Pre-trial Procedures Flashcards
Pre-trial Procedures (4)
1) Preliminary Equitable Relief (TRO / Preliminary Injunction)
2) Dismissal (voluntary/involuntary)
3) Summary Judgment
4) Pre-trial Conference
Pre-trial - Preliminary Equitable Relief - Motion for Preliminary Injunction - Gral
- 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
Pre-trial - Preliminary Equitable Relief - Motion for Preliminary Injunction - RAMP considerations
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
Pre-trial - Preliminary Equitable Relief - Temporary Restrain Order (TRO) - gral
- 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
Pre-trial - Preliminary Equitable Relief - Temporary Restrain Order (TRO) - Requirements
Include in affidavit:
- specific facts
- reasons
- efforts to notify opposing party of TRO motion
- Justification for ex-parte issuance
Pre-trial - Preliminary Equitable Relief - Temporary Restrain Order (TRO) - Duration
- Not expire before 14 days since issuance
- Motion to dissolve TRO requires 2 -day notice before hearing where issue of TRO is discussed
Pre-trial - Dismissal FRCP 41 - Difference with motion to dismiss for lack of PJDX
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
Pre-trial - Dismissal FRCP 41 - Voluntary dismissal - availability and restriction
Available to P as a matter of right UNLESS D has:
- Counterclaimed
- Served answer or motion for summary judgment
Pre-trial - Dismissal FRCP 41 - Voluntary dismissal - Requirements when D objects
P must obtain:
- Stipulation from all parties OR
- Leave of court
Pre-trial - Dismissal FRCP 41 - Voluntary dismissal - Restrictions for subsequent filing
- 1st dismissal: w/o prejudice, allows for refill
- 2nd dismissal: Is deemed as adjudication on the merits, P cannot file for 3rd time
Pre-trial - Dismissal FRCP 41 - Involuntary dismissal - Gral
- By motion from D
- Based on P “not doing anything”
- Dismissal is w/prejudice - doesn’t allow for re-filing
Pre-trial - Dismissal FRCP 41 - Involuntary dismissal - Grounds (5)
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
Pre-trial - Summary Judgment - Gral
- 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
Pre-trial - Summary Judgment - Timing to submit motion
anytime until 30 days after closing of formal discovery
Pre-trial - Summary Judgment - Grounds for motion
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
Pre-trial - Summary Judgment - Grounds for opposing motion
- 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
Pre-trial - Summary Judgment - Evidence Considered
Only E that would be admissible at trial +
- Affidavits of W supporting summary judgment if based upon personal knowledge
- Expert’s sworn affidavits
Pre-trial - Summary Judgment - Self contradiction Rule
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
Pre-trial - Summary Judgment - Facts typically considered as genuine issue of material facts
Which effect is to preclude Summary Judgment:
- Oral contract
- N
- Proximate cause
- Reasonableness
- Consent
- Knowledge
- Mistake
Pre-trial - Summary Judgment - When law compels result
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
Pre-trial - Summary Judgment - Reconsideration Motion
- Court w/discretion to reconsider summary judgment decision
- Consider new E that could create material question of fact
Pre-trial - Summary Judgment - Reconsideration Motion - Timing
Within 28 days after judgment
Pre-trial - Pre trial Conference - Gral
- Btwn judge and counsel
- Results in “final order” that is not modifiable UNLESS manifest injustice
Pre-trial - Pre trial Conference - Content (4)
1) Schedule
2) Proposed W list
3) Document review
4) “Motion in limine” to admit or exclude E
