Discovery and Motions 2 End Before Trial Test Outline

Discovery (discov.)

Background
1. Slow Appreciation
  1. Thought @ 1st fishing expedition & intrusive
  2. Then enthusiastically embrace b/c reach just dec. by no surprises
  3. Then sick of discov. b/c used 2 bludgeon opponent into settling
2. Stand. Interrog. Quest's Lead 2 Disclosure
  1. Stand. interrog. quest's R list of people who know the case, relev. doc's, & experts but before disclosure, hassled about whether req'ed 2 give
  2. Disclosure req'ed once litigation, must give cert. things in cert. X per.
  3. Still have depo, interrog, etc. but also disclosure
Rules 4 Discov.
1. Main Rule: Rule 26
  1. Most imp.
  2. Gen. rule of discov. unless trumped by specif. local rule/more specif. fed. rule which were stipulated, / dir'ed by order
2. Mech. Proced: Rules 27-36
  1. Rule 30: deposition (depo)
  2. Rule 33: interrogatories (interrog) where write out quest.
  3. Rule 34: prod. of doc's
  4. Rule 35: phys. & med. exam
  5. Rule 36: req. 4 admission (adm)
  6. Prof. Berch only wants passing familiarity of specif. but focus on adv. & disadv. of the mech's
3. Sanctions: Rule 37 & Rule 26)g
  1. Sanctions & sig.
  2. Like Rule 11, Rule 26)g has rsbl belief & rsbl inquiry
4. Structure of Rules
  1. Local Rule can trump
  2. Fed. rules gen'ly 4 uniformity but here opposite
  3. Do your part even if opponent doesn't b/c ct. will take care
Rule 26: Main Rule
1. Disclosure before Discov.
  1. Sub a)1-3 disclose names, dates, addresses, etc.
  2. After disclosure then discov.
2. Sub a)1: Initial Disclosure
  1. ID all who has relev. info
  2. ID all doc.'s & where located but not mean they R discov'able
3. Sub a)2: Disclosure of Expert Testimony
  1. ID expert testimony & if not tell, then sanction of no expert witness
4. Sub a)3: Pretrial Disclosure
  1. Initial disclosure wanted simple knowledge but want more now
  2. ID witnesses expected 2 call, depo, / expect 2 call if need 2
  3. ID docs expected 2 present / present if need 2
  4. Name of experts
5. Sub a)4: Form of Disclosure
  1. Writing, signed, served, & promptly filed
  2. Unless otherwise dir'ed by order / local rule
  3. If mistake & neg. which rsbl person wouldn't, then sanctioned
6. Sub b: Discov. Scope & Limit
  1. Imp. that sub 1 says discov. only 4 relev. nonprivileged matter
  2. Sub 1: relev is rsbly calculated 2 lead 2 discov. of adm'able evid.
  3. Discov'able not mean adm'able
  4. Lindberger v. Gen. Motors Corp def's priv.
  5. Sub 2: ct. can limit by order/local rule on # of depo & interrog.'s, lengthof dep, & # of req's
7. Sub b)3: Work Prod.
  1. See Hickman v. Taylor def'ed priv. where if write something on memo
  2. Disclosure not trump this rule
8. Sub c: Protective Order
  1. Gen'ly if get discov. req., do it otherwise sanctioned
  2. Sub c compels 2 give up
  3. Move by party who doesn't want discov. 4 protective order
  4. Must make prima facie case
  5. Gen. lang. but Marresse Case def'ed
  6. Someone initiates & ct. can do in camera, seq'ing, redacting, order P's atty not 2 tell client, etc. so lot of discretion
