Application for Default Judgment Federal by ktg97615

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									1) Termination of Actions without Trial
Default Judgment
Judgment on the Pleadings
Summary Judgment

2) Default Judgment

3) Default Judgment - Rule 55
       Three Step Process:
       (1) The defendant’s default;
       (2) Upon request, clerk of court enters the default;
       (3) Entry of a default judgment.

4) Default Judgment
       Clerk’s Judgment (requirement) to Enter Default
       (1) Sum Certain
       (2) Upon failure to appear only
       (3) Defendant must be a competent person

5) Default Judgment
Albert sues Bert in federal court. Bert moves to dismiss Albert’s complaint for failure to
state a claim upon which relief can be granted under Federal Rule 12(b)(6). The court
overrules the motion. Bert then fails to answer within the time prescribed in Federal Rule
12(a). Albert files an affidavit making Bert’s failure to answer known to the clerk. The
clerk then enters Bert’s default on the record. May the clerk enter a default judgment or
must the matter be presented to the court with a request for entry of a default judgment?
4/4/02: Bert has appeared, therefore, the clerk cannot enter the default judgment.
Appearance means filing a motioning, cross-or counterclaim, answer or response and
appearing in court. Anything that puts a piece of paper in front of them.

6) Default Judgment
Albert sues Bert in federal court for an injunction. Bert fails to appear or otherwise
defend the action. Albert files an affidavit making Bert’s failure to appear known to the
clerk. The clerk then enters the default on the record. May the clerk enter a default
judgment or must the matter be presented to the court with a request for entry of a default
judgment? No, a sum certain is not requested, clerk cannot enter a default for an
injunction.

7) Default Judgment
Judicial discretion - Notice - when the party against whom the default judgment is sought
has appeared in the action, written notice of the application for judgment must be given to
that party at least three days before the hearing of the application.

8) Default Judgment
Rule 55(c)--Setting aside default
Rule 60(b)--Setting aside default judgment
9) Motion for Judgment on the Pleadings - FRCP Rule 12(c)

10) Motion for Judgment on the Pleadings - FRCP Rule 12(c)
A motion for judgment on the pleadings allows a party to dispose of an action without
trial when the pleadings demonstrate that the moving party is entitled to judgment as a
matter of law. This motion performs basically the same function as a Rule 12(b)(6)
defense, but it performs that function after the close of all the pleadings.
Motion can be brought before you file your answer. Assume that everything in the
motioning party’s filing is true. Can include all of the motions in your answer but must
include the disfavored 12(b)(2) - (5) Rules if you are going to use them. Decided on the
face of the complaint.

11) Motion for Judgment on the Pleadings
Albert alleges in a complaint against Bert that Bert was negligent. Bert denies the
allegation of negligence in Bert’s answer. Would a motion by Bert for judgment on the
pleadings be granted? If allegations are denied then the motion cannot be granted.

12) Motion for Judgment on the Pleadings
Albert files 3 complaints, X, Y and Z. Bert admits X but denies Y & Z, so Court Assumes
X is true and Y & Z.

13) Motion for Judgment on the Pleadings
Albert files 3 complaints, X, Y and Z. Bert admits X but denies Y & Z, so Court Assumes
X is true and Y & Z.

14) Motion for Judgment on the Pleadings, Albert makes
4/3/02: Assume the opposite of the person making the motion, that of the person
opposing the motion. Opposing Party: Court will assume “truth” of allegations.

15) Motion for Judgment on the Pleadings
Albert files 3 complaints, X, Y and Z. Bert admits X but denies Y & Z and Bert makes
Affirmative Defense Q, so Court Assumes X is true and Y & Z.
4/3/02: Judgment could not be granted for the plaintiff because the defendant is raising an
affirmative defense (assumption of risk, comparative fault, statute of limitations) that bars
recovery. Court must assume the defendant’s answer is true and can be proved so
plaintiff’s summary judgment on the pleadings cannot be granted.

16) Motion for Judgment on the Pleadings
4/3/02: Judgment could not be granted for the plaintiff because the defendant is raising an
affirmative defense (assumption of risk, comparative fault, statute of limitations) that bars
recovery. Court must assume the defendant’s answer is true and can be proved so
plaintiff’s summary judgment on the pleadings cannot be granted.


