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Federal Civil Procedure > Summary Judgement > Flashcards

Summary Judgement Flashcards

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Civil Procedure 1L flashcards
1
Q

What is preliminary injunctive relief?

A

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.

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2
Q

An order that maintains the status quo until trial is a:

A

preliminary injunction

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3
Q

Before getting a preliminary injunction, to maintain the status quo until the hearing on the preliminary injunction, you may seek:

A

a temporary restraining order

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4
Q

Whenever a court does something without giving notice to the other party, it may be called

A

“ex parte.”

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5
Q

The court issues a TRO ex parte ONLY if:

A
  1. 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.
  1. 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.
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6
Q

If the court issues the TRO, Applicant must…

A
  • post a bond
  • to cover the other side’s costs and damages caused
  • if it turns out the restraint is wrongful.
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7
Q

What must a A TRO specifically state its terms?

A

​Debbie Downer was dry while Tom was Itchy

  • Detailed Decription
  • about what D must do or refrain from doing
  • and why TRO was issued.
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8
Q

If the court issues a TRO, when mustthe order must be served on D?

A

as soon as possible.

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9
Q

If the court issues a TRO, what can D do to stop it?

A

Move to dissolve the TRO.

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10
Q

TRO is effective for no more than…

A

14 days (or lesser time stated by court.

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11
Q

Extension of TRO

A

If Applicant shows good cause before expiration, it can be extended for up to another 14 days.

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12
Q

A TRO cannot extend beyond…

A

28 days. If the court extends a TRO beyond 28 days, it may be treated as a preliminary injunction.

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13
Q

Is a ruling granting or denying a TRO appealable as of right?

A

No.

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14
Q

Can a preliminary injunction be granted ex parte?

A

No.

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15
Q

For a preliminary injunction, the BoP is on who?

A

The applicant

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16
Q

What must the applicant show in order to get a preliminary injunction?

A

Ignorant Men Barely Have Penises

  1. Likely to suffer irreparable harm w/o injunction
  2. Likely to win on merits of the underlying case;
  3. The balance of hardship favors him, and
  4. Injunction is in the public interest.
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17
Q

is there a right to an injunction?

A

No. The matter is in the court’s discretion.

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18
Q

Requirement after Court Grants Preliminary Injunction

A

As with a TRO, if the court grants the preliminary injunction, the applicant must post a bond.

19
Q

What a preliminary injunction must specifically state in its terms

A

​Debbie Downer was dry while Petter was Itchy

  • detailed decription
  • about what D must do or refrain from doing
  • and why PI was issued.
20
Q

What the court must do when granting or denying a preliminary injunction

A

Must make specific findings of fact and separate conclusions of law

21
Q

Is an order granting or denying a preliminary injunction appealable as of right?

A

Yes.

22
Q

P has a right to take a voluntary dismissal by filing a “notice of dismissal.” But she must do so before:

A

Defendant serves an ANS or MSJ.

23
Q

If P files a timely notice of dismissal, is the case dismissed with or without prejudice?

A
  • Without prejudice for the first time
  • with prejudice for the second.
24
Q

What is a default?

A

A default is a notation by the court clerk on the docket sheet in the case.

25
Q

Does the court clerk enter default automatically on the 22nd day after service of process on D?

A

No, P must request entry of default.

26
Q

Default judgment and D’s response

A
  • 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).
27
Q

What is the effect of entry of default?

A

It cuts off defendant’s right to respond.

28
Q

Entry of default does not entitle P to recover. What does P need to do before she can recover from D?

A

Get a default judgement.

29
Q

How do you get a default judgement?

A

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.

30
Q

If one or all of the four elements for default judgement by court are not met, where does the plaintiff go for default judgement?

A

Apply to the court itself.

31
Q

On default judgment, can the court enter an injunction when the relief sought was just damages?

A

No. If the case went to trial, the plaintiff could recover more and a different type of relief thanoriginally requested.

32
Q

The judge will hold a hearing and has discretion to enter judgment. Does D get notice of this hearing?

A

Only if he appeared in the case. (e.g. files MTD but never answers)

33
Q

What is the most P can recover on a default judgment?

A

$100,000.00

34
Q

D’s motion to set aside default judgment

A

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.

35
Q

12(b)(6) motion

A

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.

36
Q

What does the judge use to see if the facts state a plausible claim?

A

Her experience and common sense. No evidence, just the complain

37
Q

The same motion, if made after D has answered, has a different name. What is the name?

A

Motion for judgement on the pleadings.

38
Q

What must a party moving for summary judgement show?

A

There is no genuine dispute on a material fact and That she is entitled to judgment as a matter of law.

39
Q

If the standard for summary judgement is met, must the court enter summary judgement?

A

No, it has discretion to deny

40
Q

Deadline for motion for summary judgment

A

30 days after close of discovery.

41
Q

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?

A

Yes

42
Q

In summary judgment, can the court look at evidence?

A

Yes.

43
Q

When considering summary judgement, The court views that evidence in the light most favorable to…

A

the nonmoving party.

44
Q

Option for party who needs more time to oppose motion for summary judgment

A
  • 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.

Federal Civil Procedure (19 decks)

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