9. Sub d: X'ing & Seq'ing of Discov.
  1. Entitled 2 info but not now so not give discov.
10. Sub e: Suppl. of Disclosure & Responses
  1. If something then duty 2 suppl. it
  2. If expert added, amend seasonably otherwise no expert
  3. Other party can't B surprised & will B sanctioned
11. Sub f: Mtng of Parties; Planning 4 Discov.
  1. Parties meet 4 discov. & plan
  2. Scheduling conference 14 days before schedule
  3. Shouldn't discov. before mtng
12. Sub g: Signing & Sanctions
  1. All Rules subj. 2 this providing that signing disclosure, response, etc. has serious conseq's if wrong
  2. Sub 2 Sig. of atty certifies that 2 best of signer's knowledge, it's after rsbl inquiry the req., response/obj. is
  3. Sub 2)a: consistent w/Rules & law
  4. Sub 2)b: No improper purpose
  5. Sub 2)c: Not unrsbl/unduly burdensome by needs, discov. already made, amt in controv., & imp. of issue
  6. Sub 3: if no subst'l justification then sanction
Marrese v. Amer. Academy of Orthopaedic Surgeons
1. Facts
  1. Fraud in state axn before going 2 fed.
2. Issue & Claim Preclusion & Res Judicata
  1. No res judicata b/c in state, state claim but anti-trust fed. claim in fed. ct.
  2. Claim subj. 2 claim precl. even if unasserted but jxn'al bar so would think res judicata not apply
  3. Sup. Ct. said claim precl. b/c Forum 1(F1) even if no jxn b/c could've split axn but still no res judicata by jxnal bar
3. Contempt Not Appealable Until Final
4. Appeal & Scope of Rev.
  1. Appeal must B X'ly & scope of rev., cite latest cases, & get 2 merits
  2. Dissent thought abuse of discretion was the stand.
  3. Can't B de novo stand. b/c then lots would B overturned
  4. Posner only mentions erroneous but never say the stand.
5. Divulgence v. Privacy
  1. Legit aspects of institution that should B protected so need 2 balance
  2. Civil Rts cases where death if reveal names b/c of racial prob. but may need info b/c highly relev. so 1st Amend. concerns both ways
6. Posner's View that Predatory Discov.
  1. But gen'ly don't come 2 fed until thrown out of state so not really predatory discov.
7. Ordering Discov.: Rule 26)c
  1. For merits, can redact, cut the names out & put dif. names 2 make a case
  2. Do noncontroversial discov. 1st
  3. In camera where judges look @ the paper
  4. Gag order (not mentioned here) where P's counsel sees discov. but not tell P
8. Class Axn Observation
  1. Not matter if class b/c wouldn't save this case
Seattle Times Co. v. Rhinehart
1. Facts
  1. Wanted list of relig. members
  2. Prob's b/c may B inflammatory
  3. Free speech, pub. v. not wanting the list 2 come out
2. Protective Order
  1. Limited 2 pretrial civil trial stuff not 4 other sources
  2. Not offend 1st amend.
  3. Wash Ct. wouldn't allow pub. but Sup. ct. allowed but limited
  4. D got the info b/c of Rule, also has protective order
Deposition: Rule 30
1. Proced.
  1. Oral quest's & ans's of witness of party & party so imp. b/c can get non-party
  2. Like trial w/transcript & oath
2. Purpose
  1. Discover info under oath
  2. Can impeach if change story by locking witnesses 2 their story
  3. More spontaneous than interrog.
  4. When witness unavailable, can record testimony & read as evid. in trial
  5. Can read admissions 2 jury by Rule 32 w/o impeaching
  6. Uncontroverted so no issue of fact in depo
3. X'ing
  1. Rule 26)d & f which has pretrial conf. but ct. can trump everything
4. Notice
  1. If party, only need notice
  2. If non-party & want cert, then notice & subpoena 2 compel b/c then could B in contempt of ct. but not req'ed 2 subpoena
5. Corporation Officers: Rule 30)b)5 & 6
  1. Depo org. but not know who in org. knows relev. info, then org. designate those who can testify, gen'ly those who will B good 4 org.
