Pretrial procedures - Adjudication without a trial

Learning Outcomes

This article explains adjudication without a trial in federal civil cases, including:

• The elements, timing, evidentiary record, and strategic uses of summary judgment under Rule 56 on the MBE.
• How to evaluate whether a fact dispute is “genuine” and “material,” and how that standard differs from Rule 12(b)(6).
• When and how to move for JMOL and renewed JMOL under Rule 50, and what happens if counsel fails to move in time.
• How motions for judgment on the pleadings under Rule 12(c) operate, and when they are converted into Rule 56 motions.
• How motions for a new trial under Rule 59 differ from JMOL, especially in terms of standards, timing, and appellate review.
• How defaults, default judgments, voluntary dismissals, and involuntary dismissals terminate cases procedurally without reaching a full trial on the merits.
• How pretrial, trial, and post‑trial motions interact with the Seventh Amendment jury‑trial right and with standards of appellate review.
• How to spot common MBE traps involving timing (28‑day and 30‑day limits), waived arguments, and improper judicial fact‑finding.
• How to compare summary judgment, JMOL, and new‑trial motions to select the procedurally correct device for a given fact pattern.
• How Rule 59(e) motions to alter or amend judgments and Rule 60 relief from judgment fit into the overall post‑trial framework tested on the MBE.

MBE Syllabus

For the MBE, you are required to understand federal pretrial and trial devices that resolve cases without a full trial, with a focus on the following syllabus points:

• The standard, timing, evidentiary requirements, and effects of summary judgment under Rule 56
• The standard and timing for JMOL during trial under Rule 50(a)
• The prerequisites, timing, and consequences of renewed JMOL under Rule 50(b)
• The difference between summary judgment, JMOL, and judgment on the pleadings
• The role of affidavits, declarations, and admissible evidence in Rule 56 and Rule 50 motions
• The relationship between renewed JMOL and motions for a new trial, and the effect of failing to move for JMOL before submission to the jury
• The basics of default judgments and involuntary dismissals as case‑terminating devices
• How these motions interact with the right to a jury trial in federal court
• The grounds and time limits for new‑trial motions under Rule 59 and for relief‑from‑judgment motions under Rule 60
• The appealability of summary‑judgment and JMOL rulings and the standards of review on appeal

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is required for a court to grant summary judgment?
   1. The moving party shows there is no genuine dispute as to any material fact and is entitled to judgment as a matter of law.
   2. The moving party's pleadings allege sufficient facts.
   3. The non‑moving party fails to file an answer.
   4. The moving party requests a jury trial.
2. A party moves for judgment as a matter of law (JMOL) after the close of all evidence in a jury trial. What standard must the court apply?
   1. Whether the verdict is against the weight of the evidence.
   2. Whether there is a genuine dispute of material fact.
   3. Whether a reasonable jury would have a legally sufficient evidentiary basis to find for the non‑moving party.
   4. Whether the pleadings support the claim.
3. If a party fails to move for JMOL before the case is submitted to the jury, can that party later file a renewed JMOL motion after the verdict?
   1. Yes, at any time.
   2. Yes, but only with the court’s permission.
   3. No, the right is waived.
   4. Only if the verdict is clearly erroneous.
4. A defendant believes the plaintiff has failed to state a claim even if all factual allegations in the complaint are true. Which motion is most appropriate after the pleadings are closed, if the court is to consider only the pleadings themselves?
   1. Motion to dismiss for lack of subject‑matter jurisdiction
   2. Motion for summary judgment
   3. Motion for judgment on the pleadings
   4. Motion for a new trial

Introduction

In federal civil litigation, many disputes never reach a full evidentiary trial. The Federal Rules of Civil Procedure provide several mechanisms for resolving cases, or narrowing the issues, when a trial is unnecessary or when the evidence does not permit a reasonable jury to find for one side.

The core tools are:

• Summary judgment (Rule 56), decided on the pretrial record
• Judgment as a matter of law (JMOL) and renewed JMOL (Rule 50), decided on the trial record
• Judgment on the pleadings (Rule 12(c)), decided on the pleadings alone
• The motion for a new trial (Rule 59), which can be paired with a renewed JMOL
• Relatedly, defaults and dismissals, which terminate the case without trial when a party fails to proceed

These devices allow judges to screen out legally or evidentially unsupported claims and defenses while preserving the jury’s role where factual disputes truly exist. On the MBE, many questions turn not only on the legal standard for each motion, but also on fine timing details (when the motion may be made), on what materials the court may consider, and on how the Seventh Amendment limits a judge’s ability to take an issue away from the jury.

Key Term: Summary Judgment
A pretrial motion under Rule 56 asking the court to decide a claim or defense because there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law.

Key Term: Genuine Dispute of Material Fact
A conflict in the evidence about a fact that could affect the outcome under the governing substantive law. If such a dispute exists, summary judgment and JMOL are improper.

Key Term: Partial Summary Judgment
A Rule 56 ruling that resolves only part of a case—such as liability but not damages, or specific issues or elements—or that designates certain facts as established, leaving the remaining issues for trial.

Key Term: Judgment as a Matter of Law (JMOL)
A Rule 50 motion during a jury trial, arguing that no reasonable jury would have a legally sufficient evidentiary basis to find for the opposing party on an issue, based on the evidence actually presented at trial.

Key Term: Legally Sufficient Evidentiary Basis
The minimum quantum and quality of evidence from which a reasonable jury could find for a party on an issue. JMOL is proper only when the nonmoving party lacks such a basis.

Key Term: Renewed JMOL
A post‑verdict motion under Rule 50(b), available only to a party who made a JMOL motion before the case went to the jury, asking the court to set aside the verdict and enter judgment in its favor.

Key Term: Motion for Judgment on the Pleadings
A Rule 12(c) motion made after the pleadings are closed, contending that, on the face of the pleadings alone, the moving party is entitled to judgment as a matter of law.

Key Term: Motion for New Trial
A post‑judgment motion under Rule 59 asking the court to order a new trial because of prejudicial error, a verdict against the weight of the evidence, misconduct, or seriously excessive or inadequate damages.

Key Term: Default Judgment
A judgment entered under Rule 55 against a party who fails to plead or otherwise defend within the time allowed; it resolves the case without reaching the merits at trial.

Key Term: Motion to Dismiss for Failure to State a Claim
A pre‑answer motion under Rule 12(b)(6) asserting that, even assuming all well‑pleaded facts are true, the complaint does not state a claim on which relief can be granted.

Key Term: Judgment on Partial Findings
In a nonjury trial, a judgment under Rule 52(c) entered after a party has been fully heard on an issue, when the court finds against that party on that issue and that finding is dispositive.

Key Term: Remittitur
A procedure in which the court offers the plaintiff the choice between accepting a reduced damages award and undergoing a new trial because the jury’s award is excessive.

Key Term: Additur
A procedure (not permitted in federal court) in which a court offers the defendant the choice between accepting an increased damages award and undergoing a new trial because the jury’s award is inadequate.

Key Term: Harmless Error
An error that does not affect a party’s substantial rights; it does not justify a new trial or reversal on appeal.

Key Term: Dismissal With Prejudice
A dismissal that operates as an adjudication on the merits; it ordinarily bars the plaintiff from bringing the same claim again.

Key Term: Dismissal Without Prejudice
A dismissal that does not resolve the merits and does not bar the plaintiff from bringing the same claim again, subject to limitations such as statutes of limitation.

Key Term: Final Judgment
A decision that resolves all claims against all parties in the action, leaving nothing for the court to do but execute the judgment; it is generally required for appeal.

Key Term: Relief from Judgment
Post‑judgment relief under Rule 60 from a final judgment or order based on grounds such as mistake, newly discovered evidence, fraud, or voidness.

Taken together, these motions and procedures form a continuum:

• Rule 12(b)(6) and 12(c) test the legal sufficiency of the pleadings.
• Summary judgment tests the evidentiary sufficiency of the case before trial.
• JMOL and renewed JMOL test the evidentiary sufficiency during and after trial.
• New‑trial motions address verdicts that are unfair or unreliable, even if evidentiary sufficiency is barely satisfied.
• Defaults and dismissals end the case because a party has failed to move it forward at all.
• Relief‑from‑judgment motions address exceptional situations where a final judgment should be set aside.

Understanding how these devices differ and how they interact is a core MBE skill. Many questions are really about placing a fact pattern at the correct point on this continuum, then choosing the device that fits that stage and record.

