Adjudication Without Trial Flashcards
TRO vs. Preliminary Injunction
- preliminary injunction = an order that maintains the status quo until trial
- vs. TRO (temporary restraining order) = what you might want to maintain the status quo until the hearing on the preliminary injunction
TRO - Basic Concept
- issued to preserve status quo until hearing on prelim injunction
- can be issued ex parte (means court can issue w/o giving notice to other party)
TRO - Requirements for Ex Parte Issuance
Court will issue ex parte only if:
- applicant files a paper under oath clearly showing that, if TRO not issued, she will suffer “immediate + irreparable harm” if she must wait until the other side is heard
- applicant’s lawyer certifies in writing her efforts to give oral or written notice to def or def’s lawyer (or why such notice shouldn’t be given in this case)
TRO - Obs if Issued
- order must be served on def ASAP (otherwise def can’t be punished for violating it)
- applicant must post bond to cover other party’s costs + damages caused if turns out the TRO is wrongful
- ruling granting or denying a TRO may not immediately be appealed
TRO - Contents
Must:
- state its terms specifically
- describe in detail what def must do (or refrain from doing)
- state why it was issued
- state why the threatened injury to pl was irreparable
Duration of TRO
- effective for no more than 14 days (or less if stated by ct)
-> BUT restrained party may move to remove/dissolve earlier - if applicant shows good cause before expiration, can be extended another 14 days
- CANNOT extend beyond 28 days though -> if so, could be treated as a preliminary injunction
Preliminary Injunction - Basic Concept
- maintains status quo until court can adjudicate the underlying claim on the merits
- can’t be issued ex parte
Preliminary Injunction - Rights
- NO right to PI -> ALWAYS in ct’s discretion
Preliminary Injunction - Requirements
Applicant must show:
- likely to suffer irreparable harm if injunction not issued
- likely to win on merits of underlying case
- balance of hardship favors her (threatened harm to applicant outweighs harm to other party if injunction issued) AND
- injunction is in the public interest
Additional Reqs for PI
- if ct grants, applicant must post a bond
- in granting or denying, court must make specific findings of fact + separate conclusions of law
Preliminary Injunction - Contents
Must:
- state its terms in specificity
- describe in detail what def must do or refrain from doing
- state why it was issued
Preliminary Injunction - Appeal
- order granting or denying PI may be appealed as a matter of right
Voluntary Dismissal - Without Court Permission
- if pl wants to withdraw case, can do so w/o court order before def serves an answer or motion for summary judgment
- parties may also stipulate to a voluntary dismissal w/o court order (ex: if case settled, a stipulated dismissal would be filed)
Dismissal with Court Permission
- beyond the initial voluntary withdrawal, court permission is required absent a stipulation
- if pl wants to withdraw, can make a motion for voluntary dismissal -> ct has discretion to grant
Voluntary Dismissal - Prejudice
- only get ONE voluntary dismissal w/o prejudice -> subsequent ones would be w/ prejudice -> takes away pl’s ability to subsequently refile the case
Default Judgment - Basic Concept
- might occur if def doesn’t respond to the complaint in time (21 days after being served w/ process)
Entry of Default
- default = notation by court clerk on docket sheet in the case
- doesn’t happen automatically -> pl must move for this + demonstrate def failed to respond in time
- until a default is actually entered, def can respond by motion or answer even beyond 21 days
Effect of Entry of Default
- cuts off def’s right to respond
- BUT doesn’t automatically entitle pl to relief
- pl must seek a default judgment
How to Get a Default Judgment - from Clerk
Clerk of ct can enter default judgment if:
- def has made no response at all (has not “appeared”)
- claim itself is for a sum certain in money
- pl gives affidavit (sworn statement) of sum owed AND
- def is not a minor or incompetent
- if any of these isn’t true, pl must apply to ct for default judgment
Hearing for Default Judgment
- judge holds hearing + has discretion whether to enter default judgment
- def is entitled to notice of the hearing if has appeared in the case in some fashion
- unlike at trial, pl’s recovery in hearing for default judgment = limited to what it pleaded in the complaint
Motions to Set Aside Default or Default Judgment
Def may move to have ct set aside by showing:
1) good cause (ex: excusable neglect) AND
2) a viable defense
Motion to Dismiss for Failure to State a Claim
- tests whether case belongs in litigation at all
- trying to dismiss on basis of pl’s complaint
Motion to Dismiss for Failure to State a Claim - What Court Considers
- court ignores pl’s legal conclusions + looks at allegations of fact on face of complaint
-> asks “if these facts are true, do they state a plausible claim?”
-> if no, case gets dismissed might allow pl to amend complaint to try to state a claim though
Summary Judgment - Standard
Moving party must show:
- there is no genuine dispute of material fact AND
- they are therefore entitled to judgment as a matter of law
- ct not always required to grant if standard met (some discretion, reviewed for abuse of discretion on appeal)
- can also be partial (ex: on a certain issue)
Timing of Summary Judgment
- any party can move for SJ no later than 30 days after close of discovery
Summary Judgment - Matters Considered
- court can look at the ev
- views the ev in the light most favorable to the nonmoving party
Parties proffer ev, usually:
- affidavits
- declarations
- deposition testimony OR
- interrogatory answers
Summary Judgment - Delaying Ruling
- if party opposing SJ needs more time to find ev to oppose the motion, can file affidavit or declaration w/ court stating what that ev would be
- ct can allow more time for that party to obtain ev
