Adjudicating the Dispute Flashcards
Preliminary Injunction
maintains status quo until court can adjudicate the underlying claim on the merits
Burden on applicant to show: (1) likely to suffer IRREPARABLE HARM if injunction is not issued; (2) likely to WIN ON THE MERITS of the underlying case; (3) threatened harm to applicant OUTWEIGHS harm to other party if injunction is issued; and (4) injunction is in the PUBLIC INTEREST
NOTE: can NEVER have ex parte preliminary injunction
NOTE: always discretionary. never a right to injunction.
Preliminary Injunction procedure
If court grants PI, must post a bond
PI must explicitly state its terms in SPECIFICITY–describe in detail what D must do or refrain from doing
IMMEDIATELY APPEALABLE even though not a final judgment
Temporary restraining order
Sought before getting a PI, to maintain the status quo until the PI hearing.
May be done ex parte if:
(1) applicant files paper UNDER OATH clearly showing that if TRO is not issued, he will suffer IMMEDIATE & IRREPARABLE HARM if he must wait until other side is heard; and (2) applicant’s lawyer certifies, in writing, his efforts to give NOTICE to D or D’s lawyer, or why such notice is not necessary
If court issues TRO, applicant must post a bond to cover the other side’s costs and damages if it turns out the restraint is wrongful
Ex Parte
whenever a court does something without giving notice to the other party
D’s response to TRO
can move to dissolve or modify the TRO
Timing of TRO
effective for NO MORE THAN 14 DAYS (or lesser if set by the court)
If applicant shows good cause before expiration, it can be extended for UP TO ANOTHER 14 DAYS. Thus, total of 28 days, no more.
Voluntary Dismissal
When P wants to withdraw the case, can voluntarily dismiss
If timely, dismissed WITHOUT PREJUDICE, and thus P can refile the case
Can only dismiss once without prejudice. Second time is with prejudice, meaning can’t refile again
Timing of voluntary dismissal
Must file a notice of dismissal before the D serves an answer or motion for summary judgment
Default
When D does not respond to the complaint within 21 days after being served (or 60 days from mailing of waiver if waived service), can move for default. Cuts off D’s right to respond.
NOTE: court does not enter default immediately on 22nd day. MUST MOVE FOR DEFAULT. Until entered, D can respond by motion or answer even beyond 21 days.
Default Judgment by Clerk
Default does NOT entitle P to recover. P must get default judgment
Clerk can enter judgment if: (1) D made NO RESPONSE at all; (2) claim is for a certain amount of money; (3) claimant gives an affidavit of the sum owed; AND (4) D is not incompetent or a minor
Can’t get more than what you pleaded, or different relief (i.e. injunctive when you sought money)
Default judgment by Judge
Judge enters judgment if above test fails.
Judge will hold a hearing and has discretion. D gets notice of hearing ONLY IF HE HAS APPEARED in the case at some point
Can’t get more than what you pleaded
Motion to Set Aside Entry of Default
D may move to have the court set aside a default or default judgment by showing GOOD CAUSE and a VIABLE DEFENSE (otherwise, would be a waste of time)
NOTE: motion to set aside default JUDGMENT is the same reasons to set aside any judgment
Motion to Dismiss for Failure to State a Claim
Court looks only to P’s allegations of fact and asks, if all facts were true, would P get a judgment?
court DOES NOT look at evidence or legal conclusions. Just facts.
Motion for Summary Judgment
Moving party must show (1) no genuine dispute of material fact exists; and (2) the moving party is entitled to judgment as a matter of law
ALWAYS DISCRETIONARY
Can be a motion for partial summary judgment (e.g. a few claims)
Timing of Summary Judgment
Party may move for SJ no later than 30 DAYS after close of DISCOVERY
Evidence in Summary Judgment
Court is free to look at all evidence, so long as it is not hearsay
MBE TIP: court may look at evidence on summary judgment, thus this is different than 12b6
Evidence viewed in light most favorable to the nonmoving party
NOTE: PLEADINGS (like complaints) are NOT Evidence (unless if verified, which is very rare). Evidence includes things like affidavits, declarations, depositions, interrogatories, etc.