The continuum and the Seventh Amendment

The Seventh Amendment preserves the right to a jury trial in federal civil actions “at common law.” That right applies to legal claims (for money damages), not purely equitable claims (such as injunctions). Modern devices like summary judgment and JMOL are permitted only because, properly applied, they do not re‑weigh facts the jury could reasonably decide either way.

The key limitation is:

• If reasonable jurors could differ on a material factual issue, the judge must allow the jury to decide it, and dispositive motions like summary judgment and JMOL must be denied.

On MBE questions, this often appears indirectly. A fact pattern will describe a judge who thinks one side’s evidence is “much more credible” or who calls the other side’s proof “weak.” The correct response is frequently that, even if the judge is right, as long as some reasonable jury could accept the weaker side’s evidence, the judge cannot grant summary judgment or JMOL. This is sometimes described as the difference between a verdict that is “unsupported by any evidence” (JMOL appropriate) and a verdict that is merely “against the great weight of the evidence” (possible new trial, but not JMOL).

Because the Seventh Amendment also includes a Re‑examination Clause, appellate courts are limited in re‑examining facts tried by a jury. That is one reason why appellate review of JMOL (a legal question) is de novo, but review of new‑trial rulings (which go more directly to the jury’s factual work) is highly deferential.

Another Seventh Amendment detail: in diversity cases, the federal standard governs when a judge may take a case from the jury (for JMOL, renewed JMOL, and summary judgment), even though state substantive law governs the elements of the claim. This often appears when a question says “state law allows directed verdicts only in extreme cases” or similar language; the federal Rule 50 standard still controls in federal court, although a federal court may be required to apply a state standard when deciding whether a damages award is excessive or inadequate.

Adjudication without a trial and appellate review

Many of the motions in this continuum also have distinctive standards on appeal:

• Grants of summary judgment and JMOL are reviewed de novo (no deference to the trial judge’s view of the evidence).
• Grants or denials of new trials, or relief from judgment under Rule 60, are reviewed for abuse of discretion.
• Decisions to enter or set aside defaults and certain dismissals are also typically reviewed for abuse of discretion.

Recognizing the applicable standard of review is occasionally tested and can help eliminate distractor answers that imply the wrong level of appellate scrutiny. If an answer choice says an appellate court should defer to a trial judge’s legal interpretation of Rule 56, for example, that answer is almost certainly wrong.

In addition, MBE questions sometimes test whether a ruling is appealable at all. Most orders in this area—denials of summary judgment, denials of JMOL, grants of new trial—are interlocutory, not final, and therefore not immediately appealable. An appeal usually must await a final judgment disposing of all claims and parties, subject to limited exceptions for injunctions, certified interlocutory orders, and collateral orders.

With that framework in mind, the article now turns to the major devices individually, starting with summary judgment.

Summary Judgment (Rule 56)

Summary judgment allows the court to resolve a case, or part of a case, before trial if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.

Rule 56 is the main MBE vehicle for testing your ability to distinguish between:

• Cases that truly require a jury because factual disputes remain, and
• Cases that can be resolved on the law because the material facts are either undisputed or unsupported by evidence.

The exam often embeds the Rule 56 standard in slightly different wording (for example, asking whether “a reasonable jury could return a verdict for the nonmoving party”). Always translate back to the core definition: no genuine dispute of material fact plus entitlement to judgment as a matter of law.

Timing and scope of summary judgment

A party may move for summary judgment at any time until 30 days after the close of discovery, unless the court’s scheduling order sets an earlier deadline. The motion can target:

• An entire claim or defense, or
• A discrete issue (partial summary judgment)

Partial summary judgment can, for example, conclusively resolve liability while leaving only damages for trial, or establish certain facts as beyond genuine dispute.

On the MBE, pay close attention to the timing language:

• If discovery has just closed, a summary‑judgment motion is both timely and realistic.
• If a party files such a motion immediately after the answer is filed and before any discovery has occurred, the motion may technically be allowed, but the opponent may be able to defeat it by invoking Rule 56(d) (requesting time for discovery), as discussed below.

Also remember:

• The motion can be made by any party (plaintiff or defendant), on any claim, counterclaim, cross‑claim, or third‑party claim.
• The court can grant summary judgment for a nonmoving party, or on issues not raised by a party, but only after giving notice and a reasonable opportunity to respond.
• The court can also enter an order under Rule 56(g) designating certain facts as established for trial, even if it does not grant judgment on a claim. Those facts then cannot be re‑litigated at trial.

In many federal courts, a scheduling order under Rule 16 will set a specific deadline for filing Rule 56 motions. A motion filed after that court‑ordered deadline can be denied as untimely even though Rule 56’s outer limit (30 days after the close of discovery) has not yet run. On a bar exam question, if the only timing fact you are given is “after the close of discovery,” assume the motion is procedurally timely unless the question expressly mentions a missed scheduling‑order deadline.

Summary judgment and the structure of the case

A summary‑judgment motion can be framed in different ways:

• “No‑evidence” motion: The movant argues that, after adequate time for discovery, the nonmovant has no evidence on an essential element of its claim or defense.
• “Undisputed‑facts” motion: The movant accepts the nonmovant’s version of the facts (or relies on undisputed facts) and argues that, as a matter of law, those facts entitle the movant to judgment.

Either approach is proper, but they test different weaknesses: the first targets evidentiary gaps, the second targets legal insufficiency even on the opponent’s version of events.

On MBE questions, it is common to see a defendant who “points out” that the plaintiff has no evidence of causation or damages after discovery. That is precisely the Celotex‑type “no‑evidence” motion. Once the defendant meets that initial burden, the plaintiff must come forward with specific evidence creating a genuine dispute on that element; mere allegations in the pleadings no longer suffice.

Courts also sometimes see “hybrid” motions, combining both theories: for some elements the movant points to an absence of evidence; for others, it argues that the undisputed facts defeat the claim as a matter of law (for example, undisputed facts showing the claim is untimely). On the exam, you may be asked whether a composite motion like that is allowed. It is, as long as each argument still satisfies the Rule 56 structure: initial showing, then burden shift.

Exam Warning – Mislabelled motions

Occasionally a fact pattern will say a party moves for “summary judgment” very early, before any answer or discovery, and then describe the court considering only the complaint. Functionally, that is a Rule 12(b)(6) motion, even if counsel used the wrong label. The federal rules allow courts to treat a mislabeled motion according to its substance. On the MBE, the best answer in such a situation focuses on what the court is actually allowed to consider and what standard it should apply, not on the motion’s caption.

Exam Warning

On MBE facts, when you see an order “granting summary judgment as to liability only” or “deeming certain facts established for trial,” think partial summary judgment, not final judgment on the whole case.

A Rule 56 order that leaves some claim or some issue (often damages) for trial is not a final judgment for appeal purposes unless the court makes a special certification under Rule 54(b) (a partial final judgment). The MBE often expects you to distinguish:

• A true final judgment (all claims resolved for all parties), which is appealable as of right, from
• A partial summary‑judgment ruling, which ordinarily is not immediately appealable.

In a multi‑claim or multi‑party case, the exam may test whether an appeal is premature. If the court has granted summary judgment on one claim but others remain unresolved, no appeal lies absent Rule 54(b) certification.

The summary judgment record: what the court considers

The court considers the entire record, including:

• Depositions
• Documents and electronically stored information (ESI)
• Answers to interrogatories and requests for admission
• Affidavits or declarations made on personal knowledge
• Other materials in the record, such as prior sworn testimony or stipulations

Affidavits and declarations must:

• Be based on admissible facts (though the form need not yet be trial‑ready)
• Show personal knowledge
• Demonstrate that the witness is competent to testify on the matters stated

Unsigned, unsworn statements generally do not count, unless they qualify as unsworn declarations made under penalty of perjury under 28 U.S.C. § 1746. Pure argument by counsel is never evidence.

Two subtle evidentiary points matter on the MBE:

• Evidence that is currently inadmissible (e.g., hearsay in a deposition) can still be considered if it appears it can be presented in admissible form at trial (for example, by calling the declarant live or by fitting within a hearsay exception).
• Conversely, if the only proof of a key fact is clearly inadmissible and cannot be cured, the court must disregard it and may grant summary judgment.

Sometimes pleadings themselves can function as summary‑judgment evidence:

• A verified complaint (sworn under penalty of perjury and based on personal knowledge) can operate as an affidavit.
• Judicial admissions in pleadings—such as express admissions in an answer—are binding and remove facts from dispute.

