Chapter 8

Question 1

(1) are remedies that may be obtained by the plaintiff prior to trial, which allow him to obtain (2) without necessity of (3). However, if he loses at trial, the plaintiff might be responsible for (4) branching from those provisional remedies.

Answer 1

1. provisional remedies 2. relief sought 3. trial 4. damages

Question 2

3 types of injunctions

Answer 2

1. temporary restraining orders (provisional remedy) 2. preliminary injunctions (provisional remedy) 3. permanent injunctions (requires trial)

Question 3

Temporary restraining orders and preliminary injunctions are used to (1) and to avoid (2) to the plaintiff until rights are adjudication. A temporary restraining order can be granted (3), and can be granted only until a hearing for a (4) can be held. A preliminary injunction requires an (5).

Answer 3

1. maintain status quo 2. irreparable injury 3. ex parte (without notice to the other side) 4. preliminary injunction 5. adversarial hearing

Question 4

3 requirements that must be met for a temporary restraining order to be granted ex parte

Answer 4

1. affidavit/verified complaint alleging specific facts that show immediate and irreparable injury will result otherwise 2. Affidavit that efforts were made to give notice to other side plus reasons notice should not be required 3. post of security for possible damages resulting from wrongful TRO

Question 5

Three extra things an applicant for a TRO must show, despite that the rule just calls for showing of “immediate/irreparable injury”

Answer 5

1. likelihood of success on merits of case 2. threatened injury to applicant > foreseeable injury if order is granted 3. order not against the public interest

Question 6

6 aspects of a granted TRO

Answer 6

1. injury 2. why irreparable 3. why order granted without notice 4. acts enjoined (in reasonable detail) 5. 10 days (renewable with good cause) 6. date set for hearing on preliminary injunction ASAP

Question 7

The party against whom a TRO was issued can, with (1), move to have it dissolved.

Answer 7

1. two days’ notice

Question 8

Lack of subject matter jurisdiction in motion for TRO will result in (1). Lack of personal jurisdiction will make any injunctive relief ordered (2).

Answer 8

1. dismissal of the complaint 2. unenforceable

Question 9

6 things required to be filed and served in motion for a trod

Answer 9

1. complaint/summons 2. application for trod and preliminary injunction 3. attorney’s certificate of attempted notice 4. witness affidavits 5. security for costs and damages 6. court order

Question 10

4 characteristics of the complaint in a motion for TRO

Answer 10

1. request for TRO, prelim. Injunction, perm. Injunction 2. demonstration that pleader in entitled to relief 3. verification of allegations, sworn to before notary public or signed under penalty of perjury 4. filed at same time as TRO with emergency judge (on rotation)

Question 11

3 features of the application for TRO

Answer 11

1. combined with request for preliminary injunction 2. allegation that immediate/irrep. Injury with occur without TRO 3. reference to verified complaint

Question 12

It is usual procedure in federal court for the (1) or his (2) to issue orders, either (3) or (4). However, since with a TRO time is critical is useful to (5) for the judge to sign. The court’s order is not enforceable until (6).

Answer 12

1. judge 2. clerk 3. minute 4. full written orders 5. prepare a draft order 6. the defendant receives notice of it

Question 13

4 requirements of a preliminary injunction

Answer 13

1. notice to adverse party (~5 days) 2. post of security 3. demonstration in pleadings of irrep. Injury, likely success of case, threatened injury > def’s threatened injury, not against public interest 4. order is specific about acts enjoined

Question 14

A hearing for a preliminary injunction can be consolidated with a (1) and is usually done where injunctive relief is the (2) and the (3) would likely be similar at both hearings. Denial of a preliminary injunction is (4) on erroneous matters of law.

Answer 14

1. trial on the merits 2. principal remedy sought 3. evidence 4. appealable

Question 15

A preliminary injunction can come before the court with or without a (1) first. The hearing is (2) and includes (3), and the plaintiff has the (4). If the prelim. Is granted, it is in effect until the (5) but can also be vacated or modified by the court.

