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Civil Procedure > Adjudication Without Trial > Flashcards

Adjudication Without Trial Flashcards

1
Q

Preliminary Injunction Relief Definition

A

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

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2
Q

Steps (2) to get Preliminary Injunction

A
  1. Make a motion for PI
  2. Get a temporary restraining order
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3
Q

Ex Parte Definition

A

An action by a court without giving notice to the other party

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4
Q

The court issues a temporary restraining order ex parte if . . . ? (2)

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 party has to wait until other side is heard
  2. Applicant’s lawyer certifies in writing their efforts to give oral/written to D or D’s lawyer (or why such notice should not be required in this case
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5
Q

TRO Bond Requirements

A

If the court issues the TRO, applicant must post a bond to cover the other side’s cost and damages caused if it turns out the restraint is wrongful

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6
Q

TRO Writing Requirements

A

Must state its terms SPECIFICALLY, describe in DETAIL what D must do (or refrain from doing), state why it was issued, and why the threatened injury to P was irreparable

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7
Q

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

A

Move to dissolve or modify

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8
Q

TRO Timing Mechanisms

A

Effective for no more than 14 days (or less if stated by court)

If applicant can show good cause before expiration, it can be extended for another 14 days

A TRO cannot extend past 28 days, if it does, it is treated as a Preliminary Injunction

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9
Q

Is the grant of a TRO or a Preliminary Injunction appealable?

A

TRO - No
PI - Yes (exception to closure rule)

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10
Q

Can a PI be granted ex parte?

A

Fuck no

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11
Q

To get a PI, the burden is on the applicant to show what 4 things?

A
  1. He is likely to suffer irreparable harm if the injunction is not issued
  2. He is likely to win on the merits of the underlying case
  3. The balance of hardship favors him (threatened harm to the applicant outweighs the harm to other party if the injunction is issued); AND
  4. The injunction is in the public interest
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12
Q

PI Bond Requirements

A

Same as TRO - applicant must post a bond

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13
Q

PI Writing Requirements

A

Like TRO - must state its terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issued

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14
Q

What must a court do to grant or deny a PI?

A

Must make specific findings of fact and separate conclusions of law

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15
Q

Voluntary Dismissal

A

P has a RIGHT to take a voluntary dismissal by filing a “notice of dismissal”

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16
Q

Voluntarily Dismissal Timing Mechanisms

A

P must do so before D serves an answer or motion for summary judgment

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17
Q

Dismissed Without Prejudice

A

Can refile, can only do it without prejudice once

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18
Q

Dismissed with Prejudice

A

Can’t refile

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19
Q

Default Timing Mechanisms

A

D does not respond to the complaint in time

21 days after being served with process or 60 days from mailing of waiver if service process was waived

20
Q

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

A

No –> P must move for entry of default

P must demonstrate that D failed to respond in time. Until default is entered, D can respond by motion/answer (even beyond 21 days)

21
Q

What is the effect of entry of default?

A

Cuts off D’s right to respond

22
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 judgment

23
Q

How to get a Default Judgment - 4 Elements for Clerk of Court

A

The CLERK OF COURT can enter judgment if:

  1. D made no response at all
  2. The claim itself is for a sum certain in money
  3. Claimant gives an affidavit (sworn statement) of sum owed; AND
  4. D is not a minor or incompetent
24
Q

If any of the elements for DJ are not true, where does P go for default judgment?

A

The Court Itself

25
Q

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

A

Yes, ONLY IF D APPEARED IN THE CASE

aka D made a 12(b) motion, but failed to answer 21 days after motion was denied

26
Q

What can you get a default judgment on?

A

Only relief sought in complaint

27
Q

Motions to Set aside Default or Default Judgment

A

D may move to have the court set aside by showing good cause (like excusable neglect), cause for delay, and viable defense

28
Q

Motion to Dismiss for Failure to State a Claim (12(b)(6)) Definition

A

Whether the case belongs in the litigation stream at all. If P fails to state a claim it can be dismissed

29
Q

What does the court look at and ask in a 12(b)(6) Motion?

A

Ignores P’s LEGAL conclusions. Only looks at P’s allegations of FACT in the complaint and asks:

“If these facts are true, is it PLAUSIBLE there is a legal claim”

30
Q

In a 12(b)(6) motion, does the court look at evidence?

A

Fuck no

31
Q

What is equivalent to a 12(b)(6) motion if made after D has answered? (aka different name)

A

Motion for Judgment on the Pleadings

32
Q

A party moving for Summary Judgment must show what 2 things?

A
  1. There is no genuine dispute on a material fact; AND
  2. Moving party is entitled to judgment as a matter of law
33
Q

If a party meets the Summary Judgment standard, must the court enter summary judgment?

A

NO –> discretionary

Evidence must be such that NO REASONABLE jury could conclude otherwise

34
Q

Summary Judgment Timing Mechanism

A

Any party can move for summary judgment no later than 30 days after close of discovery

35
Q

Can the summary judgment be partial (ex - Sj as to liability but allow damages to go to trial)?

A

Fuck yes

36
Q

What evidence can the court look at in summary judgment?

A

Think: Trial on Sworn Paper

Paper evidence & sworn testimony (MUST BE UNDER OATH)

37
Q

Preclusion - Basic Idea

A

If you’re asserting 1 claim, you need to assert all claims arising from the same transaction or occurrence

REMEMBER: It only applies when 1 P asserts a claim against 1 D; if 2 D’s CAN be separate suits

REMEMBER: Different from counterclaims because you don’t have claims asserted against you

38
Q

Claim Preclusion - What is another name?

A

Res Judicata

39
Q

Claim Preclusion Requirements (3)

A
  1. Case 1 and Case 2 were brought by the SAME claimant against the SAME defendant
  2. Case 1 entered a valid final judgment ON THE MERITS
  3. Case 1 and Case 2 asserted the “same claim”
40
Q

What final judgments are NOT ON THE MERITS?

A

Lack of SMJ/PJ, Improper Venue, or failure to join an indispensable party

41
Q

“Same Claim” Majority View

A

A claim is any right to relief arising from a transaction or occurrence

42
Q

Issue Preclusion - What is another name?

A

Collateral Estoppel

43
Q

What does issue preclusion result in?

A

NO DISMISSAL (unlike claim preclusion) - results on the judge deciding an issue and not the jury

44
Q

Issue Preclusion Requirements (5)

A
  1. Case 1 ended in a valid final judgment on the merits (same exclusions apply)
  2. The same issue was ACTUALLY LITIGATED and determined in Case 1 (opportunity to argue about actual issue - ex: default judgment DOES NOT satisfy)
  3. The issue was essential to the judgment in Case 1 (Finding on this issue is the basis for the judgment)
  4. Can only be asserted against somebody who was a party to case 1 or in “privity” with a party (a party to case 1 represented someone who was not a party to case 1 ex - Class actions)
  5. By whom can issue preclusion be assert?
45
Q

Nonmutual Issue Preclusion - Definition

A

When someone who was not a party to Case 1 tries to use issue preclusion in Case 2

46
Q

Nonmutual Defensive Issue Preclusion

A

The one using IP was not a party to Case 1 and is D in Case 2

47
Q

Nonmutual Offensive Issue Preclusion

A

The one using it was not a party to Case 1 and is P in Case 2

Civil Procedure (9 decks)

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