But ordinary, unverified allegations in pleadings are not evidence at the summary‑judgment stage; they are superseded by the evidentiary record.

Rule 56 also expects the parties to pinpoint the evidence they rely on. A party must “cite to particular parts of materials in the record” to support or dispute a factual assertion. Many districts implement this through local rules requiring a separate “statement of undisputed material facts,” with each fact supported by a specific record citation and the nonmovant required to respond paragraph by paragraph. On the MBE, that level of procedural detail is usually not tested explicitly, but fact patterns may assume that factual statements not properly controverted are “deemed admitted.”

The court may not grant “summary judgment by default” simply because the nonmovant fails to respond. Even if unopposed, the court must determine that the moving party has met the Rule 56 standard on the existing record.

On the other hand, if the nonmovant fails to respond with admissible evidence, properly supported factual assertions in the movant’s statement of undisputed facts may be treated as admitted. Many MBE questions exploit this: the motion is technically “unopposed,” but the question asks whether the court may grant judgment. The correct answer turns on whether the movant’s own materials show entitlement to judgment, not on the mere failure to respond.

It is also important to remember that credibility assessments belong to the factfinder, not to the judge deciding Rule 56. A judge who believes that a witness is lying is still obligated to deny summary judgment if a reasonable jury could instead believe that witness.

Some courts use the “sham affidavit” doctrine: if a party submits an affidavit directly contradicting that party’s prior clear deposition testimony without explanation, the court may disregard the affidavit as a sham. This prevents parties from manufacturing a bogus factual dispute at the summary‑judgment stage.

How summary judgment differs from a 12(b)(6) motion

A motion to dismiss for failure to state a claim under Rule 12(b)(6):

• Looks only at the complaint (and documents incorporated by reference).
• Assumes all well‑pleaded factual allegations are true.
• Asks whether those allegations state a legally cognizable claim.

Summary judgment:

• Looks at evidence gathered in discovery, not just allegations.
• Does not assume disputed facts are true; instead, it evaluates whether the evidence, viewed favorably to the nonmovant, could convince a reasonable jury.
• Asks whether there is a genuine dispute over material facts requiring trial.

If you see depositions, affidavits, documentary exhibits, or interrogatories in the fact pattern, you are almost certainly dealing with summary judgment, not Rule 12(b)(6).

Also note: if, on a Rule 12(b)(6) motion, the court considers matters outside the pleadings (and does not exclude them), the motion is converted into one for summary judgment under Rule 56. The parties must then be given a reasonable opportunity to present summary‑judgment materials. The MBE often expects you to distinguish:

• A pure motion to dismiss (no outside materials considered), which stays under Rule 12(b)(6), from
• A converted motion, now subject to the Rule 56 standard and procedures.

A converted motion must satisfy all the Rule 56 safeguards, including notice and a chance for both sides to submit evidence. If the court considers outside materials but fails to give that opportunity, the ruling is vulnerable on appeal as a violation of procedural fairness.

Summary judgment vs judgment on the pleadings

Judgment on the pleadings under Rule 12(c) also tests legal sufficiency, but it is decided on the face of all the pleadings (complaint, answer, and any permitted reply), not on evidence. It can be brought by either side after the pleadings are closed. The standard is essentially the same as 12(b)(6): assuming the nonmovant’s well‑pleaded factual allegations are true, does the law entitle the movant to judgment? On the MBE, the timing phrase “after the pleadings are closed” plus the absence of evidence is a strong marker for a 12(c) motion, not summary judgment.

What is a “material” fact

A fact is material if it could affect the outcome of the case under the governing substantive law. For example:

• In a negligence action, facts about duty, breach, causation, and damages are material.
• In a statute‑of‑limitations defense, the date the claim accrued is material.
• In a defamation claim, whether the defendant’s statement was “of and concerning” the plaintiff is material.
• In a diversity case, citizenship facts and amount in controversy can be material to jurisdictional questions.

Disputes about immaterial facts (e.g., what color the plaintiff’s shirt was) do not bar summary judgment, even if the parties genuinely disagree.

On the MBE, many answer choices try to distract you with disputes over background facts that make no legal difference. Before deciding whether a dispute is “genuine,” ask first whether it is material.

What is a “genuine” dispute

A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A mere “scintilla” of evidence is not enough; nor are speculative or conclusory allegations in affidavits.

Examples of non‑genuine disputes:

• The nonmovant’s affidavit repeats the complaint’s allegations almost word‑for‑word, with no specific facts.
• The only “evidence” is inadmissible hearsay, with no indication that it can be presented in admissible form at trial.
• The nonmovant’s version of events is flatly contradicted by indisputable physical evidence (e.g., a clear video), and no reasonable jury could believe it.

But when there is conflicting admissible testimony on a material point, the dispute is usually genuine and must be resolved at trial. The judge may not choose which witnesses to believe.

The Supreme Court has emphasized that summary judgment is appropriate only when the record “could not lead a rational trier of fact to find for the non‑moving party.” The fact that the judge thinks the movant’s evidence is more persuasive does not matter at this stage.

Burdens on the parties

On summary judgment, the roles of the parties mirror their trial burdens, but with important procedural twists.

Movant’s initial burden

• If the movant would bear the burden of persuasion at trial (e.g., a plaintiff on her own claim, or a defendant asserting an affirmative defense), it typically must produce evidence that, if believed, would require a reasonable jury to find in its favor unless the opponent can produce contrary evidence. Merely pointing out weaknesses in the opponent’s case is not enough for such a movant.

• If the movant would not bear the burden at trial (e.g., a defendant on the plaintiff’s claim), it can either:

  • Produce evidence negating an essential element of the opponent’s case, or
  • Point out the absence of evidence on an essential element of the opponent’s case, after adequate opportunity for discovery.

This “pointing out the absence of evidence” approach comes from the Supreme Court’s decision in Celotex and is especially important on the MBE. A defendant can win summary judgment simply by showing that, after discovery, the plaintiff has produced no admissible evidence on a required element (for example, causation).

Nonmovant’s responsive burden

The nonmoving party must then respond with specific facts, supported by evidence, showing that a genuine dispute exists. It may not rest on the pleadings, even if those pleadings were sufficient to survive a motion to dismiss.

The nonmovant can:

• Cite to materials already in the record (depositions, documents, admissions), or
• File affidavits or declarations introducing new evidence.

Bare assertions that “we will produce evidence at trial” do not suffice. Rule 56 expects the nonmovant to “put up or shut up” at this stage.

The court must view the evidence in the light most favorable to the non‑moving party and draw all reasonable inferences in that party’s favor. The judge may not weigh the evidence or assess witness credibility; those are jury functions.

If, however, the nonmovant’s evidence is internally inconsistent, purely speculative, or directly contradicted by indisputable physical facts, the court may conclude that no reasonable jury could rely on it and grant summary judgment.

Exam Warning – Credibility at Summary Judgment

If the prompt says the judge “found the plaintiff’s witnesses unbelievable” at the summary‑judgment stage, that is an improper basis for granting the motion. Credibility determinations belong to the jury.

If a reasonable jury could find for the non‑moving party on a material fact, summary judgment must be denied. Conversely, if the nonmovant’s evidence is so thin that no reasonable jury could find for it on a necessary element, summary judgment should be granted.

Worked Example 1.1

A plaintiff sues a defendant for negligence in federal court. After discovery, the defendant moves for summary judgment, arguing that the plaintiff has no admissible evidence that the defendant’s conduct caused the injury. The plaintiff submits an affidavit from a witness who saw the incident.

Answer:
The court must deny summary judgment. Causation is a material element of negligence. The defendant, who does not bear the burden of persuasion at trial, initially points out an alleged absence of evidence on causation. The burden then shifts to the plaintiff to show a genuine dispute of material fact. The plaintiff responds with an affidavit from a percipient witness who saw the incident. Assuming the affidavit is properly supported (personal knowledge, specific observations, not merely conclusory), it is competent Rule 56 evidence. Viewing the record in the light most favorable to the plaintiff, a reasonable jury could credit that witness and find that the defendant’s conduct caused the injury. Because reasonable jurors could differ, there is a genuine dispute of material fact, and the Rule 56 standard is not satisfied. It does not matter that the defendant believes the witness is unreliable; the judge may not weigh credibility at this stage. Labels like “self‑serving” or “uncorroborated” do not strip a sworn, fact‑specific affidavit of its evidentiary force.

