Post-pleading, non-trial resolutions (like settlement)
- Don't confuse percentage of cases that result in a trial with the percentage of cases filed that are adjudicated. Many are adjudicated without a trial.
- Failure to Prosecute (involuntary dismissal)
- Voluntary Dismissal
- Generally without prejudice.
- But don’t want file/dismiss then file/dismiss—can't do it once defendant has answered—Rule 41(a)(1)(i)—or later if all parties agree.
- Also can't do it multiple times—you get 1 chance to fix it.
- Settlements
- Should it be judicial or governed only by contract law?
- How do I enforce agreement once I dismiss lawsuit?
- Breach of contract (the settlement agreement)
- Judicial decree/consent decree—dismissal of action that includes agreement as basis—court has continuing jurisdiction to enforce decrees in front of it—don’t have to go to the back of the line with a contract claim. ALSO—on a federal claim, can stay in federal court, otherwise contract claims are STATE CONTRACT matters. Judges DON'T LIKE it when parties don’t follow their orders—and with a consent decree, get to see same judge (typically).
- But to get this, must have a complaint filed in the first place (in order to get a case before the judge).
- This is a problem, because the allegations go on record—can’t avoid, even if that’s one reason to settle in the first place.
- So can rewrite complaint to be more generic, like a general contract claim. Just has to be a complaint.
- Generally judges don’t review settlements, but probably will look it over (at least for definiteness, whether its well-crafted) before entering a decree—but may also look at fairness.
