When can a voluntary dismissal occur?
- A claimant can unilaterally dismiss her suit by filing a notice of dismissal anytime before the defendant has filed an answer.
- A claimant can dismiss her claim by filing a stipulation of dismissal signed by all parties. This is what typically happens when a case settles.
- A claimant can dismiss by getting the permission of the court.
May the plaintiff, after dismissing her claim, litigate the claim again?
It depend. if it was dismissed with prejudice, then she may not. If it was dismissed without prejudice, then she may.
What is the default if a dismissal does not address whether the dismissal is with or without prejudice?
Presume that a first dismissal is without prejudice and a second is with prejudice.
When may a defendant move for a dismissal of the action?
If the plaintiff:
- Fails to prosecute her case
- Refuses to comply with a court order
Or
- Fails to comply with any of the Federal Rules of Civil Procedure
What are the two steps for a default judgment?
Step 1: Entry of default: if a defendant fails to defend an action, then the clerk must enter a default
Step 2: After a default has been entered, a default judgment may be issued.
More Info: Steps for Default Judgment
Who can clerks not enter default judgments against?
Minors or incompetent persons
What default judgments may clerks enter?
When the claim is for a sum certain. A sum certain is an amount that is not debatable.
What must be done to get a court to enter a default judgment?
A plaintiff must make an application to the court
If the defendant is a minor or an incompetent person, when will the court issue a default judgment?
When the defendant is represented
If the defendant initially appeared in the case but later refused to defend the action, when may the court issue a default judgment?
The court may issue a default judgment after giving the defending party 7 days notice.
What relief is available from a default judgment?
The court can set a clerk’s default or a default judgment aside for good cause.
What is a motion to dismiss?
A motion to dismiss is a motion filed by a defending party seeking the dismissal of a claim filed against him.
More Info: Motion to Dismiss
When must a motion to dismiss be filed?
Before the answer is filed, either
- 21 days, if process was served
Or
- 60 days, if service of process was waived
What are the grounds for a motion to dismiss?
- Lack of subject matter jurisdiction
- Lack of personal jurisdiction
- Improper venue
- Insufficient process
- Failure to state a claim upon which relief can be granted
- Failure to join an indispensable party
When a motion to dismiss is grounded in improper venue, what are the court’s options?
- Dismiss
- Transfer venue
What defenses must be included in a defendant’s motion to dismiss/answeror else they arewaived?
- Lack of personal jurisdiction
- Improper venue
- Insufficient process
- Insufficient service of process
What defenses must a defendant include before the trial ends or else they are waived?
- Failure to state a claim upon which relief can be granted
And
- Failure to join a necessary party
What defenses does a defendant never lose?
Lack of subject matter jurisdiction
What are the steps in evaluating a motion for summary judgment?
Step 1: Show that the non-movant lacks sufficient facts and/or law to prevail on the claim or defense in question in front of a jury
Step 2: The non-movant must fail to provide evidence such that a reasonable jury would find in their favor
More Info: Summary Judgment
What is step 1 in a summary judgment analysis?
The court considers whether the movant has shown ”based on the movant’s arguments alone” that the non-movant lacks sufficient facts and/or law to prevail on the claim or defense in question. The movant can do this by:
- Pinpointing gaps in the opponent’s evidence
Or
- Demonstrating that new evidence that shows that the claims cannot be true
What is step 2 in a summary judgment analysis?
To survive summary judgment, the non-movant must provide evidence such that a reasonable jury would find in their favor
How does the court weigh the credibility of evidence in summary judgment?
It does not weigh the credibility of evidence against either party or witnesses
One summary judgment argument commonly used ”pointing out, with citations to the record, the gaps in the claimant’s evidence” is unavailable to which party?
Plaintiffs.
What is required of the information/materials offered to the court to support a summary judgment motion?
The materials must be admissible at trial.
