Adjudication Without Trial

Question 1

what is injunctive relief?

Answer 1

injunctive relief is a COURT ORDER that the defendant either
(1) do something; or
(2) refrain from doing something

Question 2

what is a preliminary injunction?

Answer 2

a preliminary injunction is an order that maintains a status quo UNTIL trial

Question 3

what is a temporary restraining order “TRO”?

Answer 3

BEFORE GETTING A preliminary injection - to maintain the status quo until the hearing on the preliminary injunction - you may seek a TRO

Question 4

when is a TRO issued?

Answer 4

a TRO is issued to preserve the status quo UNTIL a hearing for a preliminary injunction can be held

Question 5

how can a TRO be issued?

Answer 5

a court can issue a TRO “ex parte” (without giving notice to the other party)

Question 6

when can a court issue an ex parte TRO?

Answer 6

the court will issue a TRO ex parte ONLY if:
1) 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
2) the applicants’s lawyer certifies in writing her efforts to give oral or written notice to the defendant, or the defendant’s layer (or why such notice should not be required in this case)

Question 7

What else must the applicant do if the TRO is issued?

Answer 7

The applicant must post a bond to cover the other sides, cost and damages caused if it turns out the restraint is wrongful

Question 8

when must a TRO be served?

Answer 8

If a court issue is a TRO, the order must be served on the defendant as soon as possible

Question 9

May a ruling for a TRO (whether granting or denying it) be immediately appealed?

Answer 9

ordinarily not

Question 10

what must a TRO contain?

Answer 10

a TRO must:
1) state its terms SPECIFICALLY
2) describe in DETAIL what the defendant must or must not do
3) state why it was issued
4) state why the threatened injury to the plaintiff was irreparable

Question 11

how long does a TRO last?

Answer 11

A TRO is effective for no more that 14 days (or lesser time stated by the court), but the restrained party may move to dissolve or modify it earlier.

If the applicant shows good cause before expiration, it can be extended for up to another 14 days. So a TRO cannot extend beyond 28 days.

If the court extends a TRO beyond 28 days, it may be treated as a preliminary injunction.

Question 12

what is a preliminary injunction?

Answer 12

a preliminary injunction maintains the status quo until the court can adjudicate the underlying claim on the merits. a preliminary injunction cannot be issued ex parte.

Question 13

what must the applicant show to get a preliminary injunction?

Answer 13

the applicant must show that:
1) she is likely to suffer IRREPARABLE HARM if the injunction is not issued
2) she is likely to win on the merits of the underlying case
3) the BALANCE OF HARDSHIP FAVORS her (threatened harm to applicant outweighs harm to the other party if the injunction is issued); and
4) the injunction is in the PUBLIC INTEREST

Question 14

what must a preliminary injunction state?

Answer 14

it must state:
1) its terms with specificity
2) describe in detail what the defeat must do or refrain from doing, and
3) state why it was issued

Question 15

what else must applicant do if a preliminary injunction is issued?

Answer 15

the applicant must post a bond

Question 16

may an order granting or denying a preliminary injection be appealed?

Answer 16

YES - it may be appealed as of right

Question 17

what are the ways that the parties can get adjudication WITHOUT trial?

Answer 17

1) Preliminary Injunctive Relief
— Temporary restraining order
— Preliminary Injunction
2) Voluntary Dismissal
3) Default and Default Judgment
4) Motion to Dismiss for Failure to State a Claim (12(b)(6))
5) Motion for Summary Judgment (FRCP 56)

Question 18

what is another way in which there can be adjudication without trial?

Question 19

2) what is a voluntary dismissal?

Answer 19

there are 2 types:
a) voluntary dismissal WITHOUT court permission
b) voluntary dismissal WITH court permission

Question 20

a) voluntary dismissal WITHOUT court permission

Answer 20

if the P wants to withdraw the case - they may do so without a court order BEFORE THE DEFENDANT SERVES AN ANSWER OR MOTION FOR SUMMARY JUDGMENT

**parties may also stipulate to a voluntary dismissal

Question 21

b) voluntary dismissal WITH court permission

Answer 21

after the defendant serves an answer or files a motion for summary judgment - court permission is required for a voluntary dismissal - absent a stipulation

If the platiiff wants to withdraw the case - she can make a motion for VOLUNTARY DISMISSAL - which the court has discretion to grant

Question 22

what are the effects of a first voluntary dismissal?

Answer 22

a first voluntary dismissal is WITHOUT PREJUDICE - meaning that the plaintiff can refile the case

Question 23

what happens after you get a SECOND voluntary dismissal?

Answer 23

the second voluntary dismissal is WITH PREJUDICE - which operates as an ADJUDICATION on the merits and takes away the P’s ability to refile the case

Question 24

3) what is a default / default judgment?

Answer 24

both a default and a default judgment might occur when the defendant does NOT respond to the complaint in time (within 21 days after being served with process)

Question 25

what is a DEFAULT?

Answer 25

an entry of default is a NOTATION by the court CLERK on the docket sheet in the case.

This does not happen automatically - rather the plaintiff must move for default

Question 26

who must move for default?

Answer 26

the plaintiff must move for default

Question 27

what must the plaintiff demonstrate when moving for an entry of default?

Answer 27

the plaintiff must demonstrate that the defendant failed to respond in time

Question 28

what are the defendants options?

Answer 28

Until a default is actually entered, the defendant can respond by motion or answer even beyond 21 days

Question 29

what is the effect of an entry of default?

