Adjudication and Appeals Flashcards
What is the difference between a TRO and a preliminary injunction?
A TRO maintains status quo until a hearing for a preliminary injunction. A preliminary injunction maintains status quo until trial.
When may a TRO be issued ex parte?
A TRO may be issued ex parte only if the applicant files under oath saying she will suffer immediate and irreparable harm if she must wait until the other side is heard, and her lawyer certifies the efforts to give notice or why notice should not be required.
What must an applicant do if a TRO is issued?
The applicant must post bond to cover the other party’s costs and damages if it turns out restraint was improper.
What are the contents of a TRO?
The TRO must specifically state its terms, describe in detail what must be done or be refrained from, state why the TRO was issued, and why the threatened injury to the applicant was irreparable.
What is the duration of a TRO?
14 days, but it may be extended for another 14 days with good cause.
What if a TRO is extended beyond 28 days?
It will be treated as a preliminary injunction.
May a preliminary injunction be issued ex parte?
No.
Who has the burden of proof for a preliminary injunction?
The applicant.
What must an applicant show to get a preliminary injunction?
(1) she is likely to suffer irreparable harm if the injunction is not granted
(2) she will likely win on the merits of the underlying case
(3) the balance of hardships favors the applicant
(4) the injunction is in the public interest
What must an applicant do if she prevails on a preliminary injuction?
The applicant must post bond to cover the other party’s costs and damages if it turns out the injunction was improper.
What are the contents of a preliminary injunction?
The preliminary injunction must specifically state its terms, describe in detail what must be done or be refrained from, and state why the it was issued. Additionally, the court must state specific findings of fact and conclusions of law.
Is a preliminary injunction appealable?
Yes, a grant or denial of a preliminary injunction is appealable as a matter of right.
When may a plaintiff voluntarily dismiss a case without leave from the court?
The plaintiff may voluntarily dismiss before the defendant serves an answer or a motion or when the parties stipulate to dismissal.
Is a voluntary dismissal “with prejudice”?
The first voluntary dismissal is without prejudice. The second is with prejudice. This is true even if the first case was filed in state court.
When does a default occur?
A default occurs when the defendant does not respond to the complaint in time.
What is a default?
A default is a notation in by the clerk of the court.
How does a plaintiff get a default?
The plaintiff must move for entry of default and show that the defendant has not responded.
May a defendant respond late to a complaint?
Yes, a defendant may respond until a default is entered.
Does a default entitle a plaintiff to relief?
No, a plaintiff must seek a default judgment.
When can the clerk of the court issue a default judgment?
The clerk of the court can issue a default judgment when the defendant has not responded at all, the claim is a for a sum certain, the plaintiff gives an affidavit of the sum, and the defendant is not a minor or incompetent.
When must the court enter a default judgment?
When the claim does not meet the criteria for the clerk of the court to enter it.
Is the defendant entitled to notice of a hearing for a default judgment?
Yes, if the defendant has responded in some way.
Is the plaintiff’s recovery limited in a default judgment?
Yes, to the amount pleaded in the complaint.
When may a default judgment be set aside?
A motion to set aside may be granted if the defendant shows good cause and a viable defense.
What is the difference between a motion to dismiss and a motion for judgment on the pleadings?
A motion for judgment on the pleadings is used when the defendant has filed an answer. A motion to dismiss is used before the answer.
How does a judge rule on a motion to dismiss?
The judge looks only at the plaintiff’s allegations and determines if the allegations, taken as true, state a plausible claim for relief.
What is the standard to grant a motion for summary judgment?
A motion for summary judgment should be granted if the moving party shows, in the light most favorable to the nonmoving party, there is no genuine dispute as to a material fact and she is entitled to judgment as a matter of law.
When can a party move for summary judgment?
A party can move for summary judgment no later than 30 days after the close of discovery.
What evidence is considered in deciding a motion for summary judgment?
The court will consider evidence that would be admissible at trial (e.g. affidavits, declarations, depositions, and interrogatories).
May a court allow a party to gather more evidence to oppose a motion for summary judgment?
Yes, if the party shows by affidavit or declaration what the evidence would be.
What is a Rule 26(f) conference?
A Rule 26(f) conference is when the parties meet and confer, at least 21 days before the scheduling order, to discuss production, claims defenses, settlement, and preservation?
How long do the parties have to present a discovery plan after the Rule 26(f) conference?
14 days
What are the contents of the discovery plan?
The plan must include views and proposals on timing and discovery of ESI.
What is a scheduling order?
A scheduling order sets the cut-offs for joinder, amendment, motions and completion of discovery.
What is the final pretrial conference?
The final pretrial conference determines the issues to be tried and evidence to be proffered.
What is a motion in limine?
A motion in limine is a pretrial motion outside the presence of the jury to decide whether the jury should hear certain evidence.
When does 7A guarantee a right to trial by jury?
In federal but not state courts, 7A guarantees a right to trials for civil actions at law but not suits in equity.
What is the right to trial by jury when the issues are mixed questions of law and equity?
Facts for the legal questions will be tried to the jury. Facts that relate only to the equitable claim are tried to the judge, generally after the jury trial.
