they would to other claims

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27
Q

What rule governs costs of a previously dismissed action?

A

Rule 41(d)

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28
Q

What rule governs pretrial conferences, scheduling, and case management?

A

Rule 16

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29
Q

Generally, what does Rule 16 allow?

A

Rule 16 gives the district court discretion to assist the parties and eliminate frivolous claims. Courts can do anything to streamline, control, or manage cases.

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30
Q

What is the difference between Rules 16(c)(2)(A) and 16(c)(2)(E)?

A

At any pretrial conference, the court may consider and take appropriate action on the following matters: formulating and simplifying the issues, and eliminating frivolous claims or defenses (16(c)(2)(A)) and determining the appropriateness and timing of summary judgment adjudication under Rule 56 (16(c)(2)(E)).

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31
Q

Regarding settlement, what can/can’t courts compel?

A

Courts may compel parties to attend a settlement conference. Courts may not compel parties to settle a dispute.

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32
Q

When is a party required/not required to attend a settlement conference?

A

If the conference is court ordered, a party is required to go. If it is not, they are not.

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33
Q

What rule governs sanctions regarding pretrial conferences?

A

Rule 16(f)

34
Q

What rule governs offers of judgment?

A

Rule 68(a)

35
Q

When may a defending party make an offer of judgment?

A

At least 14 days before trial

36
Q

What is the difference between an offer of judgment and a settlement?

A

An offer of judgment is enforceable by the court whereas a settlement is not.

37
Q

What rule governs unaccepted offers of judgment?

A

Rule 68(b)

38
Q

Can an unaccepted offer be used in a trial to determine costs?

A

No

39
Q

What rule governs offers of judgment after liability has been determined?

A

Rule 68(c)

40
Q

What rule governs paying costs after an unaccepted offer of judgment?

A

Rule 68(d)

41
Q

When must an offeree of an offer of judgment pay costs?

A

If a judgment obtained is not more favorable than the unaccepted offer, the offeree must pay costs incurred after the offer was made.

42
Q

What is alternative dispute resolution?

A

ADR refers to methods used to resolve disputes outside of the courtroom. These methods are designed to be less adversarial and often more efficient than traditional litigation.

43
Q

What is negotiation?

A

A voluntary and informal process where the disputing parties communicate directly or through their representatives to reach a mutually acceptable resolution.

44
Q

What is mediation?

A

A neutral third party, the mediator, helps the disputing parties communicate and negotiate to reach a mutually acceptable resolution. The mediator does not impose a decision but facilitates the process.

45
Q

What is the most common method of ADR in the US? Why?

A

Mediation. Because of its cost-effectiveness, flexibility, and the ability to preserve relationships between the disputing parties.

46
Q

What is arbitration?

A

A neutral third party or a panel of arbitrators hears the arguments and evidence presented by both parties and makes a binding or non-binding decision based on the merits of the case.

47
Q

Typically, how are arbitration panels formed?

A

The panel is usually made up of 3 arbitrators. The plaintiff chooses one, the defendant chooses one, and then the two arbitrators choose the third together.

48
Q

What is conciliation?

A

Similar to mediation, a conciliator helps the disputing parties reach a mutually agreeable resolution. Conciliation is often used in international disputes and may involve a more formal process than mediation.

49
Q

What is Early Neutral Evaluation?

A

A neutral evaluator, usually an experienced attorney or retired judge, provides an early, non-binding assessment of the strengths and weaknesses of each party’s case. This helps parties to better understand their positions and may facilitate settlement negotiations.

50
Q

Waht is a Mini-Trial?

A

A shortened, informal version of a trial where each party presents its case to a neutral third party or a panel. The panel may provide a non-binding opinion, which may help the parties to negotiate a settlement.

51
Q

What is a Summary Jury Trial?

A

A non-binding, abbreviated trial that takes place before a jury. The jury provides an advisory verdict, which can inform the parties and help them in reaching a settlement.

52
Q

What is Med-Arb?

A

A hybrid process that combines mediation and arbitration. If parties are unable to reach a resolution through mediation, the mediator may switch roles and become an arbitrator, making a binding or non-binding decision on the dispute.

53
Q

What is Collaborative Law?

A

A process in which parties and their attorneys commit to resolving disputes without litigation. The attorneys agree to not represent their clients in court if the collaborative process fails, adn the parties work together to reach a mutually acceptable resolution.

54
Q

What is Neutral Fact-Finding?

A

An impartial expert investigates the facts of the dispute and provides a report or opinion, which can help the parties negotiate a resolution or can be used as evidence in a subsequent proceeding.

55
Q

What is Private Judging?

A

A retired judge or an experienced attorney is hired by the disputing parties to conduct a private trial or hearing, with the decision typically being binding.

