Pre-Trial Adjudication

wermerj's version from 2015-11-21 01:10

Voluntary Dismissal

Question Answer
Voluntary DismissalPlaintiff decides to pull the case
Two waysby stipulation of parties and court order
Unilateral written notice of dismissalP may dismiss without prejudice once by written notice of dismissal before defendant serves answer or moves for summary judgment

Involuntary Dismissal

Question Answer
Involuntary dismissalThrough motion or court can raise this on its own initiative, sui sponte
Three reasons1. P fails to prosecute
2. Failure to abide by FRCP
3. Failure to abide by court order
Before court does thisLikely will Order to Show Cause (OSC)
Order to Show Cause (OSC)court orders P to come in and show cause why court should not dismiss


Question Answer
DefaultD fails to respond with Answer within 20 days of service of process
Once default is enteredD cannot respond unless default gets set aside
2 step process of default1. P gets default entered on docket with clerk
2. P seeks default judgment
Default reliefP cannot recover more or different type of relief than was sought in complaint


Question Answer
Rule 12b6Motion to dismiss for failure to state a claim
How it workscourt does not look at evidence, only at face of complaint; asks if Plaintiffs claims are taken as true, is there an applicable legal remedy?
Leave to Amend complaint?usually

Summary Judgment

Question Answer
Motion for Summary JudgmentRule 56
Requires1. moving party must show that there is no genuine issue of material fact AND
2. that she is entitled to judgment as a matter of law
What light does court look at it?Light most favorable to non-moving party