Contradictory evidence and summary judgment

Where both sides produce admissible evidence pointing in opposite directions, there is almost always a genuine dispute.

Consider a negligence suit by a tenant against a landlord. The tenant moves for summary judgment and submits:

• An affidavit from a tenant who previously warned the landlord about broken stairs
• An affidavit from a friend who saw the plaintiff fall
• A lease requiring the landlord to repair common areas

In opposition, the landlord submits an affidavit from a maintenance worker stating that the stairs were in good condition on the day of the accident.

A reasonable jury could credit the maintenance worker and find that the stairs were not dangerous. That possibility is enough to require denial of the tenant’s motion. The movant’s evidence being “stronger” or more plentiful is not enough; the standard is whether any reasonable jury could find the other way.

Worked Example 1.2

A tenant sues a landlord in federal court for negligence, alleging failure to repair common stairs. After the landlord answers, the tenant moves for summary judgment, supporting the motion with affidavits from another tenant (who previously complained about the stairs), a friend who witnessed the fall, and the written lease imposing repair duties on the landlord. The landlord opposes with an affidavit from a maintenance worker stating the stairs were in good condition the day of the accident.

Answer:
The court should deny summary judgment. The tenant’s evidence, if believed, could establish duty (lease), breach (failure to repair after notice), causation, and damages. But the landlord’s maintenance worker offers conflicting testimony: that the stairs were in good condition on the relevant date. That testimony is based on personal knowledge and is therefore competent evidence. Because there is conflicting admissible evidence on a material issue—whether the stairs were unreasonably dangerous—reasonable jurors could resolve the dispute in either party’s favor. On summary judgment, the court must draw all reasonable inferences in favor of the nonmovant (here, the landlord) and may not weigh which set of witnesses is more credible. As long as the landlord’s evidence is more than a mere scintilla, the existence of this conflict creates a genuine dispute of material fact. Therefore, the Rule 56 standard is not met, and the tenant’s motion must be denied. The number of affidavits does not matter; quality and admissibility do.

On the MBE, when both sides submit conflicting admissible evidence, assume that summary judgment is improper unless one side’s evidence is conclusively barred (for example, clearly inadmissible hearsay, or evidence conclusively disproved by undisputed documentary records).

Premature motions and Rule 56(d)

Sometimes a party moves for summary judgment before the opponent has had a fair opportunity for discovery. Rule 56(d) allows the nonmovant to show by affidavit or declaration that it cannot yet present essential facts and to request:

• A deferral of the motion
• Time to take specific discovery
• Any other appropriate relief, such as limiting the motion to issues that are already fully developed

The nonmovant must identify what facts it expects to discover and how those facts will create a genuine dispute. A vague assertion that “more discovery is needed” is usually not enough.

On the MBE, when a case is at an early stage and the nonmovant plausibly explains the need for discovery, a Rule 56(d)‑type response is often the best answer. If discovery has already closed, however, that response is no longer available; at that point the nonmovant must point to actual evidence, not just hoped‑for evidence.

Cross‑motions for summary judgment

The fact that both parties move for summary judgment does not mean that no factual dispute exists. The court must evaluate each motion separately under the Rule 56 standard.

• If, viewing the evidence in favor of the nonmovant on each motion, a reasonable jury could find for that nonmovant, both motions must be denied.
• Only if the undisputed facts, taken in the appropriate light, allow only one outcome can the court grant one of the motions.

Many MBE questions state that both parties have moved for summary judgment and then ask what the court must do. The safe approach is to ask whether either side has shown the absence of a genuine dispute of material fact; cross‑motions do not change the standard and do not automatically convert the case into one decided on stipulated facts.

Sua sponte summary judgment

A court may grant summary judgment even in the absence of a formal motion, as long as:

• The losing party is given notice and a reasonable opportunity to present Rule 56 materials, and
• The record shows that there is no genuine dispute of material fact and that the party is entitled to judgment as a matter of law.

For example, if the defendant moves for summary judgment and the court concludes that, on the undisputed facts, the plaintiff is actually entitled to judgment, the court may enter summary judgment for the plaintiff. But it must first put the parties on notice that it is considering that outcome and give the loser a chance to respond.

On the MBE, you will typically see a motion by one of the parties rather than a purely sua sponte ruling, but some answer choices rely on the mistaken view that a court can never grant summary judgment without a motion. That is not correct under Rule 56.

Relationship to other pretrial motions

Summary judgment differs from two other common pretrial motions:

• A Rule 12(b)(6) motion to dismiss for failure to state a claim asks whether the complaint, on its face, alleges a viable legal claim assuming all well‑pleaded facts are true. It tests the sufficiency of the pleadings, not the evidence.

• A Rule 12(c) motion for judgment on the pleadings (discussed below) comes after pleadings are closed and similarly tests the legal sufficiency of the pleadings, but for either side.

If either a 12(b)(6) or 12(c) motion presents matters outside the pleadings (e.g., affidavits, deposition excerpts), the court may treat the motion as one for summary judgment and must give the parties a reasonable opportunity to present Rule 56 materials. On the MBE, if the court considers affidavits or deposition excerpts with a Rule 12 motion, you should think “conversion to summary judgment.”

A converted motion must satisfy all the Rule 56 safeguards, including notice and a chance for both sides to submit evidence. If the court considers outside materials but fails to give that opportunity, the ruling is vulnerable on appeal as procedurally improper.

Appeals from summary judgment

On appeal, a grant of summary judgment is reviewed de novo. The appellate court applies the same Rule 56 standard, viewing the evidence in the light most favorable to the nonmovant. It does not defer to the trial court’s view of credibility or weight of the evidence.

A denial of summary judgment is usually not immediately appealable because it is not a final judgment. After a full trial and judgment, review of a denial of summary judgment is narrow: in many circumstances, the denial is effectively superseded by the trial record and becomes irrelevant. For MBE purposes, focus primarily on the rule that a grant of summary judgment is a final judgment, reviewable de novo, whereas a denial is ordinarily not immediately appealable.

Judgment as a Matter of Law (JMOL) – Rule 50(a)

Judgment as a matter of law is the trial‑stage analogue to summary judgment. It is available only in jury trials.

Historically, JMOL was called a “directed verdict.” Older cases and some bar questions still use that term. Renewed JMOL used to be called judgment notwithstanding the verdict (JNOV). On the exam, treat “directed verdict” as JMOL under Rule 50(a) and “JNOV” as renewed JMOL under Rule 50(b).

A party may move for JMOL any time before the case is submitted to the jury, but only after the opposing party has been “fully heard” on the issue. In practice:

• A defendant often moves at the close of the plaintiff’s case‑in‑chief.
• Either party may move again at the close of all the evidence.

The motion must specify the law and facts entitling the movant to judgment. General, unspecific motions (“we move for JMOL on all issues”) risk being too vague to preserve specific grounds for renewed JMOL or appeal.

The standard mirrors summary judgment:

• The court asks whether a reasonable jury would have a legally sufficient evidentiary basis to find for the non‑moving party on the issue.

If not, the court may:

• Resolve the issue against the nonmovant, and
• Grant judgment as a matter of law on any claim or defense that depends on that issue.

As with summary judgment, the judge must:

• View the evidence in the light most favorable to the nonmovant
• Draw all reasonable inferences in that party’s favor
• Not weigh credibility or choose between competing reasonable inferences

If the plaintiff’s proof is so weak that no reasonable juror could find the challenged element satisfied, JMOL is proper.

JMOL may be granted on:

• An entire claim or defense, or
• A single element that is dispositive of that claim or defense

Because JMOL removes issues from the jury, it directly implicates the Seventh Amendment. Federal courts apply a uniform federal standard, even in diversity cases, to determine when JMOL is appropriate.

On the MBE, be careful to distinguish:

• Failure to present any evidence on an element (JMOL almost certainly proper), from
• A situation where there is some evidence on each element but the overall verdict seems unwise (new trial, not JMOL).

If the question stem describes the evidence as “barely enough” or “thin,” the likely correct device is a new trial rather than JMOL.

When is a party “fully heard”

Rule 50(a) permits JMOL after a party has been “fully heard” on an issue. That typically means:

• After the party has rested its case‑in‑chief on that issue, or
• After the close of all evidence.

It does not require that the party call every possible witness or introduce every conceivable item of evidence. Once the party has had a fair opportunity to present its case on the element in question, it is “fully heard” for Rule 50 purposes.

