Ajudication Without Trial

Question 1

What is a TRO and a Preliminary Injunction?

Answer 1

TRO used to maintain status quo before hearing for Preliminary Injunction can be held

Question 2

What’s the purpose of a TRO?

Answer 2

To preserve the status quo until a hearing for a preliminary injunction can be held

Question 3

Can a TRO be issued “ex parte” and if so, how?

Answer 3

Yes; done only if:
1) Applicant files paper under oath showing that w/o TRO, she’ll suffer “immediate and irreparable harm”
2) Applicant’s lawyer certifies (in writing) her best efforts to give oral/written notice to other party or why notice not needed

Question 4

What does “ex parte” mean?

Answer 4

Court does something without giving notice to other party

Question 5

If court issues TRO, what must applicant do?

Answer 5

Post bond to cover other side’s costs and damages caused if it turns out TRO wrongfully issued

Question 6

If the court issues a TRO, the order must be served on the D ______.

Answer 6

as soon as possible (generally not effective until notice received)

Question 7

What is required of the TRO’s contents?

Answer 7

Must:
1) State its terms specifically
2) Describe in detail what D must do/refrain from
3) State why it was issued
4) State why threatened injury to P was irreparable

Question 8

How long is a TRO effective for?

Answer 8

no more than 14 days unless otherwise stated by court (but note, can be extended to 28 days)

Question 9

Is a TRO issuance immediately appealable?

Answer 9

No

Question 10

Can the parties alter the TRO before it expires?

Answer 10

Yes…
Restrained party: may move to dissolve/modify before expiration
Applicant: if good cause shown, can add another 14 days

Question 11

What is a preliminary injunction?

Answer 11

Maintains status quo until the court can ajudicate the underlying claim on the merits

Question 12

Can a preliminary injunction be issued ex parte?

Answer 12

No

Question 13

What burden is on PI applicant?

Answer 13

Applicant must show:
1) likely to suffer irreparable harm
2) likely to win underlying case on merits
3) balance of hardship favors her
4) Injunction is in the public interest

Question 14

Is there a right to an injunction?

Answer 14

No, at court’s discretion

Question 15

What must court do in granting or denying PI?

Answer 15

Make specific findings of fact and separate conclusions of law

Question 16

Can a PI be appealed?

Answer 16

Yes, appealable as of right

Question 17

When does prejudice kick in for P’s claim withdrawals?

Answer 17

After the 1st occurrence (i.e., P gets one free chance to refile without prejudice)

Question 18

Can P withdraw case without court’s permission?

Answer 18

Yes; may do so without penalty BEFORE D serves answer/moves for SJ

Question 19

What if P attempts to withdraw case after D’s answer/motion for SJ?

Answer 19

Court permission is required (unless parties reach voluntary stipulation)

Question 20

What happens if P withdraws claim a second time?

Answer 20

Dismissal is with prejudice, which is an ajudication on the merits and bars refiling by P

Question 21

When might a default/default judgment occur?

Answer 21

If D doesn’t respond within 21 days of being served

Question 22

When might a default/default judgment occur if service was waived?

Answer 22

If D doesn’t respond within 60 days of being served

Question 23

How does a default happen?

Answer 23

P must move for entry of default by showing D failed to respond in time

Question 24

What happens if D responds before default entered?

Answer 24

Negates default as D still allowed to answer up until default entered

Question 25

What’s the effect of entry of default?

Answer 25

Cuts off D’s right to respond BUT doesn’t automatically entitle P to relief (P must seek default judgment)

Question 26

How can a clerk enter a default judgment?

Answer 26

1) D hasn’t “appeared” at all
2) Claim itself is for a sum certain
3) P gives an affidavit of sum owed
4) D not a minor or incompetent

Question 27

If criteria not met for clerk to enter default judgment, what happens?

Answer 27

P must apply for DJ to court

Question 28

What does a default judgment hearing entail?

Answer 28

Judge decides whether to enter judgment at their discretion

Question 29

What limitations/requirements apply to a DJ hearing?

Answer 29

D entitled to notice IF she appeared at some point; AND P’s recovery limited to what included in complaint

Question 30

What is a motion to set aside default or default judgment?

Answer 30

D can move to have set aside by showing 1) good cause and 2) viable defense

Question 31

What is a motion for failure to state a claim?

Answer 31

from FRCP 12(b)(6); allows case to be dismissed if P fails to state claim

Question 32

What’s the difference between a motion for failure to state a claim and a motion for judgment on the pleadings?

Answer 32

Motion for judgment on the pleadings occurs AFTER D answers

Question 33

What does a judge consider in ruling on motion for FTSAC/JOTP?

Answer 33

Whether plaintiff’s factual allegations, if truthful, state a plausible claim based on her common sense/experience (P’s legal conclusions ignored)

Question 34

What is a motion for summary judgment?

Answer 34

from FRCP 56; Used to weed out cases where trial unnecessary (occurs after P survives all R12 motions)

Question 35

What is the standard for

Answer 35

Moving party must show:
1) No genuine dispute on material fact; AND
2) She’s entitled to judgment as a matter of law

(*BUT note, judge has some discretion to deny motion even if shown)

Question 36

When can a party move for summary judgment?

Answer 36

No later than 30 days after close of discovery

Question 37

What matters are considered in an summary judgment motion?

Answer 37

Court can look at evidence (in light most favorable to nonmoving party), including affidavits, declarations, deposition testimony, or interrogatory answers

Question 38

What’s “partial” summary judgment?

Answer 38

Where court only rules on one aspect of case (also called summary ajudication)

Question 39

What must nonmoving party do if they want more time to gather evidence to oppose the motion?

Answer 39

File an affidavit or declaration with court saying what evidence would be