Deadlines, Timing and Interim Remedies Flashcards
Describe the key points in calculating time
Under FRCP 6, key points are:
* exclude day of the event that triggers the period;
* count every day, including weekend days and legal holidays that fall within the period;
* include the last day of the period, but if the last day falls during the weekend or on a legal holiday, then the last day is the next business days;
* Add 3 days to the period if service is by mail;
* Court has discretion to extend time for most deadlines based on a showing of good cause, with some notable exceptions.
Describe the Hierarchy of the Rules
*Federal Rules of Civil Procedure: governs practice in all federal district courts throughout the United States.
*United State District Court Local Rules: Per FRCP 83(a)(1), a district court may adopt and amend rules governing its own practice so long as that district court’s Local Rules are consistent with, and do not duplicate, the FRCP or other federal rules and statutes.
*Individual Judge’s “Local-Local” Rules: Per FRCP 83(b), a judge may regulate practice in his/ her own courtroom in any manner consistent with federal law and the district court’s local rules.
Define Injunctions
Equitable remedy ordering a person to act or refrain from acting. Interlocutory injunctions can be issued while case is pending to preserve the status quo.
Describe a Preliminary Injunction
Under FRCP 65, a preliminary injunction consists of Injunctive relief sought by party prior to trial on the merits of the complaint. The court cannot issue a preliminary injunction without notice to adverse party. In order for the court to grant a preliminary injunction, the moving party must show that: (1) plaintiff will suffer irreparable harm before conclusion of trial if the court does not grant the injunction; and (2) harm to plaintiff if injunction is not granted outweighs harm to defendant if court grants injunction; and (3) plaintiff shows likelihood of success on the merits; and (4) the public interest favors granting the injunction.
**Caveat: If plaintiff has an adequate remedy at law (e.g. money damages will adequately compensate party), then court will deny injunction.
Describe Temporary Restraining Orders
Under FRCP 65, a temporary restraining order is an order issued by court when necessary to prevent irreparable injury to a party, which will result before preliminary injunction hearing can be held. Notice of hearing on TRO must be given if possible before the court issues TRO. A TRO typically expires in 14 days unless defendant consents to extension or movant shows good cause for extension. If TRO is exented beyond 28 days, it is considered a preliminary injunction for purposes of appeal.
When may a court issue a TRO ex parte (without notice of hearing to adverse party)
A court may issue a TRO ex parte if (1) specific facts (in affidavit or verified complaint) show immediate and irreparable injury to movant before adverse party can be heard in opposition; and (2) movant certifies in writing about all efforts to effectuate notice and why notice should not be required; and (3) movant provides security, in an amount determined by the court, to pay for any costs/ damages incurred by adverse party if wrongfully enjoined or restrained.
Describe the purpose of a TRO
To prevent irreparable harm to plaintiff that will result before the preliminary injunction hearing.
Describe the security requirement for Preliminary Injunctions and Temporary Restraining Orders.
Under FRCP 65, the Moving party must provide security (in an amount sufficient to pay costs/damages sustained by a wrongfully enjoined or restrained party) before Court issues a preliminary injunction or TRO.
