Pre-trial Practice

Question 1

TRO

Answer 1

Can issue a TRO ex parte if:

(1) applicant will suffer *immediate and irreparable harm” if he must wait until the other side is heard.
(2) The applicant’s lawyer certifies in writing his efforts to give oral or written notice to D or D’s atty (or why such notice should not be required under the circumstances

If TRO issued,

(1) Applicant must post a bond
(2) Court must state terms ins specificity, state why it was issued, and why threatened injury is irreparable
(3) Order must be served on D as soon as possible
(4) Effective for 14 days (max extension of 14 days so 28 days total)

Question 2

Preliminary Injunction

Answer 2

(1) Likely to suffer irreparable harm
(2) Likely to win on the merits
(3) Balance of hardship favors him
(4) Injunction is in public interest

If granted: must post bond; ct may consolidate hearing with trial; injunction must state terms with specificity; ct must make specific findings of fact and conclusions of law; immediately appealable.

Question 3

Voluntary Dismissal

Answer 3

P can voluntarily dismiss case before D fils an answer or Rule 12 motion (dismissal is without prejudice)

Can only do this once. In second case it will be with prejudice.

Question 4

Default Judgment

Answer 4

Must get a default entered (make a motion) if D fails to respond in time

Clerk can enter it if:

(1) D made no response at all
(2) Claim is for a sum certain in money
(3) Claimant gives an affidavit of the sum owed; AND
(4) D is not a minor or incompetent

If above not met, Court can still enter default judgment (after hearing; ct has discretion)

Question 5

Motion to Dismiss for Failure to State a Claim (Rule 12(b)(6))

Answer 5

Court asks: Assuming the facts alleged are true, would the P win a judgment

If filed after the D answered, it’s called “Motion for Judgment on the Pleadings”

Question 6

MSJ (Rule 56)

Answer 6

Party must show:

(1) There is no genuine dispute as to material fact; AND
(2) That she disentitled to judgment as a matter of law

Most move no later than 30 days after close of discovery

Question 7

MSJ:

Evidence

Answer 7

(1) affidavits
(2) declarations
(3) deposition testimony
(4) interrogatory answers

(all of these are under oath)—pleadings are not evidence (unless they’re verified pldgs), so P can’t defeat MSJ by relying on his pleadings.

Question 8

Once a pre-trial order is set out, can it be amended for trial?

Answer 8

Only in extraordinary circumstances needed for the interest of justice.

(e.g. the attorney forgetting to include an unimportant witness on the witness list is not extraordinary)