Adjudicating the Dispute Flashcards
Preliminary Injunctive Relief
An order that maintains the status quo until trial is a preliminary injunction (orders a party to either do something or refrain from doing something). Before getting a preliminary injunction, a party may seek a TRO
Temporary Restraining Order
A court can issue a TRO ex parte 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 the other side is heard, AND
2) Applicant’s lawyer certifies in writing his efforts to give oral or written notice to D or D’s lawer
If court issues the TRO, applicant must post a bond to cover the other side’s costs and damages cause if it turns out the restraint is wrongful.
What must a TRO state?
Must state its terms in specificity, describe in detail what D must do or refrain from doing and state why it was issued, and why the threatened injury to P was irreparable.
How long is a TRO effective for?
No more than 14 days (or lesser time stated by the court). If applicant shows good cause before expiration, it can be extended for up to another 14 days. CANNOT be extended beyond 28 days.
Ex Parte
Whenever a court does something without giving notice to the other party
Preliminary Injunction
CANNOT be granted ex parte. Burden in on 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
What must a preliminary injunction state?
Must state its terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issued.
Is an order granting or denying a preliminary injunction immediately appealable?
Yes, even though not final judgment
Pretrial Adjudication
1) Voluntary Dismissal
2) Default and Default Judgment
3) Motion to Dismiss for Failure to State a Claim
4) Motion for Summary Judgment
Voluntary Dismissal
If P wants to withdraw the case, P can make a motion for voluntary dismissal:
1) P has a right to take a voluntary dismissal by filing a “notice of dismissal.” But P must do so before the D serves an answer or MSJ
2) If P files a timely notice of dismissal, the case is dismissed “without prejudice”
3) If P files a notice of dismissal in the second case, the dismissal is “with prejudice.”
Default and Default Judgment
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)
Default
Default is a notation by the court clerk on the docket sheet of the case.
1) P must move for default and demonstrate that D failed to respond in time.
2) Until default is entered, D can respond by motion or answer
3) Effect of entry of default: cuts off the D’s right to respond.
4) Entry of default does not entitle P to recover. Before P can recover from D, P must get a default judgment
How to get a default judgment?
1) The court of clerk can enter judgment if: D made no response at all; the claim itself if for a sum certain in money; claimant gives an affidavit of the sum owed; AND D is not a minor or incompetent
2) If ANY of those is not true, P must apply to the court itself. The judge will hold a hearing and has discretion to enter judgment.
3) D may move to have the court set aside a default or default judgment by showing good cause and a viable defense.
Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6))
Whether the case belongs in the litigation stream at all. If P’s complaint fails to state a claim, the case can be dismissed.
1) Court ignores P’s legal conclusions and looks only at P’s allegations of fact in the complaint. Asks, “if these facts were true, would P win a judgment?”
Motion for Summary Judgment (FRCP 56)
Party moving for SJ must show:
1) there is no dispute on a material fact AND
2) that she is entitled to judgment as a matter of law
Court views the evidence in the light most favorable to the nonmoving party.
Court has the discretion.
Any party can move for this no later than 30 days of closing of discovery
Conferences and Meetings
1) Rule 26(f) conference - at least 21 days before scheduling conference, parties must “meet and confer” to discuss production of discovery, settlement. Must present to the court a detailed discovery plan
2) Scheduling Order - the court enters an order scheduling cut-offs for joinder, amendment, motions, completion of discovery. Roadmap for litigation up to trial.
3) Pretrial Conferences - the court may hold these to process the case and foster settlement. Roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc.
Right to Jury Trial in Federal Courts
Seventh Amendment preserves the right to jury trial in “civil actions at law” but not in suits of equity. If a case involves both a claim for damages (legal relief) and an injunction (equitable relief), the jury decides the facts underlying the damages claim but not the equity claim.
Must demand the jury in writing no later than 14 days after service of the last pleading raising jury triable issues.
Seventh Amendment does NOT apply in state court
Selection and Composition of the Jury
In the jury selection process (voir dire), each side can ask the court to strike potential jurors. Two kinds:
1) For cause - e.g. potential juror will not be impartial. No limit to for cause challenges
2) Peremptory - don’t need to state a reason but MUST be used in a race and gender-neutral manner. Only three peremptory challenges per side.
How many jurors are on a civil jury in federal court?
Minimum 6, maximum 12
If six jurors are empaneled, all six need to return the verdict.
Unless the parties agree otherwise, unanimous jury vote is required for a verdict.
Jury Instructions
Jury decides facts, but is instructed on the law by the judge.
At close of evidence, parties submit proposed jury instructions to the judge. Parties are allowed to make objections to the instructions and to the rejection of proposed instructions before final argument and jury instruction.
Types of verdict
The judge determines what verdict form the jury will use:
1) General - Jury determines who wins and, if P wins, what the relief is. Clerk of court enters the judgment
2) Special - Jury answers specific questions about the facts in dispute. Judge then reaches legal conclusions based on the facts found and clerk enters it
3) General verdict with special interrogatories - jury gives a general verdict but must also answer specific questions submitted to it. Judge approves judgment and clerk enters it
What if the verdict shows that the jury did not follow instructions or it is internally inconsistent?
No judgment is entered. 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.
Juror Misconduct
The court can set aside the verdict and order a new trial:
1) verdict may be “impeached” based on external matters (if jurors were bribed, based their verdict on investigation outside of court) a new trial can be heard.
2) BUT a juror cannot testify about things occurring or statements made during jury deliberations except to show “extraneous prejudicial information” or “outside influence”
3) Verdict will not be set aside if the misconduct was harmless
Nonjury (“Bench”) Trial
Judge must record:
1) her “findings of fact”
2) her conclusions of law (separate from findings of fact)
3) Judgment
