Pretrial Adjudication & Conferences and Meetings Flashcards Preview

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Flashcards in Pretrial Adjudication & Conferences and Meetings Deck (33)
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1
Q

Options in Pretrial Adjudication

A
  1. Voluntary Dismissal
  2. Default and Default Judgment
  3. Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)).
  4. Motion for Summary Judgment (FRCP 56).
2
Q

What is Voluntary dismissal and when can it be raised?

A

P wants to withdraw the case. P can make a motion for voluntary dismissal anytime.

P has a right to take a voluntary dismissal by filing a “notice of dismissal.” But she must do so before Defendant serves her answer or motion for Summary Judgment

3
Q

If P files a timely notice of dismissal, the case is dismissed “without prejudice.” What does that mean?

A

P can refile the case

But you only get to do it without prejudice once

4
Q

What if P files a notice of dismissal in the second case? That dismissal is “with prejudice.” What does that mean?

A

P cannot refile the case

5
Q

Timing for and implication for Default and Default Judgment

A

D does not respond to the complaint in time (21 days
after being served with process; 60 days from mailing of waiver if you waived service).

6
Q

Default is…

A

a notation by the court clerk on the docket sheet of the case.

7
Q

Does the court enter default automatically on the 22nd day after service of process on D?

A

No - P must move for it

8
Q

What does P have to demonstrate for default and what may D do?

A

P must demonstrate that D failed to respond in time. Until default is entered, D can respond by motion or answer (even beyond 21 days).

9
Q

What is the effect of entry of default?

A

It cuts off Ds right to respond

10
Q

Does entry of default entitle the P to recover?

A

Entry of default does not entitle P to recover.

11
Q

What does P need to do before she can recover from D?

A

Get a default judgment

12
Q

How to get a default judgment.

A
  • The clerk of court can enter judgment if:
    • D made no response at all;
    • The claim itself if for a sum certain in money;
    • Claimant gives an affidavit (sworn statement) of the sum owed; AND
    • D is not a minor or incompetent.
  • If any of those is not true, You apply to the court itself - there you got to see the judge
    • The judge will hold a hearing and has discretion to enter judgment.
13
Q

Does D get notice of this hearing for default?

A

Only if he appeared in the case

14
Q

What is the max you can recover for a default judgement and what can’t you recover? What if the case goes to trial?

A

You are limited to what you plead

You also cannot get a different type of relief than what you pleaded

If the case goes to trial, P can recover more (and a different kind of relief) than she put in her complaint.

15
Q

D may move to have the court set aside a default or default judgment

What must the D show for a Motions to set aside?

A
  1. by showing good cause (like excusable neglect) and
  2. must state a viable defense
16
Q

Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)).

A

This is about whether the case belongs in the litigation stream at all.

If P’s complaint fails to state a claim, the case can be dismissed.

17
Q

In ruling on a Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)), what does and doesn’t the court look at? And what does the court ask?

A

In ruling on this motion, the court ignores P’s legal conclusions. It looks only at P’s allegations of fact in the complaint and asks: If these facts were true, would P win a judgment?

  • If the answer is no, there is no sense letting the case proceed, because the law does not recognize a claim on these facts. Court might let P amend to try to state a claim, though.

It also does not look at evidence, just the face of the complaint

18
Q

The facts in a claim must be…

A

plausible

19
Q

Motion for Summary Judgment (FRCP 56)

A

Summary judgment weeds out cases in which we don’t need trial.

Why do we ever have a trial?

  • To resolve disputes of material fact
20
Q

Party moving for summary judgment must show:

A

(1) There is no genuine dispute on a material fact and
(2) That she is entitled to judgment as a matter of law.

If the moving party shows these things,the court has discretion to grant SJ

21
Q

Timing for Summary Judgement

A

Any party can move for this no later than 30 days after Discovery

22
Q

Can the motion for summary judgment be for “partial” judgment – say, on one of several claims?

A

Yes

23
Q

In summary judgment, can the court look at evidence?

A

Yes - this is different from 12(b)(6)

The court views the evidence in the light most favorable to the nonmoving party.

24
Q

How can parties proffer evidence for summary judgment?

And why can these be considered evidence?

A

(1) affidavits or
(2) declarations or
(3) deposition testimony or
(4) interrogatory answers.

Because they are under oath

25
Q

Can a pleading ever be treated as evidence for summary judgement?

A

Only if it is verified

Usually, pleadings are not under oath and so are not considered evidence.

But pleadings might be relevant for summary judgment in this way: if D failed to deny an allegation by P, it can be treated as fact on summary judgment.

26
Q

What is a Rule 26(f) Conference and timing?

A

Unless court order says otherwise, at least 21 days before
scheduling conference, parties “meet and confer.”

They discuss production of required initial disclosures, claims, defenses, settlement, and issue about preservation of discoverable information.

27
Q

What else must parties present at Rule 26(f) Conference

A

A detailed discovery plan

28
Q

what must be in the detailed discovery plan for the Rule 26(f) Conference?

A

The plan must include views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it (e.g., deleted files), etc.

29
Q

Scheduling Order

A

Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, completion of discovery, etc.
This is a roadmap for how the litigation proceeds up to trial.

30
Q

Pretrial Conferences

A

The court may hold “pretrial conferences” to process the case and foster settlement.

31
Q

Final Pretrial Conference

A

The final pretrial conference will determine the issues to be tried and evidence to be proffered at trial. This is recorded in the pretrial conference order.

32
Q

What is the signifigance of a final pretrial conference order?

A

It supersedes the pleadings

The pretrial conference order is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc.

33
Q

What is the point of a pretrial conference order?

A

So there are no surprises at trial