adjudication w/out trial Flashcards
TRO v. prelim injunction
- TRO is issued to preserve status quo until hearing for prelim injunction can be held
- TRO can be issued ex parte only if: (1) applicant files paper under oath showing that if TRO not issued, she’ll suffer immediate and irreparable harm; (2) applicant lawyer certifies in writing her efforts to give notice to D or D’s lawyer
if court issues TRO, applicant has to post bond to cover other side’s costs/damages caused if it turns out restraint is wrongful
preliminary injunction
- maintains status quo until court can decide underlying claim on merits
- applicant needs to show:
- irrep harm
- likely to win on merits
- balance of hardship favors her
- it’s in public interest
voluntary dismissal by π
- dismissal without court permission: if pff wants to withdraw, she may do so without court order BEFORE D SERVES an ANSWER OR MOTION FOR SJ
- thereafter, ct permission is required absent stipulation
one dismissal without prejudice
- first voluntary dismissal is without prejudice
- the second voluntary dismissal is WITH PREJUDICE – it operates as adjudication on merits and takes away pff’s ability to refile
default and default judgment
might occur when D doesn’t respond to complaint in time (21 days after being served w/ process)
entry of default
- notation by court clerk on docket sheet in case
- pff must move for entry of default –> pff needs to show that D failed to respond in time (until default entered, D can respond by motion or answer even beyond 21 days)
what’s effect of entry of default
cuts off the D’s right to respond
default judgment
entry of default doesn’t automatically entitle the pff to relief (pff needs to seek default judgment)
the CLERK OF THE COURT can enter a default judgment if:
- the D has made no response at all
- claim must be for a SUM CERTAIN
If any of these IS NOT TRUE, the pff must apply to COURT for default judgment (e.g., if amount of damages is not for a sum certain – such as personal injuries)
court hearing for default judgment
- D can be heard at this hearing/D must be notified of request for default judgment
- unlike @ trial, the pff’s recovery in hearing for default judgment is limited to what is pleaded in complaint
motions to set aside default or default judgment
D can move to have court set aside default or default judgment by showing (1) good cause (excusable neglect) and (2) a viable defense
motion to dismiss
- MTD pff complaint for failure to state claim tests whether case belongs in litigation stream at all
- the same motion (if made AFTER D has answered) is called a motion for judgment on the pleadings
what does judge consider in ruling on a MTD
looks at the pff’s allegations of FACT on the face of complaint and asks: “if these facts are true, do they state a plausible claim?”
motion for SJ
- occurs after post-discovery
- SJ weeds out cases in which trial is not needed; only reason to have a trial is to resolve a dispute of material fact!
standard: moving party [based on pleadings and stuff from discovery] must show that (1) there is no genuine dispute on a material fact; and (2) she is entitled to judgment as a matter of law
court views evidence in light most favorable to the NON-moving party
note: motion can be for partial judgment (e.g., as to liability and the case can go to trial on damages)
when can SJ motion be filed
at any time until 30 days after close of all discovery