6. Failure 2 Show Up: Rule 37)d (party), Rule 30)g)2 (nonparty only notice), Rule 45 (nonparty w/subpoena)
  1. Party not show after notice, then could charge atty fee / in egregious violation get sanctions, default, precl., etc. & try 2 get case dismissed
  2. Nonparty not show & no subpoena, then charge the party giving notice 2 pay the other party
  3. Nonparty not show & was subpoenaed, then sanction against witness
7. Obj's & Priv's: Rule 30)c
  1. Can obj. & save priv's of sustaining the obj's
  2. If fail 2 obj., then waive priv's
  3. Can seek order term'ing depo
Interrogatories: Rule 33
1. Stand.
  1. List of all people, doc's, etc. of potential stuff
  2. Disclosure so no real need 4 interrog's
2. Rule 33 Applies Only 2 Parties
  1. Party prep. ans.'s w/atty
3. Purpose
  1. Get detailed info unlike depo b/c party would prep. ans. w/the atty
  2. Can't get smoking gun though
4. Quest's That May B Priv'ed
  1. Can not ans. quest. & obj. w/specificity by Rule 33)b)4
  2. Atty sign the obj. by Rule 33)b)2
  3. If other atty didn't think is priv'ed then can go 2 ct. 2 compel by Rule 37)a)2)b
  4. Can also ask 4 protective order but %'ly burdensome & could B wrong
5. Record Handover: Rule 33)d
  1. If ans. in record, can give it 2 other party if no more burdensome
  2. Unwise b/c may B giving smoking gun if give everything
Prod. of Doc's: Rule 34
1. Prob's of Good Cause Before
  1. Had 2 make motion & show good cause 2 get doc's before
  2. Motion thrown out if no good cause / couldn't i.d. doc's
2. Notice & Disclosure
  1. Rule 26)a now so disclose all relev. doc's w/o motion
  2. Notice o.k. & no good cause reqt as long as relev. & unpriv'ed
  3. Subj. 2 work prod. doc, disclose doc's
3. Nonparty
  1. Nonparty compelled 2 prod. doc's by Rule 34)c, subpoena, & Rule 45
  2. Notice 4 dir'ly getting doc's from nonparty & if not prod, sanctions
Phys. & Mental Exam: Rule 35
1. Party, Under Custody, / Legal Control Only
2. Reqt's
  1. Controv.
    1. Look @ pleading 2 know what's in controv.
  2. Good cause
    1. If P suing, good cause as matter of law but harder w/D 2 set up b/c of Const. dimension
3. Reciprocity Rule: Rule 35)b
  1. P complies w/D's Dr's exam & it's priv'ed but P asks 4 it then waives priv's
  2. If D supplies b/c of req., then D can get P's exam of all like report before & after w/o req. even though may have been priv'ed before
  3. If D supplies w/o P's req, then still priv'ed so long as didn't ask 4 it
Schalgenhauf v. Holder
1. Facts
  1. Dist ct. ordered 9 med. exam when D only wanted 4
  2. Sued airline & named pilot 2 can fit under Rule 35 2 get med. exam
2. Phys & Med Exam Not Subst. Rt. w/in Hanna's Rule
Benning v. Phelps
1. Ct.order isn't same as req'ing med. report so priv'ed
Request 2 Admit: Rule 36
1. Admission of Fact
  1. If fail 2 ans. w/in 30 days, consid'ed 2 have admitted
  2. If denies truth, then sanctions by Rule 37)c)2 4 rsbl expenses of making proof & atty's fee 4 not admitting genuineness but must have rsbl ground 2 believe party might prevail
