ADJUDICATION WITHOUT TRIAL

Question 1

PRELIMINARY INJUNCTIVE RELIEF

Answer 1

P ready to file case, concerned that D may or may not do something that will prejudice P’s case- wants a court order that D either do something or refrain from doing something

Question 2

TRO

Answer 2

issued ex parte ONLY if:
- applicant files a paper under oath clearly showing that if the TRO is not issued that applicant will “suffer immediate and irreparable harm if he waits for the other side to be heard.
- applicant must post bond to cover the other side’s cost and damages if it turns out the restraint was wrongful
- other party can move to dissolve TRO if one is issued
TRO valid for 14 days, another 14 days can be added if there is show for good cause before expiration.
- TRO beyond 28 days is considered a preliminary injunctions

Question 3

PRELIMINARY INJUNCTION

Answer 3

Maintains status quo until the court can adjudicate the underlying claim on the merits- never granted ex-parte
Burden on the applicant to show:
1. likely to suffer irreparable harm if the injunction is not issued
2. likely to win on the merits of the underlying case
3. the balance of the hardship favors him
4. injunction is in the public interest
- no right to an injunction
- court must make specific findings of fact and separate conclusions of law in grating or denying a preliminary injunction

Question 4

VOLUNTARY DISMISSAL

Answer 4

motion to dismiss can be made by the plaintiff- MUST be done before the D answers or motions for summary judgment

• dismissal without prejudice means that P can refile the case
• dismissal with prejudice means that P cannot refile the case

Question 5

DEFAULT AND DEFAULT JUDGMENT

Answer 5

Plaintiff MUST request entry of default- is not automatically done by the court
- must demonstrate that D failed to respond in time
Default judgment can be entered by the CLERK if:
1. D made no response at all
2. the claim itself is for a sum certain in money
3. claimant gives an affidavit of the sum owed AND
4. D is not a minor or incompetent
If all 4 are not true, goes to the court and the judge will hold a hearing
- D only gets notice of the hearing if D appeared in the case at any point.
relief in default judgement:
- complaint is a cap, cannot get more than was originally requested in damages in the complaint and cannot get different relief from what was pleaded in the complaint

Question 6

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 12(b)(6)

Answer 6

in ruling on this motion the court ignores P’s legal conclusion. Looks only at P’s allegations of fact in the complaint and asks: assuming these facts are true- do they sate a plausible claim upon which relief can be granted?

• If no, P has not stated a plausible claim. Court will usually let P amend complaint to state a claim before dismissing the case entirely
• Motion for judgment on the pleadings is the same concept, but is made after the D has answered the complaint

Question 7

MOTION FOR SUMMARY JUDGMENT (rule 56)

Answer 7

P stated a claim
used to resolve issues of material fact
Party moving for SJ must show:
- there is no genuine dispute on material fact and
- that she is entitled to judgment as a matter of law
Party can move for SJ no later than 30 days after the CLOSE of discovery
- can be a partial motion
The court view the evidence in light most favorable to the nonmoving party
- if party opposing MSJ needs more time to find evidence to oppose the motion may file an affidavit with the court stating what the evidence would be and the court may allow time to collect the evidence