4. Adjudicating the Dispute

Question 1

What is the basic idea behind preliminary injunctive relief?

Answer 1

Plaintiff is planning to or has filed suit and is worried that before the case goes to trial defendant may do or fail to do something that will prejudice plaintiff’s case. So plaintiff wants injunctive relief where a court will either order the defendant to (1) do something or (2) refrain from doing something. But court is nervous because the merits of the underlying dispute hasn’t been decided.

Question 2

Temporary Restraining Order (TRO)

Answer 2

Ex parte TRO (comes before preliminary injunction) is proper only if:
1. applicant files a paper under oath clearly showing that if the TRO is not issued, he will suffer immediate and irreparable harm if he must wait until other party is heard
AND
2. applicant’s lawyer certifies in writing his efforts to give oral or written notice to defendant or defendant’s lawyer (or why such notice should not be required under the circumstances)

Note: applicant must post a bond (security) to cover the other side’s costs and damages caused if it turns out the restraint is wrongful

Question 3

What must be stated in the TRO?

Answer 3

The TRO must state its terms in specificity, describe in detail what defendant must do or refrain from doing, and state why it was issued, and why the threatened injury to plaintiff was irreparable.

Question 4

When must the TRO be served and what can defendant do?

Answer 4

After the court issues the TRO, it must be served on the defendant as soon as possible. Defendant can move to dissolve or modify the TRO.

Question 5

How long is a TRO effective?

Answer 5

TRO is effective for no more than 14 days (or lesser time stated by court). If applicant shows good cause before expiration, it can be extended for up to another 14 days. So a TRP cannot extend beyond 28 days.

Question 6

Preliminary Injunction

Answer 6

A preliminary injunction is a discretionary act that maintains the status quo until the court can adjudicate the underlying claim on the merits and can never be granted ex parte.

The burden is on the applicant to show:

1. he is likely to suffer irreparable harm if the injunction is not issued;
2. he is likely to win on the merits of the underlying case;
3. the balance of hardship favors him (threatened harm to applicant outweighs harm to other party if the injunction is issued); and
4. the injunction is in the public interest

Question 7

What must be included in a preliminary injunction?

Answer 7

The preliminary injunction must state its terms in specificity, describe in detail what the defendant must do or refrain from doing and state why it is issued.

Question 8

What happens when the court grants a preliminary injunction?

Answer 8

If a court grants the preliminary injunction the applicant must post a bond. The court may consolidate the hearing on the motion for preliminary injunction with trial on the underlying case. It may advance trial on the calendar to do so. In granting or denying the preliminary injunction, the court must make specific finding of fact and separate conclusions of law.

NOTE: an order granting or denying a preliminary injunction is immediately appealable.

Question 9

Voluntary Dismissal

Answer 9

Before defendant serves an answer or motion for summary judgment, plaintiff has a right to withdraw the case and take a voluntary dismissal by filing a notion of dismissal.

The case will be dismissed without prejudice so plaintiff will be able to refile the case but only ONCE.

Question 10

Default

Answer 10

If the defendant does not respond to the complaint in time (21 days after being served w/process; 60 days from mailing of waiver if you waived service) plaintiff can move for a default which is a notation by the court clerk n the docket of he case.

Question 11

What must plaintiff show for entry of a default and what is the effect?

Answer 11

Plaintiff must demonstrate that defendant failed to respond in time. Until default is entered, defendant can respond by motion or answer (even beyond 21 days).

It cuts off defendant’s right to respond. However it does not entitle plaintiff to recover. That requires a default judgment.

Question 12

Default Judgment

Answer 12

The clerk of court can enter judgment if:

(i) defendant made no response at all;
(ii) the claim itself is for a sum certain in money (liquidated);
(iii) claimant gives an affidavit (sworn statement) of the sum owed; AND
(iv) defendant is not a minor or incompetent

NOTE: If all of these aren’t true then the court will hold a hearing and has discretion to enter judgment. Defendant gets notice only f he has appeared in the case

Question 13

What are the limitations on recovery when a default judgment is entered?

Answer 13

A plaintiff can’t get more than you pleaded on a default judgment, Plaintiff cannot get a different kind of relief on default.

NOTE: If case goes to trial, plaintiff can recover more (and a different kind of relief) than she put in the complaint.

Question 14

Motion to Set Aside

Answer 14

Defendant may move to have the court set aside a default or default judgment by showing;

(i) good cause (like excusable neglect)
(ii) a viable defense

Question 15

Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6))

Answer 15

If plaintiff’s complaint fails to state a claim, the case can be dismissed. In ruling on this motion, the court ignores plaintiff’s legal conclusions and only looks at plaintiff’s allegation of fact (face of the complaint) in the complaint and asks if these facts were true would plaintiff win a judgment. If not, then court might allow plaintiff to amend.

NOTE: the facts alleged must support a plausible claim

NOTE: the defendant can make the same motion after he has answered and it would be called “motion for judgment on the pleadings”

Question 16

Motion for Summary Judgment (FRCP 56)

Answer 16

Party moving for summary judgment must show:

(1) there is no genuine dispute on a material fact and
(2) she is entitled to judgment as a matter of law

Question 17

Must the court enter summary judgment if all the requirements are met?

Answer 17

No, the decision is always discretional

Question 18

When is the deadline for moving to summary judgment?

Answer 18

Any party can move for SJ no later than 30 days of close of discovery

Question 19

Can the motion be for “partial” judgment?

Answer 19

Yes

Question 20

Can a court look at evidence for Summary Judgment?

burden/type of evidence

Answer 20

Yes, and it usually does (unlike 12(b)(6)) and weighs the evidence (first hand knowledge and under oath) in the light most favorable to the nonmoving party?

