Adjudication Without Trial

Question 1

What is the basic idea of adjudication without trial?

Answer 1

There are various ways a case can be resolved without going
to trial. In addition, we need to know about “provisional” or
“preliminary” (temporary) injunctive relief.

Question 2

What is preliminary injunctive relief?

Answer 2

Let’s say a plaintiff is planning to file suit (or has sued). The
plaintiff is worried that before the case can be tried, the
defendant may do (or fail to do) something that will prejudice
the plaintiff’s case. So, the plaintiff wants injunctive relief; that
is, a court order that the defendant either (1) do something or
(2) refrain from doing something. Courts are nervous about
granting injunctions because the merits of the underlying
dispute have not been decided.

Question 3

What is the difference between a temporary restraining order and a preliminary injunction?

Answer 3

An order that maintains the status quo until trial is a preliminary injunction. Before getting a preliminary injunction, to
maintain the status quo until the hearing on the preliminary
injunction, you may seek a TRO.

Question 4

What is a temporary restraining order?

Answer 4

A TRO is issued to preserve the status quo until a hearing for
a preliminary injunction can be held. A TRO may be issued
“ex parte,” which means that a court has done something
without giving notice to the other party. The court will issue a
TRO ex parte only if:
• The applicant files a paper under oath clearly showing
that if the TRO is not issued, she will “suffer immediate
and irreparable harm” if she must wait until the other side
is heard.
• The applicant’s lawyer certifies in writing her efforts to
give oral or written notice to the defendant or the defendant’s lawyer (or why such notice should not be required
in this case).
If the court issues the TRO, the applicant must post a bond
to cover the other side’s costs and damages caused if it turns
out the restraint is wrongful. If the court issues a TRO, the
order must be served on the defendant as soon as possible.
(Generally speaking, a party without notice of a TRO cannot
be punished for violating it.) A ruling granting or denying a
TRO ordinarily may not immediately be appealed.

Question 5

What are the contents of a Temporary Restraining Order?

Answer 5

A TRO must state its terms specifically, describe in detail
what the defendant must do (or refrain from doing), state
why it was issued, and state why the threatened injury to the
plaintiff was irreparable.

Question 6

What is the duration of the temporary restraining order?

Answer 6

A TRO is effective for no more that 14 days (or lesser time
stated by the court), but the restrained party may move to
dissolve or modify it earlier. If the applicant shows good
cause before expiration, it can be extended for up to another
14 days. So a TRO cannot extend beyond 28 days. If the
court extends a TRO beyond 28 days, it may be treated as a
preliminary injunction.

Question 7

What is a preliminary injunction?

Answer 7

A preliminary injunction maintains the status quo until the
court can adjudicate the underlying claim on the merits. A
preliminary injunction cannot be issued ex parte. The burden
is on the applicant to show:
• She is likely to suffer irreparable harm if the injunction is
not issued;
• She is likely to win on the merits of the underlying case;
• The balance of hardship favors her (threatened harm to
applicant outweighs harm to other party if the injunction is
issued); and
• The injunction is in the public interest.
There is no right to an injunction. The matter is in the court’s
discretion.

Question 8

What are the additional requirements for preliminary injunction?

Answer 8

• As with a TRO, if the court grants the preliminary injunction, the applicant must post a bond.
• Also as with a TRO, the preliminary injunction must state
its terms in specificity, describe in detail what the defendant must do or refrain from doing, and state why it was
issued.
• In granting or denying the preliminary injunction, the court
must make specific findings of fact and separate conclusions of law.

Question 9

May a preliminary injunction be appealed?

Answer 9

An order granting or denying a preliminary injunction may be
appealed as of right.

Question 10

What is voluntary dismissal without the courts permission?

Answer 10

If the plaintiff wants to withdraw the case, she may do so
without a court order before the defendant serves an answer
or motion for summary judgment. The parties may also stipulate to a voluntary dismissal without court order (for example,
if the case is settled, a stipulated dismissal will be filed).

Question 11

What is the dismissal with court permission?

Answer 11

Thereafter, court permission is required absent a stipulation.
If the plaintiff wants to withdraw the case, she can make a motion for voluntary dismissal, which the court has discretion to grant.

Question 12

What happens when there is one dismissal without prejudice?

Answer 12

The first voluntary dismissal is “without prejudice.” This
means that the plaintiff can refile the case. But you only
get to do it without prejudice once. The second voluntary
dismissal is “with prejudice,” which operates as an adjudication on the merits and takes away the plaintiff’s ability to
refile the case.

