PRETRIAL AJUDICATION

Question 1

What 2 ways can a voluntary dismissal happen? What is a possible punishment if there is a voluntary dismissal?

Answer 1

May be allowed on court order (and P may have to pay D’s costs). But sometimes P has a right to dismiss simply by filing a written notice of dismissal.

Question 2

P sues D but, before D answers, files a written notice of dismissal. OK?

Answer 2

P may voluntarily dismiss “without prejudice” before D serves her answer or a motion for summary judgment.

Question 3

What does “without prejudice” mean?

Answer 3

P can refile the case.

Question 4

P sues D but, before D answers, files a written notice of dismissal and has the suit dismissed without prejudice. what happens if if P dismisses the second case by written notice?

Answer 4

it is dismissed with prejudice, P cannot refile the case.

Question 5

P sues D but, before D answers, files a written notice of dismissal and has the suit dismissed without prejudice. if P dismisses the second case by written notice, it is with prejudice, so the claim cannot be reasserted. Is this true even if the first case was filed in state court?

Answer 5

Yes, just so the second case was in federal court.

Question 6

How do you get a default judgment?

Answer 6

A claimant gets a default by showing the clerk that D has failed to respond within 21 days after being served with process.

Question 7

When can the D respond to avoid a default judgment?

Answer 7

D can respond anytime before the default is entered.

Question 8

Does a default judgment entitle the claimant to recover?

Answer 8

No

Question 9

In the areas of default judgments, What does a claimant need to get to recover?

Answer 9

she needs a judgment to enforce and recover money or other remedies.

Question 10

In the areas of default judgments, The clerk of court can enter judgment if:

Answer 10

• • 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.

– But if any of those four is not true, the claimant must go to the court itself (the judge, not the clerk) for the judgment. The judge will hold a hearing and has discretion to enter judgment. D gets notice of that hearing only if she made some appearance in the case.

Question 11

What can a default judgment not exceed?

Answer 11

Default judgment cannot exceed what the claimant demanded in her complaint

Question 12

What can D do to avoid a judgement (for default)?

Answer 12

D may try to set aside a default by showing good cause and a viable defense. Good cause usually means excusable neglect.

Question 13

Under FRCP 12(b)(6), D moves to dismiss for what?

Answer 13

Failure to State a Claim

Question 14

What does failure to state a claim test?

Answer 14

It tests only the sufficiency of P’s allegations, and looks at allegations of fact.

Question 15

What does failure to state a claim ignore in it’s test?

Answer 15

The court ignores legal conclusions

Question 16

What does the court ask itself when granting a 12(b)(6) motion for failure to state a claim?
What if the answer to that question is no?

Answer 16

If these facts were true, would the plaintiff 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.

Question 17

In ruling of a 12(b)(6) motion, does the court look at evidence?

Answer 17

No it does not look at evidence. . It looks at the face of the complaint and it can look at things of which the court takes judicial notice.

Question 18

What must the facts allege support?

Answer 18

A plausible claim.

Question 19

What does the judge use to see if the claim is plausible?

Answer 19

The judge uses her experience and common sense to see if they do.

Question 20

The 12(b)(6) motion, if made after D has answered, has a different name, and the California examiners have hit this. What is the name?

Answer 20

The motion for judgment on the pleadings.

Question 21

What must the moving party show for summary judgment?
In what time period do they need to move?
Can you get partial judgment?

Answer 21

Moving party must show (1) there’s no genuine dispute on a material fact and (2) that she is entitled to judgment as a matter of law. Move within 30 days of close of discovery. Can be for “partial” judgment (e.g., one of several claims).

Question 22

In summary judgment, can the court look at evidence?

Answer 22

Yes, and it usually does

Question 23

What spoken or written statements can be used as evidence in summary judgment?
Why are they allowed as evidence?

Answer 23

affidavits or declarations, deposition testimony or interrogatory answers – these are under oath, so they can be considered as evidence here.

Question 24

In summary judgment the court views the evidence in what way?

Answer 24

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

Question 25

Summary judgment weeds out cases in which we don't need trial. Why do we ever have a trial?

Answer 25

To resolve disputes of fact.

Question 26

P was hit by a car driven by D. P sues D, alleging D ran a red light while P was in the crosswalk and crossing the street on a green light. D answers and denies these allegations. D moves for summary judgment, attaching sworn statements from three witnesses saying that they saw the accident, D had the green light, and P jumped in front of D’s car. In response, P relies on his complaint, which said D ran the red light. What is the result? Why?

Answer 26

Summary judgment probably granted. Pleadings (like P’s complaint) are not evidence. So based on the evidence presented, there is no dispute of fact AND D is entitled to judgment.

Question 27

When can pleadings be considered evidence for summary judgment?

Answer 27

Only if pleadings are “verified” (they under oath) AND if D failed to deny an allegation by P (in his pleadings), it can be treated as fact on summary judgment.

Question 28

P was hit by a car driven by D. P sues D, alleging D ran a red light while P was in the crosswalk and crossing the street on a green light. D answers and denies these allegations. D moves for summary judgment, attaching sworn statements from three witnesses saying that they saw the accident, D had the green light, and P jumped in front of D’s car. P responds with an affidavit from somebody who swears that he heard about the accident and was told that D ran a red light. What result? Why?

Answer 28

Summary judgment is probably granted here too. Why? This affidavit is based on hearsay, so we ignore it. The evidence must be first hand knowledge, hearsay does not work.

Question 29

P was hit by a car driven by D. P sues D, alleging D ran a red light while P was in the crosswalk and crossing the street on a green light. D answers and denies these allegations. D moves for summary judgment, attaching sworn statements from three witnesses saying that they saw the accident, D had the green light, and P jumped in front of D’s car. D responds with deposition testimony from an alcoholic, drug addicted, convicted swindler who swears he saw the accident and that D ran a red light. What result? Why?

Answer 29

Summary judgment must be denied because the evidence for P is first-hand knowledge and creates a dispute on a material fact.

Question 30

P was hit by a car driven by D. P sues D, alleging D ran a red light while P was in the crosswalk and crossing the street on a green light. D answers and denies these allegations. D moves for summary judgment, attaching sworn statements from three witnesses saying that they saw the accident, D had the green light, and P jumped in front of D’s car. D responds with deposition testimony from an alcoholic, drug addicted, convicted swindler who swears he saw the accident and that D ran a red light. Suppose an authenticated videotape of the accident scene completely discredits P’s witness’s version of the facts. What result, why?

Answer 30

The court can ignore the affidavit and grant summary judgment.

Question 31

What do you do at a rule 26(f) conference? When does it need to happen?

Answer 31

parties discuss claims, defenses, and settlement. Must form discovery plan, including issues about how electronically stored info will be produced, and present it to court in writing within 14 days. Unless court order says otherwise, the Rule 26(f) conference must take place at least 21 days before the scheduling conference (or scheduling order is due),

Question 32

What is a scheduling order?

Answer 32

Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, etc.

Question 33

What is the purpose of a pertrial conference?

Answer 33

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

Question 34

What do you do at the final pretrial conference?

Answer 34

Final pretrial conference determines issues to be tried and evidence to be proffered.

Question 35

The final pretrial conference determines issues to be tried and evidence to be proffered.What is this recorded in, what does it supersede?

Answer 35

This is recorded in a pretrial conference order, which supersedes the pleadings.

Question 36

The pretrial conference order is an important document, why?

Answer 36

it is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc. It ensures there are no surprises at trial.