Rule 26(f) Conference
Unless otherwise ordered by the court, at least 21 DAYS before scheduling conference, the parties must meet and confer
Meeting to discuss initial disclosures, claims, defenses, settlement, etc.
Must present a DETAILED DISCOVERY PLAN to the court
Rule 16(b) scheduling conference
Court must hold a scheduling conference by telephone, mail, or other suitable means
Court must enter order limiting time for joinder, motions, and discovery. Also includes dates for trial, etc.
Cannot modify the plan except upon leave by the court on a showing of good cause
Pretrial conferences
additional conferences may be had to expedite trial and foster settlements
Final pretrial conference will determine issues to be tried and evidence to be proffered at trial
At final meeting, create a roadmap of issues, etc. Point is to avoid surprises at trial
Timing for requesting jury trial
Party who desires a jury trial must file a written demand and serve it on the parties
Failing to make a demand within 14 days after filing of last pleading directed to the jury-triable issue constitutes a waiver
Jury demand may be withdrawn only with consent of ALL parties.
Right to Jury Trial (law and equity issues)
If a proceeding includes both legal and equitable claims, Jury decides the facts underlying the DAMAGES CLAIM, but NOT the equity claim
Generally, JURY TRIES THE LEGAL CALIM FIRST, and then court will decide the equitable claim
Voir Dire challenges
(1) for cause motions to strike (impartial juries) have no limit
(2) peremptory motions to strike are limited to three
Jury Size
At least six, and not more than 12 when entering a verdict
Must be unanimous, unless the parties agree otherwise
General verdict
Jury finds for P or D completely and states relief. Clerk then enters jury’s general verdict
Special Verdict
Jury answers specific questions about the facts in dispute and the JUDGE then reaches conclusions based on the facts found
General Verdict with special interrogatories
Jury gives a general verdict but must also answer specific questions submitted to it
Ensures that jury considered the important issues
Excusing a juror
Juror may be excused for “good cause,” provided at least six jurors are present when entering the verdict
Jury instructions
Objections to giving or failing to give instructions must be made BEFORE jury retires to consider the verdict
Exception: court can consider a jury instruction if it contained a plain error that effects substantial rights of a party
Juror misconduct
Court may set aside verdict and order a new trial, unless if the misconduct was HARMLESS
Must be based on “external matters” such as a bribe or base their decision on matters outside of the court instead of the evidence at trial
NOTE: nonjurors may give evidence of misconduct except as to declarations made by jurors to them
Motion for judgment as a matter of law (JMOL)
Allows judgment to be granted for either party if a court finds that A REASONABLE JURY would not have a legally sufficient basis to find for the nonmoving party
Evidence viewed in light most favorable to nonmoving party
Can move for JMOL after the other side has been heard at trial
Renewed motion for judgment as a matter of law
Same as JMOL but must filed no later than 28 DAYS after ENTRY OF JUDGMENT.
Generally limited to those issues raised in the JMOL
Must move for JMOL as a prereq for RJMOL
Motion for new Trial
Must be filed NO LATER THAN 28 DAYS AFTER JUDGMENT
May be due to an error during trial or because verdict is clearly against the weight of the evidence
RJMOL takes judgment away from prevailing party and gives to moving party. New trial simply starts over so less drastic
Remittitur
Allows P to choose between a lesser award or a new trial (can’t just lower the amount)
entered when the damages amount SHOCKS THE CONSCIENCE
Additur
D is allowed the choice between a higher award or a new trial
UNCONSTITUTIONAL IN FEDERAL COURT (violates 7th amendment), but states are free to do additur
Motion for relief from order or judgment
Asking DC to set aside an order or judgment it entered. Based on:
(1) clerical error (anytime)
(2) mistake, surprise, or excusable neglect (reasonable time but never more than a year)
(3) New evidence that could not have been discovered with due diligence in time for a new trial (reasonable time but never more than a year)
(4) Fraud, misrepresentation or misconduct by a party (reasonable time)
(5) Void due to lack of SMJ*, notice, etc., but need more than just an “erroneous” judgment (reasonable time)
