Adjudication Without Trial

Question 1

Difference Between a Temporary Restraining Order (“TRO”) and Preliminary Injunction

Answer 1

Preliminary Injunction: An order that maintains the status quo until trial

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

Question 2

Temporary Restraining Orders

Answer 2

A TRO is issued to preserve the status quo until a hearing for a preliminary injunction can be held.

A TRO may be issued “ex parte” (without giving notice
to the other party) only if:
* The applicant shows that she will “suffer immediate and irreparable harm” if the TRO is not issued
* The applicant’s lawyer certifies in writing her efforts to give oral or written notice to the defendant or the defendant’s lawyer (or why such notice should not be required in this case).

However, if the court issues a TRO, the order must be served on the defendant as soon as possible.

Question 3

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

Answer 3

The applicant must post a bond to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.

Question 4

Contents of TRO

Answer 4

Must state:
- Specific terms
- What the defendant must do (or refrain from doing)
- Why it was issued, and
- Why the threatened injury was irreparable

Question 5

Duration of a TRO

Answer 5

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

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

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

Question 6

What must an applicant show for a Preliminary Injunction?

Answer 6

• Likely to suffer irreparable harm w/o injunction
• Likely to win on the merits of the underlying case
• The balance of hardship favors applicant, and
• The injunction is in the public interest.

Question 7

Can a preliminary injunction be issued ex parte?

Answer 7

NO

Question 8

Voluntary dismissal without court permission

Answer 8

P may withdraw from the case without court order if D has not filed an answer or MSJ.

Stipulated dismissal will also be filed with the court if they settle.

Question 9

Voluntary dismissal with court permission

Answer 9

• P makes a motion for voluntary dismissal
• Court has discretion to grant or deny
• First dismissal is “without prejudice” (P can refile the case)
• Second voluntary dismissal extinguishes claim

Question 10

When does a court enter default and default judgement

Answer 10

If the defendant does not respond to the complaint in time (21 days after being served with process), default and default judgement may be entered.

Question 11

Entry of Default

Answer 11

P may seek D’s default if D does not respond to the complaint within 21 days after service of process (or 60 days if process is waived)
- Not automatic, P must move for entry of default
- D can still respond late until entry of default

HOWEVER Entry of default does not automatically entitle P to relief. The plaintiff must seek a default judgment.

Question 12

How to get a Default Judgement

Answer 12

The clerk of the court can enter a default judgment if:
* The defendant has made no response at all
* The claim is for money
* The plaintiff gives an affidavit (sworn statement) of the sum owed, and
* The defendant is not a minor or incompetent.

If ANY of these is not true, the plaintiff must apply to the court for the default judgment.

Question 13

Court hearing for Default Judgement

Answer 13

The judge will hold a hearing and has discretion whether to enter the judgment.

The defendant is entitled to notice of the hearing if she
has appeared at all in the case.

Unlike at trial, the plaintiff’s recovery is limited to what is pleaded in the complaint.

Question 14

Motions to Set Aside Default Judgement

Answer 14

The defendant 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

Question 15

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

Answer 15

If the plaintiff’s complaint fails to state a claim, the case can be dismissed.

Court looks only at the plaintiff’s allegations of fact in the complaint (and not any evidence).

Court asks: do these facts, if true, state a plausible claim?

Question 16

Motion to Dismiss for Failure to State a Claim
OR
Motion for Judgment on the Pleadings?

Answer 16

Motion to Dismiss for Failure to State a Claim: made before the defendant has answered

Motion for Judgment on the Pleadings: Same motion but filed AFTER defendant has answered.

Question 17

Motion for Summary Judgement

Answer 17

A motion which says that there is no need for a jury trial because there are no disputes of material fact.

Movant must show:
* There is no genuine dispute on a material fact, and
* She is entitled to judgment as a matter of law

If the standard is met, the court is not always required to grant the motion.

Question 18

When must a MSJ be filed?

Answer 18

No later than 30 days after close of discovery

Question 19

What can the court consider in a MSJ?

Answer 19

The court views evidence in the light most favorable to the nonmoving party.

The parties proffer the evidence, usually by:
(1) affidavits
(2) declarations
(3) deposition testimony, or
(4) interrogatory answers
All of these are made under oath

NOT pleadings, unless made under oath (these are typically only signed by the attorney)

NOTE: Admissions by defendant (failure to deny them) count as evidence)

Question 20

What if the party opposing summary judgment needs more time to find evidence to oppose the motion?

Answer 20

They may file an affidavit or declaration with the court stating what that evidence would be. NOT ENOUGH to just ask for more time.