A defendant who moves for JMOL at the close of the plaintiff’s case but then offers evidence after the motion is denied does not waive the motion. The court can treat the motion as renewed at the close of all the evidence. Nonetheless, prudent counsel often renews the motion explicitly at the close of all the evidence to remove any doubt and to preserve the issue for renewed JMOL.

Worked Example 1.3

A mayor sues a blogger for defamation in federal district court under diversity jurisdiction. The mayor’s entire case rests on her own testimony plus a properly authenticated copy of the allegedly defamatory publication. State law requires the plaintiff to prove falsity. At the close of the mayor’s case‑in‑chief, the blogger moves for JMOL, arguing that the mayor has offered no evidence that the statements were false. The judge agrees and grants JMOL for the blogger. The mayor appeals, claiming the wrong standard was used.

Answer:
The judgment should be affirmed. The correct standard for JMOL is whether a reasonable jury would have a legally sufficient evidentiary basis to find for the nonmoving party. Here, the nonmoving party is the mayor. To survive JMOL, she had to present some evidence from which a reasonable jury could find that the publication was false, as required by state substantive law. Her own testimony and the publication itself may show that the statements were about her and were damaging, but without testimony or other evidence addressing their falsity, the jury would have nothing but speculation on that element. Viewing the record in the mayor’s favor, there is simply no evidentiary basis on falsity. Under Rule 50(a), the court properly resolved that element against her and entered JMOL. On appeal, the court applies the same standard de novo and should conclude that the trial judge applied the correct legal test.

JMOL in practice

Suppose a mayor sues a blogger for defamation. At trial, the mayor testifies, introduces the allegedly defamatory publication, and rests. State substantive law requires the plaintiff to prove falsity. The defendant moves for JMOL, arguing that the mayor has not offered evidence that the statements were false.

If, viewing the record in the mayor’s favor, no reasonable jury could find falsity, the court must grant JMOL for the defendant. On appeal, the correct standard is whether a reasonable jury would have a legally sufficient evidentiary basis to find for the mayor, not whether the judge personally believed the evidence.

When analyzing bar questions, distinguish carefully between:

• Sufficiency of the evidence (JMOL standard: could any reasonable jury find for the nonmovant?), and
• Weight of the evidence (new‑trial standard: is the verdict against the great weight of the evidence?).

The former is about whether the case can go to the jury at all; the latter is about whether the jury went too far.

Procedural traps with JMOL

Common MBE traps include:

• A party that never moved for JMOL at trial but later seeks renewed JMOL after the verdict. That is improper; the prerequisite Rule 50(a) motion was never made.
• A party that moved for JMOL on a limited ground (e.g., lack of evidence of causation) but, after verdict, seeks renewed JMOL on a different ground (e.g., lack of duty). Renewed JMOL cannot be based on new grounds.
• A judge who grants JMOL even though the nonmovant presented some evidence on every element, simply because the judge believes the movant’s witnesses. That invades the jury’s role.

If an answer choice suggests that JMOL can be granted because the judge finds the nonmovant’s witnesses “not credible,” that answer is almost always wrong. Credibility disputes are for the jury unless the testimony is physically impossible or otherwise legally incredible.

Renewed JMOL (post‑verdict) – Rule 50(b)

Renewed JMOL (sometimes called “JNOV” in older cases) is a post‑verdict motion that allows the judge to revisit the sufficiency of the evidence after the jury has returned a verdict.

Key points:

• It is available only if the party made a Rule 50(a) JMOL motion before the case was submitted to the jury.
• It is limited to the grounds raised in the earlier JMOL. A party cannot use renewed JMOL to assert new sufficiency arguments that were not fairly raised in the original JMOL motion.
• It must be filed within 28 days after entry of judgment. The court may not extend this time. Federal Rule 6(b) expressly bars extension of this deadline.

If granted, the court sets aside the jury’s verdict and enters judgment for the movant.

Failure to move for JMOL before submission to the jury waives:

• The right to file a renewed JMOL, and
• Any sufficiency‑of‑the‑evidence challenge to the verdict on appeal

A party that omits a JMOL motion can still appeal on other grounds (e.g., erroneous evidentiary rulings, incorrect jury instructions), but cannot argue that the evidence was legally insufficient.

The renewed JMOL motion gives the trial judge a second chance to correct what she believes is a legally unsupported verdict without forcing the winning party to go through a new trial. It also gives the appellate court a more focused record for reviewing sufficiency issues, because the arguments were spelled out in the Rule 50 motions.

Worked Example 1.4

At the close of all evidence in a jury trial, the defendant moves for JMOL, arguing that the plaintiff failed to present evidence on a required element. The court denies the motion, and the jury returns a verdict for the plaintiff. Judgment is entered. Thirty days after entry of judgment, the defendant files a renewed JMOL motion.

Answer:
The renewed JMOL motion is untimely and must be denied. Rule 50(b) permits a renewed motion only if (1) the party made a proper Rule 50(a) motion before the case went to the jury, and (2) the renewed motion is filed no later than 28 days after entry of judgment. Here, the first requirement is satisfied: the defendant did move for JMOL at the close of all evidence. But the second requirement is not. The 28‑day limit in Rule 50(b), cross‑referenced in Rule 6(b), is rigid; the district court has no authority to extend it. A motion filed on day 30 comes too late, and the court cannot reach the merits even if the evidence was plainly insufficient. On the MBE, any reference to “30 days after judgment” for renewed JMOL should be a red flag that the motion is time‑barred.

Relationship between renewed JMOL and new trial

Parties frequently move for renewed JMOL and, in the alternative, for a new trial. If the court grants renewed JMOL, it must also state, conditionally, whether it would grant a new trial if the JMOL is later reversed on appeal. This conditional ruling allows the appellate court, if it reinstates the jury verdict, to immediately decide whether a new trial is warranted without remanding for further proceedings.

On the MBE, if you see a trial court granting renewed JMOL and staying silent on the new‑trial motion, that is incomplete; the court should make a conditional ruling on the new trial as well. A related trap: an answer choice that says the conditional ruling on the new‑trial motion is itself immediately appealable. It is not; it is conditional on what happens to the renewed JMOL.

Appellate review of JMOL and renewed JMOL

Both grants and denials of JMOL and renewed JMOL are reviewed de novo on appeal. The appellate court uses the same “legally sufficient evidentiary basis” test, viewing the evidence in the light most favorable to the nonmovant. It does not defer to the trial judge’s view of the facts.

By contrast, a trial court’s decision to grant or deny a new trial is reviewed for abuse of discretion. These different standards reflect the different nature of the motions: JMOL is about legal sufficiency; new trial is about fairness and reliability.

JMOL in bench trials

Rule 50 applies only in jury trials. In a nonjury (bench) trial, the judge may resolve issues mid‑trial under Rule 52(c), entering judgment on partial findings once a party has been fully heard.

Key Term: Judgment on Partial Findings
In a nonjury trial, a mid‑trial judgment under Rule 52(c) entered after a party has been fully heard on an issue and the court finds against that party on that issue, disposing of a claim or defense.

Unlike with JMOL, the judge in a bench trial:

• Acts as factfinder
• May weigh credibility and resolve factual disputes
• Must support the judgment with findings of fact and conclusions of law, either in writing or on the record

On the MBE, if the court is sitting without a jury and grants something akin to JMOL, the correct label is “judgment on partial findings,” not “JMOL.”

Also note: because the judge is factfinder, appellate review of factual findings after a bench trial is deferential. Findings of fact are reviewed for clear error, not de novo. Legal conclusions, however, are still reviewed de novo.

Motion for New Trial – Rule 59

A motion for a new trial does not immediately enter judgment for the moving party. Instead, it asks the court to start over with a new trial.

Grounds include:

• Serious errors during trial (e.g., prejudicial evidentiary rulings, improper jury instructions, erroneous admission or exclusion of key evidence)
• A verdict that is against the great weight of the evidence (not merely that reasonable minds could disagree)
• Juror misconduct (e.g., undisclosed bias, outside influence, consideration of extraneous information)
• Seriously excessive or inadequate damages
• Misconduct of counsel (e.g., inflammatory arguments or improper comments) that probably affected the verdict
• Newly discovered evidence that could not, with reasonable diligence, have been discovered in time to move for a new trial earlier

The motion must be filed within 28 days after entry of judgment. The court may grant a new trial on motion or, within the same time, on its own initiative.

