Civil Procedure

Day 9:
Judgment on the
Pleadings,
Dismissals, Default
Judgment
1
AGENDA
1) Judgment on the Pleadings
2) Voluntary Dismissal
Marques v. Federal Reserve Bank of Chicago
Hinfin Realty v. Pittston
3) Involuntary Dismissal
Aura Lamp & Lighting v. International Trading Corp
4) Problems
5) Default Judgment
6) Problems
2
Resolution on the Pleadings
Rule 12(b)(6) & Rule 12(c)
Rule 12(b)(6) allows the Defendant to ask the Court to dismiss the
case for failure to state a claim upon which relief can be granted.
Rule 12(c) allows either party (but most often the Plaintiff) to
request the Court to rule based only on the pleadings.
For example, if Defendant admitted every allegation in the Plaintiffs
complaint and the Plaintiffs claim states a cause of action upon which
relief can be granted we dont want to waste resources but we cant
give default judgment (the D answered) and so instead we use Rule
12(c) to request a decision on the pleadings.
3
Problem (pg. 758)
B and G are law students. B agrees to keep Gs notebook while
G has an interview. While the notebook is in Bs possession
he uses it to play frisbee and it gets destroyed.
G brings suit against B arguing that B was a Bailee
B admits in his answer all the facts alleged by G but claims that
because he received no consideration he could not be a Bailee.
The law does not require consideration.
G wants to resolve the case without the time and expense of
discovery and trial. What can she do? (Hint: Rule 12(h)(2) and
12(c)).
4
Rule 41
Rule 41(a)(1) Voluntary Dismissal
(A) the plaintiff may dismiss an action without a court order by
filing
(i) a notice of dismissal before the opposing party serves either an
answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared
(B) The effect of voluntary dismissal unless stated otherwise
is without prejudice. BUT if the Plaintiff previously dismissed
any federal or state court action based on or including the same
claim, a notice of dismissal operates as an adjudication on the
merits.
5
Rule 41
Suit #1: P sues D for trespass to property. Before D answers,
P files a notice of dismissal. What result?
Suit #2: P refiles the SAME suit against D. After discovery
has begun both parties agree to a stipulation of dismissal.
What result?
Suit #3: P refiles the SAME suit against D. Now D refuses to
stipulate a dismissal. Before D answers P enters a notice of
dismissal. What result?
Suit #4: P refiles the SAME suit against D. D responds that
the suit is barred because it has already been decided on the
merits. What result?
6
Marques v. Federal Reserve
Bank
Plaintiffs want the Federal Reserve to redeem $25 billion in
bonds supposedly issued in 1934.
Court notes that this is preposterous, no debt in excess of
$100 million was issued prior to 1940, gold was purchased
in 1934 at $35/oz. not the $467.02 claimed by the plaintiffs,
total gold reserves at the time were only $9 billion, etc.
Plaintiff sends notice of voluntary dismissal (which would
allow it to refile later)
Defendant asks for summary judgment
The documents arrive at the court on the same day.
7
Marques v. Federal Reserve
Bank
Question:
When it cannot be determined whether the notice to
dismiss or motion for summary judgment is filed
first which party has the burden of proof for
purposes of dismissal under Rule 41?
8
Marques v. Federal Reserve
Bank
Do the facts influence the Courts decision?
No. [O]ne doesnt need a good reason, or even a
sane reason or any reason to dismiss a suit
voluntarily.
So which side has the burden to prove their
documents arrived first?
It is sensible to the Court that it is the defendant
that is asserting the right to prevent the plaintiff from
dismissing the suit
9
Marques v. Federal Reserve
Bank
So what is the holding?
Because the defendant has not proven that the motion to
dismiss arrived before the notice of dismissal the case is
dismissed without prejudice under Rule 41(a)(1)
Does the Court decide any question of law based on the
outlandish claims made by the plaintiff?
a judgment on the merits that is entered after the plaintiff has
filed a proper Rule 41(a)(1) notice of dismissal is indeed void
10
Rule 41
Rule 41(a)(2) Unless (a)(1) applies, an action can only be
dismissed by court order on terms the court considers
proper. If the Defendant has entered a counterclaim, the
action may be dismissed over the Defendants objection
ONLY IF the counterclaim can remain pending for
independent adjudication. Unless otherwise stated,
dismissal under this section is WITHOUT prejudice.