56
Q

What is the least expensive form of ADR?

A

Negotiation

57
Q

What is the most effective method of ADR?

A

Mediation

58
Q

What are the 3 methods of ADR that can produce binding results?

A
  1. Arbitration
  2. Med-Arb
  3. Private judging
59
Q

How does summary judgment work for defendants?

A

For defendants, summary judgment is the means by which courts may dispose of claims that claimants cannot prove.

60
Q

How does summary judgment work for plaintiffs?

A

For plaintiffs, summary judgment is the vehicle through which courts may hand a pretrial victory to litigants having claims that defendants cannot refute.

61
Q

What rule governs summary judgment?

A

Rule 56

62
Q

What is the “test” for summary judgment? Rule?

A

The movant must show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law

63
Q

Who may file a motion for summary judgment?

A

Any party

64
Q

If the summary judgment movant meets its burden . . .

A

the court must grant the motion.

65
Q

What is a material fact for purposes of summary judgment?

A

A material fact is one that might affect the outcome of the suit under the governing law. A fact may be relevant, but not material to the outcome.

66
Q

How must courts examine the facts in assessing a motion for summary judgment?

A

The court must view the facts and draw reasonable inferences in the light most favorable to the party opposing the motion.

67
Q

When may a party file a motion for summary judgment? Rule?

A

Any time up to 30 days after the close of discovery, unless otherwise set by local rule or court order. Rule 56(b).

68
Q

What rule governs the procedures for summary judgment?

A

Rule 56(c)

69
Q

What rule governs when facts are unavailable to a nonmovant for purposes of summary judgment?

A

Rule 56(d)

70
Q

What rule governs when a party fails to properly support or address a fact for purposes of summary judgment?

A

Rule 56(e)

71
Q

What rule governs judgments independent of motions for summary judgment?

A

Rule 56(f)

72
Q

What rule governs when the court fails to grant all the requested relief for summary judgment?

A

Rule 56(g)

73
Q

What trilogy of cases has shaped the way summary judgment is handled today?

A
  1. Celotex Corp. v. Catrett
  2. Anderson v. Liberty Lobby
  3. Matsushita Elec. Indus. v. Zenith Radio Corp.
74
Q

What effect did Celotex Corp v. Catrett have on whether or not the federal rules of evidence apply to summary judgment proceedings?

A

Evidence submitted in connection with summary judgment does not have to be presented in an admissible form. The trial court may consider the evidence on summary judgment provided the submitting party demonstrates that it would be possible to present the evidence in an admissible form at trial.

75
Q

What effect did Celotex Corp v. Catrett have on the movant’s and nonmovant’s burdens for summary judgment?

A

Movants not bearing the burden of proof at trial may seek summary judgment without offering any evidence disproving the nonmovant’s case. Rather, the movant may simply assert the absence of a genuine dispute of material fact and show this to be the case by reviewing the presented evidence for the court. The nonmovant must then identify or adduce information that shows that there indeed is a genuine dispute over a material fact.

76
Q

What effect did Anderson v. Liberty Lobby have on the standard of proof for summary judgment?

A

The standard of proof for a motion for summary judgment is the same as it would be at trial.

77
Q

What are the two steps for sumary judgment outlined in Matsushita Elec. Indus. v. Zenith Radio Corp.?

A
  1. Moving party meets burden under 56(c)
  2. Opponent must establish genuine issue of material fact. It must do more than simply show that there is some metaphysical doubt as to the material facts.
78
Q

After the Celotex trilogy, what are the 4 principles that no longer apply to summary judgment?

A
  1. That moving party had to support its own motion with evidence negating the fact or facts to be proved.
  2. That summary judgment was to be avoided in complex cases.
  3. That the faintest possibility that the opponent on summary judgment might come up with sufficient evidence by the time of trial was enough to warrant denial of the motion.
  4. That certain subjective matters that may be especially hard for a party to prove (like state of mind) are always inappropriate subjects for summary judgment against that party.
79
Q

After the Celotex trilogy, what are 2 general principles that now apply to summary judgment?

A
  1. Nonmovants who bear the burden of proof at trial are obligated to demonstrate – at the summary judgment stage – more than some metaphysical doubt as to material facts.
  2. A genuine dispute as to those facts must be shown, and if the record blatantly contradicts the nonmovant’s version of events (such as video evidence), the court is under no duty to accept that version and permit the case to proceed to a jury.
80
Q

What is the distinction between summary judgment and judgment as a matter of law?

A

A JMOL is the court making a decision (actually deciding the factual issues) and taking the decision away from the jury because the evidence will only support one decision.

81
Q
A

Civil Procedure (8 decks)

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