MBE CIVIL PROCEDURE: Pretrial Adjudication

“On the merits” means a decision based on

all relevant legal arguments and evidence presented.

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)

12(b)(6) motion to dismiss

A motion to dismiss will be granted when a complaint does not contain enough P could be entitled to relief.

specific allegations to make it plausible

After the moving party shows that summary judgment is proper, what is the second step : Burden then shifts to non-moving party to present evidence showing that a FRCP 56

genuine issue of material fact exists.

Can a plaintiff relitigate a claim after dismissal if claim was dismissed by the plaintiff herself Yes, unless it is the on the claim (which is dismissed with prejudice).

P’s second dismissal

Can a plaintiff relitigate a claim after dismissal if claim was dismissed by court order or stipulation

Yes

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

No

Can court clerk enter default if damages are uncertain?

No

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

No

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 FRCP 56(c)

genuine issue of material fact.

Claims of fraud or mistake must be pled with rather than only

particularity, plausibility

Default = D’s (stage 1) Default judgment = judgment entered into the record after D defaults (stage 2)

failure to respond

Default = D’s failure to respond (stage 1) Default judgment = judgment after D defaults (stage 2)

entered into the record

If a case is dismissed with : adjudication on the merits, cannot relitigate.

with prejudice

If a case is dismissed with : no adjudication on the merits, can relitigate.

without prejudice

If P shows that: D was properly served; Deadline to respond has expired; D failed to respond; D is not a minor or incompetent; and Sum owed is certain (by affidavit), the court clerk can enter a

default judgment

Involuntary dismissal under Rule 41(b) is ____ prejudice

With prejudice.

Is a voluntary dismissal by the plaintiff, court order, or stipulation is considered without prejudice?

Yes

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

partial summary judgment

Occurs when D fails to timely respond to the complaint (within 21 days of service or 60 days after waiver) (Rule 55(a))

default

P can voluntarily dismiss without court order by either: Filing a notice of dismissal before the opposing party serves either an or a whichever comes first; or A stipulation of dismissal signed by all parties who have appeared Rule 41(a)(1)(A)

answer, motion for summary judgment

P can voluntarily dismiss without court order by either: Filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment, whichever comes first; or A signed by all parties who have appeared Rule 41(a)(1)(A)

stipulation of dismissal

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. FRCP 57

declaratory judgment

Until 30 days after the close of discovery, a motion for SJ is proper if pleadings and evidence submitted show and the moving party is entitled to judgment as a matter of law. FRCP 56(c)

no genuine issue of material fact

Until 30 days after the close of discovery, a motion for SJ is proper if pleadings and evidence submitted show no genuine issue of material fact and the moving party is FRCP 56(c)

entitled to judgment as a matter of law.

Upon filing a motion for summary judgment, the moving party must: Make a prima facie showing that: No and Moving party is entitled to judgment as a matter of law FRCP 56

genuine issue of material fact exists;

Upon filing a motion for summary judgment, the moving party must: Make a prima facie showing that: No genuine issue of material fact exists; and Moving party is entitled to FRCP 56

judgment as a matter of law

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 to determine damages

will hold a hearing

What is a default judgment under Rule 55(b)

Judgment on the record that D defaulted

What is the deadline to file a motion for summary judgment FRCP 56(b)

30 days after discovery has ended

When D seeks to dismiss the action because P has violated the rules or court order FRCP 41(b)

involuntary dismissal

When does no genuine issue of material fact exist : When no reasonable jury/person could the non-moving party.

return a verdict in favor of

When can the court set aside a default judgment For good cause within (typically shown if there was an honest mistake, fraud, or some circumstance outside of D’s control). FRCP 55(c), FRCP 60

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