Adjudication Without Trial

Question 1

What is a Preliminary Injunction

Answer 1

Injunctive relief is a court order requiring a party to either (1) do something or (2) refrain from doing something

A preliminary injunction is an order than maintains the status quo until trial

Preliminary injunctions cannot be issued ex parte (unlike TROs)

Question 2

Temporary Restraining Order (TRO)

Answer 2

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

If issued, the TRO order must be served on the defendant as soon as possible

Question 3

Ex Parte TRO

Answer 3

A court may issue an ex parte TRO only if:
1) the applicant files papers under oath clearly showing that the TRO is necessary to prevent immediate and irreparable harm to the applicant if she must waive 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 defendant’s lawyer

If granted, the applicant must post a bond to cover the other side’s costs and damages if it turns out the TRO was wrongful

Question 4

Contents of TRO and Appeal

Answer 4

A TRO must state its terms specifically, describe in detail what the defendant must do or refrain from doing, state why it was issued, and why the threatened injury to the plaintiff was irreparable

The granting or denying of a TRO ordinarily may not be immediately appealed

Question 5

Duration of TRO

Answer 5

A TRO is effective for no more than 14 days

If the applicant shows good cause before expiration, it can be extended for another 14 days (28 days total)

CONVERSION - if the court extends a TRO past 28 days, it is treated as a preliminary injunction

Question 6

Preliminary Injunction Requirements

Answer 6

The applicant must 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 the applicant
4) the injunction is in the public interest

If the court grants the preliminary injunction, the applicant must post a bond

Question 7

Contents of Preliminary Injunction and Appeal

Answer 7

CONTENT
- the preliminary injunction must state its terms in specificity, describe in detail what the defendant must do or refrain from doing, and state why it was issued
- in granting the court must make specific findings of fact and separate conclusions of law

APPEAL
- an order granting or denying a preliminary injunction may be appealed as of right

Question 8

Voluntary Dismissal Without Leave of Court

Answer 8

A plaintiff may voluntarily dismiss her case without leave of court before the defendant serves an answer or motion for summary judgment

STIPULATION
- the parties may also stipulate to a voluntary dismissal without leave of court (Settlement)

Question 9

Voluntary Dismissal with Leave of Court

Answer 9

If the defendant has answered or filed a motion for summary judgment, the plaintiff must file a motion for voluntary dismissal. The court has discretion to grant dismissal on terms and conditions it deems proper.

COUNTERCLAIM
- if there is a counterclaim pending, there can be no dismissal over the defendant’s objection unless the counterclaim remains pending

Question 10

Without Prejudice Dismissal

Answer 10

The first voluntary dismissal is without prejudice (can refile the case)

A second voluntary dismissal is with prejudice - operates as an adjudication on the merits (can’t refile)

Question 11

Default v Default Judgment

Answer 11

A default is a notion in the case by the clerk that there has been no answer filed within the time permitted by the rules

A default judgment is a judgment entered because the defendant did no oppose the case (have to have an entry of default before you can move for a default judgment)

Question 12

Entry of Default

Answer 12

If a party fails to respond, the plaintiff may move for entry of default in which the plaintiff must demonstrate that the defendant failed to respond on time

the clerk enters the default on the docket sheet

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

Question 13

Effect of Entry of Default

Answer 13

Entry of default cuts off the defendant’s right to respond

BUT it does not automatically entitle the plaintiff to relief - must seek a default judgment

Question 14

Default judgment by Clerk of Court

Answer 14

The clerk can enter a default judgment if:
1) the defendant has made no response at all (not appeared)
2) the claim is for a sum certain in money
3) the plaintiff gives an affidavit of the sum owed; and
4) the defendant is not a minor or incompetent

Question 15

Default Judgment by Judge

Answer 15

In all other circumstances outside clerk entered default judgment, the plaintiff must apply to the court for the default judgment

The judge will hold a hearing and has discretion whether to enter judgment

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

Question 16

Limitation on Recovery in Default Judgment

Answer 16

the plaintiff is limited to recovering only what was pleaded in the complaint (nothing more)

Question 17

Motion to Set Aside Default or Default Judgment

Answer 17

The defendant may move to have the court set aside a default or default judgment by showing
1) good cause; and
2) viable defense

Question 18

Motion to Dismiss for Failure to State a Claim (Rule 12(b)(6))

Answer 18

If the plaintiff’s complaint fails to state a claim, the defendant can file a motion to dismiss for failure to state a claim

A motion for judgment on the pleadings can be made by the plaintiff after the defendant has answered (same standard)

Question 19

12(b)(6) standard

Answer 19

In ruling on the motion, the judge look only to the allegations of fact on the fact of the complaint (not any evidence) and asks - if these facts are true, do they state a plausible claim

The judge determines plausibility through experience and common sense

AMENDMENT:
The court might allow the plaintiff to amend the complaint to state a claim

Question 20

Motion for Summary Judgment (Rule 56)

Answer 20

A motion for summary judgment is made after the case has been filed and the plaintiff has survived any Rule 12 motions

Question 21

Summary Judgment Standard

Answer 21

The moving party must show that
1) there is no genuine issue of material fact; and
2) he is entitled to judgment as a matter of law

Denial of summary judgment is reviewed on appeal under an abuse of discretion standard

The court can grant partial summary judgment as to some issues (summary adjudication)

Question 22

Summary Judgment Timing

Answer 22

A party can move for summary judgment no later than 30 days after the close of discovery

Question 23

Matters considered in Summary Judgment

Answer 23

The court reviews the evidence in light most favorable to the nonmoving party

evidence is usually affidavits, declarations, depositions, and interrogatories (all under oath)

Question 24

Denial of Summary Judgment to Gather Evidence

Answer 24

If the party opposing summary judgment needs more time to find evidence to oppose the motion, she may file an affidavit with the court stating what the evidence would be

the court has discretion to allow more time