Answer 29

The entry of default cuts off the defendant’s right to respond. Entry of default, however, does not automatically entitle the plaintive to relief. The plaintiff must seek a default judgment.

Question 30

how does a plaintiff get a default judgment?

Answer 30

a clerk will enter the default judgment if certain requirements are met - if not then the platiniff must apply to the court for the default judgmetn

Question 31

when will a clerk of the court enter a default judgment?

Answer 31

a clerk of the court will enter a default judgment if:
1) the defendant has made no response at all (has failed to “appear”)
2) the claim itself is for a sum of certain in MONEY
3) the plaintiff gives an affidavit (sworn statement) of the same owed
4) the defendant is NOT a minor or incompetent

Question 32

when does a plaintiff apply to the court for the default judgment?

Answer 32

when one of the 4 requirements for a clerk to enter a default judgment are not met

Question 33

if the plaintiff enters the court for the DJ - what happens?

Answer 33

the judge will hold a hearing AND has DISCRETION whether to enter the judgment.

Question 34

Is adefendant entitled notice of a default judgment hearing?

Answer 34

The defendant is entitled to notice of hearing, if she has appeared in some fashion in the case

Question 35

What is the plaintiffs recovery in a hearing for default judgment?

Answer 35

The plaintiffs recovery in a hearing for a default judgment, is limited to what is pleaded in the complaint (i.e. can’t get more money than what was asked of in the complaint; also can’t get different type of recover - i.e. injunctive relief vs. damages asked for in complaint)

Question 36

what are defendant’s options if a default OR default judgment has been issued?

Answer 36

a Defendant may move to have a court set aside, a default, or default judgment by showing:
1) good cause (like excusable neglect); and
2) a viable defense (** a trial, on the merits of a case is preferred)

Question 37

4) Motion to Dismiss for failure to state a claim

Answer 37

if the Plaintiff’s complaint fails to state a claim, the case can be DISMISSED

Question 38

What is the difference between a ‘motion to dismiss for failure to state to claim’ AND a ‘Motion for judgment on the pleadings’

Answer 38

motion to dismiss for failure to state a claim - made in response to P’s complaint (it is the D’s first answer)

motion for judgment on the pleadings – same motion, but made AFTER the defendant has answered

Question 39

what does a court do when they are ruling on a motion to dismiss for failure to state a claim

Answer 39

when ruling on a motion to dismiss for failure to state a claim, a court IGNORES the plaintiffs legal conclusions - and only looks at the P’s ALLEGATIONS OF FACT on the face of the complaint (and NO EVIDENCE)

the court asks “if these facts are true, do they state a PLAUSIBLE claim?”

Question 40

What are the options of whether a fact states a plausible claim or not?

Answer 40

if the facts do not state a plausible claim - there would be no reason to allow case to move forward as the LAW DOES NOT RECOGNIZE A CLAIM ON THESE FACTS – case dismissed.

Question 41

What other options does a judge have when ruling on a motion to dismiss for failure to see the claim?

Answer 41

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

Question 42

5) Motion for Summary Judgment (FRCP 56)

Answer 42

A motion for summary judgment is used AFTER the case has been filed AND the P has survived any rule 12 motions

**weeds out cases in which no trial is needed (only reason to have trial is to resolve a dispute of material fact)

Question 43

what must a party moving for summary judgment show?

Answer 43

a party moving for summary judgment must show that:
1) there is no genuine dispute on a MATERIAL fact; and
2) the party is entitled to a JUDGMENT as a matter of LAW

**court still has discretion to deny the motion (even if standard is met)

Question 44

If the court denies the motion for summary judgment, even if the party moving for summary judgment satisfied the standard, how is this measured on appeal?

Answer 44

This is measured by an abuse of discretion, standard on appeal

Question 45

When can a party move for summary judgment??

Answer 45

Any party can move for summary judgment, no later than 30 days after close of discovery

Question 46

Does a motion for summary judgment have to be for the full judgment?

Answer 46

The motion can be for a partial judgment (i.e. I was to liability, and the case can go to trial on the damages)

Question 47

What is partial summary judgment?

Answer 47

Partial summary judgment is also sometimes called summary adjudication

Question 48

What does a quart look at when ruling on a summary judgment motion?

Answer 48

The court can look at evidence, and views the evidence in the light most favorable to the non-moving party

Question 49

What evidence do the parties give to the court when it is ruling on a summary judgment motion??

Answer 49

the parties PROFFER evidence, usually:
1) affidavits;
2) declarations
3) deposition testimony
4) interrogatory answers

**considered answers because they are under “oath”
also keep in mind these are available because motion for summary judgment occurs after the close of discovery

Question 50

What options does the party opposing the summary judgment have?

Answer 50

If the party opposing summary judgment needs more time to find evidence to oppose the motion, they may file an affidavit or declaration (sworn statement) with the court, stating what that evidence would be

** the court may allow more time for the party to obtain evidence

Question 51

if there is a dispute on a material fact -will summary judgment be granted?

Answer 51

no!! the case must go to trial

Question 52

does the judge asses credibility on a summary judgment motion?

Answer 52

nope! evidence does not have to be assessed as credible - just has to demonstrate there there is or is not a dispute on a material fact

**credibility is a fact question – have to go to trial!

Question 53

what if evidence (that is authenticated) discredits the plaintiff’s witness’s version of the facts?

Answer 53

the Supreme Court has held that in situations such as these, the court can ignore Plaintiff’s evidence and grant summary judgment