I. Non-Trial Solution
A. Pretrial Adjudication
1. Preliminaries
– Pre-answer: R 12B(6) Motion to Dismiss: failure to state a claim upon which relief can be granted.
R 55 Default
– Pre-Trial: R 41a : Voluntary Dismissal
R41b : Involuntary Dismissal
R56 : Summary Judgment
2. Default (R55)
– Failure to defend or plead R55a
– Default by clerk: If defendant defaults and claim is for sum certain or a sum that can be made certain by computation. R55b1
– Otherwise, default by court. R55b2
– If default judgment under R60(b) (mistake) then reopen the case: R55(c)
– Without Ct extension, 20 days to file and answer 12(a)(1)(A)(i).
– To extend, motion or consent.
Peralta v. Heights Medical Center.
– D sued P but serves after 90 days however, P had no meritorious defense.
– P sues D for nullity of the judgment. However, Texas rule is that if no meritorious defense, no nullity.
– Ct decides in favor of P that although P had no meritorious defense, he had other means to reduce damages (such as selling the house himself). This is also an interest Due Process Clause of 14th amendment is trying to protect.
3. Involuntary Dismissal. R41(b)
– Failure to prosecute. Dismissal under R41b is to P what default under R55 is to defendant.
– Long-foot-dragging shows bad faith so, dismissal under 41(b).
4. Voluntary Dismissal R41(a)
– R41(a)(1)(A)(i) permits P to dismiss any time before the D answers.
– R41(a)(1)(A)(ii) permits the P to dismiss a suit at any time if all parties agree. So, D can answer prior to voluntary dismissal to lock the jurisdiction.
– P can file again in case of voluntary dismissal.
Texaco Inc. v. Pennzoil
P sues D for seeking preliminary injunction using language that the P would lose on merits and the Ct denies it before D answering. P vol. dismiss under R41a, and files again in Delaware and win.
5. Summary Judgment
– Summary Judgment is granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
– Cases of summary judgment
1) No fact dispute but only law dispute.
2) Fact dispute
a) Moving Party proves undisputed facts
i. P proves undisputed facts. Very rare. P should foreclose every possibility of D’s argument.
ii. D produces affidavit and such to DEFEAT required element.
b) D asserts P’s failure to prove required element. In such case, P must respond with fact dispute evidence and cannot rely merely on allegations.R56(e)(1) Burden of proof is on P.
Adickes v. S.H. Kress & Co.: Refusing to serve black customer civil case. P had the burden of proof that the police officer in the restaurant had communicated with the owner. P fails and D gets deposition of police officer that he did not communicate with P. D moves for SJ. The Ct denies the motion that D[movant] failed the burden of foreclosing the possibility that P could prevail at the trial. Therefore, burden is always on moving party.
However, Celotex Corp. v. Catrett transfers the burden to the party who bears the burden in the original trial.
Celotex Corp. v. Catrett
Catrett sues Celotex that her husband dies by exposure to asbestos manufactured by Celotex. Catrett fails prove that. Celotex is granted with SJ.
56(e)(1): if a paper or part of paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with affidavit.
56(e)(2): Nonmoving party may not rely merely on allegations or denials in its own pleading
56(f): if nonmovant fails to produce affidavit the court may 1)
tive Dispute Resolution Act: Early Neutral Evaluation. It is a non-binding arbitration.
Summary Jury Trial: Mock Jury trial
3. Confidentiality
– Ct protective order under R26(c)
Kalinauskas v. Wong.
– P uses D for sexual discrimination and wants to depose a former employee who also sued D for sexual discrimination. However, former employee signed a settlement with confidentiality order saying “plaintiff shall not discuss any aspect of P’s employment at Caesars other than to state the dates of her employment and her job title.”
– The Ct allows deposition. Court says that conf agreement applies to settlement, but NOT to underlying facts (like attorney work product). She can depose previous P for relevant evidence.
– No information regarding the settlement agreement itself shall come forth and that the defendant’s motion for protective order is denied as to all other requests.
– One can get subpoena to depose.
II. Trial
1. The Right to a Jury.
– 6th Amend. gives Crim. case a right to jury trial.
– 7th amend. preserves right to jury trial in fed. civ. cases. : In England, only suits in court in common law. There was no never been a right to jury trial in court of equity.
– Usually money damages are tried in court of law and injunctions are tired in court of equity. However, replevin (recover personal property), ejectment (recover land), writ of mandamus, habeas corpus seems to be injunctions but tried in court of law.