  3. If iffy ans, can compel ans. by Rule 36)a 2 det. suff'cy of the ans./obj's & can't obj. on ground of triable issue
  4. If admit, then concl'ly est'ed unless ct. o.k.'s w/drawl unlike other interrog. / depo where can undermine in trial
2. Scope of Use
  1. Things under oath like depo can B used against you in any other cases
  2. Admission is 4 the case/pending axn only & not 4 others
3. Rsbl Investigation
  1. Rsbl inquiry not just obj.
  2. As is available 2 the party not the person signing
Privileges
1. Three Categories
  1. Work Prod. Rule
  2. Claims of Priv's
  3. Atty-Client Priv's
2. Waiving Priv's
  1. If show witness work prod, then no longer work prod. b/c witness can B cross examined on what he saw
  2. If show client work prod, then destroys atty client priv.
  3. Work prod. probably more limited waiver
Work Prod. Rule: Rule 26)b)3
1. Rule 26)b)3
  1. Must B in anticipation & show need, prejud. like Hickman but party / nonparty can get own statement w/o showing so takes out of work prod. 4 signed doc's
  2. Ct. protects against disclosure of mental impressions, concl's, opinions / legal theories concerning litigation 4 memo b/c ct. not want 2 redact forever / discourage memos
2. Disclosure
  1. By Rule 26)a req. disclosure of existence of work prod.
  2. Admit have it not mean other party can get it
  3. Admit b/c ct. must rule on it
3. Facts Not Part of Work Prod.
  1. Only insulates notes, memos but not facts so can't cite work prod. in interrog. 2 avoid fact
  2. Facts never priv'ed
  3. Finding fact not make fact priv'ed only doc's U work on is priv'ed
Hickman v. Taylor
1. Facts
  1. Tried 2 get D's atty's material who refused
2. Categories of Info Rel'ing 2 Witnesses
  1. Written & /signed statements
  2. Memo but no witnesses' sig's
  3. Note / recollection of communication
3. Mistakes
  1. Can't use Rule 33, interrog's, against atty only 4 parties but can use Rule 34
  2. Didn't do depo & then demand
4. Atty Client Priv. Not Apply b/c Not Clients
5. C/L Work Prod. Rule
  1. Not had Rule 26)b)3
  2. Not priv'ed w/in meaning of Rule 26)b)1 b/c atty not thought about it but outisde the arena of discov. by custom
  3. Doc's not discov'able unless nec. & w/o prod. would unduly prejud. prep. of petitioner's case cuasing hardship/injustice b/c mental impression in file
  4. Need 2 show good cause like witnesses died not checking prep.
  5. Must B in anticipation of litigation not in ord. course of busi.
  6. No showing of any nec. can B made under the circ. of the case 2 prod. oral statements & rare sit. justifying such prod. b/c hard 2 make somebody remember & conflict of int's
6. Atty Work Prod. Rule v. Rule's Gen. Work Prod.
  1. Read only as atty work prod. so 4 atty's econ. adv. since only 1 insulated
  2. Not true by Rule 26)b)3 which incl's other party's atty, consultant, surety, indemnitor, insurer, / agent
  3. Ins. co. by def. is in anticipation of litigation
7. Case v. Rule
  1. All written/signed must show good cause v. show some good cause, etc. so basically same thing
8. Hard Part of Hickman
  1. Full & fair ans's in interrog. so not need the doc's anyway
Claims of Privilege: Rule 26)b)5
1. Used 2 not ans.
  1. When party w/hold info otherwise discov'able b/c of priv. / subj. 2 protection, then make claim expressly
  2. Also tell there's such doc's w/o revealing the content
Atty Client Privilege
1. Only Communication Priv'ed Not Facts
Upjohn Co. v. US
1. Facts
  1. Co. took bribery & got caught
  2. Cooperated b/c was scared but not turn over doc's of interviews
2. Atty Client Priv. of Corporation
  1. Control group is any indiv. w/facts should B insulated 2 insulate communication since corp. is the client
  2. Any conversation w/present employee (ee) w/info subj. 2 priv.
  3. Past ee's not subj.
3. Corp's Atty
  1. When atty talks 2 any people, subj. 2 priv. b/c of corp. but each indiv. not priv'ed b/c atty not rep. them
  2. Client always corp.
  3. Atty's gen'ly not rep. both corp. & indiv's
4. Precedent Quest.
  1. Not binding on state b/c not Const'al dec. of due process
  2. Diversity in fed. ct, Erie & Hanna would've said binding but Fed. Rules of Evid. say in diverisity, look @ state law 4 rule of priv.
