Resolve without trial Flashcards
what is a preliminary injunction
maintains status quo of case until it goes to trial
what is a temporary restraining order (TRO)
preserves status quo of case until a preliminary injunction hearing can be held
ex parte means
decision is one decided by a judge without requiring all of the parties to the dispute to be present.
court issues TRO ex parte only if
- party files paper under oath saying that if a TRO is NOT issued and they have to wait until the other side is heard, they will suffer immediate and irreparable harm
- party’s lawyer certifies in writing their attempt to give other side written or oral notice
if ct issues TRO, notice to other side must be given
ASAP
how long is a TRO effective
14 days BUT can extend an additional 14 days for good cause BUT cannot be more than 28 days
if TRO goes beyond 28 days, then
it can be treated like a preliminary injunction
who is the burden on for a preliminary injunction
applicant
list (4)
what must the applicant show for a preliminary injunction
- irreparable harm if injunction not issued
- applicant is likely to win on the merits of the case
- balance of hardship favors the applicant
- injunction is in the public interest
what is Summary judgment
is a judgment entered by a court for one party and against another party without a full trial.
P can voluntarily withdraw a case
before D serves an answer or motion for summary judgement
who enters default
court clerk
does default happen automatically
NO
P must move for entry of default
until a default is entered the D can respond by motion or answer
EVEN BEYOND 21 days
does default automatically entitle P to relief
NO P must then seek a default judgement
list (4)
how to get a DJ
CLERK can enter a DJ if
- D has made no response at all
- claim itself is for certain sum of money
- P gives an affidavit (sworn testimony) at sum owed
- D is not minor or incompetent
if one of the above are false, then P has to apply to COURT for the DJ
what can D do in respond to a default or DJ
they can file a motion to set aside default or DJ
what must the D show for a default or a DJ
- good cause
- viable defense
if the P fails to state a claim, D
can file a motion to dismiss for failure to state a claim aka motion 12(b)(6)
when is a motion for SJ used
after case has been filed and P has survived any rule 12 motions
SJ weeds out cases where no trial is necessary
party moving for SJ needs to show
- no genuine dispute of material fact
- party is entitled to judgement at a matter of law
who can move for SJ
any party
how many days to move for SJ
30 days after close of discovery