Pretrial Adjudication: Dismissals, Default, and Summary Judgment
Key Takeaways
- A plaintiff may voluntarily dismiss once without prejudice by notice before the answer or summary-judgment motion (Rule 41(a)); a second voluntary dismissal of the same claim operates as an adjudication on the merits.
- An involuntary dismissal under Rule 41(b) for failure to prosecute or obey a court order generally operates as an adjudication on the merits (with prejudice).
- Default judgment requires entry of default first (Rule 55(a)); the clerk may enter default judgment only for a sum certain, otherwise the court enters it.
- Summary judgment under Rule 56 is granted when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law (Celotex/Anderson/Matsushita trilogy).
- California summary judgment under CCP 437c requires 75 days' notice of the hearing, must be heard at least 30 days before trial, and the moving defendant must negate an element or show the plaintiff cannot establish one.
Voluntary and Involuntary Dismissals (Rule 41)
Voluntary dismissal (Rule 41(a))
A plaintiff may voluntarily dismiss an action:
- By notice, without a court order, before the defendant serves an answer or a motion for summary judgment — this is without prejudice the first time.
- Otherwise, only by stipulation of all parties or court order.
- The 'two-dismissal rule': a second notice-dismissal of a claim the plaintiff previously dismissed (in any court) operates as an adjudication on the merits — i.e., with prejudice, barring refiling.
Involuntary dismissal (Rule 41(b))
A defendant may move to dismiss for the plaintiff's failure to prosecute or to comply with the rules or a court order. Unless the order states otherwise, a 41(b) dismissal (and any dismissal not under 41(a) or for lack of jurisdiction, venue, or failure to join a Rule 19 party) operates as an adjudication on the merits — with prejudice, triggering claim preclusion.
Trap: Dismissals for lack of jurisdiction, improper venue, or failure to join are expressly without prejudice — they don't bar refiling in a proper court.
Default and Default Judgment (Rule 55)
When a defendant 'has failed to plead or otherwise defend,' the plaintiff proceeds in two steps:
- Entry of default (Rule 55(a)): the clerk notes the defendant's default on the record. This is not yet a judgment; it merely establishes liability.
- Entry of default judgment (Rule 55(b)):
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The clerk may enter judgment only if the claim is for a sum certain (or a sum that can be made certain by computation) and the defendant did not appear.
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Otherwise the court enters the judgment, and if the defendant has appeared, it must receive 7 days' written notice of the application; the court may hold a hearing to determine damages.
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The default judgment cannot exceed the amount demanded in the complaint or differ in kind (Rule 54(c)).
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A default or default judgment may be set aside for good cause (55(c)) or under Rule 60(b) (e.g., excusable neglect). California (CCP 473(b)) has a notable mandatory relief provision: a default caused by the attorney's sworn affidavit of fault must be set aside (within 6 months).
Summary Judgment: Federal Rule 56 and California CCP 437c
Federal summary judgment (Rule 56)
The court grants summary judgment if 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' A dispute is genuine if a reasonable jury could return a verdict for the nonmovant; a fact is material if it affects the outcome.
The Celotex trilogy sets the framework:
- Celotex Corp. v. Catrett: a movant who does not bear the burden of proof may prevail by pointing out the absence of evidence supporting the nonmovant's case — it need not affirmatively disprove the claim.
- Anderson v. Liberty Lobby: the court applies the substantive evidentiary standard (e.g., clear and convincing) in deciding whether a genuine issue exists.
- Matsushita: where the claim is implausible, the nonmovant must come forward with more persuasive evidence.
The court views evidence in the light most favorable to the nonmovant and does not weigh credibility. A motion may be filed until 30 days after the close of discovery (default).
California summary judgment (CCP 437c)
California imposes strict, heavily tested mechanics:
| Requirement | California rule |
|---|---|
| Notice of hearing | At least 75 days before the hearing (plus extensions for mail service) |
| Hearing timing | No later than 30 days before trial unless the court orders otherwise for good cause |
| Earliest filing | Generally not until 60 days after the general appearance of the responding party |
Burden-shifting: A moving defendant must either (1) negate an element of the plaintiff's cause of action, OR (2) show the plaintiff cannot reasonably obtain evidence to establish an element. Only then does the burden shift to the plaintiff to produce evidence of a triable issue of material fact. California also allows summary adjudication of individual causes of action, affirmative defenses, or duty issues.
Judgment on the pleadings and the dismissal-preclusion overlap
A Rule 12(c) motion for judgment on the pleadings — made after the pleadings close — tests legal sufficiency like a 12(b)(6) motion but can be brought by either party;
California's analogue is the motion for judgment on the pleadings (CCP 438), now subject to a meet-and-confer requirement. Preclusion overlap: because most involuntary dismissals 'on the merits' under Rule 41(b) and a granted 12(b)(6) (with prejudice) trigger claim preclusion, the difference between a 'with prejudice' and 'without prejudice' dismissal is outcome-determinative for any refiling. Traps: (1) A voluntary notice-dismissal before the answer is without prejudice the first time — only the second triggers the merits bar.
(2) A default judgment cannot exceed the relief demanded in the complaint (Rule 54(c)), so a plaintiff who under-pleads damages is capped. (3) On summary judgment the court may not weigh credibility or resolve genuine factual disputes — doing so is reversible error; it only decides whether a triable issue exists.
A defendant who does not bear the burden of proof moves for summary judgment, arguing the plaintiff has no evidence of causation. Must the defendant affirmatively present evidence disproving causation?
A plaintiff who previously dismissed the same claim by notice in an earlier action now files a notice of voluntary dismissal of that claim a second time. What is the effect?