11
Henfin Realty Corp v. Pittston
Landowner (Henfin) brings a claim against polluter
(Pittston) seeking to recover costs of environmental cleanup.
After Discovery has begun Henfin moves to voluntarily
dismiss the action. Pittston opposes the motion.
12
Henfin Realty Corp v. Pittston
Question:
Should the Court grant the motion to dismiss with or
without prejudice?
13
Henfin Realty Corp v. Pittston
TEST: We have 5 factors to consider when deciding whether
a Court should grant a motion to dismiss under Rule
41(a)(2) without prejudice.
(1) the Ps diligence in bringing their motion
(2) any undue vexatiousness on the Ps part
(3) the extent to which the suit has progressed, including the
Ds expense and preparation for trial
(4) the duplicative expense of relitigation; and
(5) the adequacy of the plaintiffs explanation for a need to
dismiss
14
Henfin Realty Corp v. Pittston
(1) The Ps diligence in bringing their motion
Ps were diligent in brining their motion to dismiss
the action without prejudice because they filed it
immediately after the events that led to their decision
not to pursue the action at this time
These factors include limited finances and the
critical illness of a key witness (Donald Death Sr.)
15
Henfin Realty Corp v. Pittston
(2) Any undue vexatiousness on the Ps part
the Court finds no evidence of vexatiousness on the
part of the plaintiff there is no evidence to suggest
that the case was brought to harass the defendant. To
the contrary, the plaintiffs have made few, if any,
requests of the defendant after filing this lawsuit
16
Henfin Realty Corp v. Pittston
(3) The extent to which the suit has progressed, including
the Defendants efforts and expense in preparation for trial.
The fact that the case is approximately 21 months old weighs
against granting the motion to dismiss without prejudice
However, when the Ps first asked Pittston to agree to
dismissal without prejudice virtually no discovery had been
conducted Ps have not made any discovery requests no
depositions have been concluded a trial date has not been
set. Thus the Court finds the third factor to be neutral
17
Henfin Realty Corp v. Pittston
(4) The duplicative expense of relitigation
this is not a case in which substantial discovery has
been conducted, and the Court does not perceive a
large amount of duplicative expenditures. As such,
the fourth factor does not weigh against dismissal
without prejudice
18
Henfin Realty Corp v. Pittston
(5) The adequacy of the plaintiffs explanation for a need to
dismiss
the explanations for the plaintiffs application are sufficient to
support the motion the president of the Ps corporation needs
time to settle his late fathers affairs to review the companies
documents
he is sparing the defendants from expending additional
monies in the defense of this lawsuit the Court finds that the
plaintiffs explanation for their request weights heavily in favor
of dismissing the action without prejudice.
19
Henfin Realty Corp v. Pittston
What about the award of attorney fees under the Rule?
The purpose of such awards is generally to reimburse the
defendant for the litigation costs incurred, in view of the risk
faced by the defendant that the same suit will be refiled By
contrast, courts rarely award fees and costs when an action is
dismissed voluntarily with prejudice
So what solution does the Court offer?
It denies the award of attorneys fees without prejudice
allowing Henfin to ask for dismissal with prejudice and avoid
the fees OR allowing Pittston to submit proof of its costs and
reduce the $135,000 sought by whatever work could be used in
future litigation.
