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Flashcards in 4. Adjudicating the Dispute Deck (52)
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1
Q

What is preliminary injunctive relief?

A

A court order that D either

(1) do something or

(2) refrain from doing
something.

2
Q

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

A

Ex Parte

3
Q

Ex parte TRO is proper 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
  2. Applicant’s lawyer certifies in writing his efforts to give oral or written notice to D or D’s lawyer (or why such notice should not be required under the
    circumstances) .
4
Q

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

A

Temporary Restraining Order (TRO)

5
Q

What must the applicant do if a court orders a TRO?

A

Post a bond (security) to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.

6
Q

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

A

He can move to dissolve or modify the TRO

7
Q

How long is a TRO effective for?

A

A TRO is effective for no more that 14 days (or lesser time stated by court).

If Applicant shows good cause before expiration, it can be extended for up to another 14
days. So a TRO cannot extend beyond 28 days.

8
Q

Preliminary Injunction

A

Maintains status quo until the court can adjudicate the underlying claim on the merits.

9
Q

Can a preliminary injunction be granted ex parte?

A

Never

10
Q

When applying for a preliminary injunction, the burden is on the applicant to show:

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 applicant outweighs harm to other party if the injunction is issued); and
(4) The injunction is in the public interest.

11
Q

Is there ever a right to an injunction?

A

No, it is always discretionary

12
Q

What must a preliminary injunction include?

A

The preliminary injunction must state its terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issued.

13
Q

Is an order granting or denying a preliminary injunction immediately appealable?

A

Yes

14
Q

When can P make a voluntary dismissal?

A

P can make a motion for voluntary dismissal anytime.

15
Q

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

A

The D serves an answer or motion for summary judgment

16
Q

If P files a timely notice of dismissal, the case is dismissed “without prejudice.” What does that mean?

A

P can refile the case

17
Q

What if P files a notice of dismissal in the second case?

A

That dismissal is “with prejudice.”

18
Q

Default

A

D does not respond to the complaint in time (21 days after being served with process; 60 days from mailing of waiver if you waived service).

19
Q

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

A

No, the P must move for a default

20
Q

What is the effect of entry of default?

A

It cuts off D’s right to respond

21
Q

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

A

She must get a default judgment

22
Q

The clerk of court can enter judgment if:

A
  1. D made no response at all;
  2. The claim itself if for a sum certain in money;
  3. Claimant gives an affidavit (sworn statement) of the sum owed; AND
  4. D is not a minor or incompetent.
23
Q

Does D get notice of a hearing for default judgment?

A

Only if he has appeared in the case

24
Q

P sues D for $100,000. What is the most she can recover on a default judgment?

A

$100,000 - You cannot get more than you pleaded.

25
Q

P sues D for damages and not an injunction. On default judgment, can the court enter an injunction?

A

No, you cannot get a different kind of relief

26
Q

Motions to set aside

A

D may move to have the court set aside a default or default judgment by showing:

  1. Good cause (like excusable neglect) and
  2. A viable defense
27
Q

Motion to Dismiss for Failure to State a Claim

A

This is about whether

the case belongs in the litigation stream at all. If P’s complaint fails to state a claim, the case can be dismissed.

28
Q

In ruling on a motion to dismiss for failure to state a claim, the court ignores P’s legal conclusions. It looks only at P’s allegations of fact in the complaint and asks:

A

if these facts were true, would P win a judgment

29
Q

Motion for Summary Judgment

A

Here, P stated a claim, so we’re in the litigation stream. But we might not need a trial. Summary judgment weeds out cases in which we don’t need trial.

30
Q

Party moving for summary judgment must show:

A
  1. There is no genuine dispute on a material fact and

2. That she is entitled to judgment as a matter of law.

31
Q

When may a party move for summary judgment?

A

No later than 30 days of close of discovery.

32
Q

Pretrial Conferences

A

The court may hold “pretrial conferences” to process the case and
foster settlement.

33
Q

What is a motion in limine?

A

A pretrial motion to decide whether the jury should hear certain evidence.

34
Q

What preserves a defendants’ right to jury in “civil actions at law?”

A

Seventh Amendment preserves the right to jury in “civil actions at law,” but not in suits at equity.

35
Q

What if a case involves both law and equity?

Suppose a case involves a claim for damages (legal relief) and for an injunction (equitable relief).

A

The jury decides the facts underlying the damages claim, but not the equity claim.

36
Q

Does the Seventh Amendment apply in state court?

A

No

37
Q

When must a D request a jury trial?

A

Must demand the jury in writing no later than 14 days after service of the last pleading raising jury triable issue. If you don’t, you waive the right to a jury.

38
Q

There are two kinds of challenges to jurors:

A
  1. “For cause” – e.g., potential juror will not be impartial.
  2. “Peremptory” – historically, one did not need to state a reason – you just
    dismiss the potential juror.
39
Q

How many motions to strike “for cause” can a party make?

A

There is no limit

40
Q

Is there a limit on the number of these strikes?

A

Three per side

41
Q

How many jurors are on a civil jury in federal court?

A

A minimum 6 and a maximum of 12

42
Q

Six jurors are empaneled and one is excused for good cause because of health problems. Can the remaining five return a verdict?

A

No, we must have at least 6 unless the parties agree otherwise

43
Q

What jury vote is required for a verdict?

A

Unanimous, unless the parties agree otherwise.

44
Q

If a party did not object timely, a court can consider a jury instruction if it contained:

A

Plain error that affects substantial rights

45
Q

If the jury returns a general verdict, who enters the judgment?

A

The clerk of court

46
Q

Motion for judgment as a matter of law (JMOL)

A

If the judge grants JMOL, the case will not go to the jury – the judge simply rules for a side.

47
Q

When can a party move for JMOL?

A

After the other side has been heard at trial

48
Q

When do you move for RJMOL?

A

Within 28 days after entry of judgment.

49
Q

What is an absolute prerequisite to bringing RJMOL?

A

You must have moved for a JMOL at a proper time at trial

50
Q

Remittitur

A

This gives P a choice: take a lesser amount (which the court sets) or go through new trial.

51
Q

Additur

A

This gives D a choice: pay a greater amount in damages (which the court sets) or go through new trial.

52
Q

Is additur OK in state and federal court?

A

It is unconstitutional in federal court, but it is OK in state court.