Pretrial Adjudication CP

Federal Civil Procedure

If P files a complaint against D, who files a counterclaim, can P dismiss with leave of court?

Dismissal with leave of court

• Pending counterclaim: If D filed a counterclaim, P cannot voluntarily dismiss without D’s consent

Can P who dismissed his case without leave of court file the claim again?

Dismissal is without prejudice provided this is the first time that P has dismissed her case; otherwise is with prejudice

What is a dismissal with leave of court? When is it required?

Dismissal with leave of court: required if there has been an answer, motion or prior dismissal

• Court has discretion to grant dismissal on terms and conditions it deems proper

If a party moves to dismiss with leave of court, can they bring the claim again? Is this always the case?

Dismissal without prejudice unless court states otherwise; the second voluntary dismissal is with “prejudice”

What is dismissal without leave of court? When is it permissible?

Dismissal without leave of court: allowed before D serves an answer or motion for summary judgment (“MSJ”)

• P voluntarily dismisses by filing written notice of dismissal or stipulation signed by all parties who have appeared.

What hearings are required when default judgment is entered by a judge (IE not by court clerk)?

Default by judgment by court: If elements above are not met, court must enter default judgment and court will hold a hearing on damages.

• D may entitled to hearing: If D has appeared at some point in response to P’s complaint, D must get 7 days notice of a hearing on default motion.

If a default judgment is entered, how and when, if ever, can it be undone?

Setting aside default judgment: a default judgment may be set aside like any other judgment

When a P wins via a default judgment, what is the maximum amount P may recover?

Recovery: Limited to amount demanded in complaint

If P files a motion for default judgment against D, when may the court clerk enter a default judgment?

Procedure:

Default Judgment by court clerk: may be entered if

1. D has not responded at all;

2. Claim is for money damages;

3. P gives an affidavit of sum owed; and

4. D is not a minor or incompetent

When may a default judgment be entered against D?

Default judgment against D may be entered when D fails to plead or otherwise defend a properly served complaint

What is the difference in the material a court may review in determining a motion for failure to state a claim v. motion for judgment on the pleadings?

Failure to state a claim vs. motion for judgment on the pleadings

Materials reviewed by court

-Rule 12(b)(6) motion: court reviews sufficiency of P’s complaint alone

-Rule 12(c) motion: court reviews all pleadings

When would a D bring a motion for failure to state a claim vs. a motion for judgment on the pleadings?

Failure to state a claim vs. motion for judgment on the pleadings

Timing of filing:

• Before D files answer = Rule 12(b)(6) motion to dismiss

• After D files answer = Rule 12(c) motion for judgment on the pleadings

When D files a motion for judgment on the pleadings or a motion for failure to state a claim, what is D arguing?

Under Rule 12 , D may move to dismiss for failure to state a plausible claim or move for judgement on the pleadings due to P’s failure to bring a plausible claim.

-IE D arguing that even assuming all allegations in P’s complaint or pleadings are true, P cannot win

In response to a motion for summary judgment, may the non-moving party conduct additional discovery in an attempt to show that a triable issue exists?

• Burden-Shifting: If party moves for summary judgment, burden shifts to non-moving party to show that a triable issue exists.

• Non-moving party may submit for more time to take discovery (must specify discovery sought and how it will help).

In ruling on a motion for summary judgment, what evidence can the court consider? In what light?

• Evidence: examined in the light most favorable to the non-moving party

• Court can look at the whole record of admissible evidence

If a party makes a motion for summary judgment, what burden is placed on the non-moving party?

• Burden-shifting: if party moves for summary judgment, burden shifts to non-moving party to show that a triable issue exists

• Non-moving party may submit request for more time to take discovery (must specify discovery sought and how it will help).

What must a party who files a motion for summary judgment demonstrate?

Burden for moving party: must show

1. There is no geniune dispute of material fact; and

2. Moving party is entitled to judgement as a matter of law

   -IE, no reasonable person could find for non-moving party

What happens if D makes a settlement offer to P, who rejects the offer and later obtains a judgment for less than the offer?

Settlement for less offer: If claimant rejects settlement offer and obtains judgment less favorable than the unaccepted offer, claimant must pay costs incurred by the offering party after the offer was made.