Adjudication Without Trial

Question 1

What is a preliminary injunction?

Answer 1

A court order that D either do something or refrain from doing something before the case has been decided

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

Question 2

What is the difference between a TRO and a preliminary injunction?

Answer 2

TRO: maintains the status quo until a hearing on the preliminary injunction; much shorter

Question 3

What must the moving party show to get a preliminary injunction?

Answer 3

• She is likely to suffer irreparable harm if the injunction is not issued;
• She is likely to win on the merits of the underlying case;
• The balance of hardship favors her (threatened harm to applicant outweighs harm to other party if the injunction is issued); and
• The injunction is in the public interest.

Question 4

What is a default? What is a default judgment?

Answer 4

Might occur when the defendant does not respond to the complaint in time (21 days after being served with process).

Question 5

How does a party get a default judgment?

Answer 5

P moves for entry of default.

Until a default is actually entered, the defendant can respond by motion or answer even beyond 21 days.

JUDGMENT
The clerk of the court can enter a default judgment if:

• The defendant has made no response at all (that is, she has not “appeared”);
• The claim itself is for a sum certain in 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 6

What does a judge consider for D’s 12(b)(6) motion to dismiss for failure to state a claim?

Answer 6

Looks only at P’s allegations of fact on the face of the complaint (no evidence).

Asks, “if these facts are true, do they state a plausible claim?”

Question 7

What is a motion for summary judgment? When does it occur?

Answer 7

A motion for the judge to resolve the case as a matter of law before trial because there is no genuine dispute on a material fact.

When? - after the case has been filed and P has survived any Rule 12 motions but before trial

Question 8

When must a party move for summary judgment?

Answer 8

No later than 30 days after the close of discovery

Question 9

How does the judge adjudicate the motion for summary judgment?

Answer 9

The court views that evidence (discovery tools under oath) in the light most favorable to the nonmoving party.

The judge does not assess credibility