Adjudication without Trial Flashcards
A preliminary injunction preserves the status quo until…
trial.
A temporary restraining order (TRO) preserves the status quo until…
preliminary injunction.
A TRO can be issued ex parte (without notice) only if the applicant files a paper…
under oath showing that if the TRO is not issued ex parte she will suffer immediate and irreperable harm.
A party seeking an ex parte TRO must also certify (in writing) her efforts to give…
oral or written notice to the Defendant OR why such notice should not be required based on the facts of the case.
If a court issues a TRO, the applicant must post a bond…
sufficient to cover the other side’s costs and damages if it turns out the TRO is wronful.
An order granting a TRO (is/is not) ordinarily immediately appealable.
is not
A TRO must state…
- Its specific terms;
- What the Defendant must do or retrain from doing in detail;
- Why it was issued; and
- Why the harm would have been irreperable.
A TRO is effective for no more than…
14 days, or a lesser time stated by the court.
A TRO’s duration can be extended, but it cannot exceed…
28 days.
If a TRO is extended beyond 28 days, it should be treated as…
a preliminary injunction.
A preliminary injunction (can/cannot) be issued ex parte.
cannot
An applicant for a preliminary injunction must show that they are:
- Likely to suffer irreparable harm if not issued;
- Likely to win on the merits on the underlying case;
- Balance of the hardships favors the applicant;
- The injunction is in the public interest.
A preliminary injunction must state:
- Its specific terms;
- What the Defendant must do or retrain from doing in detail; and
- Why it was issued.
In granting or denying the preliminary injunction, the court must make…
- Specific findings of fact; and
- Separate conclusions of law.
An order granting or denying a preliminary injunction may be appealed…
as of right.
If a Plaintiff wants to withdraw a case, she may do so without court order if the Defendant…
has not filed answers or a motion for summary judgment.
(file notice of dismissal)
A Plaintiff can get a voluntary dismissal with court order by…
filing a motion for voluntary dismissal.
(up to court’s discretion)
How many voluntary dismissals without prejudice can a Plaintiff get?
Only one
A Plaintiff seeking a second voluntary dismissal in a case will…
extinguish the claim.
(counts as an adjudication on the merits)
A Plaintiff may seek Defendant’s default if the Defendant doesn’t respond to the Complaint within:
(move for entry of default)
- 21 days after service of process; or
- 60 days if process is waived.
The entry of default cuts off…
the Defendant’s right to respond.
Does a Default entitle the Plaintiff to recover anything?
No – Plaintiff must seek a default judgment to recover.
A clerk of court can enter default judgment if:
- The Defandant made no response;
- The claim itself is for a sum certain;
- Plaintiff gives an affidavit of the amount owed;
- Defendant is not a minor or incompetent.
If any of the elements required for a clerk to enter default judgment are not present then…
There will be a hearing and it is up to the judge’s discretion.
Defendant is entitled to notice of the hearing if she has appeared in some fashion in the case.
A Plaintiff’s recovery for default judgment is limited to…
what was sought in the complaint.
If a Defendant wants to dispute default/default judgment, they must move…
to set aside the default/default judgment.
In a motion to set aside default/default judgment, a Defendant must show:
- Good cause; and
- a viable defense.
generally speaking a trial on the merits is preferred.
A judge ruling on a 12(b)(6) motion should…
ignore the Plaintiff’s legal conclusions and look only at the Plaintiff’s allegations of fact on the face of the Complaint.
(if these facts are true – do they state a plausible claim?)
If Defendant has already answered the Complaint, a 12(b)(6) motion is called a…
motion for judgment on the pleadings.
Summary judgment is proper when…
there is no dispute of material fact.
A party moving for summary judgment must show:
- No genuine dispute of material fact; and
- She’s entitled to judgment as a matter of law.
Any party can move for summary judgment no later than…
30 days after the close of discovery.
In determining if summary judgment is appropriate, a court must look at evidence in…
the light most favorable to the non-moving party.
A party opposing a motion for summary judgment delay ruling if they…
file an affidavit stating what the evidence would be and that they need more time to prepare such evidence.
Is a Complaint viewed by the court in preparation for its ruling on summary judgment?
No – a Complaint is a pleading, not evidence.
Can a pleading ever be treated as evidence?
Yes – if it was made under oath/verified.
