Adjudication without Trial

Question 1

Preliminary injunctive relief

Answer 1

Court order to specifically make a party do something or to refrain from doing something until the court can adjudicate the underlying claim
-Preserves status quo until trial
-In court’s discretion
-Cannot be issued ex parte
-Applicant must post bond to cover other side’s costs and damages if the restraint is wrongful
-Court must make specific findings of fact and separate conclusions of law
-Appealable

Burden on applicant to show that:
-Applicant is likely to suffer irreparable harm
-Applicant is likely to win on the merits
-Balance of hardship favors the applicant
-Injunction is in the public interest

Question 2

Temporary Restraining Order (TRO)

Answer 2

Preserves status quo until a hearing for a preliminary injunction
-Must specifically describe in detail what D must or must not do
-Effective for 14 days, can be extended another 14 days for good cause, but cannot exceed 28 days
-Opposing party can move to dissolve or modify the TRO
-Applicant must post bond to cover other side’s costs and damages if the restraint is wrongful

Court may issue ex parte (without giving notice to other party) only if:
-Under oath, applicant clears that not issuing a TRO will cause it to suffer immediate and irreparable harm
-Oral or written notice to defendant (or why notice is not required)

Question 3

Voluntary dismissal

Answer 3

Plaintiff may withdraw from the case without a court order before D serves an answer or MSJ
-Needs court permission after that
-One voluntary dismissal without prejudice

Question 4

Without prejudice

Answer 4

Plaintiff can refile the case
-Only get one voluntary dismissal without prejudice

Question 5

With prejudice

Answer 5

Takes away plaintiff’s ability to refile the case in both state and federal court

Question 6

Default judgment

Answer 6

Available when D does not respond within 21 days of service of process

Default judgment process:
1. Plaintiff moves for entry of default
2. Court clerk makes an entry of default, cutting off D’s right to respond
3. Plaintiff seeks default judgment and court clerk grants only if:
-Defendant does not appear
-Claim is for certain sum of money
-Plaintiff gives affidavit of the sum owed; and
-Defendant is not a minor or incompetent
4. If lacking any requirement, judge will hold a hearing to determine whether the court has discretion to enter default judgment
-Defendant is entitled to notice if he appeared in some fashion
-Plaintiff’s recovery limited to what was pleaded in the complaint

Question 7

Motion to Set Aside Default or Default Judgment

Answer 7

Defendant must shop:
1. Good cause (excusable neglect); and
2. A viable defense

A trial on the merits is preferred

Question 8

Motion to Dismiss for Failure to State a Claim (a.k.a Motion for Judgment on the Pleadings)

Answer 8

Does P have a plausible claim?
No: dismiss the case
Yes: let the case proceed

*Called a Motion for Judgment on the Pleadings when made after D has answered

Question 9

Motion for Summary Judgment (MSJ)

Answer 9

A Motion for Summary Judgment is used after the case has been filed and the plaintiff has survived any Rule 12 motions
-Weeds out cases where a trial isn’t necessary
-Court has discretion to deny motion even if elements are met
-Court considers all available evidence (not pleadings unless verified) and views that evidence in the light most favorable to the non-moving party
-Nonmoving party can ask for an extension to gather more evidence to oppose the MSJ

Standard: moving party must show that:
1. There is no genuine dispute on a material fact; and
2. He is entitled to judgment as a matter of law

Timing: within 30 days of the closing of discovery