Adjudicating the Dispute: Preliminary injunctions, pretrial adjudication, conferences, **********

Question 1

Preliminary injunctive relief

Answer 1

1. π has or is about to file suit. π is worried that before suit goes to trial, the ∆ will do something to prejudice. π wants injunction that ∆ either do or refrains from doing something. court is nervous because underlying merits not decided.
   a. for ex, injunction from using trade secrets, when whether something is a trade secret is valid.
   b. maintaining status quo until trial—preliminary injunction
   i. even before hearing on preliminary injunction. you can get a temporary restraining order (TRO)

Question 2

Temporary restraining order

Answer 2

2. TRO: Court can issue TRO ex parte (unlike preliminary injunction) until hearing on preliminary injunction only if. 3 reqs

i. Paper under oath showing immediate and irreparable harm if must wait for trial
ii. Certificaton of notice or why notice is not required
iii. Bond: if court issues TRO, applicant must post a bond to cover the other sides costs if the restraint is wrong

b. TRO must be specific on what ∆ can’t do and why injury to π is irreparable
c. if issued, must be served on ∆ ASAP
d. ∆ can move to dissolve or modify the TRO within 2 days
e. TRO lasts no more than 14 days or less as specified by court. can be extended for 14 more days if applicant shows good cause

compared to preliminary injunction:
can be issued ex parte
no need to show that likely to win on the merits
no need to show it’s in the public interest
no need to show balance of hardships favors him

Question 3

Granting of preliminary injunction and effects

Answer 3

c. burden on applicant to show all 4
i. irreparable harm if no injunction
ii. likely to win on merits
iii. balance of hardship favors him
iv. injunction is in the public interest

e. applicant must post bond
f. must be specific, describe in detail what ∆ can’t do, and state why issued
i. motion granting injunction is immediately appealable

a. Maintains status quo until adjudication
b. Cant be granted ex parte

d. injunction always discretionary
g. court must make findings of fact and conclusions of law.
h. may consolidate the motion for preliminary injunction with the trial, can speed up the trial

TRO by contrast
can be issued ex parte
no need to show that likely to win on the merits
no need to show it’s in the public interest
no need to show balance of hardships favors him

Question 4

Types of pretrial adjudication

Answer 4

Voluntary dismissal, default and default judgment, motion to dismiss for failure to state a claim (12b6), motion for summary judgment (56)

Question 5

Voluntary dismissal

Answer 5

π pulls the case. court has discretion

a. π has a RIGHT to dismiss by filing notice of dismissal. but must be done before ∆ serves an answer or motion for summary judgment
i. if done after ∆ serves an answer, then court has discretion to dismiss
b. if π files a timely notice of dismissal, case dismissed without prejudice. means π can refile.
c. but if you file notice of dismissal in second case, that is with prejudice. cannot refile.

Question 6

Default and Default judgment

Answer 6

∆ doesn’t respond in time. 21 days after being served, or 60 days from mailing of waiver

a. Default is notation by court clerk on the docket sheet after π moves for it
ii. π must demonstrate that ∆ failed to respond in time. until entered ∆ can respond by motion or answer, even beyond 21 days.
iii. doesn’t entitle π to recover

i. the clerk can enter judgment if
1. ∆ made no response at all
2. the claim has a certain sum of money
3. claimant gives an affidavit of the sum owed AND
4. ∆ is not a minor or incompetent
5. NO NOTICE REQUIERD

ii. if any not true, the π must apply to the court itself.
1. judge will hold hearing and has discretion. ∆ gets notice only if he appeared in the case
2. most π can recover is what π pleaded in default judgment. can get less.
iii. Can only get the same kind of relief you pleaded, unlike at trial where you can get more/ different relief

c. Motion to set aside, ∆ may move to have court set aside default by showing good cause (excusable neglect) AND a viable defense, like SOL hasn’t run

Question 7

Motion to dismiss for failure to state a claim 12b6

Answer 7

question about whether the case belongs in the litigation stream. if πs complaint fails to state a claim, the case can be dismissed.

a. The court looks only at π’s allegations of fact and asks, if these facts are true do they state a plausible claim. does NOT look at evidence
b. plausible—judge uses experience and common sense to see if something is plausible. law must recognize a claim.

c. court may allow π to amend to state a claim.
ii. same motion if made after ∆ has answered is called motion for judgment on the pleadings.

Question 8

Motion for summary judgment (FRCP 56)

Answer 8

Happens after discovery is closed. SJ weeds out those cases where no issue of fact for jury to decide, so trial not necessary

Party must show

a. no genuine dispute on material fact and
b. that party is entitled to judgment as a matter of law

i. Court has discretion to deny

d. any party can move for this no later than 30 days after close of discovery.
iii. MOVING PARTY bears the burden to put forth evidence that a material fact is not in dispute.

f. court CAN look at evidence in SJ – evidence is something under oath like affidavit, depositions, etc. Pleadings are not evidence, unless verified.
5. But pleading may be relevant in SJ if ∆ failed to deny an allegation by π, can be treated as fact on SJ
Evidence must also be firsthand knowledge.
But even if evidence riddled with uncertainty, like alcoholic, drug addict, must deny SJ. Judge doesn’t assess credibility.
1. for example. If only evidence until SJ is an affidavit that puts the π credibility in issue and suggests that ∆ will win at trial only if π expected testimony is found not to be credible–> court must deny SJ and let πhave his day in court

i. court views it in the light most favorable to the nonmoving party
e. Can be for partial judgment, for ex, just liability, but still go to case on trial on damages.

8. Suppose an authenticated videotape of the accident scene discredits P’s witness’ version of the facts. The court can ignore P’s evidence and grant summary judgment.
   a. Hasn’t been tested.

Question 9

Rule 26f conference

Answer 9

1. Rule 26f conference—at least 21 days before scheduling order, parties must meet and confer. Will discuss production of required initial disclosures, ESI, claims, defenses, settlement, and preservation of discoverable information. Must present in detail to the court a detailed discovery plan.
   a. Must be presented no later than 14 days after the 26f conference
2. Scheduling order— court enters an order scheduling cutoffs for joinder, amendment, motions, completing discovery. Roadmap

c. Final pretrial conference determines issues at trial and evidence and witnesses at trial.
Cant present in trial if not in the pretrial conference unless the court modifies the pretrial order