End of Suit Flashcards
What is default? What rule? Why would someone do this?
Rule 55
Defendant does not respond or stops showing up to defend.
• I don't have any fighting to do, I agree with everything there. • Don’t agree w liability, but the costs of litigation would be higher. • No pers j or SJ, so I don't have to respond …..If defendant is wrong about jurisdictional question, the defendant is stuck with the amount adjudicated by the original court and you cannot fight about the substance. Very risky.
Two steps of default
- Entry of default
- Judgment issued
When is entry of default appropriate?
(A) You literally did nothing in response to the complaint, so I can ask for entry for default.
1) Can also be defense asking for default on a counterclaim
(B) Defendant just stops showing up to defend the case. Maybe the filed their answer and then as the case goes on the defendant just stops showing up or responding to disco.
How panicked should I be if the first step of default (entry) happens against me?
I can fix it, but I need to do it asap. The first step is preliminary. The second step is when you are in deeper trouble. If after the entry (step 1) and you immediately go in to court and apologize and explain, the court will often take away the entry of default and the case just proceeds.
Who enters the entry of default (step 1)
Clerk
Two types of judgment issued and who can enter the judgment
i. Clerk can enter IF
1) If it is a sum certain (we know what the damages are for sure) then clerk can do it. We can calculate it with mathematical certainty. This is what we agreed. This is what is owed.
a) Then we can get this entered form the court if they are not a minor or incompetent and the reason for the default is for a nonappearance (1a) <- I made this subsection up.
i) Once the other side does anything (including MTD), judge has to issue judgment.
ii. Judge must enter if
1) Not a sum certain. The party must ask the judge to enter it.
a) Judge is required to give notice to other party.
7 days before judgment a hearing is held. Sometimes can be very short if there is no one there to defend the case (and you can imagine how the party that is there will inflate the damages when there is no one to refute it).
How may a plaintiff file for voluntary dismissal?
41(a)
by filing
(1) the notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
® This can still happen after a 12b6
® Plaintiff only gets one notice of dismissal without prejudice (one bite rule)
(2) A stipulation of dismissal filed by all parties who have appeared
Can be at any time. Jointly brought by P and D.
What is the effect of a voluntary dismissal?
The dismissals are WITHOUT prejudice unless the notice or stipulation says otherwise.
□ If I am the defendant I want to make sure to include “with prejudice” on these.
“With Prejudice” = case is resolved and cannot be adjudicated again.
If voluntary dismissal is not filed early enough, can P still get a dismissal?
§ Yes, under 41a2, action may be dismissed at the P’s request only by court order, on terms that the court considers proper.
Usually the defendant is going to then request it to be with prejudice.
Involuntary dismissal - what is it? When does it happen?
41b
When plaintiff stops showing up/trying. Or if we have a court order.
Always WITH prejudice.
Sneaky note thrown in rule 41b
§ For dismissals NOT covered by this rule (except jurisdiction, improper venue, or failure to join a party) they will be WITH prejudice.
□ Anytime you get a dismissal you should look to see if it is with/without prejudice and see if it’s good for your client.
Default rule for LOTS of other kinds of dismissals hidden inside 41b.
Summary Judgment purpose
Because the main purpose of a trial is to resolve factual disputes between parties, if there is not factual dispute, there is no trial needed. The judge can simply apply the law. This helps expedite the process in line with Rule 1? And helps dispose of frivolous lawsuits.
Summary judgment is very important for settlement purposes. Often decides if a case if going to trial
If the motion for SJ is denied, settlement price shoots up.
Big incentive for D to settle because they can know the cost, have certain outcome, not have a trial.
Historical development of Summary Judgment
• Used to be much more rare – judges preference to let the jury decide.
• Trio of cases from supreme court in 1986 made SJ more available to defendants and more difficult for plaintiffs to oppose.
○ Celotex
§ Instead of proving lack of genuine material fact, just has to affirmatively show the plaintiff’s lack of evidence.
○ Anderson
§ The standard by which a summary judgement motion should be judged: evidence must be viewed through the prism of the substantive evidentiary burden at trial.
§ Preponderance of the evidence in civil trials, which means more likely than not.
○ Matsushita
In opposing a SJ motion the nonmovant must do more than show that there is some metaphysical doubt as to the material facts.
Meat of Summary Judgment Rule
The court shall grant summary judgment if the moving that there is no genuine dispute to any material fact and the movant is entitled to judgment as a matter of law
“No genuine dispute of material fact”
Disputes over facts that would affect the outcome of the suit (make judgment more or less likely).
“The movant is entitled to judgment as a matter of law” (SJ)
Cross reference to Rule 50: “A reasonably jury would not have a legally sufficient evidentiary basis to find for the party on that issue”
-Must:
View the facts in favor (bend over backwards) for no moving party
— This is hard for judges to do practically after they have just read the moving party’s motion and position first.
NOT allowed to weigh evidence or make credibility determinations.
Judge is supposed to take into account uncontradicted unimpeached evidence from moving party when thinking about this.
Also if there is evidence that is undisputed and “blatantly contradicts” the nonmovant’s version of the events, the court does not have to accept that version (Scott v. Harris)
Burden of Proof
• The burden of establishing the nonexistence of a “genuine issue” is on the moving party.
• This burden has two components:
1. An initial burden of production, which shifts to the nonmoving party if satisfied by the moving party;
§ Burden of production of evidence.
§ Requires the moving party to make a prima facie showing that it is entitled to SJ. The manner in which this can be made depends on which party bears the burden of persuasion at trial.
2. An ultimate burden of persuasion, which always remains on the moving party.
The court does not need to decide whether the moving party has satisfied its burden of persuasion unless and until the court finds that the moving party has discharged its initial burden of production.
Burden of Production
If the moving party bears the burden of persuasion at trial:
- If Moving Party Bears Burden of Persuasion At Trial:
○ Moving party must support motion for SJ with credible evidence (materials listed in R56c) that would entitle it to a directed verdict if not controverted at trial.
§ Sufficient that ANY jury would find in his favor in EVERY SINGLE ELEMENT he has the burden of proving.
○ Such a showing then shifts the burden of production to the opposing party and requires that they either
§ Produce evidentiary materials that demonstrate the existence of a “genuine issue” for trial or
Submit an affidavit requesting additional time (R56d)
Burden of Production
If non moving party bears the burden of persuasion at trial (more common)
Moving party can satisfy burden of production either of two ways:
1. Moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim.
2. Moving party may demonstrate to the court that the nonmoving party’s evidence is insufficient to establish an essential element of their claim.
i. An assertion that the nonmoving party has no evidence is insufficient.
ii. Must affirmatively show absence of evidence.
1) Show depositions, interrogatories, admissions, documents, that affirmatively demonstrate the lack of evidence.
iii. Nonmoving party may defeat this by calling courts attention to supporting evidence that was overlooked or ignored.
iv. In ^this event, moving party must demonstrate inadequacy of this evidence.
Procedural notes of SJ
Court can grant PARTIAL SJ to any claim or defense
Similarly, if a party is not granted SJ, the court can still enter an order stating any material fact is not genuinely in dispute and order the fact as established in the case (R56g)
Court can grant SJ sua sponge with notice to parties R56f
Time to file SJ
56b
Any time until 30 days after the close of disco
What can you do if you are P and D filed SJ before you could finish disco?
If no movant needs more time, can ask the court to defer/deny SJ motion to allow them time to obtain discovery (56d)
