Disposition without Trial

Question 1

What are the four methods of disposition without trial? With their rule?

Answer 1

1. Default judgment (Rule 55)
2. Dismissal (voluntary or involuntary) (Rule 41)
3. Settlement
4. Summary judgment (Rule 56)

Question 2

What rule governs entering a default?

Answer 2

Rule 55(a)

Question 3

What rule governs entering a default judgment?

Answer 3

Rule 55(b)

Question 4

When must a default judgment be entered by a clerk?

Answer 4

(1) PL’s claim is for a sum certain or can be computated
(2) with an affidavit proving the amount
(3) DF has been defaulted for not appearing

Question 5

When must a default judgment be entered by the court?

Answer 5

In all other cases

Question 6

When may a court conduct hearings or make referrals in entering a default judgment?

Answer 6

When it needs to (1) conduct an accounting, (2) determine the amount of damages, (3) establish the truth of any allegation by evidence, or (4) investigate any other matter.

Question 7

Who must a party seek to enter a default?

Answer 7

the clerk

Question 8

Who can default be entered against?

Answer 8

a party against whom a judgment for affirmative relief is sought that does not plead or otherwise defend

Question 9

What are the two steps for obtaining default judgment?

Answer 9

1. Seek clerk’s entry of default
2. Seek default judgment from the court OR seek default judgment from clerk if sum certain (and DF is not minor or incompetent)

Question 10

What are the rules regarding default judgment against minors and incompetent persons? Rules?

Answer 10

No default judgment may be entered by the clerk against a minor or incompetent person. Rule 55(b)(1). Default judgment entered by the court against a minor or incompetent person only if they are represented by a general guardian, conservator, or other like fiduciary duty who has appeared. Rule 55(b)(2).

Question 11

What notice requirements are there for default judgment? Rule?

Answer 11

If a party has appeared personally or through a representative, the party must be served with written notice of the application to the court at least 7 days before the hearing. Rule 55(b)(2).

Question 12

What are two protections afforded for default judgment? Rule/Statute?

Answer 12

For the United States (absent proof) (Rule 55(d)) and members of the military if service prevents an appearance (50 USC 3931)

Question 13

How else may limits be imposed on default judgments?

Answer 13

Other statutes may impose limits on default judgments.

Question 14

what kind of acts are required to prevent a default judgment?

Answer 14

Acts that show an intent to defend have frequently prevented a default judgment even though not connected to any particular rule.

Question 15

What rule governs setting aside a default or default judgment?

Answer 15

Rule 55(c)

Question 16

What are the 6 “good cause shown” factors in deciding whether to set aside an entry of default?

Answer 16

1. Whether the moving party has a meritorious defense
2. Whether the moving party has acted with reasonable promptness
3. The personal responsibility of the moving party
4. The prejudice to the non-moving party
5. Whether there is a history of dilatory action
6. The availability of sanctions less drastic

Question 17

What rules allow a final default judgment to be set aside?

Answer 17

Rule 55(c) and 60(b)

Question 18

What are the 6 (with subparts) potential steps in default/default judgment?

Answer 18

1. Defendant does not answer (or appear in court after answer)
2. Plaintiff obtains default (clerk or court - as applicable)
3. Defendant moves to set aside entry of default: (A) if successful - case proceeds (B) if unsuccessful - move to next step
4. Plaintiff obtains default judgment
5. Defendant moves to set aside default judgment: (A) if successful - case proceeds (B) if unsuccessful - move to next step
6. Plaintiff executes on their judgment

Question 19

What rule governs damages for default judgments?

Answer 19

Rule 54(c)

Question 20

What rules governs volunary dismissal by the plaintiff?

Answer 20

Rule 41(a)(1)

Question 21

What rule governs voluntary dismissal by court order?

Answer 21

Rule 41(a)(2)

Question 22

What is the two dismissal rule?

Answer 22

If the plaintiff or court voluntarily dismisses without prejudice for a second time, it operates as an adjudication on the merits (with prejudice)

Question 23

When can a plaintiff volintarily dismiss an action?

Answer 23

Before any party has filed an answer or a motion for summary judgment or at any time if stipulated to by all the parties.

Question 24

When may a plaintiff voluntarily dismiss an action by court order?

Answer 24

On terms that the court considers proper

Question 25

What rule governs involuntary dismissal?

Answer 25

Rule 41(b)

Question 26

How are counterclaims/crossclaims/third-party claims handled in regard to voluntary or involuntary dismissals?

Answer 26

Governed by Rule 41(c), the rest of the voluntary/involuntary dismissal rules apply as they would to other claims

Question 27

What rule governs costs of a previously dismissed action?

Answer 27

Rule 41(d)

Question 28

What rule governs pretrial conferences, scheduling, and case management?