  3. Binding only 4 fed. quest. in fed. ct.
5. Work Prod.
  1. Must show stronger showing of nec. & unavailability by other means
  2. Priv. only protects disclosure of communication not disclosure of underlying facts
Perry v. W.S. Darley & Co
1. Dist. Ct. Opinion That's O.K. Rule
  1. Not req. name & id experts that R basically retained/spec'ly employed
  2. But must still disclose trial expert
  3. Can always label experts disfav'able as nontrial expert
2. Rule 26 Not Overturn This Case
  1. Sub a)1)a: discov'able info
  2. Sub a)3: discloses only experts 2 B used as witnesses in trial
  3. Sub a)2)a: disclose name & id of witnesses used in trial
  4. Sub b)4)b: trial prep. experts, then work prod. & need 2 show exceptional circ's which is gen'ly not possible
Sanctions: Rule 37 & Rule 26)g
1. Interrog's Unans'ed
  1. Rule 37)d imm'ly sanctions if fail 2 ans.
  2. Can get sanctions of Rule 37)b but not contempt b/c contempt only when fail order
  3. Can also ask ct. 2 compel, then Rule 37)b 4 failing order but indir. way
2. Rule 26)g
  1. Disclosure & discov. a little dif.
  2. Not quite same sanctions b/c not get $ 2 ct. sys.
  3. Like Rule 11 of rsbl inquiry that correct but harder b/c sig. of atty certifying 2 best knowledge, after rsbl inquiry the response/obj. is by Rule 26)g)2
    1. Sub a: consistent w/Rules & law
    2. Sub b: nothing improper like delay
    3. Sub c: not unrsbl / unduly burdensome/ expensive given the needs of the case, amt. in controv., imp. of issue
  4. Sub c prob. b/c not know where the line is but ct. recog. & not penalize 2 much
  5. Sub 3: if no subst'l justification then sanction
3. If Client Lies on Stand, Must Tell Ct.

Motions 2 End the Trial

Summary Judgment (Sum Jgmt): Rule 56 & Rule 54)b
1. Dif. from Motion 2 Dismiss
  1. Motion 2 dismiss b/c even if facts correct, no legal ground
  2. Sum jgmt is when facts not support even if legal claim
2. Burden 2 Prove Triable Issue of Fact by Party Opposing: Rule 56)e
  1. Can't rest on mere allegation/pleading if moving party met the burden
  2. Affidavit so long as pers. knowledge of facts admissible in evid. & affiant would testify
  3. Can also get depo
  4. Only need 2 show triable issue of fact not jgmt (same test w/dir'ed verdict)
  5. If do nothing 2 oppose, then over b/c not show triable issue of fact
3. Deposition 2 Oppose: Rule 56)f
  1. If affidavits of party opposition the motion can't show facts essential 2 justify denying sum. jgmt then ct. can refuse the application / order a continuance 2 permit ffidavits, depo's / discov.
  2. If Celotex gov'ed, where sum jgmt w/o any affidavit, then more need 2 get depos 2 oppose
4. Bad Faith: Rule 56)g
  1. If affidavit by moving party in bad faith, then movant must pay expenses & atty may B disbarred so serious
  2. Gen'ly not invoke this 1st
5. Discov. Tool
  1. If move 4 sum jgmt, must come up w/lots 4 issue of material fact so can B a tool 2 know the theories of D's, witnesses, proof, etc.
6. Create Issue of Fact v. Jury Consid.
  1. As long as create issue of fact, go 2 trial 2 jury
  2. Jury may consid. stuff other than issue of fact though
  3. Ct. recog's jury may say something dif. but still grant sum jgmt by issue of fact b/c if not, no mech. 2 control lwr ct.
