Adjudication without Trial

Question 1

Preliminary Injunctive Relief

Answer 1

A court order that the defendant either (1) do something or (2) refrain from doing something.

Question 2

The court will issue a TRO ex parte only if:

Answer 2

• the applicant files a paper under oath clearly showing that if no TRO, will suffer immediate and irreparable harm
• applicant’s lawyer certifies in writing her efforts to give oral or written notice to the defendant or the defendant’s lawyer.

Question 3

Duration of a TRO

Answer 3

No more than 14 days but it can be extended another 14 days if the applicant shows good cause. However, beyond 28 days it should be treated as a preliminary injunction.

Question 4

A preliminary injunction cannot be issued ex parte. the burden is on the applicant to show:

Answer 4

1. likley to suffer irreparable harm
2. likely to win on the merits of underlying case
3. balance of the hardship favors her AND
4. injunction is in the public interest.

Question 5

Dismissal without Court Permission

Answer 5

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.

Question 6

What is a entry of default?

Answer 6

Default is a notation by the court clerk on the docket sheet in case.

Plaintiff has to move and show the defendant failed to respond on time. Until a default is actually entered, the defendant can respond by motion or answer even beyond 21 days.

Question 7

Clerk of court can enter a default judgment if:

Answer 7

• the defendant has made no response at all
• claim itself is for a sum certain in money
• plaintiff gives an affidavit of the sum owed; and
• defendant is not a minor or incompetent.

If any of these are NOT true then the plaintiff should apply to the court for a default judgment.

Question 8

Motion to dismiss for failure to state a claim FRCP 12(b)(6)

Answer 8

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, case can be dismissed.

Question 9

Motion for Summary Judgment (FRCP 56)

Answer 9

Used after the case has been filed and the plaintiff has survived any Rule 12 motions. So we are now in the litigation stream. Summary judgment takes out cases where a trial might not be necessary.

Question 10

Party moving for summary judgment must show that

Answer 10

no genuine dispute on a material fact; and
entitled to judgment as a matter of law