Question 13

What is default and default judgment?

Answer 13

A default and default judgment might occur when the defendant does not respond to the complaint in time (21 days after being served with process).

Question 14

What is an entry of default?

Answer 14

A default is a notation by the court clerk on the docket sheet
in the case. A default does not happen automatically. Rather,
the plaintiff must move for entry of default. The plaintiff must
demonstrate that the defendant failed to respond in time.
Until a default is actually entered, the defendant can respond
by motion or answer even beyond 21 days.
a. Effect of Entry of Default
The entry of default cuts off the defendant’s right to respond.
Entry of default, however, does not automatically entitle the
plaintiff to relief. The plaintiff must seek a default judgment.

Question 15

How do you get a default judgment?

Answer 15

The clerk of the court can enter a default judgment if:
• The defendant has made no response at all (that is, she
has not “appeared”);
• The claim itself is for a sum certain in money;
• The plaintiff gives an affidavit (sworn statement) of the
sum owed; and
• The defendant is not a minor or incompetent.
If any of these is not true, the plaintiff must apply to the
court for the default judgment.
a. Hearing for Default Judgment
The judge will hold a hearing and has discretion whether to
enter the judgment. The defendant is entitled to notice of
the hearing if she has appeared in some fashion in the case.
Unlike at trial, the plaintiff’s recovery in a hearing for a default
judgment is limited to what is pleaded in the complaint.

Question 16

What is a motion to set aside default or default judgment?

Answer 16

The defendant may move to have the court set aside a
default or default judgment by showing (1) good cause (like
excusable neglect) and (2) a viable defense. Very generally
speaking, a trial on the merits of the case is preferred.

Question 17

What is motion to dismiss for failure to state a cliam?

Answer 17

A motion to dismiss for failure to state a claim tests whether
the case belongs in the litigation stream at all. If the plaintiff’s complaint fails to state a claim, the case can be dismissed. The same motion, if made after the defendant has answered, has a different name—a motion for judgment
on the pleadings.

Question 18

What does the judge consider for a 12(b)(6) motion for failure to state a claim?

Answer 18

In ruling on this motion, the court ignores the plaintiff’s legal
conclusions. It looks only at the plaintiff’s allegations of fact
on the face of the complaint (and not any evidence) and asks
“if these facts are true, do they state a plausible claim?” If the
answer is no—Plaintiff has not stated a plausible claim—there
is no sense letting the case proceed, because the law does
not recognize a claim on these facts. Remember, the judge
uses her experience and common sense to see if the facts
state a plausible claim.

Question 19

Can the P amend the complaint to state a claim?

Answer 19

The court might allow the plaintiff to amend the complaint to
try to state (plead) a claim.

Question 20

What is the motion for summary judgment?

Answer 20

A motion for summary judgment is used after the case has
been filed and the plaintiff has survived any Rule 12 motions.
So we’re in the litigation stream. But a trial might not always
be needed. Summary judgment weeds out cases in which no
trial is necessary. The only reason to have a trial is to resolve
a dispute of material fact.

Question 21

What is the standard for summary judgment?

Answer 21

The party moving for summary judgment must show that:
• There is no genuine dispute on a material fact; and
• She is entitled to judgment as a matter of law.
If the standard is met, the court is not always required to
grant the motion. There may be some discretion to deny the
motion (measured by an “abuse of discretion” standard on
appeal).

Question 22

What is the timing of the motion for summary judgment?

Answer 22

Any party can move for summary judgment no later than 30
days after close of discovery. The motion can be for “partial”
judgment—for example, as to liability, and the case to go to
trial on damages. Partial summary judgmentis sometimes
called summary adjudication.

Question 23

What are the matter considered for summary judgment?

Answer 23

In a summary judgment motion, the court can look at
evidence. The court views that evidence in the light most
favorable to the nonmoving party. The parties proffer the
evidence, usually (1) affidavits, (2) declarations, (3) deposition
testimony, or (4) interrogatory answers. Why can these things
be considered “evidence”? Because they are under oath.

Question 24

Can the court delay the motion for summary judgment?

Answer 24

If the party opposing summary judgment needs more time to
find evidence to oppose the motion, she may file an affidavit
or declaration with the court stating what that evidence
would be. The court may allow more time for the party to
obtain evidence.