The standard on appeal is deferential: the denial or grant of a new trial is reviewed for abuse of discretion. This is different from JMOL, which is reviewed de novo.

Renewed JMOL and a motion for a new trial are often made in the alternative. If the court grants renewed JMOL, it still should decide, conditionally, whether it would grant a new trial if the JMOL is later reversed.

Newly discovered evidence as a ground for a new trial

Newly discovered evidence justifying a new trial must usually satisfy several requirements:

• The evidence existed at the time of trial but was not discovered until afterward.
• The moving party exercised reasonable diligence to discover the evidence before or during trial.
• The evidence is not merely cumulative or solely for impeachment.
• The evidence is material and would probably produce a different result in a new trial.

Evidence that came into existence after the trial (for example, events that occurred later) does not qualify as “newly discovered” for Rule 59 purposes, though it might support relief from judgment under Rule 60(b) in rare cases.

Partial new trials

A court may grant a new trial limited to certain issues—for example, damages only—when the issues are reasonably separable from the rest of the case and can be tried without injustice. Commonly, a judge may uphold a liability verdict but order a new trial on damages if the amount is excessive or inadequate.

However, the Seventh Amendment’s Re‑examination Clause limits partial new trials in federal court. If liability and damages are tightly intertwined (for example, if the extent of injury bears directly on whether the defendant’s conduct was negligent), a new trial may need to cover both issues to avoid an inconsistent or unfair result.

Distinguishing JMOL from new trial

The choice between JMOL and a new trial often turns on how weak the evidence is perceived to be.

• JMOL: Proper when no reasonable jury could have a legally sufficient evidentiary basis to find for the nonmovant. It takes the case away from the jury entirely.

• New trial: Proper when the verdict is against the great weight of the evidence but some reasonable jury might still have reached that result. It leaves the issues with a new jury rather than substituting the judge’s view of the merits.

On the MBE, if the evidence is “thin but not nonexistent,” and the judge thinks the jury went too far, a new trial—not JMOL—is the appropriate remedy.

Answer choices sometimes conflate these standards by saying that JMOL is proper because the verdict is “against the weight of the evidence.” That is the wrong formulation; “against the weight of the evidence” is a new‑trial concept, not a JMOL concept.

Jury instructions and new trial

Errors in jury instructions are a classic basis for a new trial, but only if:

• The instruction misstated the law or omitted a required instruction, and
• The error likely affected the outcome (was not harmless).

To preserve an objection to an instruction, a party must typically object on the record and before the jury retires, stating the specific grounds. An unpreserved error is reviewable on appeal only under the demanding “plain error” standard, and such plain error is rare.

On the MBE, if no timely objection was made to a flawed instruction, a new trial is usually not available unless the error is egregious and outcome‑determinative.

Damages and remittitur/additur

When a jury’s damages award is shockingly high or low, courts use new trial and related devices:

• A court may grant a new trial unless the plaintiff accepts a lower amount. This is remittitur.

• A court may not, in federal court, increase the award unless the defendant accepts a higher amount. This is additur, and it violates the Seventh Amendment in federal court, although some state courts permit it.

Key Term: Remittitur
A procedure offering the plaintiff a choice between accepting a reduced damages award and undergoing a new trial, used when the jury’s award is excessive.

Key Term: Additur
A procedure (not available in federal court) offering the defendant a choice between accepting an increased award and undergoing a new trial, used when damages are inadequate.

On the MBE, if you see a federal trial court simply increasing the verdict without offering a new trial, or using additur, that is improper.

In diversity cases, a federal court deciding whether a damages award is excessive or inadequate may be required to apply the applicable state‑law standard for excessiveness, but the decision whether to grant a new trial is still reviewed on appeal for abuse of discretion.

Interaction with Rule 59(e) motions to alter or amend judgment

Rule 59(e) allows a party to move to alter or amend a judgment within 28 days. Grounds can include:

• A clear error of law or fact
• An intervening change in controlling law
• Newly discovered evidence (similar to the Rule 59 new‑trial standard)
• The need to prevent manifest injustice

Rule 59(e) motions are not a vehicle to simply reargue the case; they are reserved for narrow circumstances. On the MBE, they are mentioned less frequently than Rule 59 new‑trial motions, but be aware that both share the same unextendable 28‑day deadline and both suspend the time to appeal while pending.

Judgment on the Pleadings – Rule 12(c)

Judgment on the pleadings is another way to terminate a case without trial, based solely on the pleadings (complaint, answer, and any permitted replies).

• It may be made after the pleadings are closed but early enough not to delay trial.
• Either party may move: a plaintiff may move based on the defendant’s answer, or a defendant may move based on the complaint and its own answer.
• The court assumes all well‑pleaded factual allegations of the nonmoving party are true and asks whether, on those allegations, the moving party is entitled to judgment as a matter of law.

A typical Rule 12(c) motion argues that even taking the opponent’s allegations as true, those allegations do not state a claim or defense under the governing law.

For example:

• A defendant might argue that the plaintiff’s complaint and its own answer together show that the claim is time‑barred.
• A plaintiff might argue that the defendant’s answer admits all material elements of the claim and raises no legally valid defense.

If the court considers matters outside the pleadings (e.g., affidavits), Rule 12(c) expressly allows it to treat the motion as one for summary judgment under Rule 56, with appropriate notice and opportunity to present evidence.

On the MBE:

• If the question emphasizes only the pleadings and the stage is “after the pleadings are closed,” judgment on the pleadings is usually the correct device.
• If the question emphasizes evidence beyond the pleadings (affidavits, discovery responses), summary judgment is the likely correct answer.

Note also the timing detail: a motion labeled “12(b)(6)” filed after an answer has been served is ordinarily treated as a 12(c) motion, since 12(b) motions are “before pleading” motions. The standard is the same (legal sufficiency), but the rule number changes. That can matter if the question asks specifically which rule provision applies.

Worked Example 1.5

A plaintiff sues on a written contract. The defendant answers, admitting execution of the contract but asserting an affirmative defense of fraud in the inducement. After the pleadings are closed, the plaintiff moves for judgment on the pleadings, arguing that the answer does not allege any facts supporting the fraud defense.

Answer:
The court may treat this as a Rule 12(c) motion directed at the defendant’s affirmative defense. Taking the defendant’s factual allegations as true, the question is whether those allegations, if proven, would establish fraud in the inducement. If the answer merely recites “fraud” or “the plaintiff committed fraud” without any supporting factual detail—no misrepresentation, no reliance, no damages—then the defendant has not adequately pleaded the defense. The court could strike the defense or grant judgment on the pleadings as to that defense. But the 12(c) motion cannot eliminate the plaintiff’s claim unless, on the face of the pleadings, there is no viable defense at all. If the defendant later produces evidence of fraud during discovery, the proper vehicle to test that evidence would be summary judgment or trial, not 12(c). On the MBE, note the stage: “after pleadings are closed” is a strong signal for Rule 12(c). If the court considers affidavits submitted with the motion or opposition, it must convert the motion to one for summary judgment, and then the Rule 56 standard applies instead of the 12(c) standard.

Other devices: defaults and dismissals

Although the MBE groups “adjudication without trial” mainly around summary judgment and JMOL, two other mechanisms are worth knowing because they also resolve cases without a full trial.

Default judgment

When a party fails to plead or otherwise defend, the opposing party can obtain a default and, ultimately, a default judgment.

Key Term: Default Judgment
A judgment entered against a party who fails to plead or otherwise defend, resolving liability (and, if necessary, damages) without a trial on the merits.

Rule 55 contemplates a two‑step process:

• Step 1 – Entry of default. If a party fails to respond within the allotted time (usually 21 days after service of the summons and complaint, or 60 days after a waiver is mailed within the United States), the clerk must enter that party’s default when shown by affidavit or otherwise.

• Step 2 – Default judgment. After default is entered, the plaintiff may seek a default judgment:

  • The clerk can enter judgment for a sum certain or a sum that can be made certain by computation, if the defendant is not a minor or incompetent and has not appeared.
  • Otherwise, the court must enter default judgment, often after a hearing on damages.

Even on default, the court must satisfy itself that:

• It has subject‑matter and personal jurisdiction, and
• The complaint states a claim on which relief can be granted

A defaulting defendant is deemed to admit well‑pleaded factual allegations, but not legal conclusions. A defendant who has appeared (for example, by filing a motion to dismiss) is entitled to 7 days’ written notice of any default‑judgment hearing.