7. Sum Jgmt Denied
  1. Not a jgmt but go 2 discov. & trial
8. Sum Jgmt Granted
  1. May not B final jgmt, not appealable, & subj. 2 revision any X before entry of jgmt dep'ing on judge's lang. in order
9. Final Sum Jgmt: Rule 54)b
  1. In multiple claims/parties, ct. MAY, not must, dir. the entry of final jgmt
  2. Can dir. 4 1 / more but fewer than all claims
  3. Final only if meet 2 criterias
    1. Express det. that no just rsn 4 delay
    2. Express dir. upon entry of jgmt
  4. Other form, SHALL NOT term. the axn of any claims/parties & subj. 2 revision before the entry of jgmt adjudicating
10. Characteristics of Non-Final Jgmt
  1. Can't get damages on sum. jgmt claim until other claims all judged
  2. If law changes, then judge can change sum jgmt
  3. If sum jgmt finalized, then res judicata & can't reopen if Sup. Ct. announces new rule but if not finalized then must reopen since Sup. Ct. retroactive effect unless good rsn
11. Disadv's of Final Sum Jgmt
  1. Have 2 fight the case on appeal if opposing party appeals
  2. S.t's they appeal just 2 harrass
12. Inconsistency of Rule 54)b v. Rule 56)d
  1. Last sentence of Rule 56)d provides facts so specif'ed SHALL, not may, B deemed est'ed 4 purposes of trial
  2. But Rule 54)b that unless ct. expressly det. & dir, subj. 2 revision
  3. Can't harmonize that sum jgmt on claims can B rev'ed but not sum jgmt on facts
  4. Read shall as should in Rule 56)d
13. Liab. Sum Jgmt: Rule 56)c
  1. Sum Jgmt interlocutory in character 4 liab. alone even though genuine issue on amt of damages
  2. Means not final, not appealable, & probably subj. 2 revision
14. Split of Auth: Error in Denying Sum Jgmt then Opposing Party Wins
  1. Arg. that should reverse jgmt & grant sum jgmt b/c abuse of discretion tolerated if not recog. sum jgmt
  2. Other arg. that won so harmless mistake
15. Obj'ing 2 Affidavits
  1. Can obj. 2 affidavits b/c not comply w/Rule 56)e as admi'able evid.
  2. Can obj. that affiant can't testify in trial
  3. Can move 2 strike such affidavits
  4. Can't just arg. law b/c failure 2 obj. = 2 allowing affidavit
Lundeen v. Cordner
1. Facts
  1. Two wives fighting over ins. $ w/interpleader by ins. co. & intervention by wife
2. Posture of Case by Sum Jgmt
  1. If no sum jgmt, then Lundeen would win b/c beneficiary is Lundeen & can't get affidavit in trial so get dir'ed verdict
  2. Here sum jgmt so can intro. affidavit by Burke
3. Lundeen's Mistake
  1. Should've asked 4 depo 2 get past sum jgmt 2 jury trial
Dyre v. MacDougall
1. Facts
  1. P said slandered but D had affidavits of people who said no
2. Sum Jgmt Despite Jury Factor
  1. Ct. recog. that rational people can take x 2 mean non-x but grant sum jgmt b/c can't ever rev. if never grant sum jgmt
  2. Only need issue of fact 2 impress judge not jury by Rule 56 2 deny sum jgmt
Cross v. US
1. Facts
  1. Prof. Cross claimed busi. expense on for. travel in IRS income tax
  2. Dist Ct. said all expenses deductable
2. Motivation & Intent Critical
  1. Subj. so not bound by what P says is fact
  2. Cases not open 4 sum jgmt when involve intent, motivation, / other subj.
  3. Govt not do anything & won b/c subj.
Adickes v. SH Kress Co.
