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Civil Procedure > Adjudicating the Dispute > Flashcards

Adjudicating the Dispute Flashcards

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Civil Procedure 1L flashcards
1
Q

What types of injunctive relief can be granted ex parte?

A

Temporary restraining order (TRO)

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2
Q

When is an ex parte TRO proper?

A
  1. Applicant files a paper under oath clearly showing that he will suffer immediate and irreparable harm without TRO; AND
  2. Applicant’s lawyer certifies in writing efforts to give oral or written notice to D/D’s lawyer, OR why such notice should not be required under the circumstances
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3
Q

What happens when a TRO is issued?

A
  1. Court must state specific terms (describe in detail what D must do or refrain from doing, why it was issued, and why the threatened injury to P was irreparable)
  2. Post bond (in case TRO was issued improperly)
  3. Serve on D asap (P’s attorney certifies an attempt to notify at the time of the TRO)
  4. D may object
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4
Q

How long may a TRO last?

A

Effective for no more than 14 days

Can be extended for up to 14 days if good cause shown (No longer than 28 days)

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5
Q

What happens if court issues a TRO?

A

Order must be served on D as soon as possible

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6
Q

What can D do if the court issues a TRO?

A

Move to dissolve or modify the TRO

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7
Q

What must be shown to obtain a preliminary injunction?

A
  1. Applicant is likely to suffer irreparable harm without injunction;
  2. Likely to win on the merits of the underlying case;
  3. Balance of hardships favors him;
  4. Injunction is in the public interest
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8
Q

What are the procedural steps for obtaining a preliminary injunction?

A
  1. Court may consolidate hearing on motion with trial of case;
  2. Preliminary injunction must state specific terms and why it was issued;
  3. Court makes findings of fact and conclusions of law;
  4. If granted, Applicant must post bond.

(Order granting or denying injunction is immediately appealable)

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9
Q

What are the rules on voluntary dismissal?

A

P may make one by right (dismiss without prejudice) before D serves an answer or motion for summary

The next time, dismiss with prejudice

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10
Q

How long does a D have to respond to avoid default?

A

21 days after service OR 60 days from mailing of waiver

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11
Q

What is the process for entering default?

A

P has to move for it after 21 days

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12
Q

What is the effect of entry of default?

A

D’s right to respond is cut off

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13
Q

What is the process for securing a default judgment?

A

The clerk can enter judgment if:

  1. D made no response at all,
  2. Claim is for a certain sum of money,
  3. P gives affidavit of the sum of money owed, AND
  4. D is not minor or incompetent;

Otherwise, apply to the court

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14
Q

When can a default judgment be granted without notice to D?

A

If he did not appear in the case

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15
Q

What are D’s options following a default or default judgment?

A

D may move to set aside a default or a default judgment

Need good cause or viable defense

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16
Q

When can a court grant relief from a default judgment over a D who did not know of the claim?

A

Relief is justified;

Innocent third persons will not be prejudiced

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17
Q

What is the process a court uses to evaluate a 12(b)(6) motion?

A

Court looks only at P’s allegations of fact, asks whether P would win a judgment if the facts were true as alleged.

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18
Q

What must a party moving for summary judgment show?

A
  1. No genuine dispute of material fact AND
  2. He is entitled to judgment as a matter of law
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19
Q

How long does a party have to move for summary judgment?

A

30 days after the close of discovery

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20
Q

What evidence can be considered in a summary judgment?

A
  1. Allegations D failed to deny
  2. Evidence produced under oath
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21
Q

When must the Rule 26(f) conference take place?

A

21 days before scheduling conference unless court orders otherwise

22
Q

What is a Rule 26(f) conference?

A

Mandated conference between the parties – must confer as soon as practicable, and at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).

The parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case, among other things.

23
Q

What is a scheduling order?

A

A schedule of cut-offs for joinder, amendments, motions, etc.

(Roadmap for litigation proceeding up to trial)

24
Q

Why are pretrial conferences important?

A

To eliminate surprises during trial

Final pretrial conference order supersedes the pleadings

25
Q

What is a motion in limine?

A

Pretrial motion to decide whether jury should hear certain evidence

26
Q

What civil suits in federal court carry a right to trial by jury?

