MBE Civil Procedure - Pretrial Adjudication

With prejudice: adjudication on the merits, cannot relitigate.

Without prejudice: no adjudication on the merits, can relitigate.

“On the merits” means a decision based on all relevant legal arguments and evidence presented.

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 stipulation of dismissal signed by all parties who have appeared

Rule 41(a)(1)(A)

A voluntary dismissal by the plaintiff, court order, or stipulation is considered without prejudice.

Yes, because dismissal by court order or stipulation is without prejudice.

Yes, dismissal by plaintiff is without prejudice unless it is the P’s second dismissal on the claim (which is dismissed with prejudice).

No, dismissal as a result of settlement is with prejudice.

When D seeks to dismiss the action because P has violated the rules or court order

FRCP 41(b)

With prejudice.

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

⚠️ Note: This is not the same as a default judgment, which is when the court enters the default into the record

Judgment on the record that D defaulted

Default = D’s failure to respond (stage 1)

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

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)

P can seek default judgment from the court and the judge will hold a hearing to determine damages

⚠️ Note: Court clerk cannot enter default if damages are uncertain - must be done by a judge

For good cause within 1 year (typically shown if there was an honest mistake, fraud, or some circumstance outside of D’s control).

FRCP 55(c),

FRCP 60

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)

Generally, it will be granted when a complaint does not contain enough specific allegations to make it plausible that P could be entitled to relief.

⚠️ Exception: Remember that claims of fraud or mistake must be pled with particularity, rather than only plausibility.

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 entitled to judgment as a matter of law.

FRCP 56(c)

When no reasonable jury/person could return a verdict in favor of the non-moving party.

Make a prima facie showing that:

No genuine issue of material fact exists; and

Moving party is entitled to judgment as a matter of law

FRCP 56

Burden then shifts to non-moving party to present evidence showing that a genuine issue of material fact exists.

FRCP 56

No, must put forth other evidence showing there is no genuine issue of material fact.

FRCP 56(c)

30 days after discovery has ended.

FRCP 56(b)

Issued when only some material facts are not at issue.

FRCP 56(d)(1)

Ruling that informs parties of a legal relationship between parties or their rights. Often filed prior to a lawsuit to prevent one from occurring later.

FRCP 57