Zachary Figueroa Civil Procedure Professor Kelly

DISPOSITION OF CASE

We have covered several ways in which a case can end. Make a chart comparing those ways. Include in your chart which Federal Rules govern, whether there are any limits on the time at which the action must take place, how the issue is presented to the court for decision, what support the party requesting the action must provide, what criteria the court will use to determine whether to grant the request, and whatever else you think is appropriate. The first column provides an example (failure to state a claim) to get you started. There is not one right way to do this. It is the process of organizing the information that you will find helpfulnot the particular chart you produce. Please bring two copies of your chart with you to classone to hand in at the beginning of class and one to make notes on as we pool our results in class. Failure to state a claim 12(b)(6) Summary Judgment 56 Directed Verdict (JML) 50(a)(1)(B) Default Judgment 55 21 days after being served with summons or complaint per 12(a)(1)(A)(i). A defualting party is entitled to written notice of app for default judgment hearing at least 3 days before the hearing. Motion for Judgement on the Pleadings 12(c) Involuntary/ Voluntary Dismissal 41(a) - (b) 41(a)(1)(i) ! can voluntarily end case by filing notice of dismissal any time before the answer or motion for SJ is served or, 41(a)(1)(ii): If parties all agree in writing and file in court.

Method Rule

New Trial 59

Timing

must be served before answer is due; can be raised in answer, through 12(c) after pleadings close, or at trial

Can be filed at any time until 30 days after the close of all discovery, contingent on local rules or court order. 56(b)

50(a)(2): Motions for JML can be made at any time before the case goes to jury.

Occurs after the pleadings have closed

Must be served no more than 28 days after judgment is entered. Or within 10 days to alter judgment.

How Presented

pre-answer motion of ! or in answer; or as 12(c) motion; or at trial

By way of a motion identifying each or part of the claim or defense on which SJ is sought.

If party is done presenting side & there is no legally sufficient basis for a jury to make a finding for that party, then the court may determine the issue against that party a grant a motion for JML

Moving party asks court for default judgment.

Either party can make this motion

In writing to the Court.

Motion by party must move for new trial on all or some of the issues

Supporting Materials

memorandum in support; no materials; converts to 56 if materials outside complaint

a) materials in the record or, b) showing that the materials cited do not est. presence of a genuine dispute, or the other party cant produce evidence to support

Specify judgment sought and the law and facts which entitle party to JML.

Party fails to appear or file answer to complaint. Court may conduct hearings to determine amount of damages and investigate truth of allegations

Only facts have to assumed true facts that turn on interpretation of law are not assumed.

40 (b): If ! fails to prosecute or comply with the rules, " can move for a dismissal of the action or any claim in it.

Signed with the jury's findings for general verdict per 58(b) (1)(A)

Criteria

failure to state a claim upon which relief can be granted

1) Factual; 2) Statutory interpretation; 3) No disputed issue of material fact since party fails to properly provide evidence.

1) Take inference in favor of non moving party 2) Dont judge on issues of credibility 3) Dont weigh the evidence. Party with burden of production at trial has failed to carry that burden.

1) Party fails to respond or appear 2) Fails to plead or defend according to the rules

Court will examine all pleadings and determine if judgment in favor of either party is appropriate

40(b): (a) jurisdiction; (b) venue; (c) service; or (d) failure to join.

Granted for (a) evidentiary error; (b) improper conduct by party, witness, lawyer, or jury; (c) verdict against clear weight of evidence; (d) verdict based on false evidence; (e) verdict that results in miscarriage of justice; (f) excessive/ inadequate verdict

Other

may combine with other preanswer motions; court usually dismisses with leave to file amended #; per 12(h)(2), not waived if not raised in answer or motion to dismiss

56(c), the court may: 1) give an opportunity to properly support or address the fact; 2) consider fact undisputed for purposes of the motion 3) grant SJ or 4) issue any other appropriate order

If JML is denied after all evidence is presented at trial, the moving party can renew its request for JML by filing its request within 28 days of the judgment. It can also ask for a new trial under rule 59.

55(b)(1) - By the clerk for sum certain (computable amount) claims 55(b)(2) by the Court for all other cases (uncertain amounts), party asks court for default judgment. Court can set aside default judgment if good fault includes a whole list of scenarios under 60(d)

If matters outside pleadings must be considered- must be made under Rule 56 for SJ

P may have to pay Ds attorney fees. Only the first dismissal is without prejudice (suit may be refilled).

May also be granted for newly discovered evidence May also be granted for newly discovered evidence Decision may be reviewed upon appeal.