There is also an important limitation on the scope of default judgments:

Exam Warning – Scope of Default Judgment

Under Rule 54(c), a default judgment cannot award relief different in kind or greater in amount than what is demanded in the complaint. A plaintiff cannot use a default to obtain more than it originally asked for.

If the complaint requests $50,000 in damages and an injunction, a default judgment cannot award$500,000 or some new form of equitable relief not requested. By contrast, after a contested trial, the court is not limited by the ad damnum clause and may award whatever relief is appropriate to the claims proven.

Default also interacts with multiple defendants in a subtle way. If one defendant defaults but others contest liability, the court will usually delay entering final judgment against the defaulting defendant until the case is resolved as to the others, to avoid inconsistent judgments.

Setting aside default and default judgments: two distinct steps

• Setting aside the entry of default (Rule 55(c)) requires “good cause,” a relatively lenient standard. Courts consider factors such as:

  • Whether the default was willful
  • Whether the defendant has a meritorious defense
  • Whether setting aside the default would prejudice the plaintiff

• Setting aside a default judgment requires meeting one of the grounds in Rule 60(b) (e.g., mistake, excusable neglect, lack of jurisdiction) within the applicable time limits. This is a more demanding showing than “good cause.”

On the MBE, if the question mentions only that “default has been entered” but no judgment yet, assume the court has broader discretion to set it aside. If a default judgment has already been entered, the analysis must turn to Rule 60(b).

Also watch for personal‑jurisdiction problems. A default judgment entered without personal jurisdiction over the defendant is void and must be set aside under Rule 60(b)(4), even long after judgment.

Additionally, where damages are unliquidated, the court may need to hold an evidentiary hearing to determine the amount, and the defaulting defendant may be entitled to participate to contest damages (but not liability).

Dismissals

A case can also end before trial by dismissal:

• Voluntary dismissal (Rule 41(a))

  • The plaintiff may dismiss once without court order by filing a notice of dismissal before the defendant serves an answer or summary‑judgment motion, or by filing a stipulation of dismissal signed by all parties who have appeared.
  • Unless the notice states otherwise, a first voluntary dismissal is without prejudice.
  • A second voluntary dismissal based on or including the same claim usually operates as an adjudication on the merits (the “two‑dismissal” rule).

• Involuntary dismissal (Rule 41(b))

  • The court may dismiss for failure to prosecute, failure to comply with rules or court orders, or for certain jurisdictional defects.
  • Most involuntary dismissals operate as adjudications on the merits, except dismissals for lack of jurisdiction, improper venue, or failure to join a required party.

Key Term: Dismissal With Prejudice
A dismissal that operates as an adjudication on the merits, barring the plaintiff from relitigating the same claim.

Key Term: Dismissal Without Prejudice
A dismissal that does not reach the merits and allows the plaintiff to refile the claim, subject to statutes of limitation and other constraints.

Dismissals and defaults share with summary judgment and JMOL the feature that they terminate the case without a full trial, but they often do so for procedural rather than evidentiary reasons.

Typical MBE traps include:

• A plaintiff who files a notice of voluntary dismissal after the defendant has filed an answer. That notice has no automatic effect; court approval is required.
• A second voluntary dismissal of the same claim, which counts as a dismissal on the merits even if the notice says “without prejudice.”
• Confusing 41(b) dismissal for lack of prosecution (which is with prejudice) with dismissal for lack of jurisdiction (which is without prejudice).

If the court dismisses for lack of subject‑matter jurisdiction, the plaintiff is free to refile in a court that does have jurisdiction, assuming limitations periods and other constraints permit.

Worked Example 1.6

A plaintiff sues a defendant in federal court. The defendant is properly served but does not answer or otherwise respond. Sixty days later, the plaintiff moves for entry of default and default judgment. The complaint clearly fails to state a claim under the applicable substantive law. What should the court do?

Answer:
The clerk should enter the defendant’s default once the failure to respond is shown, but the judge should not enter a default judgment. Even when a defendant defaults, Rule 55 requires the court to assure itself that the complaint states a claim on which relief can be granted and that jurisdiction exists. A default admits well‑pleaded factual allegations, not legal conclusions; it does not convert a legally defective complaint into a valid claim. Because the complaint on its face fails to state a claim, the proper course is to deny default judgment and dismiss for failure to state a claim (under Rule 12(b)(6) or the court’s authority to manage its docket). On the MBE, remember that default is not a shortcut around Rule 12(b)(6); courts cannot award relief on a complaint that never stated a valid cause of action.

Relief from Judgment – Rule 60

Sometimes a final judgment must be undone for reasons that do not fit neatly into JMOL or new‑trial motions. Rule 60 provides limited post‑judgment relief.

Key Term: Relief from Judgment
Post‑judgment relief under Rule 60 from a final judgment or order based on grounds such as mistake, newly discovered evidence, fraud, voidness, satisfaction, or other extraordinary reasons.

Grounds include:

• Mistake, inadvertence, surprise, or excusable neglect
• Newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial
• Fraud, misrepresentation, or other misconduct by an opposing party
• A void judgment (e.g., lack of subject‑matter or personal jurisdiction, or denial of due process)
• Satisfaction, release, or discharge of the judgment
• Any other reason that justifies relief

Timing:

• Motions based on mistake, newly discovered evidence, or fraud must be filed within a reasonable time, and no more than one year after the judgment.
• Motions based on voidness or satisfaction must be filed within a reasonable time, but there is no fixed outer limit.

On the MBE, Rule 60 often appears in questions about setting aside default judgments or judgments entered without jurisdiction. Be careful to distinguish Rule 59 motions (filed within 28 days, typically used to challenge errors in the trial itself) from Rule 60 motions (often later, focusing on external problems like fraud or jurisdictional defects).

A key point: Rule 60(b)(4) (void judgment) is not limited by the one‑year cap. If a judgment is truly void—for instance, because the court lacked personal jurisdiction over the defendant—it can be set aside even years later, although the motion must still be brought within a “reasonable” time after the problem is discovered.

Rule 60 is not a substitute for appeal or for a timely motion for new trial or renewed JMOL. On bar questions, if a party is trying to use Rule 60 simply to relitigate issues that could have been raised earlier, the proper answer is usually that Rule 60 is unavailable.

Rule 60(a) separately allows courts to correct purely clerical errors (such as mis‑transcribed amounts) at any time. That provision does not permit substantive changes in the judgment; attempts to change the substance must proceed under Rule 59 or Rule 60(b) and are subject to those stricter time limits.

In truly exceptional cases, a party may also bring an independent action in equity to set aside a judgment for fraud on the court, but such relief is rare.

Comparing Summary Judgment and JMOL

Both summary judgment and JMOL test the sufficiency of the nonmovant’s case, not the judge’s personal view of credibility or which side is “more likely” right.

Key comparisons:

• Timing:

  • Summary judgment is pretrial, based on the discovery record and any undisputed facts.
  • JMOL is during trial, after a party has been fully heard on the issue, based on the trial record.

• Record considered:

  • Summary judgment considers discovery materials, affidavits, and admissions.
  • JMOL considers the evidence admitted at trial.

• Standard:

  • Summary judgment: no genuine dispute as to any material fact and movant is entitled to judgment as a matter of law.
  • JMOL: no reasonable jury would have a legally sufficient evidentiary basis to find for the nonmovant on the issue.

• Effect on jury trial:

  • Summary judgment determines that no jury is needed on particular issues or claims.
  • JMOL determines that the jury cannot reasonably reach a particular result on the evidence presented.

• Relationship to Seventh Amendment:

  • Both are constrained by the Seventh Amendment. If reasonable jurors could disagree on a material fact, the case must go to the jury (or remain with the jury), and these motions must be denied.

A useful way to think of the two:

• Summary judgment is about whether the nonmovant has enough evidence to get to a jury.
• JMOL is about whether the nonmovant’s evidence that was actually presented could support the jury’s verdict.

Worked Example 1.7

After discovery in a negligence case, both parties move for summary judgment on liability. Each side submits admissible evidence supporting its version of events. A reasonable jury could accept either version.

