Adjudication Without Trial

Question 1

TRO vs. Preliminary Injunction

Answer 1

• 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

Question 2

TRO - Basic Concept

Answer 2

• 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)

Question 3

TRO - Requirements for Ex Parte Issuance

Answer 3

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)

Question 4

TRO - Obs if Issued

Answer 4

• 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

Question 6

TRO - Contents

Answer 6

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

Question 6

Duration of TRO

Answer 6

• 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

Question 7

Preliminary Injunction - Basic Concept

Answer 7

• maintains status quo until court can adjudicate the underlying claim on the merits
• can’t be issued ex parte

Question 8

Preliminary Injunction - Rights

Answer 8

• NO right to PI -> ALWAYS in ct’s discretion

Question 8

Preliminary Injunction - Requirements

Answer 8

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

Question 9

Additional Reqs for PI

Answer 9

• if ct grants, applicant must post a bond
• in granting or denying, court must make specific findings of fact + separate conclusions of law

Question 10

Preliminary Injunction - Contents

Answer 10

Must:
- state its terms in specificity
- describe in detail what def must do or refrain from doing
- state why it was issued

Question 11

Preliminary Injunction - Appeal

Answer 11

• order granting or denying PI may be appealed as a matter of right

Question 13

Voluntary Dismissal - Without Court Permission

Answer 13

• 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)

Question 14

Dismissal with Court Permission

Answer 14

• 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

Question 15

Voluntary Dismissal - Prejudice

Answer 15

• only get ONE voluntary dismissal w/o prejudice -> subsequent ones would be w/ prejudice -> takes away pl’s ability to subsequently refile the case

Question 16

Default Judgment - Basic Concept

Answer 16

• might occur if def doesn’t respond to the complaint in time (21 days after being served w/ process)

Question 17

Entry of Default

Answer 17

• 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

Question 18

Effect of Entry of Default

Answer 18

• cuts off def’s right to respond
• BUT doesn’t automatically entitle pl to relief
• pl must seek a default judgment

Question 19

How to Get a Default Judgment - from Clerk

Answer 19

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

Question 21

Hearing for Default Judgment

Answer 21

• 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

Question 22

Motions to Set Aside Default or Default Judgment

Answer 22

Def may move to have ct set aside by showing:
1) good cause (ex: excusable neglect) AND
2) a viable defense

Question 23

Motion to Dismiss for Failure to State a Claim

Answer 23

• tests whether case belongs in litigation at all
• trying to dismiss on basis of pl’s complaint

Question 24

Motion to Dismiss for Failure to State a Claim - What Court Considers

Answer 24

• 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

Question 25

Summary Judgment - Standard

Answer 25

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)

Question 26

Timing of Summary Judgment

Answer 26

• any party can move for SJ no later than 30 days after close of discovery

Question 27

Summary Judgment - Matters Considered

Answer 27

• 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

Question 28

Summary Judgment - Delaying Ruling

Answer 28

• 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