Pretrial Adjudication Flashcards Preview

Civil Procedure 1L > Pretrial Adjudication > Flashcards

Flashcards in Pretrial Adjudication Deck (39)
Loading flashcards...

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

Without prejudice?

With prejudice: adjudication on the merits, cannot relitigate.

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



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

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. Filing a stipulation of dismissal signed by all parties who have appeared

Rule 41(a)(1)(A)



Can a plaintiff relitigate a claim after dismissal if claim was dismissed by:

  1. Court order or stipulation?
  2. By plaintiff herself?
  3. Settlement?

  1. Yes, because dismissal by court order or stipulation is without prejudice
  2. Yes, dismissal by plaintiff is without prejudice unless it is the P's second dismissal on the claim (which is dismissed with prejudice)
  3. No, dismissal as a result of settlement is with prejudice


After D has answered, can P file for voluntary dismissal?

No, only the court can dismiss the suit (at its discretion)

FRCP 41(a)(2)


What is involuntary dismissal under Rule 41(b)?

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

FRCP 41(b)


Involuntary dismissal under Rule 41(b) is ____ prejudice

With prejudice.


What is a default under Rule 55(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


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

Judgment on the record that D defaulted



Difference between a default and a default judgment?

Default: D's failure to respond (stage 1)

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


When can the court clerk enter a default judgment?

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)




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

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


When can the court set aside a default judgment?

For good cause within 1 year (typically shown if there was an honest mistake, fraud, or some circumstance outside of D's control). FRCP 55(c), FRCP 60


Is a default judgment appealable?

Yes, considered a final judgment on the merits.


Does failure to give D proper notice invalidate a default judgment?

Yes, a default judgment cannot be entered against a D who did not have adequate notice of the proceedings against him, even though the same result would be entered on retrial. D does not need to prove he would have had a successful defense.

FRCP 60(b); Peralta v. Heights Medical Center


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

A motion to dismiss the case before discovery because the P has failed to state a claim upon which relief can be granted. FRCP 12(b)(6)


When will a motion to dismiss be granted?

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.


What is summary judgment?

Allows dismissal of a suit to be granted when the record shows “that there is no genuine issue as to any material fact” then the movant is entitled to judgment as a matter of law”

FRCP 56(c)


What does it mean for there to be no genuine issue of material fact?

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


When a party file a motion for summary judgment?

Within 30 days after the close of all discovery. FRCP 56(b)


How must a party claiming that a fact cannot be or is genuinely disputed support their assertion?


  1. Citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
  2. Showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact

FRCP 56(c)(1)


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

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



After the moving party makes a prima facie showing that summary judgment is proper, what is the next step?

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



When deciding whether to grant summary judgment, can the court consider materials in the record that were not cited in the motion?

Yes, the court need consider only the cited materials, but it may consider other materials in the record.

FRCP 56(c)(3)


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

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

FRCP 56(c)


partial summary judgment

Issued when only some material facts are not at issue. FRCP 56(d)(1)


declaratory judgment

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.



If a Rule 12(b)(6) motion is granted, can P appeal?

Yes, because a Rule 12(b)(6) effectively ends the case.



to make an express demand or arrangement as a condition of agreement


What is a settlement?

Pre-trial agreement by the parties on how the dispute will be handled.

⭐️ Most cases are resolved by settlement.


Do the parties need judicial approval to settle?

Generally no, unless:

  1. Case involves minors; or
  2. Case is a class action (FRCP 23(e))