Adjudication without Trial Flashcards
What tools are exercised in Adjudication without Trial?
There are various ways that a case can be resolved without going to trial (+ TROs and preliminary injuctions) including:
- Voluntary Dismissal
- Default and Default Judgment
- Motion to Dismiss for Failure to state a claim. (12(b)(6)).
- Motion for summary judgment. (FRCP 56).
What is preliminary injunctive relief? Why do we have it? How do courts feel about it?
Reason: P is worried that D may do (or not do) something that will prejudice the P’s case before case can be tried.
What it is: A court order that the D either (1) do something or (2) refrain from doing something. (maintains status quo until trial)
Do courts like it? No. B/c merits of underlying dispute have not yet been decided. See ex.
Ex: Employer sues ex-employee who she claims stole trade secrets. A preliminary injuction would order the ex-employee from using those trade secrets.
What is the difference between a temporary restraining order and a preliminary injuction?
A preliminary injuction maintains status quo until trial. A TRO maintains status quo until preliminary junction. (I.e., TRO is before preliminary injuction).
Temporary Restraining Order: Purpose, Contents, Duration, Service, Bond, Appeal
Purpose: Maintain status quo until preliminary injuction hearing.
Contents: TRO must:
1. State its terms specifically,
2. Describe in detail what the D must do (or refrain from doing),
3. State why it was issued, and
4. State why the threatened injury to the P was irreparable.
Duration: No more than 28 days (Original 14 days, or less if court says, PLUS 14 day extension if D shows good cause before expiration.) If extends past 28 days, then treated as a preliminary injuction. (D can move to dissolve of modify earlier).
Service: If court issues a TRO, order must be served on D as soon as possible. A D without notice of a TRO cannot be punished for violating it.
Bond: If issued, applicant must post a bond to cover the other side’s costs and damages caused if it turns out the restraint was wrongful.
Appeal: A ruling granting or denying a TRO ordinarily may not immediately be appealed.
Can a Temporary Restraining Order be granted without notice?
Yes.
“Ex parte” = court does something without notice.
Ex-Parte TRO allowed 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.
2. 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).
Can a preliminary injuction be issued ex parte?
No.
Preliminary Injuction: Burden, Bond, Contents, Discretion, Appeal
Burden: The burden is on the applicant to show:
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 other party if the injunction is issued); and
4. The injunction is in the public interest.
Bond: Applicant must post a bond. (like TRO)
Contents:
The preliminary injunction must:
1. State its terms in specificity,
2. Describe in detail what the defendant must do or refrain from doing, and
3. State why it was issued.
In granting or denying the preliminary injunction, the court must make specific findings of fact and separate conclusions of law.
Discretion: There is no right to an injunction. The matter is in the court’s discretion.
Appeal: May be appealed as of a right.
Voluntary Dismissal: With & Without Court Permission.
Without Court Permission:
1. P can voluntary withdraw the case BEFORE the D serves an answer or motion for SJ.
2. Parties can also stipulate to a volunatary dismissal w/out judge. For example, if the case is settled, a stipulated dismissal will be filed.
With Court Permission: Absent the above, P must make a motion for voluntary dismissal, which court has discretion to grant or not.
Is voluntary dismissal with or without prejudice?
The first voluntary dismissal is “without prejudice.” (P can refile the case). (only once).
The second voluntary dismissal is “with prejudice,” which operates as an adjudication on the merits and takes away the plaintiff’s ability to refile the case.
Entry of Default: What, How, Timing, and Effect.
What: notiation by the court clerk on the docket sheet of the case.
How: P must move for entry of default and demonstrate that the D failed to respond in time.
Timing: The D has 21 days to file a motion / answer upon proper service, but until the default is actually entered, the D can respond even beyond 21 days.
Effect: Cuts off D’s right to respond. BUT it does not automatically entitle the P to relief. The P must seek default judgment.
How do you get a default judgment?
The CLERK OF COURT can enter default judgment only if:
- The defendant has made no response at all (that is, she has not “appeared” = any formal appearance or action indicating the D will contest the claim);
- The claim itself is for a sum certain in money;
- The plaintiff gives an affidavit (sworn statement) of the sum owed; and
- The defendant is not a minor or incompetent.
If any of the above 4 are untrue or missing, then P must apply to the court for default judgment.
Hearing for Default Judgment: Court Discretion, Notice, Recovery.
Court Discretion: The judge will hold a hearing and has discretion whether to enter the judgment.
Notice: D entitled to notice of hearing if she has appeared in some fashion in the case.
Recovery: Unlike at trial, the P’s recovery in a hearing for a default judgment is limited to what is pleaded in the complaint.
What is a Motion to Dismiss for Failure to state a claim? (12(b)(6)?
Questions whether the case belongs in litigation at all.
Challenge that the pleasing does not have facts that are plausible to win. If P failed to state claim, it can be dismissed.
The same motion, if made after the D answered, is called a motion for judgment on the pleadings.
What is the rule for a 12b6 motion?
Court looks only at P’s allegations of fact on face of the complaint (ignores legal conclusions and any evidence) and asks “if these facts are true, do they state a plausible claim?”
Judge uses her experience and common sense to see if the facts state a plausible claim.
If no, then dismissed, BUT has the discretion to allow the P to amend the complaint and try to state (plead) a claim.
When does a motion for SJ occur (FRCP 56)?
Takes place after the case has been filed and the P has survived any Rule 12 motions.