17) Motion for Judgment on the Pleadings
18) Motion for Judgment on the Pleadings

Motion for Judgment on the Pleadings

Motion for Summary Judgment

FRCP 56

Function of Summary Judgment
Provides a procedure for terminating without trial actions in which:
there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law

Function of Summary Judgment

Cain v. Hilltop
Cain is injured when Wayne drives into him. Cain sues Hilltop Manufacturing, which is
Wayne’s employer, alleging that Hilltop is liable for Wayne’s negligence because Wayne
acted in the scope of employment.
Cain v. Hilltop
Cain v. Hilltop
However, Hilltop knows that Wayne was not working on the day of the accident, so that
it is not be liable for Wayne’s conduct.
Would a 12(b)(6) motion be granted??
12(b)(6)                       Summary Judgment
12(b)(6) challenges the sufficiency of the pleadings. It accepts as true the facts pleaded
in the complaint and asserts that those facts do not give rise to an actionable claim.
Summary judgment attacks the pleadings as undisputed or as having no factual support.
12(b)(6)                       Summary Judgment
12(b)(6) motion is usually made before defendant files an answer
Motion for summary judgment usually is made after discovery is completed
12(b)(6)                       Summary Judgment
A judgment of dismissal for failure to state a claim when no leave is granted is a
judgment on the merits and thus res judicata, baring later actions of the same claim
Summary judgment is res judicata not only on the claims alleged, but any other claim that
could have been asserted of the basis of the facts presented to the court
Function of Summary Judgment
Liberal pleading rules allow the assertion of claims and defenses that may have no
evidentiary support. A motion for summary judgment pierces the pleadings and puts the
opponent to the test of affirmatively coming forward with sufficient evidence for its
claims or defenses to create a genuine issue for trial.
Memorandum of Points & Authorities (P&A)
Introduction: Set forth general background of action and a summary of reasons why
action is barred.
Statement of Facts: Set forth each undisputed fact and evidence establishing same.
Argument: Set forth separately argument why entry of judgment is proper.
Conclusion: Summarize argument and succinctly state requested relief.
Shifting Burden of Persuasion
Rule 56(e) provides that when the motion has been made and is supported by admissible
evidence, the burden shifts to the opposing party.
Cain v. Hilltop
Lundeen v. Cordner
354 F. 2d 401 (8th Cir. 1966); Text p. 877

Essential Points in Case
To allege a claim, the plaintiff must allege a chain of elements, which link together to
constitute the essential elements of a claim.
Colson v. Handy Dandy
Steve Colson slips on a paint spill in the paint department at the local Handy Dandy
Hardware. He sues Handy Dandy for negligence, alleging that the store should have
cleaned up the spill because store employees knew or should have known that the paint
spill was on the floor.
Colson v. Handy Dandy
Colson v. Handy Dandy
Motion to Dismiss Compared
Steve has alleged an adequate claim. The complaint includes the necessary allegation
that the store was on notice of the spill. So Handy Dandy would not be able to get out of
this complaint on a 12(b)(6) motion. The complaint does state a claim if the facts alleged
are proved.
Colson v. Handy Dandy
Immediately after the accident, Handy Dandy management interviews the three
employees working in the paint department. They all say that they did not see the paint
spill, although they had circulated in the area continuously over the previous hour. The
department manager states that he had mopped the area where Steve fell 7 minutes before
the accident.
Colson v. Handy Dandy
Handy Dandy moves for summary judgment on the ground that there is no evidence to
support Colson’s claim that Handy Dandy knew of the spill or had reason to know of it.
Colson v. Handy Dandy

Response to Summary Judgment Motion
Handy Dandy supports its motion with admissible evidence in the form of affidavits from
employees which show that there is no issue of fact as to “notice” of the paint spill. If
Steve does not come back with something which tends to prove that they should have
known it was there, the motion probably will be granted.

Response to Summary Judgment Motion
And for a fact to be “disputed” there has to be evidence tending to prove both the positive
and the negative.
Now, its possible that all those employees of Handy Dandy were lying.
But even if they might be lying, Steve is going to have to prove it. If he has no evidence
to prove it, summary judgment may well be granted even if they are lying.

Response to Summary Judgment Motion
As a general rule, the plaintiff has to show that the plaintiff has some positive proof on
the elements that the plaintiff must prove, for example, the statement of another customer
who is willing to testify that she was in the store three hours earlier and saw that paint
spill on the floor. If so, that would be sufficient to create a jury question as to whether
the spill was there long enough that they should have seen it and cleaned it up.

