Ajudication Without Trial Flashcards
What is a TRO and a Preliminary Injunction?
TRO used to maintain status quo before hearing for Preliminary Injunction can be held
What’s the purpose of a TRO?
To preserve the status quo until a hearing for a preliminary injunction can be held
Can a TRO be issued “ex parte” and if so, how?
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
What does “ex parte” mean?
Court does something without giving notice to other party
If court issues TRO, what must applicant do?
Post bond to cover other side’s costs and damages caused if it turns out TRO wrongfully issued
If the court issues a TRO, the order must be served on the D ______.
as soon as possible (generally not effective until notice received)
What is required of the TRO’s contents?
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
How long is a TRO effective for?
no more than 14 days unless otherwise stated by court (but note, can be extended to 28 days)
Is a TRO issuance immediately appealable?
No
Can the parties alter the TRO before it expires?
Yes…
Restrained party: may move to dissolve/modify before expiration
Applicant: if good cause shown, can add another 14 days
What is a preliminary injunction?
Maintains status quo until the court can ajudicate the underlying claim on the merits
Can a preliminary injunction be issued ex parte?
No
What burden is on PI applicant?
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
Is there a right to an injunction?
No, at court’s discretion
What must court do in granting or denying PI?
Make specific findings of fact and separate conclusions of law
Can a PI be appealed?
Yes, appealable as of right
When does prejudice kick in for P’s claim withdrawals?
After the 1st occurrence (i.e., P gets one free chance to refile without prejudice)
Can P withdraw case without court’s permission?
Yes; may do so without penalty BEFORE D serves answer/moves for SJ
What if P attempts to withdraw case after D’s answer/motion for SJ?
Court permission is required (unless parties reach voluntary stipulation)
What happens if P withdraws claim a second time?
Dismissal is with prejudice, which is an ajudication on the merits and bars refiling by P
When might a default/default judgment occur?
If D doesn’t respond within 21 days of being served
When might a default/default judgment occur if service was waived?
If D doesn’t respond within 60 days of being served
How does a default happen?
P must move for entry of default by showing D failed to respond in time
What happens if D responds before default entered?
Negates default as D still allowed to answer up until default entered
What’s the effect of entry of default?
Cuts off D’s right to respond BUT doesn’t automatically entitle P to relief (P must seek default judgment)
How can a clerk enter a default judgment?
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
If criteria not met for clerk to enter default judgment, what happens?
P must apply for DJ to court
What does a default judgment hearing entail?
Judge decides whether to enter judgment at their discretion
What limitations/requirements apply to a DJ hearing?
D entitled to notice IF she appeared at some point; AND P’s recovery limited to what included in complaint
What is a motion to set aside default or default judgment?
D can move to have set aside by showing 1) good cause and 2) viable defense
What is a motion for failure to state a claim?
from FRCP 12(b)(6); allows case to be dismissed if P fails to state claim
What’s the difference between a motion for failure to state a claim and a motion for judgment on the pleadings?
Motion for judgment on the pleadings occurs AFTER D answers
What does a judge consider in ruling on motion for FTSAC/JOTP?
Whether plaintiff’s factual allegations, if truthful, state a plausible claim based on her common sense/experience (P’s legal conclusions ignored)
What is a motion for summary judgment?
from FRCP 56; Used to weed out cases where trial unnecessary (occurs after P survives all R12 motions)
What is the standard for
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)
When can a party move for summary judgment?
No later than 30 days after close of discovery
What matters are considered in an summary judgment motion?
Court can look at evidence (in light most favorable to nonmoving party), including affidavits, declarations, deposition testimony, or interrogatory answers
What’s “partial” summary judgment?
Where court only rules on one aspect of case (also called summary ajudication)
What must nonmoving party do if they want more time to gather evidence to oppose the motion?
File an affidavit or declaration with court saying what evidence would be
