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MBE Civil Procedure > Pretrial Adjudication > Flashcards

Flashcards in Pretrial Adjudication Deck (23)
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1
Q

What does it mean if a case is dismissed with prejudice?

Without prejudice?

A

With prejudice: adjudication on the merits, cannot relitigate.

Without prejudice: no adjudication on the merits, can relitigate.

“On the merits” means a decision based on all relevant legal arguments and evidence presented.

2
Q

When may P voluntarily dismiss an action without a court order?

A

P can voluntarily dismiss without court order by either:

  1. Filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment, whichever comes first; or
  2. A stipulation of dismissal signed by all parties who have appeared

Rule 41(a)(1)(A)

A voluntary dismissal by the plaintiff, court order, or stipulation is considered without prejudice.

3
Q

Can a plaintiff relitigate a claim after dismissal if claim was dismissed by court order or stipulation?

A

Yes, because dismissal by court order or stipulation is without prejudice.

4
Q

Can a plaintiff relitigate a claim after dismissal if claim was dismissed by the plaintiff herself?

A

Yes, dismissal by plaintiff is without prejudice unless it is the P’s second dismissal on the claim (which is dismissed with prejudice).

5
Q

Can a plaintiff relitigate a claim after dismissal if claim was dismissed by settlement?

A

No, dismissal as a result of settlement is with prejudice.

6
Q

What is involuntary dismissal under Rule 41(b)?

A

When D seeks to dismiss the action because P has violated the rules or court order

7
Q

Involuntary dismissal under Rule 41(b) is ____ prejudice

A

With prejudice.

8
Q

What is a default under Rule 55(a)?

A

Occurs when D fails to timely respond to the complaint (within 21 days of service or 60 days after waiver)

⚠️ Note: This is not the same as a default judgment, which is when the court enters the default into the record

9
Q

What is a default judgment under Rule 55(b)?

A

Judgment on the record that D defaulted

10
Q

Difference between a default and a default judgment?

A

Default = D’s failure to respond (stage 1)

Default judgment = judgment entered into the record after D defaults (stage 2)

11
Q

When can the court clerk enter a default judgment?

A

If P shows that:

  1. D was properly served;
  2. Deadline to respond has expired;
  3. D failed to respond;
  4. D is not a minor or incompetent; and
  5. Sum owed is certain (by affidavit)
12
Q

What can P do if the sum of damages is uncertain when seeking a default judgment?

A

P can seek default judgment from the court and judge will hold a hearing to determine damages

⚠️ Note: Court clerk cannot enter default if damages are uncertain - must be done by a judge

13
Q

When can the court set aside a default judgment?

A

For good cause within 1 year (typically shown if there was an honest mistake, fraud, or some circumstance outside of D’s control).

14
Q

What is a 12(b)(6) motion to dismiss?

A

A motion to dismiss the case before discovery because the P has failed to state a claim upon which relief can be granted.

15
Q

When will a motion to dismiss be granted?

A

Generally, it will be granted when a complaint does not contain enough specific allegations to make it plausible that P could be entitled to relief.

⚠️ Exception: Remember that claims of fraud or mistake must be pled with particularity, rather than only plausibilty.

16
Q

When is a motion for summary judgment proper?

A

Until 30 days after the close of discovery, a motion for SJ is proper if pleadings and evidence submitted show no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

17
Q

When does no genuine issue of material fact exist?

A

When no reasonable jury/person could return a verdict in favor of the non-moving party.

18
Q

Upon filing a motion for summary judgment, the moving party must:

A

Make a prima facie showing that:

  1. No genuine issue of material fact exists; and
  2. Moving party is entitled to judgment as a matter of law
19
Q

After the moving party shows that summary judgment is proper, what is the second step?

A

Burden then shifts to non-moving party to present evidence showing that a genuine issue of material fact exists.

20
Q

Can the moving party rely on her own complaint to show summary judgment is proper?

A

No, must put forth other evidence showing there is no genuine issue of material fact.

21
Q

What is the deadline to file a motion for summary judgment?

A

30 days after discovery has ended.

22
Q

Define

partial summary judgment

A

Issued when only some material facts are not at issue.

23
Q

Define

declaratory judgment

A

Ruling that informs parties of a legal relationship between parties or their rights. Often filed prior to a lawsuit to prevent one from occuring later.