Adjudication without trial

Question 1

what is difference between a temporary restraining order and preliminary injunction?

Answer 1

preliminary injunction – an order that maintains the status quo until trial

-

TEMPORARY RESTRAINING ORDER

WHEN YOU SEEK: you may seek this BEFORE getting the Prelim Inj…. you seek this to maintain the status quo until you get a hearing for a preliminary injunction

Question 2

if party has no notice of TRO, can they violate it?

Answer 2

generally, no

Question 3

explain how TRO works

• how issued
• when issued ex parte
• what happens after issued
• appeal?
• contents of TRO
• duration of TRO
• challenging it

Answer 3

HOW ISSUED: TROs may be issued “ex parte” (but do not have to be) which means court issues it without giving notice to the other party.

WHEN ISSUED EX PARTE:
The court will issue a TRO ex parte only if:

(A) 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.
AND
(B) 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 COURT ISSUES TRO: The applicant must post a bond to cover the other side’s costs and damages caused if it turns out the TRO is wrongful and the order must be served on the D asap.

NO IMMEDIATE APPEAL: A ruling granting or denying a TRO ordinarily may not immediately be appealed.

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

DURATION:
— A TRO is effective for no more that 14 days (or lesser time stated by the court)
– applicant may seek extension for another 14 days by showing good cause before expiration of the first one
— LIMIT = 28 days

CHALLENGING IT:
– restrained party may move to dissolve or modify it before the 14 days are up

Question 4

if TRO is extended beyond 28 days, what is it?

Answer 4

treated like a preliminary injunction

Question 5

how to get a preliminary injunction

Answer 5

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.

Question 6

can a preliminary injunction be issued ex parte?

Answer 6

no

Question 7

is there a right to a preliminary injunction?

Answer 7

There is no right to an injunction. The matter is in the court’s discre- tion.

Question 8

procedural requirements for preliminary injunctions

Answer 8

(1) applicant must post bond if it is granted

(2) contents – preliminary injunction must:
– state its terms with specificity
– describe in detail what D must do or refrain from doing
– state why it was issued

Question 8

procedural requirements for preliminary injunctions

Answer 8

(1) applicant must post bond if it is granted

(2) contents – preliminary injunction must:
– state its terms with specificity
– describe in detail what D must do or refrain from doing
– state why it was issued

Question 9

in granting or denying the preliminary injunction, court will do what?

Answer 9

In granting or denying the preliminary injunction, the court must make specific findings of fact and separate conclusions of law.

Question 10

can a preliminary injunction be appealed?

Answer 10

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

Question 11

when may a plaintiff voluntarily dismiss the case when may she not?

how many dismissals does P get?

Answer 11

NO COURT ORDER REQUIRED:

— P may withdraw her case without a court order before the D serves an answer or motion for summary judgment

– parties may stipulate to voluntary dismissal without court order [if case is settled - stipulation dismissal filed]

COURT ORDER REQUIRED:

– after D serves an answer or motion for summary judgment, court permission is required to withdraw the case, unless there is a stipulation between the parties = P must make a motion for voluntary dismissal, which court has discretion to grant

LIMITS ON DISMISSALS:

P gets one voluntary dismissal without prejudice [so P can refile”]. thereafter, P can only dismiss case with prejudice, which takes away P’s ability to refile

if there is a counterclaim pending in the action, there can be no dismissal over the defendant’s objection unless the counterclaim remains pending

Question 12

how to get a default?

what is an entry of default and its effect?

Answer 12

what is entry of default:
A default is a notation by the court clerk on the docket sheet in the case.

how to get it:
a P must demonstrate that the D failed to respond in time … note that D can respond by motion or answer beyond the 21 days until default is entered

effect:
– cuts off the defendant’s right to respond.
– does not automatically entitle the plaintiff to relief. The plaintiff must seek a default judgment.

Question 13

default vs. default judgement

Answer 13

default is just a notation by the clerk that the D did not respond in time

default judgement is what entitles P to relief as a result of D not responding in time

Question 14

how to get a default judgment

Answer 14

The clerk of the court can enter a default judgment if:

(a) The defendant has made no response at all (that is, she has not “appeared”);

(b) the claim itself is for a sum certain in money

(c) the P gives an affidavit of the sum owed

and

(d) the D is not a minor or incompetent

OR
———–

If any of the above (a)-(d) are not true, P must apply to the court for default judgment

Question 15

what happens when P applies to the court for default judgment?

Answer 15

(1) judge holds a hearing and decides whether or not to enter the judgment

D is entitled to notice of the hearing of she has appeared in some fashion in the case – he must be notified of the request for a default judgment by first-class mail at least 7 days before the hearing on the application for a default jdugment

“appear” = actual formal appearance before the court and any other action that clearly indicates D intends to contest the case on the merits

Question 16

what is default judgement recover?

Answer 16

Unlike at trial, the plain- tiff’s recovery in a hearing for a default judgment is limited to what is pleaded in the complaint.

Question 17

Plaintiff sues Defendant for damages and not an injunction. On default judgment, can the court enter an injunction?

Answer 17

no - for default, only what P asked for is what P gets

Question 18

The defendant may move to have the court set aside a default or default judgment by showing …

Answer 18

1) good cause (like excusable neglect)

and

(2) a viable defense.

Very generally speaking, a trial on the merits of the case is preferred.

[trial on the merits is preferred so court may allow this]

Question 19

explain how 12b6 failure to state a claim motions work

how judge decides ruling

Answer 19

“failure to state a claim” – idea is that the case should not be in litigation at all

-

how judges decide in ruling:

– Judge does NOT consider P’s legal conclusions

– judge ONLY consider P’s allegations of fact on the face of the complaint (not evidence) and asks “if these facts are true, do they state a plausible claim?” If no, then P has not stated a claim because the law does not recognize a claim on these facts

– judge DOES use her experience and commonsense to see if there is plausibility

Question 20

what is a motion for judgment on the pleadings?

Answer 20

same as 12b6 motion of failure to state a claim but made after D has answered

Question 21

will judge allow amendment to complaint after 12b6 motion?

Answer 21

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

Question 22

when is motion for summary judgment used [R56]?

what is the standard?

Answer 22

TIMING: after the case has been filed and the plaintiff has survived any Rule 12 motions

SITUATIONS: weeds out cases in which no trial is necessary because there are no disputes of material fact

STANDARD FOR SUMMJ:
The party moving for SJ must show that:

(1) there is no genuine dispute of material fact

and

(2) she is entitled to judgment as a matter of law

AND, court has discretion to deny or grant [abuse of discretion standard on appeal]

MATTERS CONSIDERED:
–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 [all under oath]
– court does NOT assess credibility of a W etc.
– cour may consider authenticated documents or audio or video

Question 23

when must summary judgment motions be brought?

Answer 23

Any party can move for summary judgment but they must do so no later than 30 days after close of discovery.

The motion can be for “partial” judgment— for example, as to liability—and the case can go to trial on damages.

Partial summary judgment is sometimes called summary adjudication.

Question 24

when may court delay ruling on a 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 declara- tion with the court stating what that evidence would be. The court may allow more time for the party to obtain evidence.

Question 25

for summary judgment purposes, are pleadings treated as evidence?

Answer 25

not usually - not under oath

might be relevant for summary judgment if D fails to deny an allegation by P … that can be treated as fact on summary judgment

Question 26

verified pleading

Answer 26

rare but these are pleadings under oath

i.e. can be used to support or contest motion for summary judgment

Question 27

if there are no genuine issues of material fact and court grants Summ J, what happens?

Answer 27

party is entitled to judgment as a matter of law