Pretrial Procedure and Disposition of Case

Question 1

Ability to take Voluntary Dismissal by plaintiff or by Stipulation ?

Answer 1

The πfiles a notice of dismissal at any time before the πrests their case (can happen during trial)

Question 2

Can you do a voluntary dismissal only on one claim or one ∆?

Answer 2

Yes, the rest of the case will proceed forward upon the remaning

Question 3

Effect of a voluntary dismissal?
1st?
2nd?

Answer 3

1. the first voluntary dismissal is always without prejudice (can bring the same case again)
2. a second voluntary dismissal will act as an adjudication on the merits

Question 4

After a voluntary dismissal, how long do they have to bring again?

Answer 4

1-year

The new filing will not relate back to the original date

Question 5

If a plaintiff who has once dismissed (voluntary or involantary) again brings suit on the same claim against the same defendant, the court can order the plaintiff to

Answer 5

pay the costs of the first action before the second action may proceed
-failure to pay costs will bar action

Question 6

Court may order the involuntary dismissal of plaintiff’s actions for

Answer 6

1. failure to prosecute

2. failure to comply with rules of civil procedure

Question 7

Effect of an involuntary dismissal?

Answer 7

With prejudice, acts as an adjudication upon the merits

-Court can set a term of 1 year of less to cure defect before prejudice and adjudication upon the merits becomes effective.

Question 8

Default occurs when?

Answer 8

πfiles their complaint and ∆fails to answer

Question 9

Steps for Default?

4

Answer 9

1. πfiles their complaint and ∆fails to answer
2. πfiles entry of default
3. If ∆ does not answer
4. πseeks default judgment in superior court (no notice needed)

Question 10

Default Judgments when seeking

1. Sum Certain
2. Sum not certain

Answer 10

1. Judge can issue a judgement of the specified damages
2. the plaintiff must apply to the court for entry of a default judgment and proof is required as to the damages or other relief sought (only rationally related to claim)

Question 11

The court may set aside a default judgment for:

3

Answer 11

Good Cause shown

• Depends upon the circumstances of each case
• If there is a short delay
• The delay is legitimate

≠suit papers misplaced for 30 days

Question 12

Time limit to set aside a default judgment?

Answer 12

1 year from when ∆ learns of the default judgment

Question 13

What are Judgment On The Pleadings

Answer 13

After the pleadings have closed (all possible pleadings have been filed), any party may move for judgment on the pleadings.

This motion is analogous to a motion to dismiss for failure to state a claim.

Question 14

A motion for summary judgment allows the court to

2

Answer 14

Look for any dispute on a genuine issue of material fact
+
Whether the movant is entitled to relief as a matter of law

Question 15

Timing for a motion on summary judgment?

Answer 15

Can be filed at any time (even before answer)

; however, practicaly, should be filed after discovery because opponent will argue that they will discover an issue

Question 16

How many times can you make motion for summary judgment?

Answer 16

only once

Question 17

What does the opposing party to a motion of summary judgment have to produce?

Answer 17

Affidavits or evidence that there will be a genuine issue of material fact at trial

CANNOT only rely upon pleadings

Question 18

Summary judgment will be granted only if there is

Answer 18

Viewing the facts in favor of the non-moving party

Only granted if there is not a genuine issue of material facts
+
Non-moving party is entitled to relief as a matter of law

Question 19

The initial burden of proof in summary judgment is on:

Answer 19

The moving party to show there is no question of fact

then

To non movant to show there is

Question 20

If there are multiple claims, can summary judgment be partial?

Answer 20

a. If there is controversy as to some material facts but not as to others, the court may enter an order that the uncontroverted facts will be deemed established at the trial.
b. If a separate claim has been fully determined, judgment may be entered on that claim “if there is no just reason for delay,” leaving the other claims to be tried.

Question 21

Can summary judgment denials be appealed?

Answer 21

no because of its interlocutory nature

Question 22

Offer of consent judgment in N.C.

Answer 22

a defendant at any time more than 10 days before trial, to make an offer to the plaintiff to allow judgment against himself for a specified sum or property.

If π accepts within 10 days: case is settled

If the πrejects and fails to receive more at trial, then πmust pay the cost of the trial from the time of the offer.