Answer 15

1. TRO 2. adversarial 3. cross-examination 4. burden of proof (of the things he demonstrates in the application-injury, public interest, etc.) 5. trial on the merits

Question 16

Proof presented at a hearing on a preliminary injunction need not be (1) for trial, and the two may be (2) with short notice.

Answer 16

1. duplicated 2. consolidated

Question 17

Attachment is the legal process in which someone’s (1) is seized to satisfy a (2). There are no (3), only procedures under the forum state’s laws. These are useful for plaintiff’s wanting (4) and to avoid (5).

Answer 17

1. property 2. judgment not yet rendered 3. federal attachment statutes 4. quicker relief 5. asset dumping/lack of assets when judgment is made

Question 18

4 general requirements for relief in the form of attachment

Answer 18

1. available only on contract claims (if damages are for mixed claim–contract and tort–may not be possible) 2. contract claim must be for a specific amount of money 3. amount owed to plaintiff must be unsecured (no security for obligation) 4. must arise out of def’s trade or profession, not for personal debts

Question 19

In extreme cases (great irrep. Injury), a court may grant an attachment (1).

Answer 19

1. ex parte

Question 20

3 defenses to motions for attachment

Answer 20

1. point out any ground for attachment not met 2. demonstration that PLT is not likely to prevail at trial 3. exemptions for type of property seized

Question 21

Writs of possession are issued when a plaintiff has (1) of the defendant, usually for (2). These are governed by (3).

Answer 21

1. security in personal property 2. default on a debt 3. state statutes

Question 22

3 things a PLT must show for writ of possession

Answer 22

1. PLT has a security interest in tangible personal property being held by DEF 2. PLT has immediate right to possession of the property 3. property is being wrongfully withheld by DEF

Question 23

A lis pendens places a (1) on property owned by the DEF. Notice of this is usually filed with the (2), and gives notice of (3) to parties having an interest in the property and will show up in a (4) usually done by potential buyers. Anyone buying the property does so subject to any (5).

Answer 23

1. lien 2. county office that keeps public records (county/city recorder’s office) 3. pending litigation 4. title search 5. judgment entered in litigation

Question 24

pretrial order of the court seizing property of the defendant for later satisfaction of any judgment received by the plaintiff

Answer 24

attachment

Question 25

without notice to the other side, or very limited notice to the other side

Answer 25

ex parte

Question 26

equitable remedy used by the plaintiff to stop certain conduct or actions of the defendant

Answer 26

injunction

Question 27

a notice that is recorded against particular real property alerting potential purchasers of the property that there is a pending dispute that affects title to or possession of the property

Answer 27

lis pendens

Question 28

the party making a motion. Sometimes referred to as the moving party.

Answer 28

movant

Question 29

an injunction granted only after trial and that will exist for all time until the injunction is dissolved by court order

Answer 29

permanent injunction

Question 30

an injunction granted after a hearing. The preliminary injunction maintains the status quo until trial.

Answer 30

preliminary injunction

Question 31

include temporary restraining orders, preliminary injunctions, writs of attachment and possession, and lis pen-dens. Under proper circumstances these remedies allow a plaintiff to essentially obtain the relief requested from the defendant before going to trial

Answer 31

provisional remedies

Question 32

the conditions that presently exist

Answer 32

status quo

Question 33

an order from the court temporarily prohibiting a party from doing some act until such time as a hearing for an injunction can be heard. Usually stays in effect for no longer than 10-15 days.

Answer 33

temporary restraining order

Question 34

an obligation from the defendant to the plaintiff that has no security

Answer 34

unsecured

Question 35

issued in a case where the defendant has given a plaintiff a security interest in some tangible personal property for repayment of a debt. If a debt is in default, the PLT may then sue for repayment of the debt and delivery of the personal property to the PLT

Answer 35

writ of possession