Select Page

Civil Procedure I
Wayne State University Law School
Long, Justin R.


Civ Pro

Fall 2010

Forms of Resolution Without Trial


ADR – Alternative dispute resolution

Default judgments

Rule 55 Distinguishes between a default and a Default Judgment


Parties in position of a D never defend i.e. fails to respond to a complaint, that is file an answer

20 days to respond to a complaint (Rule 12)

Default judgment follows from a Default

Default Judgment

Court order, issued by a judge and is binding.

A default is merely a docket entry the clerk records when the D fails to file an answer

Sometimes a clerk can enter a default judgment with the force of a court order

This occurs when a P has requested a specific amount or where the amount is easy to figure based on the complaint; P brings an affidavit swearing this is the amount they are entitled to and clerk issues a court order in favor of the P.

A party must go to a judge in order to get a default judgment in all cases (sum is not certain, or can not be made certain) An extra step is needed in order to prove damages, i.e. testimony to establish extent of injuries.

Obvious potentials for unfairness

Lawyer malpractice

If D appears after Default is entered, but before default judgment, and shows judge there is good cause to remove the default, it may be removed

Also, a court may set aside a default judgment under Rule 60 B (usually due to lawyer mistake)

If judge refuses relief under rule 60(b), the D has the option to sue the attorney for malpractice.


Rule 41 comes into play when a case is dismissed, under summary judgment, rule 12b, or rule 11, including egregious discovery violations.

Rule 41 distinguishes between voluntary and involuntary dismissals


Any time the person bringing the claim decides to voluntary to dismiss the claim without further pursuit

Settlement, litigating same issues in another forum, bad case etc.


Any dismissal of a lawsuit against the person bringing the claim

Second distinction between voluntary and involuntary dismissal are the effects

A voluntary dismissal is always presumed to be “without prejudice”

This means the P can file the claim again

An involuntary dismissal is always presumed to be “with prejudice” unless the order of dismissal states otherwise

It may effect the P’s ability to bring other claims based on the same circumstances or facts

Sometimes you can not bring that exact same claim again as well as related claims

Rule 41 A

If you want to dismiss your claim voluntarily, most of the time you need to get the other parties agreement, or courts permission (after the other party has filed an answer)

One reason is the other party may have invested a lot in defending that claim already, and that investment would be wasted if the P dismissed claim and then later brought the claim at a different time

Sometimes D wants case to be adjudicated because if they think they are going to win the case, they want to win now rather than wait.

Kalinauskas v. Wong (U.S District Court of Nevada) 1993

P former employee of Caesars, and sued for sexual discrimination. P wanted to depose a former employee who also filed sexual harassment suit, but settled with a confidentiality order that stated Ms. Thomas “shall not discuss any aspect of P employment at Caesars other than to state the date of her employment and job title.” D filed a motion of Protective Order to prohibit the discovery request.

The court allowed the deposition of Ms. Thomas, including questions regarding employment and sexual harassment knowledge, but granted the Protective Order with respect to information regarding the settlement agreement itself.

– The concern of enforcing confidentiality agreements does not weigh as heavily as the concern of protecting litigants interest

– Caesar would want to settle: dirt coming out about Wong, may spark more complaints, bad publicity, expensive to litigate

– Thomas would want to settle: reputation, cost of trial, i.e. cross examined during trial, in a public courtroom, adverse effect on future employment if she lost i.e. confidentiality agreement works in both favors.

Confidentiality Agreement

– Facts of the dispute

– Any facts about litigation and settlement will be kept confidential

Parties, particularly the D will want a court order, after the agreement has been signed. Only the court can seal the records of the case that the court has. There will be many documents filed with the court, the parties can k between themselves all they want, but cannot tell courts what to do.

Problem with just keeping as a matter of a k, if there is a breach, there has to be a separate lawsuit filed to enforce the k; however if there is a court order, they can go back to the original judge (if there is a court order) as opposed to filing in state court, for a motion to compel or a contempt of court, in order to get relief (much easier)

(Cannot invoke a confidentiality order to individuals who are not parties to the case)

Arbitration-unlike a mediator, an arbitrator decides a dispute after having heard from both sides. Closely resembles adjudication.

– Arbitration results in an award that is essentially final and not subject to further challenge, with limited exceptions

– Parties may choose arbitrator

– Arbitration may be less expensive, but parties must pay the expenses of the arbitrator

FAA – Federal Arbitration Act 9 U.S.C section 2

Section 2 – broadly declares agreements to arbitrate valid as a matter of federal law; held to be binding on both federal and state courts.

– Section 3 – tells courts what to do if a party, in spite of an arbitration agreement, files a


Juries are composed differently from state to state, as well as from federal to state court

What claims are brought are often times influenced by a jury

Sources of rights to trial by jury

7th amendment – only applies to trials in federal court

Incorporates 18th Century English common law

Most states have a jury right in their constitution

6th Amendment

Right to a jury trial in criminal cases

Statute that gives a right to a jury trial (7th Amendment sets floor)

Either party may assert the right to a jury trial, then court must grant even if the other party objects

Juries will be present only if two conditions are met

At least one party asks for a jury; and

It is a case of the sort in which the parties are entitled to a jury

Juries decide questions of fact, judges decide questions of law, then juries apply the law to the facts

Juror summons

First a pool of prospective jurors is summoned

Second the members of the trial jury are selected from the pool; the manner in which the federal courts create cross-sectional summonses vary and appear at 28 U.S.C. section 1863, 1864, & 1866.

Selecting a jury

Peremptory challenge – free strike; in federal court each party gets 3 free shots to take a party out of the jury without giving a reason (most state courts do not allow peremptory challenge)

Recent exception – Batson – Forbidden from striking persons based on gender or color à that is a pattern of striking a particular race or gender

Challenge for cause

Must persuade the judge that the juror will be biased in some way toward the client

Jury as a black box

Ability to look in is quite limited

Irrational – problem if jury gets the facts wrong; or misunderstand instructions, that is gets the law wrong

Difficult to tell when a jury got the law wrong

Why have prohibition on opening the black box?

Second guessing juries would lead to less likely for individuals want/ likely participate

Reexamination clause of the 7th Amendment “No fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law”