Pretrial Adjudication Flashcards Preview

Federal Civil Procedure > Pretrial Adjudication > Flashcards

Flashcards in Pretrial Adjudication Deck (31):
1

P always has a right of voluntary dismissal before what?

D serves and answer or a MSJ.

2

If P timely dismisses, the case is dismissed without prejudice, meaning . . .

It can be refiled.

3

How many times can a P dismiss without prejudice?

Once

4

If D does not respond to a complaint in time, this means he has failed to respond ____ days after being served with process OR ___ days from mailing of waiver if service was waived.

21

60

5

If D does not respond to a complaint in time, P can move for . . .

Default

6

What is the effect of entry of default?

Cut off D's right to respond.

7

Once P files for default, until when can D still respond to the complaint?

Until Default is entered

8

If P gets a default entered, what must she do before she can recover?

Get a default judgment

9

When can the CLERK of the court enter a default judgment? (4 needed)

D made no response at all

The claim itself is for a sum CERTAIN in money

Claimant gives an affidavit of the sum owed; AND

D is not a minor or incompetent

10

If the clerk is not entitled to enter default judgment, where do P go?

Court

11

Does D get notice of a default judgment hearing?

Only if he has appeared in the case.

12

P sues D for damages. On default judgment, can P get an injunction, too?

No

13

How can D move to set aside a default or default judgment? (2 things)

Good cause AND

Viable defense

14

Motion to dismiss for failure to state a claim arises under FRCP

12(b)(6)

15

In ruling on a 12b6 motion, ignore what?

P's legal conclusions

16

A 12b6 motion to dismiss for failure to state a claim looks only at P's allegations of fact in the complaint and asks . . .

If these facts were true, would P win a judgment?

17

In ruling on a 12b6 motion, what evidence can the court examine?

none, just the complaint.

18

To defeat a 12b6 motion for failure to state a claim, P's complaint need only support a ____ claim.

Plausible.

19

If D has answer then makes a motion to dismiss for failure to state a claim, it is called what?

Motion for judgment on the pleadings.

20

A motion for summary judgment requires a showing that (2):

There is no genuine dispute of material fact AND

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

21

If a party moving for summary judgment shows that There is no genuine dispute of material fact AND That the moving party is entitled to judgment as a matter of law, must the court enter SJ?

No, always discretionary

22

Time limit on a MSJ?

30 days after the close of discovery

23

Can there be a partial MSJ?

Ye

24

In a MSJ, can the court look at evidence?

Yes

25

In a MSJ, the court views the evidence in a light most favorable to whom?

Nonmoving party

26

Are pleadings considered evidence?

No

27

Can pleadings be considered as evidence in a MSJ?

ONLY if verified (under oath)

28

How can an unverified pleading be relevant to MSJ?

If D failed to deny an allegation by P, it can be treated as fact

29

If evidence is based on HS, can it be used to determine a MSJ?

No

30

Say that P has a witness that saw the scene and testifies in P's favor. D has a video surveillance tape (authenticated) that discredits the witness. How may the court treat the witness testimony for MSJ?

Ignore it (discretionary)

31

In a MSJ, the court ordinarily does/doesn't weigh the credibility of witnesses and the strength of the evidence.

Doesn't