4. Adjudicating the Dispute

Question 1

What is preliminary injunctive relief?

Answer 1

A court order that D either

(1) do something or

(2) refrain from doing
something.

Question 2

Whenever a court does something without giving notice to the other party, it may be called:

Answer 2

Ex Parte

Question 3

Ex parte TRO is proper only if:

Answer 3

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 the other side is heard
2. Applicant’s lawyer certifies in writing his efforts to give oral or written notice to D or D’s lawyer (or why such notice should not be required under the
   circumstances) .

Question 4

Before getting a preliminary injunction, to maintain the status quo until the hearing on the preliminary injunction, you may seek:

Answer 4

Temporary Restraining Order (TRO)

Question 5

What must the applicant do if a court orders a TRO?

Answer 5

Post a bond (security) to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.

Question 6

If the court issues the TRO, what can D do?

Answer 6

He can move to dissolve or modify the TRO

Question 7

How long is a TRO effective for?

Answer 7

A TRO is effective for no more that 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 TRO cannot extend beyond 28 days.

Question 8

Preliminary Injunction

Answer 8

Maintains status quo until the court can adjudicate the underlying claim on the merits.

Question 9

Can a preliminary injunction be granted ex parte?

Answer 9

Never

Question 10

When applying for a preliminary injunction, the burden is on the applicant to show:

Answer 10

(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 11

Is there ever a right to an injunction?

Answer 11

No, it is always discretionary

Question 12

What must a preliminary injunction include?

Answer 12

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

Question 13

Is an order granting or denying a preliminary injunction immediately appealable?

Answer 13

Yes

Question 14

When can P make a voluntary dismissal?

Answer 14

P can make a motion for voluntary dismissal anytime.

Question 15

P has a right to take a voluntary dismissal by filing a “notice of dismissal.” But she must
do so before:

Answer 15

The D serves an answer or motion for summary judgment

Question 16

If P files a timely notice of dismissal, the case is dismissed “without prejudice.” What does that mean?

Answer 16

P can refile the case

Question 17

What if P files a notice of dismissal in the second case?

Answer 17

That dismissal is “with prejudice.”

Question 18

Default

Answer 18

D does not respond to the complaint in time (21 days after being served with process; 60 days from mailing of waiver if you waived service).

Question 19

Does the court enter default automatically on the 22nd day after service of process on
D?

Answer 19

No, the P must move for a default

Question 20

What is the effect of entry of default?

Answer 20

It cuts off D’s right to respond

Question 21

Entry of default does not entitle P to recover. What does P need to do before she can recover from D?

Answer 21

She must get a default judgment

Question 22

The clerk of court can enter judgment if:

Answer 22

1. D made no response at all;
2. The claim itself if for a sum certain in money;
3. Claimant gives an affidavit (sworn statement) of the sum owed; AND
4. D is not a minor or incompetent.

Question 23

Does D get notice of a hearing for default judgment?

Answer 23

Only if he has appeared in the case

Question 24

P sues D for $100,000. What is the most she can recover on a default judgment?

Answer 24

$100,000 - You cannot get more than you pleaded.

Question 25

P sues D for damages and not an injunction. On default judgment, can the court enter an injunction?

Answer 25

No, you cannot get a different kind of relief

Question 26

Motions to set aside

Answer 26

D may move to have the court set aside a default or default judgment by showing:

1. Good cause (like excusable neglect) and
2. A viable defense

Question 27

Motion to Dismiss for Failure to State a Claim

Answer 27

This is about whether

the case belongs in the litigation stream at all. If P’s complaint fails to state a claim, the case can be dismissed.

Question 28

In ruling on a motion to dismiss for failure to state a claim, the court ignores P’s legal conclusions. It looks only at P’s allegations of fact in the complaint and asks:

Answer 28

if these facts were true, would P win a judgment

Question 29

Motion for Summary Judgment

Answer 29

Here, P stated a claim, so we’re in the litigation stream. But we might not need a trial. Summary judgment weeds out cases in which we don’t need trial.

Question 30

Party moving for summary judgment must show:

Answer 30

1. There is no genuine dispute on a material fact and

2. That she is entitled to judgment as a matter of law.

Question 31

When may a party move for summary judgment?

Answer 31

No later than 30 days of close of discovery.

Question 32

Pretrial Conferences

Answer 32

The court may hold “pretrial conferences” to process the case and
foster settlement.

Question 33

What is a motion in limine?

Answer 33

A pretrial motion to decide whether the jury should hear certain evidence.

Question 34

What preserves a defendants’ right to jury in “civil actions at law?”

Answer 34

Seventh Amendment preserves the right to jury in “civil actions at law,” but not in suits at equity.

Question 35

What if a case involves both law and equity?

Suppose a case involves a claim for damages (legal relief) and for an injunction (equitable relief).

Answer 35

The jury decides the facts underlying the damages claim, but not the equity claim.

Question 36

Does the Seventh Amendment apply in state court?

Answer 36

No

Question 37

When must a D request a jury trial?

Answer 37

Must demand the jury in writing no later than 14 days after service of the last pleading raising jury triable issue. If you don’t, you waive the right to a jury.

Question 38

There are two kinds of challenges to jurors:

Answer 38

1. “For cause” – e.g., potential juror will not be impartial.
2. “Peremptory” – historically, one did not need to state a reason – you just
   dismiss the potential juror.

Question 39

How many motions to strike “for cause” can a party make?

Answer 39

There is no limit

Question 40

Is there a limit on the number of these strikes?

Answer 40

Three per side

Question 41

How many jurors are on a civil jury in federal court?

Answer 41

A minimum 6 and a maximum of 12

Question 42

Six jurors are empaneled and one is excused for good cause because of health problems. Can the remaining five return a verdict?

Answer 42

No, we must have at least 6 unless the parties agree otherwise

Question 43

What jury vote is required for a verdict?

Answer 43

Unanimous, unless the parties agree otherwise.

Question 44

If a party did not object timely, a court can consider a jury instruction if it contained:

Answer 44

Plain error that affects substantial rights

Question 45

If the jury returns a general verdict, who enters the judgment?

Answer 45

The clerk of court

Question 46

Motion for judgment as a matter of law (JMOL)

Answer 46

If the judge grants JMOL, the case will not go to the jury – the judge simply rules for a side.

Question 47

When can a party move for JMOL?

Answer 47

After the other side has been heard at trial

Question 48

When do you move for RJMOL?

Answer 48

Within 28 days after entry of judgment.

Question 49

What is an absolute prerequisite to bringing RJMOL?

Answer 49

You must have moved for a JMOL at a proper time at trial

Question 50

Remittitur

Answer 50

This gives P a choice: take a lesser amount (which the court sets) or go through new trial.

Question 51

Additur

Answer 51

This gives D a choice: pay a greater amount in damages (which the court sets) or go through new trial.

Question 52

Is additur OK in state and federal court?

Answer 52

It is unconstitutional in federal court, but it is OK in state court.