Adjudication Without Trial Flashcards
Difference between a TRO and Preliminary Injunction
An order that maintains the status quo until trial is a preliminary injunction, but before this, you may seek a TRO which is until hearing or prelim injunction can be held.
A TRO requires filing a paper under oath and lawyer certifying efforts to give oral or written notice to Defendant
Duration and Contents of TRO?
14 days, but can be extended for up to another 14 days
Must state specifically, and in detail, what D must do
To get a prelim injunction, the applicant must show:
- She is likely to suffer irreparable harm if injunction is not issued;
- She is likely to win on the merits of the underlying case;
- The balance of hardship favors her;
- The injunction is in the public interest
May a Plaintiff voluntarily dismiss a case?
Yes, she may do so without a court order before the D serves an answer or motion for SJ
Entry of Default Judgment
The clerk of the court can enter a default judgment if:
- The D has made no response at all (i.e., has not appeared)
- The claim itself is for a sum certain in money;
- The P gives an affidavit of the sum owed; and
- The D is not a minor or incompetent
IF ANY OF ABOVE IS NOT TRUE<, THE PLAINTIFF MUST APPLY TO THE COURT FOR DEFAULT JUDGMENT
May a defendant move to have the court set aside a default?
Yes, by showing good cause AND a viable defense
Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
Tests whether the case belongs in litigation stream at all, and if Complaint fails to state a claim, the case can be dismissed
Judge will consider whether they state a plausible claim looking only at the allegations of fact on the face of the complaint, however, the judge might allow amendment
Motion for Summary Judgment
Used after case has been filed and Plaintiff has survived any Rule 12 motions
Standard for Summary Judgment
Party moving for SJ must show:
- There is no genuine dispute on a material fact; and
- She is entitled to judgment AMOL
Timing of Motion for SJ
No later than 30 days after close of discovery. This motion can be for “partial” judgment