Function of the Court
The judge’s roll is to determine if there is a meaningful dispute in the evidence about
whether the spill should have been spotted. The judge can’t grant summary judgment
because he or she believes the store’s witnesses and thinks that the plaintiff’s witness is
lying.
Questions of credibility of the witnesses are questions of fact for the jury at trial not for
the judge at summary judgment. If there is meaningful conflict in the evidence or the
inferences that might fairly be drawn by the jury, summary judgment will be denied and
the case will go to trial.
Rule 56
Rule 56 provides that summary judgment should only be granted if there is “no genuine
issue of material fact.” In fact, summary judgment can be granted in a case in which
there is many hotly contested issues of disputed facts remaining in the case.
“summary judgment should only be granted if there is no genuine issue of material
fact…”
Timing of Summary Judgment Motion
A motion for summary judgment may be made at any time except:
there is a 20-day “hold” at the outset for motions by plaintiffs
deadlines may be imposed by the court
other factors, such as the status of discovery, may render the motion premature
Timing of Summary Judgment Motion
The 20-day hold runs from filing the complaint (commencement of the action), not its
service. Thus plaintiff can serve a motion for summary judgment along with the
complaint. However, doing so would be futile because the court will almost certainly
grant defendant an extension to oppose the motion and conduct discovery
Timing of Summary Judgment Motion
The Federal rules require that a motion for summary judgment must be served at least 10
days before the hearing date. Rule 56(c)
Most federal courts have local rules requiring longer notice
Opposition
The opposition papers may consist of:
Declarations and other evidence
Memorandum of Points and Authorities
Objection, if any, to the moving party’s evidence
Where appropriate, request for further time for discovery
Opposition
The adverse party may not rest upon mere allegations or denials of his or her pleadings.
Rather, the party must present admissible evidence showing there is a genuine issue for
trial.
Opposition
The adverse party may not rest upon mere allegations or denials of his or her pleadings.
Rather, the party must present admissible evidence showing there is a genuine issue for
trial.

