Adjudication Without Trial

Question 1

When can a party apply for a temporary restraining order ex parte?

Answer 1

The applicant files a paper, under oath

Showing that if the TRO is now issued, they will suffer IMMEDIATE and IRREPARABLE harm if they need to wait until the case is heard.

Applicant’s attorney certified in writing their efforts to to notice to Defendant of the case (or why notice was not required).

Application posts BOND

Question 2

What must the Temporary Restraining Order State?

Answer 2

Describe in detail the action the D cannot do/must take

Why it is issued

Why the threatened injury to the plaintiff was irreparable

Question 3

For how long is the Temporary Restraining Order effective?

Answer 3

14 Days + further 14 days if the applicant can show good cause.

Question 4

Can a Defendant challenge a TRO before it expires?

Answer 4

Yes, the Defendant can go to court to have the order dissolved or modified.

Question 5

Can a Preliminary Injunction be granted ex parte?

Answer 5

No

Question 6

What must the applicant show and do to be able to obtain a preliminary injunction?

Answer 6

— They are likely to suffer IRREPARABLE HARM if Injunction not issued

— They’re likely to WIN on the merits of the case

— The BALANCE OF HARDSHIP favours their case

— Injunction is in the PUBLIC INTEREST

— Post BOND

Question 7

In granting the preliminary injunction, the court must make what conclusions, if any?

Answer 7

Court must make specific findings of fact and conclusions of law

Question 8

What must the preliminary injunction contain/describe?

Answer 8

Describe what the defendant must do/refrain from doing

Why it was issued

Question 9

When can a defendant appeal an injunction?

Answer 9

It is immediately appealable as a matter of right

Question 10

How can the plaintiff withdraw the case? There are two ways.

Answer 10

Either:

(1) Make a motion for voluntarily dismissal any time, which the court has discretion to grant.

OR

(2) File notice of dismissal but must be before the defendant served an answer/motion for summary judgement

Question 11

If the Plaintiffs case is voluntarily dismissed can they later re-file?

Answer 11

Yes, the case will be dismissed without prejudice (but only once)

Question 12

How long does the plaintiff have to wait before they can file a default judgement application?

Answer 12

21 days after the defendant is served

OR

60 days from mailing if waiver of service is agreed.

Question 13

What is default judgement?

Answer 13

A default is a notation by the court clerk on the docket sheet in the case

Question 14

If the defendant misses the 21 day/60 day time frame within which to respond to the plaintiff’s complaint, can they respond afterwards even though the plaintiff has applied for default judgement?

Answer 14

Yes the defendant can still respond until default is entered

Question 15

When can we clerck enter default judgement?

Answer 15

Defendant has made no response and the claim is for a certain sum of money

Question 16

When must a judge into a default judgement?

Answer 16

Defendant has made a response/appeared at some stage in the case

Court has discretion to enter default judgement but must provide defendant notice

Question 17

What is Rule 12(b)(6)?

Answer 17

Motion to dismiss for failure to state a claim

Question 18

What 2 things will the court consider when the defendant files a motion to dismiss a case on the grounds that the plaintiff has failed to state a claim?

Answer 18

The court will consider the allegations of fact (and not the plaintiff’s conclusions)

AND

The face of the claim, rather then a evidence.

Question 19

If a defendant filed a motion on the basis that the plaintiff failed to state a claim, can the plaintiff save the claim?

Answer 19

Yes, the court might let the plaintiff amend the claim

Question 20

The defendant answers the plaintiff’s claim but now wants to make a motion to dismiss for failure to state a claim. What is this called?

Answer 20

Motion for judgement on the pleadings

Question 21

What must 2 things must a party moving for summary judgement show?

Answer 21

(1) There is no genuine dispute of material facts

AND

(2) they are entitled to judgement as a matter of law

Question 22

What’s the latest that a party can move for summary judgement?

Answer 22

30 days after close of discovery

Question 23

What will the court consider in deciding whether to grant summary judgement?

Answer 23

The non-moving party’s evidence, made under oath.