DISPOSITION OF CASE

Method

Failure to State a Claim 12(b)(6)

must be served before answer is due; can be in ans, after pleadings closed, or at trial pre-answer motion of or in ans; or as 12(c) motion; or at trial

Default Judgment 55
If the other party has personally, or by representative, shown up, you must serve notice in 7 days
By Clerk: 55(b)(1), if a sum of damages can be made by calculation. By Judge 55(b)(1) if need a damage hearing

Voluntary Dismissal, by 41(a)

~If before answer or motion for summary judgment, no permission needed. 41(a)(1) (a)(i) ~If has filed an answer either by stipulation, or by court order ~If before answer or motion, just notice and reasoning for dismissal ~If before has filed, stipulation of dismissal signed by all parties or court order

Involuntary Dismissal, by 41(b) Can be done at any time if fails to prosecute or fail courts rules.
~ may move for it ~or court may do so sua sponte as sanction (usually the court will warn first)

Judgmen of Law a Verdict

Rule Timing

50(a)

~During party has heard on ~Before Must be

How Presented

Supporting Materials Criteria

Memo in support; no materials; 56 failure to state a claim upon which relief can be granted

Failure to plead must be shown by affidavit or otherwise 55(a)

When a party against whom a judgment of affirmative relief is sought has failed to plead or otherwise defend.

When a wants to dismiss. Can be for many reasons, such as timing issues, realization of weak case, settlement).

If fails to prosecute or comply with rules or court order

~With prejudice (unless stated otherwise) (unless dismissed for lack of jdx, improper venue, or failure to join party) ~If these exceptions are not met, dismissal operates as adjudication on the merits

Evidenti legally s evidentia met, or r enough e to jury

Other

may combine with other preanswer motions; court usually dismisses with leave to file amended ; not waived 12(h)(2)

60(b): Relief from Without prejudice, judgment unless specified otherwise

Same sta Summar (just at a time)

Method

Motion for Judgment on the Pleadings 12(c) Early enough not to delay trial

Other Rule 12 Motions 12

1)Lack of s.m.j. 2) Lack of p.j. 3)Improper Venue 4)Insufficient Process

Summary Judgment 56
~Unless local rule or court mandate, 30 days after close of discovery ~To oppose motion, file response w/in 21 days after motion is served or responsive pleading is due, whichever is later. Movant can respond

Rule Timing

5)Insufficient service of process

within 21 days

How Presented Supporting Materials

By motion by either party Pleadings and memorandum in support If there are no materials 56

By motion or in answer

By motion of any party

~w/ or w/o affidavits. Must have personal knowledge 56(c)

Criteria

Based only on pleadings. Movant must be entitled to judgment as a matter of law Rare (occurs most frequently with debtors
~Can file only one pre-answer motion ~If not raise, (2), (3), (4), and (5) are waived. (1) is never waived

If the pleadings, discovery and disclosure materials show there is not genuine issue as to material fact and movant is entitled to judgment as a matter of law

Other

Movant has to prove absence of evidence, but they dont have to show the negative. Can have partial summary judgment