Adjudication Without Trial Flashcards

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1
Q

Difference between a TRO and Preliminary Injunction

A

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

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2
Q

Duration and Contents of TRO?

A

14 days, but can be extended for up to another 14 days

Must state specifically, and in detail, what D must do

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3
Q

To get a prelim injunction, the applicant must show:

A
  1. She is likely to suffer irreparable harm if injunction is not issued;
  2. She is likely to win on the merits of the underlying case;
  3. The balance of hardship favors her;
  4. The injunction is in the public interest
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4
Q

May a Plaintiff voluntarily dismiss a case?

A

Yes, she may do so without a court order before the D serves an answer or motion for SJ

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5
Q

Entry of Default Judgment

A

The clerk of the court can enter a default judgment if:

  1. The D has made no response at all (i.e., has not appeared)
  2. The claim itself is for a sum certain in money;
  3. The P gives an affidavit of the sum owed; and
  4. 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

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6
Q

May a defendant move to have the court set aside a default?

A

Yes, by showing good cause AND a viable defense

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7
Q

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

A

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

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8
Q

Motion for Summary Judgment

A

Used after case has been filed and Plaintiff has survived any Rule 12 motions

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9
Q

Standard for Summary Judgment

A

Party moving for SJ must show:

  1. There is no genuine dispute on a material fact; and
  2. She is entitled to judgment AMOL
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10
Q

Timing of Motion for SJ

A

No later than 30 days after close of discovery. This motion can be for “partial” judgment

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