Adjudication Without Trial (Module 11) Flashcards
(13 cards)
Preliminary Injunctive Relief*
Plaintiff wants injunctive relief; that is, a court order that the defendant either (1) do something or (2) refrain from doing something.
* Courts are nervous about granting injunctions because the merits of the underlying dispute have not been decided.
Temporary Restraining Order vs. Preliminary Injunction
Preliminary Injunction = Preserves status quo until trial
Temporary Restraining Order = Preserved status quo until preliminary injunction
Temporary Restraining Order (“TRO”)*
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,” which means that a court has done something without giving notice to the other party. The court will issue a TRO ex parte only if:
* The applicant files a paper under oath clearly showing that if the TRO is not issued, she will “suffer immediate and irreparable harm” if she must wait until the other side is heard.
* 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).
If the court issues the TRO, the applicant must post a bond to cover the other side’s costs and damages caused if it turns out the restraint is wrongful. If the court issues a TRO, the order must be served on the defendant as soon as possible. (Generally speaking, a party without notice of a TRO cannot be punished for violating it.) A ruling granting or denying a TRO ordinarily may not immediately be appealed.
Contents & Duration of TRO
- A TRO must state its terms specifically, describe in detail what the defendant must do (or refrain from doing), state why it was issued, and state why the threatened injury to the plaintiff was irreparable.
- Cannot exceed 28 days (14 days + 14-day extension)
- Treated like preliminary injunction after 28 days
Preliminary Injunction*
A preliminary injunction maintains the status quo until the court can adjudicate the underlying claim on the merits. A preliminary injunction cannot be issued ex parte. The burden is on the applicant to show:
* 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.
There is no right to an injunction. The matter is in the court’s discretion.
Additional Requirements for Preliminary Injunction
- As with a TRO, if the court grants the preliminary injunction, the applicant must post a bond.
- Also as with a TRO, the preliminary injunction must state its terms in specificity, describe in detail what the defendant must do or refrain from doing, and state why it was issued.
- In granting or denying the preliminary injunction, the court must make specific findings of fact and separate conclusions of law.
- An order granting or denying a preliminary injunction may be appealed as of right.
Dismissal Without Court Permission (Voluntary Dismissal)
P may withdraw case without court order if D has not filed answers or motion for summary judgment
Dismissal with Court Permission (Voluntary Dismissal)
- P makes motion for voluntary dismissal
- Court’s discretion to grant or deny
- First voluntary dismissal is without prejudice
- Second Voluntary dismissal extinguishes claim
Default
- P may seek D’s default if D doesn’t respond to complaint within 21 days after service of process (60 days if process waived)
- Not automatic
- P must move for entry of default
- D can respond late until default on record
- The entry of default cuts off the defendant’s right to respond. Entry of default, however, does not automatically entitle the plaintiff to relief. The plaintiff must seek a default judgment.
How to Get a Default Judgment
The clerk of the court can enter a default judgment if:
1. The defendant has made no response at all (that is, she has not “appeared”);
2. The claim itself is for a sum certain in money;
3. The plaintiff gives an affidavit (sworn statement) of the sum owed; and
4. 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
* 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 in some fashion in the case.
* Recovery limited by amount in complaint
* Can only get the kind of relief you demanded in complaint
Motions to Set Aside Default or Default Judgment
The defendant may move to have the court set aside a default or default judgment by showing:
1. good cause (like excusable neglect)
2. a viable defense.
Motion to Dismiss for Failure to State a Claim (12(b)(6))*
- A motion to dismiss for failure to state a claim tests whether the case belongs in the litigation stream at all.
- If the plaintiff’s complaint fails to state a claim, the case can be dismissed.
- Court looks only to allegation of facts in complaint
- Do these facts (if true) state a plausible claim?
- The same motion, if made after the defendant has answered, has a different name—a motion for judgment on the pleadings.
- Judge may allow the plaintiff to ammend the complaint to state a claim
Motion for Summary Judgment (FRCP 56)*
The party moving for summary judgment must show that:
* 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. There may be some discretion to deny the motion (measured by an “abuse of discretion” standard on appeal).
* Judge does not assess credability
Summary Judgment weeds out cases where trial is not needed because there’s no dispute of material fact
* Can move for Summary Judgment no later than 30 days after close of discovery
* The court views that evidence in the light most favorable to the nonmoving party. The parties proffer the evidence, usually (1) affidavits, (2) declarations, (3) deposition testimony, or (4) interrogatory answers.
* Ruling on the SJ can be delayed if the party needs more time to respond (Need to file an affidavit or declaration with the court stating what that evidence would be)
* Pleadings are not considerd evidence unless verified (made under oath)
* If P alleges and D doesn’t deny, this could be used as evidence for SJ
