Summary Judgement Flashcards
What is preliminary injunctive relief?
court order that D either:
- do something or
- refrain from doing something.
Court is reluctant to do this bc underlying merits haven’t yet been tried.
An order that maintains the status quo until trial is a:
preliminary injunction
Before getting a preliminary injunction, to maintain the status quo until the hearing on the preliminary injunction, you may seek:
a temporary restraining order
Whenever a court does something without giving notice to the other party, it may be called
“ex parte.”
The court issues a TRO ex parte ONLY if:
- Applicant:
- files a paper under oath
- clearly showing that if the TRO is not issued,
- he will “suffer immediate and irreparable harm”
- if he must wait until the other side is heard.
- Applicant’s lawyer:
- certifies in writing
- her efforts to give oral or written notice to D or D’s lawyer
- or why such notice should not be required in this case.
If the court issues the TRO, Applicant must…
- post a bond
- to cover the other side’s costs and damages caused
- if it turns out the restraint is wrongful.
What must a A TRO specifically state its terms?
Debbie Downer was dry while Tom was Itchy
- Detailed Decription
- about what D must do or refrain from doing
- and why TRO was issued.
If the court issues a TRO, when mustthe order must be served on D?
as soon as possible.
If the court issues a TRO, what can D do to stop it?
Move to dissolve the TRO.
TRO is effective for no more than…
14 days (or lesser time stated by court.
Extension of TRO
If Applicant shows good cause before expiration, it can be extended for up to another 14 days.
A TRO cannot extend beyond…
28 days. If the court extends a TRO beyond 28 days, it may be treated as a preliminary injunction.
Is a ruling granting or denying a TRO appealable as of right?
No.
Can a preliminary injunction be granted ex parte?
No.
For a preliminary injunction, the BoP is on who?
The applicant
What must the applicant show in order to get a preliminary injunction?
Ignorant Men Barely Have Penises
- Likely to suffer irreparable harm w/o injunction
- Likely to win on merits of the underlying case;
- The balance of hardship favors him, and
- Injunction is in the public interest.
is there a right to an injunction?
No. The matter is in the court’s discretion.
Requirement after Court Grants Preliminary Injunction
As with a TRO, if the court grants the preliminary injunction, the applicant must post a bond.
What a preliminary injunction must specifically state in its terms
Debbie Downer was dry while Petter was Itchy
- detailed decription
- about what D must do or refrain from doing
- and why PI was issued.
What the court must do when granting or denying a preliminary injunction
Must make specific findings of fact and separate conclusions of law
Is an order granting or denying a preliminary injunction appealable as of right?
Yes.
P has a right to take a voluntary dismissal by filing a “notice of dismissal.” But she must do so before:
Defendant serves an ANS or MSJ.
If P files a timely notice of dismissal, is the case dismissed with or without prejudice?
- Without prejudice for the first time
- with prejudice for the second.
What is a default?
A default is a notation by the court clerk on the docket sheet in the case.
Does the court clerk enter default automatically on the 22nd day after service of process on D?
No, P must request entry of default.
Default judgment and D’s response
- When requesting entry of default, P must demonstrate that D failed to respond in time.
- Until default is entered, D can respond by motion or answer (even beyond 21 days).
What is the effect of entry of default?
It cuts off defendant’s right to respond.
Entry of default does not entitle P to recover. What does P need to do before she can recover from D?
Get a default judgement.
How do you get a default judgement?
The clerk of court can enter judgment if
Nicole Really Shines My Accord So that Mark Is Jealous
D made no response at all;
The claim itself is for a sum certain in money;
Claimant gives an affidavit (sworn statement) of the sum owed; AND
D is not a minor or incompetent.
If one or all of the four elements for default judgement by court are not met, where does the plaintiff go for default judgement?
Apply to the court itself.
On default judgment, can the court enter an injunction when the relief sought was just damages?
No. If the case went to trial, the plaintiff could recover more and a different type of relief thanoriginally requested.
The judge will hold a hearing and has discretion to enter judgment. Does D get notice of this hearing?
Only if he appeared in the case. (e.g. files MTD but never answers)
What is the most P can recover on a default judgment?
$100,000.00
D’s motion to set aside default judgment
D may move to have the court set aside a default or default judgment by showing good cause (like excusable neglect) and a viable defense.
12(b)(6) motion
For a 12(b)(6) motion, the court ignores P’s legal conclusions. It looks only at P’s allegations of fact in the complaint and asks:
assuming these facts are true, can relief be granted?
If relief cannot be granted assuming the facts are true, what happens, case gets dismissed. The court might let P amend to try to state a claim, though.
What does the judge use to see if the facts state a plausible claim?
Her experience and common sense. No evidence, just the complain
The same motion, if made after D has answered, has a different name. What is the name?
Motion for judgement on the pleadings.
What must a party moving for summary judgement show?
There is no genuine dispute on a material fact and That she is entitled to judgment as a matter of law.
If the standard for summary judgement is met, must the court enter summary judgement?
No, it has discretion to deny
Deadline for motion for summary judgment
30 days after close of discovery.
Can the motion for summary judgement be for “partial” judgment—e.g., as to liability, but allow the case to go to trial on damages?
Yes
In summary judgment, can the court look at evidence?
Yes.
When considering summary judgement, The court views that evidence in the light most favorable to…
the nonmoving party.
Option for party who needs more time to oppose motion for summary judgment
- If the party opposing summary judgment needs more time to find evidence to oppose the motion, she may file an affidavit or declaration stating what that evidence would be.
- The court may allow more time for the party to obtain evidence.
