Adjudication without Trial

Question 1

A preliminary injunction preserves the status quo until…

Answer 1

trial.

Question 2

A temporary restraining order (TRO) preserves the status quo until…

Answer 2

preliminary injunction.

Question 3

A TRO can be issued ex parte (without notice) only if the applicant files a paper…

Answer 3

under oath showing that if the TRO is not issued ex parte she will suffer immediate and irreperable harm.

Question 4

A party seeking an ex parte TRO must also certify (in writing) her efforts to give…

Answer 4

oral or written notice to the Defendant OR why such notice should not be required based on the facts of the case.

Question 5

If a court issues a TRO, the applicant must post a bond…

Answer 5

sufficient to cover the other side’s costs and damages if it turns out the TRO is wronful.

Question 6

An order granting a TRO (is/is not) ordinarily immediately appealable.

Answer 6

is not

Question 7

A TRO must state…

Answer 7

1. Its specific terms;
2. What the Defendant must do or retrain from doing in detail;
3. Why it was issued; and
4. Why the harm would have been irreperable.

Question 8

A TRO is effective for no more than…

Answer 8

14 days, or a lesser time stated by the court.

Question 9

A TRO’s duration can be extended, but it cannot exceed…

Answer 9

28 days.

Question 10

If a TRO is extended beyond 28 days, it should be treated as…

Answer 10

a preliminary injunction.

Question 11

A preliminary injunction (can/cannot) be issued ex parte.

Answer 11

cannot

Question 12

An applicant for a preliminary injunction must show that they are:

Answer 12

1. Likely to suffer irreparable harm if not issued;
2. Likely to win on the merits on the underlying case;
3. Balance of the hardships favors the applicant;
4. The injunction is in the public interest.

Question 13

A preliminary injunction must state:

Answer 13

1. Its specific terms;
2. What the Defendant must do or retrain from doing in detail; and
3. Why it was issued.

Question 14

In granting or denying the preliminary injunction, the court must make…

Answer 14

1. Specific findings of fact; and
2. Separate conclusions of law.

Question 15

An order granting or denying a preliminary injunction may be appealed…

Answer 15

as of right.

Question 16

If a Plaintiff wants to withdraw a case, she may do so without court order if the Defendant…

Answer 16

has not filed answers or a motion for summary judgment.

(file notice of dismissal)

Question 17

A Plaintiff can get a voluntary dismissal with court order by…

Answer 17

filing a motion for voluntary dismissal.

(up to court’s discretion)

Question 18

How many voluntary dismissals without prejudice can a Plaintiff get?

Answer 18

Only one

Question 19

A Plaintiff seeking a second voluntary dismissal in a case will…

Answer 19

extinguish the claim.

(counts as an adjudication on the merits)

Question 20

A Plaintiff may seek Defendant’s default if the Defendant doesn’t respond to the Complaint within:

(move for entry of default)

Answer 20

1. 21 days after service of process; or
2. 60 days if process is waived.

Question 21

The entry of default cuts off…

Answer 21

the Defendant’s right to respond.

Question 22

Does a Default entitle the Plaintiff to recover anything?

Answer 22

No – Plaintiff must seek a default judgment to recover.

Question 23

A clerk of court can enter default judgment if:

Answer 23

1. The Defandant made no response;
2. The claim itself is for a sum certain;
3. Plaintiff gives an affidavit of the amount owed;
4. Defendant is not a minor or incompetent.

Question 24

If any of the elements required for a clerk to enter default judgment are not present then…

Answer 24

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.

Question 25

A Plaintiff’s recovery for default judgment is limited to…

Answer 25

what was sought in the complaint.

Question 26

If a Defendant wants to dispute default/default judgment, they must move…

Answer 26

to set aside the default/default judgment.

Question 27

In a motion to set aside default/default judgment, a Defendant must show:

Answer 27

1. Good cause; and
2. a viable defense.

generally speaking a trial on the merits is preferred.

Question 29

A judge ruling on a 12(b)(6) motion should…

Answer 29

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?)

Question 30

If Defendant has already answered the Complaint, a 12(b)(6) motion is called a…

Answer 30

motion for judgment on the pleadings.

Question 31

Summary judgment is proper when…

Answer 31

there is no dispute of material fact.

Question 32

A party moving for summary judgment must show:

Answer 32

1. No genuine dispute of material fact; and
2. She’s entitled to judgment as a matter of law.

Question 33

Any party can move for summary judgment no later than…

Answer 33

30 days after the close of discovery.

Question 34

In determining if summary judgment is appropriate, a court must look at evidence in…

Answer 34

the light most favorable to the non-moving party.

Question 35

A party opposing a motion for summary judgment delay ruling if they…

Answer 35

file an affidavit stating what the evidence would be and that they need more time to prepare such evidence.

Question 36

Is a Complaint viewed by the court in preparation for its ruling on summary judgment?

Answer 36

No – a Complaint is a pleading, not evidence.

Question 37

Can a pleading ever be treated as evidence?

Answer 37

Yes – if it was made under oath/verified.