A

“Civil actions at law, for claims over $20”

NOT “suits in equity”

27
Q

How long does a party have to demand a jury? How must he demand the jury?

A

14 days

Must be done in writing

28
Q

How is the case for legal and equitable relief split?

A

First, the jury decides the underlying damages claim and questions of fact;

The equity claims are decided by the court

29
Q

How many of each type of voir dire challenges do the parties get?

A

For cause: unlimited

Peremptory: 3 per side (must be race and gender neutral)

30
Q

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

A

Strict Minimum: 6 (need 6 to have a verdict, unless parties agree otherwise)

Maximum: 12

31
Q

What is the process for establishing jury instructions?

A
  1. At close of evidence, parties submit proposed jury instructions;
  2. Before final argument or instruction, court informs parties of the instructions;
  3. Parties can object and reject the instructions (must do it to be able to appeal)
32
Q

When can you raise a jury instruction objection on appeal?

A

If you objected to it

(Exception: plain error that affects substantial rights)

33
Q

What are the three types of verdicts?

(General)

(Special)

(General+Special)

A

General: who wins and relief.

Special: answers specific Qs about facts in dispute; judge reaches legal conclusions.

General w/ special interrogatories: jury gives a general verdict AND answers specific Qs of fact submitted to it (Need unanimous decision, unless parties agree otherwise)

34
Q

Who enters each type of verdict?

A

General: Clerk of Court

Special: Judge approves; Clerk enters

General w/ Special interrogatories: Judge approves; Clerk enters

35
Q

What type of jury conduct is required to set aside a jury verdict?

A

Wrongdoing based on external matters (e.g., bribery; judgments based on outside information rather than evidence at trial)

36
Q

What type of evidence is required about jury misconduct?

A
  1. Juror testimony about outside/extraneous influence or information (otherwise, no jury testimony about deliberations), OR
  2. Non-juror first-hand evidence of external matters
37
Q

What will the court not consider when determining if there was jury misconduct?

A

Juror testimony about intrinsic matters (i.e., activities of other jurors, e.g., drugs, lies during selection to hide bias)

38
Q

What three things must a judge record and enter at a bench trial?

A
  1. Findings of fact,
  2. conclusions of law, and
  3. judgments
39
Q

What are the motions at- and after-trial?

A

1) Motion for JMOL/directed verdict
2) Renewed Motion for JMOL
3) Motion for new trial
4) Remittitur/Additur

40
Q

What is the standard for a JMOL?

A

(1) Based on evidence presented at trial, (2) reasonable people could not disagree about result (3) when viewed in the light most favorable to non-moving party.

41
Q

When can a party move for a JMOL?

A

After the non-moving side has been heard at trial

42
Q

What is a RJMOL?

A

Renewed JMOL: JMOL after jury verdict

Party MUST have moved for a JMOL during trial

Same standard as JMOL

43
Q

What happens if a RJMOL is granted?

A

Court enters judgment for the party that lost the jury verdict

44
Q

How long does a party have to move for RJMOL?

A

Within 28 days after entry of judgment

45
Q

What is the standard for granting a motion for a new trial? (Some examples?)

A

Any non-harmless error that makes judge think we should have a do-over.

Examples:

  1. Judge gave erroneous jury instruction;
  2. New evidence that could not have been gotten before with due diligence;
  3. Misconduct by juror or party or lawyer;
  4. Judgment is against weight of evidence (serious error of judgment); OR
  5. Inadequate or excessive damages
46
Q

How long do the parties have to move for a new trial?

A

Within 28 days after judgment

47
Q

What are remittitur and additur?

A

A way to adjust the amount of damages IF “the amount shocks the conscience”

48
Q

What is remittitur?

A

Proposal to P: Accept reduced damages or prepare for a new trial

49
Q

What is additur?

A

(Not constitutional for federal courts, i.e., allowed in state courts only)

Proposal to D: accept higher damages or face a new trial

50
Q

What are the grounds and timing for motions for relief from Order or Judgment?

A

IF clerical error: Any time

IF mistake or excusable neglect (default judgment): Reasonable time (never > 1 year)

IF new evidence that could not have been discovered with due diligence for a new trial motion: Reasonable time (never > 1 year)

IF judgment is void (no SMJ): Reasonable time (no maximum)

Civil Procedure (10 decks)

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