Escolar Documentos
Profissional Documentos
Cultura Documentos
Method
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
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)
Rule Timing
50(a)
~During trial, after party has been fully heard on the issue ~Before sent to jury Must be on motion
50(b)
How Presented
Must be on motion
Memo in support; no materials; 56 failure to state a claim upon which relief can be granted
When a wants to dismiss. Can be for many reasons, such as timing issues, realization of weak case, settlement).
Evidentiary burden: legally sufficient evidentiary basis not met, or rather not enough evidence to go to jury Same standard as for Summary Judgment! (just at a different time)
<Same. Can only file renewed JML if you file JML during trial
Other
may combine with other preanswer motions; court usually dismisses with leave to file amended ; not waived 12(h)(2)
Method
Motion for Judgment on the Pleadings 12(c) Early enough not to delay trial
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 within 21 days
Rule Timing
By motion by either party Pleadings and memorandum in support If there are no materials 56
By motion or in answer
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