Evidence: affidavits, declarations, deposition testimony, interrogatory answer

REMEMBER: pleadings are not evidence

Question 21

What happens if D did not deny an allegation by P?

re: summary judgment

Answer 21

If D failed to deny an allegation by P, it can be treated as fact on summary judgment. So although pleading are not evidence, they are still relevant.

Question 22

Rule 26(f) Conference

Answer 22

Unless the court says otherwise, at lease 21 days before scheduling conference, parties “meet and confer.” They discuss production of required (i) initial disclosures, (ii) claims, (iii) defenses, (iv) settlements, and (v) issue about preservation of discoverable information.

Discovery Plan: in addition they must present to the court a detailed discovery plan including views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problem retrieving it.

Question 23

Scheduling Order
(litigation roadmap)

Answer 23

Unless local rule or court says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, completion of discovery, etc.

Question 24

Pretrial Conferences

Answer 24

Court may hold pretrial conferences to process the case and foster settlement. They will determine the issues to be tried, evidence to be proffered, and witnesses to be examined at trial which is recorded in the pretrial conference order. This is significant because it supersedes the pleading and makes sure there are no surprises at trial.

Question 25

Motion in Limine

Answer 25

Pretrial motion to decide whether the jury should hear certain evidence

Question 26

What is the right to jury trial in federal court?

Answer 26

7th Amendment preserves the right to jury in civil actions at law but not in suits at equity. If a case has both, first the jury decides the facts underlying the claim for legal relief (damages) and the court will determine equity claim

Question 27

Does the 7th Amendment apply in state court?

Answer 27

No, it is not incorporated.

Question 28

What is the process for demanding a jury trial?

Answer 28

Party must demand the jury in writing no later that 14 days after service of the last pleading raising jury triable issue. If party doesn’t demand it, he waives the right to a jury.

Question 29

How is the jury selected and what is the composition?

Answer 29

Selection: In jury selection process (voir dire) each side may asks questions to strike potential jurors based on for cause and peremptory (must be race and gender neutral) challenges. There are three peremptories per side.

Composition: There are 6-12 jurors and generally all participate in the verdict unless excused for good cause but there must be at least six jurors unless parties agree otherwise. Verdict must be unanimous unless parties agree otherwise.

Question 30

Jury Instructions
(process)

Answer 30

Parties submit proposed jury instructions to the judge at the close of evidence and before final argument and instruction the court decides which instructions will be given/rejected. Parties must bring objections before final argument and instruction. If not brought before jury is charged then it cannot be waived on appeal UNLESS instruction constituted plain error that effects substantial right

Question 31

Types of Verdicts (three)

Answer 31

GENERAL: determines who wins, and if P, what relief. clerk of court enters judgment
SPECIAL: jury answers questions about disputed facts and judge reaches the legal conclusion based on facts found. The judge approves judgment and clerk enters it.
GENERAL verdict with SPECIAL INTERROGATORIES: general verdict and answers to specific questions to ensure that jury considered the important issues. The judge approves judgment and clerk enters it.

Note: On verdicts, other than general, the court can then instruct the jury to reconsider its answers or, if reconsideration won’t fix the problems, it can order a new trial

Question 32

Jury Misconduct

what is it, consequence, and who can talk about it

Answer 32

A court can set aside “impeach” the verdict and order a new trial based upon external matters, i.e., bribes, verdict based on outside investigation.

Non-jurors may give first-hand evidence of such things but a juror cannot testify about things occurring or statements made during jury deliberations except to show extraneous prejudicial information or outside influence.

Note: verdict will not be set aside if misconduct was harmless (juror chatted for moment with P)

Question 33

Nonjury (“Bench”) Trial

Answer 33

Where the 7th A doesn’t apply or parties have waived jury trial, the judge is the trier of fact and must:

(i) state her findings of fact on the record or in writing,
(ii) record her conclusion of law in a separate document and
(iii) enter the judgment (very short–who won and what, if any, relief)

Question 34

Motion for Judgment as a Matter of Law (JMOL)

formerly known as “direct verdict”

Answer 34

Motion made during jury trial based upon evidence presented at trial, viewed in light most favorable to the non-moving party, asking judge to rule for the moving party because reasonable people could not disagree on the outcome. Party can move for JMOL after the other side has be heard
(like SJ but during trial)

Question 35

Renewed Motion for Judgment as a Matter of Law (RJMOL)

Answer 35

Motion made after JMOL was denied and case went to jury who returned verdict against the moving party. Motion is proper if jury reached conclusion that reasonable people would not have. Court views evidence in light most favorable to the nonmoving party and if granted enters judgment for moving party.

Must be moved for within 28 days after entry of judgment and party MUST have moved for JMOL at the proper time at trial
(like SJ and JMOL but after trial)

Question 36

Motion for New Trial

Answer 36

Party moves within 28 days after judgment and judge grants upon belief that new trial is warranted based on any (non-harmless) error:

(i) erroneous jury instruction
(ii) new evidence that couldn’t have been found previously with due diligence
(iii) juror/lawyer/party misconduct
(iv) judgment against weight of evidence
(v) inadequate or excessive damages (shocks the conscience)

Note: less drastic than RJMOL

Question 37

Remittur and Additur

Answer 37

Alternative to new trial based on argument that jury’s damages figure is excessive or inadequate:
REMITTUR (hardball with P): court suggests a lesser amount or sets new trial, but it’s P’s choice
ADDITUR (hardball with D): court suggests a higher amount or sets a new trial.

Note: Additur is violative of 7th A and unconstitutional in federal court

Question 38

Motion for Relief from Order or Judgment

Answer 38

GROUNDS (TIMING)

1. clerical error (anytime)
2. mistake, excusable neglect (reasonable