Answer:
The court must deny both motions. The fact that both parties seek summary judgment does not change the Rule 56 standard. For each motion, the court must view the evidence in the light most favorable to the nonmovant. When the defendant’s motion is considered, the court must credit the plaintiff’s version; when the plaintiff’s motion is considered, it must credit the defendant’s version. Because there is conflicting admissible evidence on a material issue—liability—and because a reasonable jury could find for either party, there is a genuine dispute of material fact. Summary judgment is inappropriate for both sides, and the dispute must be resolved at trial. On the MBE, “cross‑motions” are a classic trap: they do not imply the absence of factual disputes.

Worked Example 1.8

In a federal diversity jury trial, the plaintiff proves all elements of a negligence claim except damages; the only evidence of damages is the plaintiff’s own speculative testimony that she “might” need medical treatment in the future. The defendant moves for JMOL on damages at the close of all evidence.

Answer:
The court should grant JMOL in the defendant’s favor. Damages are an essential element of negligence; without proof of actual injury, there is no claim. The plaintiff’s testimony that she “might” need treatment is speculative and does not establish that she suffered any compensable harm. Viewing the trial record in the light most favorable to the plaintiff, no reasonable jury would have a legally sufficient evidentiary basis to find that the plaintiff suffered cognizable damages. Because the plaintiff has failed to present evidence on an essential element, the Rule 50(a) standard is met. Granting JMOL resolves the damages element—and thus the entire negligence claim—in the defendant’s favor. If, instead, the plaintiff had testified to experiencing documented pain and receiving some medical treatment, but the jury’s damages award seemed too high relative to that evidence, the proper tool would likely be remittitur/new trial, not JMOL.

Worked Example 1.9

In a federal jury trial, the plaintiff sues for fraud. The jury finds for the plaintiff and awards compensatory and punitive damages. The defendant made a timely JMOL motion at the close of all the evidence, which was denied. After judgment, the defendant files (1) a renewed JMOL motion arguing insufficiency of the evidence, and (2) a motion for a new trial arguing that the verdict is against the great weight of the evidence. The evidence was thin but not nonexistent. What should the court do?

Answer:
The court should deny renewed JMOL but may grant a new trial. Because the defendant moved under Rule 50(a) before the case went to the jury, renewed JMOL is procedurally available. But the standard is stringent: the court must find that no reasonable jury could have a legally sufficient evidentiary basis to find for the plaintiff. Here, there was at least some evidence on each element of fraud. A reasonable jury could, even if questionably, credit that evidence and find for the plaintiff. That defeats renewed JMOL. However, the judge may still conclude that the verdict is against the great weight of the evidence—meaning the jury’s conclusion is so contrary to the overall proof that a new trial is warranted. In that circumstance, Rule 59 permits the court to order a new trial in the interest of justice. On the MBE, “thin but nonzero” evidence points to new‑trial, not JMOL, relief.

Worked Example 1.10

A defendant moves for judgment on the pleadings under Rule 12(c). In support, she attaches an affidavit and several emails. The plaintiff responds by attaching deposition excerpts. The court considers all of these materials and then grants the motion, dismissing the case. The plaintiff appeals, arguing that the court used the wrong procedural device. Is the plaintiff correct?

Answer:
The plaintiff is partly correct, but the mislabeling is not fatal. Once the court considered matters outside the pleadings—affidavits, emails, deposition excerpts—the motion could no longer properly be treated as a pure Rule 12(c) motion. Rule 12(d) directs that when a Rule 12(c) motion relies on materials beyond the pleadings, the court must treat it as a motion for summary judgment under Rule 56 and give the parties a reasonable opportunity to present all material relevant to that rule. Here, the court effectively granted summary judgment, even though it called the disposition “judgment on the pleadings.” On appeal, the reviewing court will treat the ruling as one granting summary judgment and will apply the de novo Rule 56 standard. The error is one of form, not substance, unless the parties were denied a fair opportunity to present evidence. If the parties lacked that opportunity—for instance, if the judge ruled the same day the new materials were filed—the misstep could be reversible procedural error, requiring remand.

Exam Warning – JMOL Timing

If a party does not move for JMOL before the case is submitted to the jury, that party cannot later file a renewed JMOL motion after the verdict and also cannot challenge the sufficiency of the evidence on appeal. The right is waived.

Additional timing traps:

• Renewed JMOL and motions for a new trial must be filed within 28 days after entry of judgment; the court cannot extend this deadline.
• A motion for judgment on the pleadings is appropriate only after the pleadings are closed; using it too early or too late is improper.
• A notice of voluntary dismissal without court order is available only before the defendant serves an answer or summary‑judgment motion.

Revision Tip

For summary judgment, focus on whether the non‑moving party has pointed to admissible evidence showing a genuine dispute of material fact. For JMOL and renewed JMOL, focus on whether the evidence at trial would allow a reasonable jury to find for the non‑moving party on the challenged issue. For defaults and dismissals, ask whether the problem is procedural (failure to plead, failure to prosecute) or evidentiary (insufficient proof).

Key Point Checklist

This article has covered the following key knowledge points:

• Summary judgment is granted only if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law, based on the pretrial record.
• A “material” fact is one that could affect the outcome under the substantive law; disputes over immaterial facts do not defeat summary judgment.
• A dispute is “genuine” only if a reasonable jury could return a verdict for the nonmovant; conclusory, speculative, or clearly inadmissible evidence is insufficient.
• The moving party bears an initial burden on summary judgment; the nonmovant must respond with specific evidence and cannot rely on pleadings alone.
• Courts cannot grant “summary judgment by default”; even unopposed motions must satisfy the Rule 56 standard.
• Partial summary judgment can resolve particular issues or elements, or establish certain facts as undisputed, while leaving the rest of the case for trial.
• The court cannot weigh credibility or choose between competing reasonable inferences on summary judgment or JMOL; those are jury functions.
• JMOL under Rule 50(a) is available in jury trials during or at the close of evidence if no reasonable jury would have a legally sufficient evidentiary basis to find for the nonmovant.
• Renewed JMOL under Rule 50(b) is available only to a party that moved for JMOL before submission to the jury and must be filed within 28 days after entry of judgment; this deadline cannot be extended.
• Failure to move for JMOL before jury deliberations waives renewed JMOL and sufficiency‑of‑the‑evidence challenges on appeal.
• New‑trial motions under Rule 59 focus on prejudicial error, verdicts against the weight of the evidence, misconduct, newly discovered evidence, or extreme damages; they are reviewed for abuse of discretion.
• JMOL addresses legal insufficiency of the evidence; a new trial addresses verdicts that are unreasonable or unfair in light of the full record.
• Remittitur is available in federal court to reduce excessive damages (with the plaintiff’s consent); additur is not permitted in federal court because it violates the Seventh Amendment.
• Judgment on the pleadings under Rule 12(c) is decided on the pleadings alone and is converted to summary judgment if matters outside the pleadings are considered.
• Default judgments and dismissals are additional mechanisms that resolve cases without a full trial when a party fails to plead, defend, or prosecute.
• Even on default, the court must ensure it has jurisdiction and that the complaint states a claim on which relief can be granted; default is not a substitute for a valid cause of action.
• Voluntary dismissals are generally without prejudice the first time, but the two‑dismissal rule turns a second voluntary dismissal into an adjudication on the merits.
• Most involuntary dismissals (for failure to prosecute or obey rules) operate as dismissals with prejudice, but dismissals for lack of jurisdiction, improper venue, or failure to join a required party do not.
• Relief from judgment under Rule 60 is available on limited grounds such as mistake, newly discovered evidence, fraud, or voidness, subject to strict time limits.
• Summary judgment, JMOL, renewed JMOL, and new‑trial motions all operate against the Seventh Amendment jury‑trial right; courts may not invade the jury’s role unless the applicable standard is satisfied.
• Grants of summary judgment and JMOL are reviewed de novo on appeal; grants or denials of new trials and Rule 60 relief are reviewed for abuse of discretion.
• Default judgments and relief from default are governed by different standards: “good cause” for setting aside an entry of default, and Rule 60(b) grounds for setting aside a default judgment.

Key Terms and Concepts

• Summary Judgment
• Genuine Dispute of Material Fact
• Partial Summary Judgment
• Judgment as a Matter of Law (JMOL)
• Legally Sufficient Evidentiary Basis
• Renewed JMOL
• Motion for Judgment on the Pleadings
• Motion for New Trial
• Default Judgment
• Motion to Dismiss for Failure to State a Claim
• Judgment on Partial Findings
• Remittitur
• Additur
• Harmless Error
• Dismissal With Prejudice
• Dismissal Without Prejudice
• Final Judgment
• Relief from Judgment