§ 10.01 Default Judgment

 

If a defendant fails to respond to a pleading within the time designated for response, he is in default and subject to entry of a default judgment.

 

[1] Entry of Default

 

FRCP 55 authorizes the clerk to enter a default when it appears from the docket or is shown by affidavit of the claimant. Entry of default is simply a notation of the fact of default and an interim step towards the entry of a default judgment. FRCP 55(c) authorizes the court in its discretion to set aside an entry of default upon good cause shown.

 

[2] Entry of Default Judgment

 

Upon affidavit by a claimant that the relief sought is a liquidated amount, a court clerk may enter a default judgment, pursuant to FRCP 55(b)(1), except where the defaulting party is an unrepresented minor or incompetent or the party has not appeared in the action.  Only the court may enter judgment in all other cases. When the defaulting party has previously appeared in the action, notice and possibly a hearing is necessary.  Like other final judgments, default judgments are subject to timely post-judgment attack under FRCP 60(b).

 

 

§ 10.02 Summary Judgment

 

[1] Standard for Summary Judgment

 

Where a party (typically the defendant) believes that there exists no genuine dispute of material fact that would require determination by a trier-of-fact, he may bring a motion for summary judgment seeking judgment in his favor on some or all claims and defenses as a matter of law.  A material fact is an essential element of claim or defense for purposes of summary judgment. A genuine dispute is one which a reasonable jury could resolve against the movant. The standard for summary judgment is whether there can be “but one reasonable conclusion.” [Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)] 

 

[2] Burden of Production

 

A motion for summary judgment may be supported by the pleadings, discovery documents, affidavits, and any other materials that present facts that would be admissible at trial.  Hearsay, speculation, conclusions of law, conclusory ultimate facts, and promises that the necessary evidence will be offered at trial therefore cannot support a motion for summary judgment, even when presented by an otherwise proper affidavit.

 

If movant meets his burden of production that there exists no triable issue of fact, in order to avoid a finding of summary judgment, the opposing party “may not rest upon the mere allegations or denials” of his pleading but must set forth specific facts showing that there is a genuine issue for trial. [FRCP 56(e)]  Alternatively, the opposing party may present an affidavit under Rule 56(f) stating why he cannot state specific facts in opposition to summary judgment at the present time, without adequate time for discovery.  The reasonableness of plaintiff’s request for time is a crucial factor in the exercise of the court’s discretion.  

 

If the movant for summary judgment fails to meet his burden of production, the opposing party need not do anything as entry of summary judgment is not proper in the absence of a prima facie showing that there is no genuine dispute of material fact.  

 

[3] Disposition and Appeal

 

If the court finds that the movant has met his burden of production, it may enter judgment on a claim or defense.  The court may enter judgment on the issue of liability alone, even though the amount of damages remains for trial.

 

While summary judgments address the merits, they may not be immediately appealable. Summary judgment as to liability alone is interlocutory in character and identified as such under FRCP 56(c). Similarly, summary judgment with respect to fewer than all the claims or parties is also not considered final for purposes of federal appeal, although a court may direct entry of a final judgment in such cases in conformity with FRCP 54(b).

 

 

§ 10.03 Dismissal or Nonsuit

 

[1] Voluntary Dismissal or Nonsuit

 

FRCP 41(a)(1) provides that the plaintiff may dismiss once without leave of court by filing notice of dismissal before an answer or motion for summary judgment is served upon the plaintiff. Thus, a FRCP 12(b) motion to dismiss the complaint does not cut off plaintiff’s right to nonsuit unless the motion is converted into a summary judgment motion by the offer of supporting materials outside the pleadings.

 

Following service of an answer or motion for summary judgment, plaintiff may voluntarily dismiss only by stipulation of the parties or by order of the court upon such terms and conditions as it deems proper.  [FRCP 41(a)(2)]

 

Unless the court specifies otherwise, an initial voluntary dismissal is without prejudice.  Federal courts are empowered by FRCP 41(d), however, to require a plaintiff who reinstitutes his action to reimburse the parties for the costs of the previously dismissed action.

 

Most jurisdictions follow a two-dismissal rule, by which a second voluntary dismissal is with prejudice.  The second thus operates as an adjudication upon the merits with whatever preclusive effect is given judgments by the law of the rendering jurisdiction.

 

[2] Involuntary Dismissal or Compulsory Nonsuit

 

Involuntary dismissal or compulsory nonsuit is an analogous remedy for the defendant when the plaintiff fails to prosecute her claims or to obey court rules or orders.  Disobedience that would justify dismissal also often consists of litigation delays, or failures to appear, respond or take other required action.

 

Involuntary dismissals are with prejudice to reinstitution of the action in the same court, unless otherwise provided or unless grounded on failure of the plaintiff to meet any precondition set forth in FRCP 41(b):  jurisdiction; proper venue; or joinder of a party under FRCP 19.  A dismissals based on a plaintiff’s failure to satisfy such preconditions does not operate as an adjudications on the merits.

 

 

§ 10.04 Alternative Dispute Resolution

 

Among the ADR devices now used in addition to traditional settlement negotiation are:

 

Mediation – A neutral third person (the mediator) assists the parties to arrive at a mutually satisfying, self-determined solution.

 

Arbitration – A neutral third person (the arbitrator) proactively considers the case and designates a winner. Whether parties are required to submit to arbitration and, if so, whether the arbitrator’s decision is binding, depends on the nature of the agreement or prior consent of the parties.

 

Summary jury trials – Prior to actual trial, parties may summarize their evidence to a small test jury. While non-binding, the summary trial verdict gives the parties a sense of how a real jury would evaluate the evidence and thereby facilitates settlement.