20
Rule 41
Rule 41(b) If the plaintiff fails to prosecute or to comply
with these rules or a court order, a defendant may move to
dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this
subdivision (b) and any dismissal not under this rule
except for lack of jurisdiction, improper venue, or failure
to join a party under Rule 19 operates as an adjudication
on the merits
21
Aura Lamp v. ITC
Aura Lamp brings suit against ITC for breach of contract
Aura Lamp being a one man operation and its attorney not having
assistance proceeds to flagrantly violate the rules
In addition to failing to sign pleadings filed with the court, Aura
Lamp repeatedly missed court-imposed deadlines for both
discovery and motion practice failed to amend its complaint to
cure a jurisdictional defect for several months after the court
ordered it to do so asked permission to propound discovery on
the defendant after the court-imposed discovery cut-off date, a date
that Aura Lamps counsel had himself selected
ITC moves to dismiss under Rule 41(b) for failure to prosecute.
The Court grants the motion. Aura Lamp appeals.
22
Aura Lamp v. ITC
Question:
Did the Court abuse its discretion in granting ITCs motion
to dismiss with prejudice?

What is required for dismissal?
The Plaintiff has to be given notice that the case could be
dismissed
The decision to grant the motion must be reasonable (The
Courts decision is reviewed only for abuse of discretion)
23
Aura Lamp v. ITC
Did the Court give the Plaintiff notice?
All that is required is explicit warning. Here, the court
repeatedly and expressly warned Aura Lamp that it was
contemplating dismissal
Ill set a deadline, if the case isnt met, the case is going away
I want to set a date that is going to be real so that if it isnt met
Im going to take severe action in this case
if there is not good faith compliance by that date, I am going to
seriously consider a motion to dismiss for want of persecution
24
Aura Lamp v. ITC
OK so Aura Lamp was given an explicit
warning. Did the Court abuse its discretion in
granting the motion to dismiss?
We have upheld dismissals in cases where the
violations were comparable to or less severe than
they are here, and no court would find an abuse of
discretion in these circumstances
25
Aura Lamp v. ITC
Note 1: Can the Court dismiss without a motion by the
Defendant?
Link v. Wabash Railroad Company (U.S. 1962)
After 6 years the Court sets a pretrial conference
2 hours before the conference counsel tells the Court he cannot
attend and asks for the conference to be reschedule
Trial Court dismisses for failure to prosecute
Link appeals all the way to the Supreme Court which
concludes that the Court may act on it own to dismiss the case
for lack of prosecution.
26
Rule 55
Rule 55 Default Judgment
(a) When a party against whom a judgment for affirmative relief
is sought has failed to plead or defend, and that failure is shown
by affidavit or otherwise, the clerk must enter the partys default.
(b)(1) If the plaintiffs claim is for a sum certain or a sum that
can be made certain by computation, the clerk with Ps request
and an affidavit showing the amount due - must enter judgment
for that amount and costs against a defendant who has been
defaulted for not appearing and who is neither a minor nor
incompetent person.
NOTE: (b)(1) is only available when the clerk has entered default
pursuant to Rule 55(a) AND the party has NEVER appeared. All
other cases are governed by Rule 55(b)(2)
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Rule 55
Rule 55 Default Judgment
(b)(2) All other cases the party must apply to the Court for a
default judgment. Minors/Incompetent Persons must be
represented by counsel. If the party appeared in prior
proceedings they must be given at least 7 day notice of the
motion for summary judgment before the hearing.
(c) The court may set aside an entry of default for good cause,
and it may set aside a default judgment under Rule 60(b)
**We will discuss Rule 60(b) under relief from judgment
28
Intro Problem
Carter loans Clinton $1,000,000 for 1 year at 5 percent
interest. Clinton signs a promissory note to signify the
debt. At the end of the year Clinton refuses to pay. Carter
brings suit seeking $1,050,000 in damages. Clinton does
not answer or appear and so the clerk enters Clintons
default and subsequently enters a default judgment against
Clinton in the amount of $1,050,000.
May a court clerk enter a judgment with such serious
consequences to a defendant?
29
Problems
#1: Who enters the default judgment:
A: P sues D for trespass for an uncertain amount of damages.
The city is served with process and doesnt answer.
B: Same except the damages are for a sum certain.
C: Same as in B except D moves to dismiss for improper
service, but after losing the motion does nothing more.
D: Same except D answers the complaint and then does
nothing else in the case.
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