Adjudication without Trial Flashcards
What is a TRO (temporary restraining order)? What are contents & duration of TRO?
TRO is issued to preserve the status quo until hearing on preliminary injunction is held.
Requesting party must post bond to cover costs from TRO if it turns out restraint was wrongful.
Contents: Must state terms specifically + describe in detail what the D must do/not do, state why it was issued, and why the threatened injury to P would be irreparable.
Effective for no more than 14 days. Party may move to dissolve/modify tho. Other party can move to extend but not beyond 28 days - thats an injunction.
What is an ex parte TRO?
Ex parte TRO is when court issues TRO w/o telling party, will do this ONLY if requesting party:
- filed paper under oath clearly showing that if TRO is not issued they will suffer immediate and irreparable harm (if they have to wait from response from other party)
- atty certifies in writing her efforts to five oral or written notice to D or why such notice should not be req’d
What is a preliminary injunction? How does party get one? What are contents reqd?
Preliminary injunction maintains status quo until court adjudicates claim on the merits.
Can NOT be issued ex parte - other party must get notice.
Requesting party must show:
- likely to suffer irreparable harm if injunction is not issues
- likely to win on the merits
- balance of hardships in their favor (compare threatened harm to D hardship)
- injunction in public interest
Then is at courts DISCRETION.
Requesting party must post bond.
Must be specific, detailed like TRO
Court must make factual findings/legal conclusions in denying/granting.
What must P do if they want to voluntary withdraw case?
- before D serves answer or motion SJ: P can do so without court order (or settle)
- after D serves answer or motion SJ: must get court order to withdraw
What is legal effect of a voluntary withdrawal from P?
First voluntary withdrawal = dismissal without prejudice, which means no adjudication on merits so P can refile
2nd voluntary withdrawal = dismissal WITH prejudice, so P cannot refile
What is default judgment? How can P get one? What is effect?
Default judgment can occur when D does not respond in req’d 21 days after service.
Process:
(1) p must move for entry of default + show D failed to response (Note: D can respond beyond 21 days, until default entered)
(2) Once entry of default is entered, D can no longer respond, BUT P doesn’t have relief yet - needs to seek default judgment
(3) clerk of court can enter default judgment sua sponte IF
- D made no response
- claim is for sum certain in money
- P gives affidavit of sum owed
- D is not minor or incompetent
(4) If ANY of the above is not true, then P needs to apply for default judgment
(court holds hearing, D gets notice, $ limited to pleading)
How can D move to set aside default judgment?
By showing (1) good cause ( e.g. excusable neglect) AND (2) viable defense
what is standard for assessing a 12b6 motion to dismiss for failure to state claim?
Judges looks only at P’s pleaded facts – not legal conclusions – and asks whether P states plausible claim based on those facts.
What is the standard for assessing a motion for SJ? When must it be filed?
Party moving must show:
(1) no genuine dispute on the material fact
(2) they are entitled to judgment as MoL
note: court has some discretion to deny motion still
Court views evidence in light most favorable to the nonmoving party.
Filed no later than 30 days after close of discovery.
