Adjucdication Without Trial Flashcards
Basic Idea
Several ways a case can be resolved without going to trial.
Also issues of provisional and premliminary relief.
Preliminary INjunctive Relief basic idea
A court order that the D either do something or refrain from doing something.
TROs and Prelim Injunctions
TRO
A type of prelim injunctive relief.
Maintains status quo until the hearing on the preliminary injunction.
May be issued “ex parte” (without notice) only if:
1) Applicant files paper under oath clearly showing that if the TRO is not issued, she will suffer immediate and irreperable harm in waiting for hearing.
2) Applicant’s lawyer certifies in writing her efforts to give oral or written notice to the D/D’s lawyers or why such notice shouldn’t be required.
If issued, applicant must post bond.
If ordered, must be served on D ASAP.
Court’s decision not immediately appealable.
Contents of TRO
1) State terms specifically and describe in detail what the D must/musn’t do.
2) state why it was issued
3) State why the threatened injury to P was irreperable
Duration of TRO
Effective no more than 14 days. Opposing party may move to shorten it.
Can be extended another 14 days (28 total). Pas that it is treated as a preim injunction.
Prelimin Injunction and requirements
Ordered through hearing. Maintains status quo until trial. No ex parte issuance.
Burden on applicant to show:
1) Irreperable harm
2) Will likeley win on the merits of the case
3) Balance of hardship favors her; and
4) Public interest
Other requirements:
1) Post bond
2) State terms in specificity, describe detail, what and why
3) In granting or denying, court must make specific findings of fact and seperate conclusions of law
May be appealed.
Voluntary Dismissal Without court permission
P can dismiss case without court order
1) before the D serves an answer or motion for summary judgment; OR
2) If parties stipulated to a voliuntary dismissal w/o court order (such as settlement)
Voluntary Dismissal WITH court permission
After D serves answer or motion for summ judg, court permission is required absent a stipulation.
P makes a motion, court has discretion.
Dismissal “without prejudice”
First voluntary dismissal is without prejudice, meaning P fan refile the case.
Second is with prejudice.
Default and Default Judmgnet
Might occur when the D does not respond to the complaint in time (21 days after being served)
Entry of Default and effect
Done by court clerk.
P must move for it and demonstrate D hasn’t responded. (D can respond even after 21 days. It’s up to D when to move for it).
Cuts off D’s right to respond, but doesn’t automatically entitle P to relief. P must seek default judgment.
How to get a default judgment
Clerk of court can enter a DJ if:
1) D has made no response at all
2) The claim is for a sum certain in money
3) P gives an affadavit of the sum owed; AND
4) D is not a minor or incompetent
If any of these isn’t true, P must apply to the court/judge for it (hearing).
Hearing for Default Judement
Judge has discretion.
D is entitled to notice of the hearing IF she has appeared in the case.
Recovery is limited to what was pled in the complaint.
Motions to set aside default or DJ.
D may move by showing
1) Good cause (like excusable negelect); AND
2) A viable defense.
Motion to dismiss for failure to state a claim (Rule 12b6).
Tests whether case should be in the litigation stream.
Judge considers ONLY the P’s allegations of FACT on their face and asks, “if these facts are true, do they state a plausible claim?”
If no, 12b6 dismissal.
Court has discretion to allow P to amend the complaint to try and state a claim.
