Pre-trial Procedures

Question 1

Pre-trial Procedures (4)

Answer 1

1) Preliminary Equitable Relief (TRO / Preliminary Injunction)
2) Dismissal (voluntary/involuntary)
3) Summary Judgment
4) Pre-trial Conference

Question 2

Pre-trial - Preliminary Equitable Relief - Motion for Preliminary Injunction - Gral

Answer 2

• As mini trial w/both sides present UNLESS P made unsuccessful reasonable effort to notify
• Can be seek within case is pending and if party prevails on the merit the injunction can turn into permanent
• RAMP considerations for court

Question 3

Pre-trial - Preliminary Equitable Relief - Motion for Preliminary Injunction - RAMP considerations

Answer 3

1) Risk of irreparable harm and money dx are inadequate
2) Appropriate weight of harm distribution w/or w/out injunction (balance test)
3) Merits success reasonable likelihood
4) Public interest

Question 4

Pre-trial - Preliminary Equitable Relief - Temporary Restrain Order (TRO) - gral

Answer 4

• When risk of IMMEDIATE + IRREPARABLE harm
• Before service and opportunity to be heard
• Hence ordered ex-parte
• Higher requirement of showing than for preliminary injunction

Question 5

Pre-trial - Preliminary Equitable Relief - Temporary Restrain Order (TRO) - Requirements

Answer 5

Include in affidavit:

• specific facts
• reasons
• efforts to notify opposing party of TRO motion
• Justification for ex-parte issuance

Question 6

Pre-trial - Preliminary Equitable Relief - Temporary Restrain Order (TRO) - Duration

Answer 6

• Not expire before 14 days since issuance
• Motion to dissolve TRO requires 2 -day notice before hearing where issue of TRO is discussed

Question 7

Pre-trial - Dismissal FRCP 41 - Difference with motion to dismiss for lack of PJDX

Answer 7

If case dismissed under rule 41 treated as never commenced for SOL purposes

• BUT time btwn filling and dismissal is not tolled hence dismissal even without prejudice can bar from refiling

Question 8

Pre-trial - Dismissal FRCP 41 - Voluntary dismissal - availability and restriction

Answer 8

Available to P as a matter of right UNLESS D has:

• Counterclaimed
• Served answer or motion for summary judgment

Question 9

Pre-trial - Dismissal FRCP 41 - Voluntary dismissal - Requirements when D objects

Answer 9

P must obtain:

• Stipulation from all parties OR
• Leave of court

Question 10

Pre-trial - Dismissal FRCP 41 - Voluntary dismissal - Restrictions for subsequent filing

Answer 10

• 1st dismissal: w/o prejudice, allows for refill
• 2nd dismissal: Is deemed as adjudication on the merits, P cannot file for 3rd time

Question 11

Pre-trial - Dismissal FRCP 41 - Involuntary dismissal - Gral

Answer 11

• By motion from D
• Based on P “not doing anything”
• Dismissal is w/prejudice - doesn’t allow for re-filing

Question 12

Pre-trial - Dismissal FRCP 41 - Involuntary dismissal - Grounds (5)

Answer 12

1) Undue delay - i.e. failure to prosecute
2) Failure to comply w/civil or court rule
3) Violation of “2nd dismissal” rule
4) Failure to demonstrate right to relief
5) Discovery abuse

Question 13

Pre-trial - Summary Judgment - Gral

Answer 13

• Available for both P/D
• Used to avoid unnecessary trial (time/cost) because there is no genuine issue of fact to decide
• i.e. when there is claim or issue preclusion.
• Post discovery

Question 14

Pre-trial - Summary Judgment - Timing to submit motion

Answer 14

anytime until 30 days after closing of formal discovery

Question 15

Pre-trial - Summary Judgment - Grounds for motion

Answer 15

No genuine issues of material fact - RELEVANT

• trier of fact (jury) has nothing to decide
• Party entitled to JMOL (solved w/out argumentation briefs) IF IN DOUBT - court will usually decide for trial
• -i.e. Preclusion

Question 16

Pre-trial - Summary Judgment - Grounds for opposing motion

Answer 16

• Opposing party has to make affirmative showing that there are material issues of fact that could affect outcome
• unsupported allegations on pleadings are not sufficient

Question 17

Pre-trial - Summary Judgment - Evidence Considered

Answer 17

Only E that would be admissible at trial +

• Affidavits of W supporting summary judgment if based upon personal knowledge
• Expert’s sworn affidavits

Question 18

Pre-trial - Summary Judgment - Self contradiction Rule

Answer 18

Party that creates/presents issue of fact cannot prevent summary judgment by offering different version of same story

• i.e. affidavit inconsistent w/prior deposition statement ot admission

Question 19

Pre-trial - Summary Judgment - Facts typically considered as genuine issue of material facts

Answer 19

Which effect is to preclude Summary Judgment:

• Oral contract
• N
• Proximate cause
• Reasonableness
• Consent
• Knowledge
• Mistake

Question 20

Pre-trial - Summary Judgment - When law compels result

Answer 20

Situation when discovery shows 1 party will prevail regardless of dispute of fact

• when summary judgment will likely be granted bc of no useful purpose for judicial resource
• i.e. “ironclad” affirmative defense that P cannot overcome: SOL has run, signed of valid release

Question 21

Pre-trial - Summary Judgment - Reconsideration Motion

Answer 21

• Court w/discretion to reconsider summary judgment decision
• Consider new E that could create material question of fact

Question 22

Pre-trial - Summary Judgment - Reconsideration Motion - Timing

Answer 22

Within 28 days after judgment

Question 23

Pre-trial - Pre trial Conference - Gral

Answer 23

• Btwn judge and counsel
• Results in “final order” that is not modifiable UNLESS manifest injustice

Question 24

Pre-trial - Pre trial Conference - Content (4)

Answer 24

1) Schedule
2) Proposed W list
3) Document review
4) “Motion in limine” to admit or exclude E