Adjudication Without Trial Flashcards
Preliminary Injunction Relief Definition
A court order that D either (1) do something or (2) refrain from doing something
Steps (2) to get Preliminary Injunction
- Make a motion for PI
- Get a temporary restraining order
Ex Parte Definition
An action by a court without giving notice to the other party
The court issues a temporary restraining order ex parte if . . . ? (2)
- Applicant files a paper UNDER OATH clearly showing that if the TRO is not issued, he will “suffer immediate and irreparable harm if party has to wait until other side is heard
- Applicant’s lawyer certifies in writing their efforts to give oral/written to D or D’s lawyer (or why such notice should not be required in this case
TRO Bond Requirements
If the court issues the TRO, applicant must post a bond to cover the other side’s cost and damages caused if it turns out the restraint is wrongful
TRO Writing Requirements
Must state its terms SPECIFICALLY, describe in DETAIL what D must do (or refrain from doing), state why it was issued, and why the threatened injury to P was irreparable
If the court issues a TRO, what can D do?
Move to dissolve or modify
TRO Timing Mechanisms
Effective for no more than 14 days (or less if stated by court)
If applicant can show good cause before expiration, it can be extended for another 14 days
A TRO cannot extend past 28 days, if it does, it is treated as a Preliminary Injunction
Is the grant of a TRO or a Preliminary Injunction appealable?
TRO - No
PI - Yes (exception to closure rule)
Can a PI be granted ex parte?
Fuck no
To get a PI, the burden is on the applicant to show what 4 things?
- He is likely to suffer irreparable harm if the injunction is not issued
- He is likely to win on the merits of the underlying case
- The balance of hardship favors him (threatened harm to the applicant outweighs the harm to other party if the injunction is issued); AND
- The injunction is in the public interest
PI Bond Requirements
Same as TRO - applicant must post a bond
PI Writing Requirements
Like TRO - must state its terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issued
What must a court do to grant or deny a PI?
Must make specific findings of fact and separate conclusions of law
Voluntary Dismissal
P has a RIGHT to take a voluntary dismissal by filing a “notice of dismissal”
Voluntarily Dismissal Timing Mechanisms
P must do so before D serves an answer or motion for summary judgment
Dismissed Without Prejudice
Can refile, can only do it without prejudice once
Dismissed with Prejudice
Can’t refile
Default Timing Mechanisms
D does not respond to the complaint in time
21 days after being served with process or 60 days from mailing of waiver if service process was waived
Does the court clerk enter default automatically on the 22nd day after service process on D?
No –> P must move for entry of default
P must demonstrate that D failed to respond in time. Until default is entered, D can respond by motion/answer (even beyond 21 days)
What is the effect of entry of default?
Cuts off D’s right to respond
Entry of default does not entitle P to recover. What does P need to do before she can recover from D?
Get a default judgment
How to get a Default Judgment - 4 Elements for Clerk of Court
The CLERK OF COURT can enter judgment if:
- D made no response at all
- The claim itself is for a sum certain in money
- Claimant gives an affidavit (sworn statement) of sum owed; AND
- D is not a minor or incompetent
If any of the elements for DJ are not true, where does P go for default judgment?
The Court Itself
The judge will hold a hearing and has discretion to enter judgment. Does D get notice of this hearing?
Yes, ONLY IF D APPEARED IN THE CASE
aka D made a 12(b) motion, but failed to answer 21 days after motion was denied
What can you get a default judgment on?
Only relief sought in complaint
Motions to Set aside Default or Default Judgment
D may move to have the court set aside by showing good cause (like excusable neglect), cause for delay, and viable defense
Motion to Dismiss for Failure to State a Claim (12(b)(6)) Definition
Whether the case belongs in the litigation stream at all. If P fails to state a claim it can be dismissed
What does the court look at and ask in a 12(b)(6) Motion?
Ignores P’s LEGAL conclusions. Only looks at P’s allegations of FACT in the complaint and asks:
“If these facts are true, is it PLAUSIBLE there is a legal claim”
In a 12(b)(6) motion, does the court look at evidence?
Fuck no
What is equivalent to a 12(b)(6) motion if made after D has answered? (aka different name)
Motion for Judgment on the Pleadings
A party moving for Summary Judgment must show what 2 things?
- There is no genuine dispute on a material fact; AND
- Moving party is entitled to judgment as a matter of law
If a party meets the Summary Judgment standard, must the court enter summary judgment?
NO –> discretionary
Evidence must be such that NO REASONABLE jury could conclude otherwise
Summary Judgment Timing Mechanism
Any party can move for summary judgment no later than 30 days after close of discovery
Can the summary judgment be partial (ex - Sj as to liability but allow damages to go to trial)?
Fuck yes
What evidence can the court look at in summary judgment?
Think: Trial on Sworn Paper
Paper evidence & sworn testimony (MUST BE UNDER OATH)
Preclusion - Basic Idea
If you’re asserting 1 claim, you need to assert all claims arising from the same transaction or occurrence
REMEMBER: It only applies when 1 P asserts a claim against 1 D; if 2 D’s CAN be separate suits
REMEMBER: Different from counterclaims because you don’t have claims asserted against you
Claim Preclusion - What is another name?
Res Judicata
Claim Preclusion Requirements (3)
- Case 1 and Case 2 were brought by the SAME claimant against the SAME defendant
- Case 1 entered a valid final judgment ON THE MERITS
- Case 1 and Case 2 asserted the “same claim”
What final judgments are NOT ON THE MERITS?
Lack of SMJ/PJ, Improper Venue, or failure to join an indispensable party
“Same Claim” Majority View
A claim is any right to relief arising from a transaction or occurrence
Issue Preclusion - What is another name?
Collateral Estoppel
What does issue preclusion result in?
NO DISMISSAL (unlike claim preclusion) - results on the judge deciding an issue and not the jury
Issue Preclusion Requirements (5)
- Case 1 ended in a valid final judgment on the merits (same exclusions apply)
- The same issue was ACTUALLY LITIGATED and determined in Case 1 (opportunity to argue about actual issue - ex: default judgment DOES NOT satisfy)
- The issue was essential to the judgment in Case 1 (Finding on this issue is the basis for the judgment)
- Can only be asserted against somebody who was a party to case 1 or in “privity” with a party (a party to case 1 represented someone who was not a party to case 1 ex - Class actions)
- By whom can issue preclusion be assert?
Nonmutual Issue Preclusion - Definition
When someone who was not a party to Case 1 tries to use issue preclusion in Case 2
Nonmutual Defensive Issue Preclusion
The one using IP was not a party to Case 1 and is D in Case 2
Nonmutual Offensive Issue Preclusion
The one using it was not a party to Case 1 and is P in Case 2