Answer 28

Rule 16

Question 29

Generally, what does Rule 16 allow?

Answer 29

Rule 16 gives the district court discretion to assist the parties and eliminate frivolous claims. Courts can do anything to streamline, control, or manage cases.

Question 30

What is the difference between Rules 16(c)(2)(A) and 16(c)(2)(E)?

Answer 30

At any pretrial conference, the court may consider and take appropriate action on the following matters: formulating and simplifying the issues, and eliminating frivolous claims or defenses (16(c)(2)(A)) and determining the appropriateness and timing of summary judgment adjudication under Rule 56 (16(c)(2)(E)).

Question 31

Regarding settlement, what can/can't courts compel?

Answer 31

Courts may compel parties to attend a settlement conference. Courts may not compel parties to settle a dispute.

Question 32

When is a party required/not required to attend a settlement conference?

Answer 32

If the conference is court ordered, a party is required to go. If it is not, they are not.

Question 33

What rule governs sanctions regarding pretrial conferences?

Answer 33

Rule 16(f)

Question 34

What rule governs offers of judgment?

Answer 34

Rule 68(a)

Question 35

When may a defending party make an offer of judgment?

Answer 35

At least 14 days before trial

Question 36

What is the difference between an offer of judgment and a settlement?

Answer 36

An offer of judgment is enforceable by the court whereas a settlement is not.

Question 37

What rule governs unaccepted offers of judgment?

Answer 37

Rule 68(b)

Question 38

Can an unaccepted offer be used in a trial to determine costs?

Answer 38

No

Question 39

What rule governs offers of judgment after liability has been determined?

Answer 39

Rule 68(c)

Question 40

What rule governs paying costs after an unaccepted offer of judgment?

Answer 40

Rule 68(d)

Question 41

When must an offeree of an offer of judgment pay costs?

Answer 41

If a judgment obtained is not more favorable than the unaccepted offer, the offeree must pay costs incurred after the offer was made.

Question 42

What is alternative dispute resolution?

Answer 42

ADR refers to methods used to resolve disputes outside of the courtroom. These methods are designed to be less adversarial and often more efficient than traditional litigation.

Question 43

What is negotiation?

Answer 43

A voluntary and informal process where the disputing parties communicate directly or through their representatives to reach a mutually acceptable resolution.

Question 44

What is mediation?

Answer 44

A neutral third party, the mediator, helps the disputing parties communicate and negotiate to reach a mutually acceptable resolution. The mediator does not impose a decision but facilitates the process.

Question 45

What is the most common method of ADR in the US? Why?

Answer 45

Mediation. Because of its cost-effectiveness, flexibility, and the ability to preserve relationships between the disputing parties.

Question 46

What is arbitration?

Answer 46

A neutral third party or a panel of arbitrators hears the arguments and evidence presented by both parties and makes a binding or non-binding decision based on the merits of the case.

Question 47

Typically, how are arbitration panels formed?

Answer 47

The panel is usually made up of 3 arbitrators. The plaintiff chooses one, the defendant chooses one, and then the two arbitrators choose the third together.

Question 48

What is conciliation?

Answer 48

Similar to mediation, a conciliator helps the disputing parties reach a mutually agreeable resolution. Conciliation is often used in international disputes and may involve a more formal process than mediation.

Question 49

What is Early Neutral Evaluation?

Answer 49

A neutral evaluator, usually an experienced attorney or retired judge, provides an early, non-binding assessment of the strengths and weaknesses of each party's case. This helps parties to better understand their positions and may facilitate settlement negotiations.

Question 50

Waht is a Mini-Trial?

Answer 50

A shortened, informal version of a trial where each party presents its case to a neutral third party or a panel. The panel may provide a non-binding opinion, which may help the parties to negotiate a settlement.

Question 51

What is a Summary Jury Trial?

Answer 51

A non-binding, abbreviated trial that takes place before a jury. The jury provides an advisory verdict, which can inform the parties and help them in reaching a settlement.

Question 52

What is Med-Arb?

Answer 52

A hybrid process that combines mediation and arbitration. If parties are unable to reach a resolution through mediation, the mediator may switch roles and become an arbitrator, making a binding or non-binding decision on the dispute.

Question 53

What is Collaborative Law?

Answer 53

A process in which parties and their attorneys commit to resolving disputes without litigation. The attorneys agree to not represent their clients in court if the collaborative process fails, adn the parties work together to reach a mutually acceptable resolution.

Question 54

What is Neutral Fact-Finding?

Answer 54

An impartial expert investigates the facts of the dispute and provides a report or opinion, which can help the parties negotiate a resolution or can be used as evidence in a subsequent proceeding.

Question 55

What is Private Judging?

Answer 55

A retired judge or an experienced attorney is hired by the disputing parties to conduct a private trial or hearing, with the decision typically being binding.