1. Civil Rts Case Not 4 Sum Jgmt
  1. Can't B bound by liars so overturn sum jgmt
  2. Not est'ed absence of genuine issue
  3. Dang. of seeing things the way U want 2 so no sum jgmt in Civil Rts / IRS Cases
Anderson v. Liberty Lobby
1. Fraud: Clear & Convincing Stand. of Proof Case
  1. Burden of proof of clear & convincing stand. is btwn beyond rsbl & preponderance of evid.
  2. Must put more evid. then preponderance 2 convince judge 2 go 2 trial
  3. Also no sum jgmt if jury can find as preponderance but not as clear & convincing
Celotex Corp. v. Catrett (asbestos case)
1. Shifting Burden of Proof
  1. After moving party meets the burden that there's no issue, then opposing party must bear the burden of coming up w/issue of triable fact
  2. This makes it ez'er 2 grant sum jgmt
2. Congestion
  1. Rule 56 transformed sum jgmt from disfavored motion 2 something integrated into our modern proced.
  2. Get rid of cases b/c 2 congested
3. Remand: Failing 2 Obj.
  1. If fail 2 obj. inadmissiable evid, then has allowed 4 sum jgmt
Dismissal: Rule 41
1. Vol. Dismissal: Rule 41)a
  1. Must B dismissed before adverse party ans/motion 4 sum. jgmt
  2. Motion 2 dismiss not consid'ed sum jgmt gen'ly
  3. If motion 2 dismiss incl's affidavits, then consid'ed sum jgmt
2. Second Dismissal w/Prejud. on Merit
  1. If dismissed before in any ct, fed./state, on axn on/incl'ing same claim, then 2nd dismissal will B w/prejud. on merits
  2. Can ask judge 2 stay, dismiss by Rule 41)a)2 since that's w/o prejud., / stipulation
3. Class Axn
  1. Rule 41)a)1 says look 2 Rule 23)e where can't dismiss w/o ct. approval
4. Invol. Dismissal: Rule 41)b
  1. All Dismissal W/Prejud. Unless Says W/O Prejud.
Adcox v. Souterhn Ry Co.: Tenn State Case
1. Not Given Lot of Wt.
  1. Fed. dismissed on merit by Rule 41)b but state ct. allowed
  2. Can't do that by Sup. Clause, res judicata, & FF&CC
  3. If dismiss w/prejud. in fed. sys, then w/prejud. everywhere & res judicata binding
Default Jgmt: Rule 55
1. Entry: Sub a
  1. Failure 2 plead / defend which wouldn't incl. asking 4 extensions
  2. Clerk enter party's default in record so D can't file ans.
2. Jgmt by Clerk: Sub b)1
  1. Must B sum cert. so like K, penalty, promissory note, etc.
  2. Default 4 failing 2 appear prob. b/c not know what appear means
  3. All agre that any submission 2 ct. is appear but not know if asking 4 extension 2 other party's atty incl's as appear
  4. If thrown out b/c of failure 2 amend ans, that's still plea
  5. If not appear, then can't enter
3. Jgmt by Ct.: Sub b)2
  1. If appeared, need 3 day notice of hearing
  2. Can't have damage in default higher than pleaded
  3. Rule 54)c limits Rule 55 jgmt's 2 what P claimed
  4. If D default, then may not mind paying the amt but prob. if make him pay more
4. Options 1 Yr. After Default: Rule 60
  1. Rule 55)c says can set aside jgmt if good cause
  2. Rule 60)b says may relieve party from final jgmts but sub 1-3 can't B invoked after 1 yr.
  3. Sub 4 of void jgmt: can invoke 4 violating Rule but not 4 pers / subj. matter jxn
  4. Sub 6 of any other rsn: not construe as X constraints of sub 1-3 so rsn must B outside of those rsns
  5. Ct. gen'ly not like sub 6
5. Pleading Default
  1. If not ans. interrog. then default which isn't Rule 55 jgmt so not trigger Rule 54)c so anything can happen
  2. Rule 55 on limited pleading stuff
6. Options After Notice
  1. Can try 2 get entry aside if can show any excusable neglect / mistake
  2. Can also show that damages R nothing even though default in liab. in trial before judge (no jury)
Coulas v. Smith
1. Not Showing Up in Trial
  1. Not default w/in the meaning of Rule 55

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