Adjudicating the Dispute

Question 1

Preliminary Injunction

Answer 1

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.

Question 2

Preliminary Injunction procedure

Answer 2

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

Question 3

Temporary restraining order

Answer 3

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

Question 4

Ex Parte

Answer 4

whenever a court does something without giving notice to the other party

Question 5

D’s response to TRO

Answer 5

can move to dissolve or modify the TRO

Question 6

Timing of TRO

Answer 6

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.

Question 7

Voluntary Dismissal

Answer 7

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

Question 8

Timing of voluntary dismissal

Answer 8

Must file a notice of dismissal before the D serves an answer or motion for summary judgment

Question 9

Default

Answer 9

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.

Question 10

Default Judgment by Clerk

Answer 10

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)

Question 11

Default judgment by Judge

Answer 11

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

Question 12

Motion to Set Aside Entry of Default

Answer 12

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

Question 13

Motion to Dismiss for Failure to State a Claim

Answer 13

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.

Question 14

Motion for Summary Judgment

Answer 14

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)

Question 15

Timing of Summary Judgment

Answer 15

Party may move for SJ no later than 30 DAYS after close of DISCOVERY

Question 16

Evidence in Summary Judgment

Answer 16

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.

Question 17

Rule 26(f) Conference

Answer 17

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

Question 18

Rule 16(b) scheduling conference

Answer 18

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

Question 19

Pretrial conferences

Answer 19

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

Question 20

Timing for requesting jury trial

Answer 20

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.

Question 21

Right to Jury Trial (law and equity issues)

Answer 21

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

Question 22

Voir Dire challenges

Answer 22

(1) for cause motions to strike (impartial juries) have no limit
(2) peremptory motions to strike are limited to three

Question 23

Jury Size

Answer 23

At least six, and not more than 12 when entering a verdict

Must be unanimous, unless the parties agree otherwise

Question 24

General verdict

Answer 24

Jury finds for P or D completely and states relief. Clerk then enters jury’s general verdict

Question 25

Special Verdict

Answer 25

Jury answers specific questions about the facts in dispute and the JUDGE then reaches conclusions based on the facts found

Question 26

General Verdict with special interrogatories

Answer 26

Jury gives a general verdict but must also answer specific questions submitted to it

Ensures that jury considered the important issues

Question 27

Excusing a juror

Answer 27

Juror may be excused for “good cause,” provided at least six jurors are present when entering the verdict

Question 28

Jury instructions

Answer 28

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

Question 29

Juror misconduct

Answer 29

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

Question 30

Motion for judgment as a matter of law (JMOL)

Answer 30

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

Question 31

Renewed motion for judgment as a matter of law

Answer 31

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

Question 32

Motion for new Trial

Answer 32

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

Question 33

Remittitur

Answer 33

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

Question 34

Additur

Answer 34

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

Question 35

Motion for relief from order or judgment

Answer 35

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)