Albert, an employee of Cony Company, was injured when a residue of asphalt material in
a tank, which Albert was heating, caused the tank to explode. The tank was cleaned by
Danco under a contract with Cony. Albert sued Danco for damages suffered in the
accident. Danco moved for summary judgment against Albert. Under the applicable
substantive law, a defendant under these circumstances is not liable on a strict liability
theory. Rather, a defendant may be held liable only if it was negligent in providing
service to the plaintiff and only if the defendant owed a duty of care directly to the
plaintiff. Would summary judgment be proper?
Adickes v. Kress & Co.
398 U.S. 144 (1970)
Adickes v. S.H. Kress & Co.,
the Supreme court held that summary judgment against a school teacher was improper.
The plaintiff was not obligated to submit materials under Rule 56(e) because the
defendant had failed to meet its initial burden of demonstrating that no genuine issue of
material fact existed in the case. The defendant had failed to meet its burden because it
did not “foreclose the possibility that there was a police [officer] in the Kress store while
[plaintiff] was awaiting service, and that this police officer reached an understanding with
some Kress employee that petitioner not be served.”
Celotex v. Catrett
477 U.S. 317 (1986)
Celotex Corp. v. Catrett
Celotex Corp. v. Catrett
In response to the motion Catrett filed:
a copy of the transcript of the deposition of her deceased husband
a letter from a former employee of Celotex and
a letter from an insurance company,
all showing that the decedent had been exposed to Celotex’s asbestos products in
Chicago during 1970-71
Celotex Corp. v. Catrett
The district judge granted Celotex’s motion for summary judgment on the ground that
there was no evidence that the decedent had been exposed to Celotex’s product in the
District of Columbia, where the court sat.
Catrett appealed. The Circuit Court reversed, holding that the summary judgment motion
was fatally defective because ….
Celotex Corp. v. Catrett
in making a motion for summary judgment, the moving party bears the burden of proof to
show that there was no genuine dispute over a material fact and Celotex failed to adduce
any evidence in the form of affidavits or some other form of evidence to support its
motion.
The USSC reversed, because ….
Celotex Corp. v. Catrett
Rule 56 mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.
Rule 56 does not require the moving party to support its motion with affidavits negating
the opponent’s claim.
Celotex Corp. v. Catrett
HELD:
“…[R]egardless of whether the moving party accompanies its summary judgment motion
with affidavits, the motion may, and should, be granted so long as whatever is before the
district court demonstrates that the standard for the entry of summary judgment as set
forth in rule 56(c), is satisfied.” p. 895.
Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (1986); text p. 896
Anderson v. Liberty Lobby, Inc.
Jack Anderson published articles about a group called Liberty Lobby in The Investigator.
Liberty Lobby and its publisher thought the articles were libelous and filed a lawsuit
against Anderson.
Anderson v. Liberty Lobby, Inc.
Anderson moved for summary judgment on the ground that Liberty Lobby could not
prove by clear and convincing evidence that the publication acted with actual malice.
Anderson v. Liberty Lobby, Inc.
The district judge granted the motion on the ground that Liberty Lobby could not prove
actual malice by clear and convincing evidence.
The Circuit Court reversed on the ground that for purposes of summary judgment it was
irrelevant what standard Liberty Lobby had to meet at trial.
Anderson v. Liberty Lobby, Inc.
U.S.Supreme Court: “Our inquiry is whether the Court of Appeals erred in holding that
the heightened evidentiary requirements that apply to proof of actual malice in this New
York Times case need not be considered for the purposes of a motion for summary
judgment.
Anderson v. Liberty Lobby, Inc.
HELD:
“In ruling on a motion for summary judgment, the judge must view the evidence
presented through the prism of the substantive evidentiary burden.” When determining
if a genuine factual issue as to actual malice exists in a libel suit brought by a public
figure, the trial judge must use the “clear and convincing” standard.
Hypothetical
Steve files the same lawsuit against Handy Dandy and takes the deposition of Newton,
the paint department manager. Newton admits that he had been out to lunch for an hour
and a half before the accident and that his assistant, the only other employee who works
in the area had been out sick that day. On these facts, Steve might move of summary
judgment in his favor on the issue of whether they were negligent.
Any party may seek Summary Judgment
A motion for summary judgment can be used by any party.
Defendants use it to attack meritless claims
Plaintiffs use it to attack meritless defenses
The motion can be used to dispose of all or any part of the opposing party claims or
defenses
12(f)                     Partial Summary Judgment
A party may move to strike from any pleading any insufficient defense or any
“redundant, immaterial impertinent or scandalous matter. Rule 12(f) The motion does
not challenge the merits of a particular claim, and the pleader is generally given leave to
amend.
A motion for partial summary judgment may be used to challenge the merits of particular
claims or defenses, and to eliminate them from the case.
12(f)                     Partial Summary Judgment
The complaint alleges: “Defendant, acting like the male chauvinistic pig that he is, by
conduct which falls beneath the standard of care in the industry subjected plaintiff to
unlawful sex discrimination. Therefore plaintiff is entitled to punitive damages.
12(f)                     Partial Summary Judgment
The complaint alleges: “Defendant, acting like the male chauvinistic pig that he is by
conduct which falls beneath the standard of care in the industry subjected plaintiff to
unlawful sex discrimination. Therefore plaintiff is entitled to punitive damages.
12(f)                     Partial Summary Judgment
The complaint alleges: “Defendant,
                            by conduct which falls beneath the standard of care in the
industry subjected plaintiff to unlawful sex discrimination. Therefore plaintiff is entitled
to punitive damages.
Hypothetical
Albert sues Bert for $1,000,000 for personal injuries Albert allegedly received due to
Bert’s negligence in operating an automobile in violation of the speed limit. Bert’s
answer denies Bert’s negligence and Albert’s damages. Albert moves for summary
judgment. Albert supports the motion with evidence demonstrating that Bert was
convicted of speeding at the time of the accident.
Partial Summary Judgment
Although Albert has demonstrated Bert’s negligence as a matter of law,
the extent of Albert’s damages is still in dispute. Thus, the court should grant partial
summary judgment on the issue of liability. The only remaining issue for trial would be
Albert’s damages.
Matsushita v. Zenith
475 U.S. 574 (1986); text p. 902
Matsushita Electric Industrial Co. V. Zenith Radio Corp.,
A plaintiff seeking recovery under the antitrust laws must present evidence that tends to
show the inference of conspiracy is reasonable in light of the possible competing
inferences of (1) independent action by the defendants and (2) collusive action that could
not have harmed the plaintiffs. After canvassing the nature of predatory pricing
conspiracies and the defendants’ behavior over the course of the alleged conspiracy
involved in the action, the Court concluded that the defendants had no plausible motive to
engage in the conspiracy with which they were charged.
Effect of Summary Judgment
A summary judgment terminates the action without trial. It thus deprives the losing party
of any right to a jury. This has been upheld because, there is nothing for a jury to decide
when the evidence is no one-sided that one party must prevail as a matter of law.
Appeal Issue ????
Liberty Mutual Insurance v. Wetzel
424 U.S. 737 (1976)
Liberty Mutual v. Wetzel
Liberty Mutual v. Wetzel
HELD: A Court of Appeals does not have jurisdiction to review the granting of a partial
summary judgment because only a “final judgment” may be appealed. 28 USC 1291.

								
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