Question 56

What is the least expensive form of ADR?

Answer 56

Negotiation

Question 57

What is the most effective method of ADR?

Answer 57

Mediation

Question 58

What are the 3 methods of ADR that can produce binding results?

Answer 58

1. Arbitration 2. Med-Arb 3. Private judging

Question 59

How does summary judgment work for defendants?

Answer 59

For defendants, summary judgment is the means by which courts may dispose of claims that claimants cannot prove.

Question 60

How does summary judgment work for plaintiffs?

Answer 60

For plaintiffs, summary judgment is the vehicle through which courts may hand a pretrial victory to litigants having claims that defendants cannot refute.

Question 61

What rule governs summary judgment?

Answer 61

Rule 56

Question 62

What is the "test" for summary judgment? Rule?

Answer 62

The movant must show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law

Question 63

Who may file a motion for summary judgment?

Answer 63

Any party

Question 64

If the summary judgment movant meets its burden . . .

Answer 64

the court must grant the motion.

Question 65

What is a material fact for purposes of summary judgment?

Answer 65

A material fact is one that might affect the outcome of the suit under the governing law. A fact may be relevant, but not material to the outcome.

Question 66

How must courts examine the facts in assessing a motion for summary judgment?

Answer 66

The court must view the facts and draw reasonable inferences in the light most favorable to the party opposing the motion.

Question 67

When may a party file a motion for summary judgment? Rule?

Answer 67

Any time up to 30 days after the close of discovery, unless otherwise set by local rule or court order. Rule 56(b).

Question 68

What rule governs the procedures for summary judgment?

Answer 68

Rule 56(c)

Question 69

What rule governs when facts are unavailable to a nonmovant for purposes of summary judgment?

Answer 69

Rule 56(d)

Question 70

What rule governs when a party fails to properly support or address a fact for purposes of summary judgment?

Answer 70

Rule 56(e)

Question 71

What rule governs judgments independent of motions for summary judgment?

Answer 71

Rule 56(f)

Question 72

What rule governs when the court fails to grant all the requested relief for summary judgment?

Answer 72

Rule 56(g)

Question 73

What trilogy of cases has shaped the way summary judgment is handled today?

Answer 73

1. Celotex Corp. v. Catrett 2. Anderson v. Liberty Lobby 3. Matsushita Elec. Indus. v. Zenith Radio Corp.

Question 74

What effect did Celotex Corp v. Catrett have on whether or not the federal rules of evidence apply to summary judgment proceedings?

Answer 74

Evidence submitted in connection with summary judgment does not have to be presented in an admissible form. The trial court may consider the evidence on summary judgment provided the submitting party demonstrates that it would be possible to present the evidence in an admissible form at trial.

Question 75

What effect did Celotex Corp v. Catrett have on the movant's and nonmovant's burdens for summary judgment?

Answer 75

Movants not bearing the burden of proof at trial may seek summary judgment without offering any evidence disproving the nonmovant's case. Rather, the movant may simply assert the absence of a genuine dispute of material fact and show this to be the case by reviewing the presented evidence for the court. The nonmovant must then identify or adduce information that shows that there indeed is a genuine dispute over a material fact.

Question 76

What effect did Anderson v. Liberty Lobby have on the standard of proof for summary judgment?

Answer 76

The standard of proof for a motion for summary judgment is the same as it would be at trial.

Question 77

What are the two steps for sumary judgment outlined in Matsushita Elec. Indus. v. Zenith Radio Corp.?

Answer 77

1. Moving party meets burden under 56(c) 2. Opponent must establish genuine issue of material fact. It must do more than simply show that there is some metaphysical doubt as to the material facts.

Question 78

After the Celotex trilogy, what are the 4 principles that no longer apply to summary judgment?

Answer 78

1. That moving party had to support its own motion with evidence negating the fact or facts to be proved. 2. That summary judgment was to be avoided in complex cases. 3. That the faintest possibility that the opponent on summary judgment might come up with sufficient evidence by the time of trial was enough to warrant denial of the motion. 4. That certain subjective matters that may be especially hard for a party to prove (like state of mind) are always inappropriate subjects for summary judgment against that party.

Question 79

After the Celotex trilogy, what are 2 general principles that now apply to summary judgment?

Answer 79

1. Nonmovants who bear the burden of proof at trial are obligated to demonstrate -- at the summary judgment stage -- more than some metaphysical doubt as to material facts. 2. A genuine dispute as to those facts must be shown, and if the record blatantly contradicts the nonmovant's version of events (such as video evidence), the court is under no duty to accept that version and permit the case to proceed to a jury.

Question 80

What is the distinction between summary judgment and judgment as a matter of law?

Answer 80

A JMOL is the court making a decision (actually deciding the factual issues) and taking the decision away from the jury because the evidence will only support one decision.