Adjudication Without Trial

Question 1

Difference between a TRO and Preliminary Injunction

Answer 1

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

Question 2

Duration and Contents of TRO?

Answer 2

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

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

Question 3

To get a prelim injunction, the applicant must show:

Answer 3

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

Question 4

May a Plaintiff voluntarily dismiss a case?

Answer 4

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

Question 5

Entry of Default Judgment

Answer 5

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

Question 6

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

Answer 6

Yes, by showing good cause AND a viable defense

Question 7

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

Answer 7

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

Question 8

Motion for Summary Judgment

Answer 8

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

Question 9

Standard for Summary Judgment

Answer 9

Party moving for SJ must show:

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

Question 10

Timing of Motion for SJ

Answer 10

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