Adjudication Without Trial

Question 1

Adjudication Without Trial

Answer 1

• Basic idea: There are various ways a case can be resolved without going to trial

Question 2

Preliminary Injunction is a Ct Order That:

Answer 2

A court order that the D either:
(1) do something or
(2) refrain from doing something.

Question 3

Difference Between TRO & Preliminary Injunction

Answer 3

• Prelim Injunct: maintains status quo until trial
• TRO: maintains status quo until hearing on the prelim injunct

Question 4

TRO

Answer 4

• A TRO is issued to preserve the status quo until a hearing for a preliminary injunction can be held.
• TRO may be issued “ex parte,” (court has done something without giving notice to the other party)

Question 5

The Court will Issue a TRO ex party only if:

Answer 5

(1) The applicant files a paper under oath clearly showing that if the TRO is not issued, she will “suffer immediate and irreparable harm” if she must wait until the other side is heard.
(2) The applicant’s lawyer certifies in writing her efforts to give oral or written notice to D/ D’s lawyer (or why such notice should not be required in this case).

Question 6

Miscellaneous TRO Matters

Answer 6

• If the court issues the TRO, the applicant must post a bond to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.
• If the court issues a TRO, the order must be served on the defendant ASAP (Generally speaking, a party without notice of a TRO cannot be punished for violating it.)
• A ruling granting or denying a TRO ordinarily may not immediately be appealed.

Question 7

Contents of TRO

Answer 7

• A TRO must state its terms specifically, describe in detail what D must do (or refrain from doing), state why it was issued, and state why threatened injury to P was irreparable.

Question 8

Preliminary Injunctive Relief

Answer 8

• A prelim injunct maintains the status quo until trial
• A prelim injunct cannot be issued ex parte.
• The burden is on the applicant to show:
  (1) She is likely to suffer irreparable harm if the injunction is not issued;
  (2) She is likely to win on the merits of the underlying case;
  (3) The balance of hardship favors her (threatened harm to applicant outweighs harm to other party if the injunction is issued); and
  (4) The injunction is in the public interest.
• There is no right to an injunction. The matter is at the court’s discretion.

Question 9

Additional Requirements for Preliminary Injunction

Answer 9

• As with a TRO, if ct grants the prelim injunct, the applicant must post a bond.
• Also as with a TRO, the prelim injunct must state its terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issued.

Question 10

Appealing Preliminary Injunction

Answer 10

• An order granting or denying a prelim injunct may be appealed as of right.

Question 11

Voluntary Dismissal

Answer 11

• Dismissal w/o ct permission
  (a) If P wants to withdraw the case, she may do so without a CO b/f D serves an answer/MSJ
  (b) The parties may also stipulate to a voluntary dismissal without CO (ex. If the case is settled, a stipulated dismissal will be filed)
• Dismissal w/ ct permission
  (a) Ct permission is required absent a stipulation
  (b) If P wants to withdraw the case, she can make a motion for voluntary dismissal, which the ct has discretion to grant

Question 12

Court Dismissal Without Prejudice

Answer 12

• First VD is w/o prejudice
• Which means P can refile the case
• Can only do it once
• The 2nd VD is with prejudice, which operated as an adjudication on the merits and takes away P’s ability to refile the case

Question 13

Default & Default Judgment

Answer 13

• A D & DJ might occur when D does not respond to the complaint in time (21 days after SOP)

Question 14

Entry of Default

Answer 14

• A default is a notation by court clerk on the docket sheet in the case
• Default does not happen automatically
• P must move for EOD
• P must show that D failed to respond in time
• Until a default is actually entered, the D can respond by motion/answer even beyond 21 days

Question 15

Effect of EOD

Answer 15

• EOD cuts off the D’s right to respond.
• EOD does not automatically entitle P to relief.
• P must seek a DJ

Question 16

How to Get Default Judgment

Answer 16

• Court clerk can enter a DJ if:
  (1) D made no response at all (not “appeared”);
  (2) Claim itself is for a sum certain in money;
  (3) P gives affidavit (sworn statement) of sum owed; and
  (4) D not a minor/incompetent.
• If any of these is not true, P must apply to ct for DJ

Question 17

Hearing for DJ

Answer 17

• Judge holds a hearing and has discretion whether to enter the judgment
• D is entitled to notice of hearing if she has appeared in some fashion in the case.
• Unlike at trial, the P’s recovery in a hearing for a DJ is limited to what is pleaded in the complaint.

Question 18

Motions to Set Aside Default or DJ

Answer 18

• Defendant may move set aside a D/DJ by showing:
  (1) good cause (like excusable neglect) and
  (2) a viable defense.

Question 19

Motion to Dismiss for FTSC 12(b)(6)

Answer 19

• If the P’s complaint fails to state a claim, the case can be dismissed
• The same motion, if made after D has answered, has a different name—a motion for judgment on the pleadings.

Question 20

What Judge Considers in Ruling on MTD for FTSC

Answer 20

• The ct only looks at P’s allegations of fact on the face of the complaint (not any evidence) and asks “if these facts are true, do they state a plausible claim?” If no, P has not stated a plausible claim
• The ct might allow P to amend the complaint to try to state a claim

Question 21

Motion for Summary Judgment

Answer 21

• Used after the case has been filed and P has survived any R.12 motions
• Weeds out cases in which no trial is necessary
• Only reason to have a trial is to resolve a dispute of material fact

Question 22

Standard for Summary Judgment

Answer 22

• The party moving for SJ must show that:
  (1) There is no genuine dispute on a material fact; and
  (2) She is entitled to JMOL.
• If the standard is met, ct is not always required to grant the motion.

Question 23

Timing of Motion for SJ

Answer 23

• Any party can move for SJ no later than 30 days after close of discovery.
• The motion can be for “partial” judgment—ex. as to liability, and the case to go to trial on damages.
• Partial SJ is sometimes called summary adjudication.

Question 24

Matter Considered for SJ

Answer 24

• In a SJ motion, the court can look at evidence.
• The ct views that evidence in the light most favorable to the nonmoving party.
• The parties proffer the evidence, usually
  (1) affidavits,
  (2) declarations,
  (3) deposition testimony, or
  (4) interrogatory answers.
  -Why can these things be considered “evidence”? Because they are under oath.

Question 25

Delayed Ruling on Motion for SJ

Answer 25

• If the party opposing SJ needs more time to find evidence to oppose the motion, she may file an affidavit/declaration with the ct stating what that evidence would be.
• The ct may allow more time for the party to obtain evidence.