Chapter 8 Flashcards
(1) are remedies that may be obtained by the plaintiff prior to trial, which allow him to obtain (2) without necessity of (3). However, if he loses at trial, the plaintiff might be responsible for (4) branching from those provisional remedies.
- provisional remedies 2. relief sought 3. trial 4. damages
3 types of injunctions
- temporary restraining orders (provisional remedy) 2. preliminary injunctions (provisional remedy) 3. permanent injunctions (requires trial)
Temporary restraining orders and preliminary injunctions are used to (1) and to avoid (2) to the plaintiff until rights are adjudication. A temporary restraining order can be granted (3), and can be granted only until a hearing for a (4) can be held. A preliminary injunction requires an (5).
- maintain status quo 2. irreparable injury 3. ex parte (without notice to the other side) 4. preliminary injunction 5. adversarial hearing
3 requirements that must be met for a temporary restraining order to be granted ex parte
- affidavit/verified complaint alleging specific facts that show immediate and irreparable injury will result otherwise 2. Affidavit that efforts were made to give notice to other side plus reasons notice should not be required 3. post of security for possible damages resulting from wrongful TRO
Three extra things an applicant for a TRO must show, despite that the rule just calls for showing of “immediate/irreparable injury”
- likelihood of success on merits of case 2. threatened injury to applicant > foreseeable injury if order is granted 3. order not against the public interest
6 aspects of a granted TRO
- injury 2. why irreparable 3. why order granted without notice 4. acts enjoined (in reasonable detail) 5. 10 days (renewable with good cause) 6. date set for hearing on preliminary injunction ASAP
The party against whom a TRO was issued can, with (1), move to have it dissolved.
- two days’ notice
Lack of subject matter jurisdiction in motion for TRO will result in (1). Lack of personal jurisdiction will make any injunctive relief ordered (2).
- dismissal of the complaint 2. unenforceable
6 things required to be filed and served in motion for a trod
- complaint/summons 2. application for trod and preliminary injunction 3. attorney’s certificate of attempted notice 4. witness affidavits 5. security for costs and damages 6. court order
4 characteristics of the complaint in a motion for TRO
- request for TRO, prelim. Injunction, perm. Injunction 2. demonstration that pleader in entitled to relief 3. verification of allegations, sworn to before notary public or signed under penalty of perjury 4. filed at same time as TRO with emergency judge (on rotation)
3 features of the application for TRO
- combined with request for preliminary injunction 2. allegation that immediate/irrep. Injury with occur without TRO 3. reference to verified complaint
It is usual procedure in federal court for the (1) or his (2) to issue orders, either (3) or (4). However, since with a TRO time is critical is useful to (5) for the judge to sign. The court’s order is not enforceable until (6).
- judge 2. clerk 3. minute 4. full written orders 5. prepare a draft order 6. the defendant receives notice of it
4 requirements of a preliminary injunction
- notice to adverse party (~5 days) 2. post of security 3. demonstration in pleadings of irrep. Injury, likely success of case, threatened injury > def’s threatened injury, not against public interest 4. order is specific about acts enjoined
A hearing for a preliminary injunction can be consolidated with a (1) and is usually done where injunctive relief is the (2) and the (3) would likely be similar at both hearings. Denial of a preliminary injunction is (4) on erroneous matters of law.
- trial on the merits 2. principal remedy sought 3. evidence 4. appealable
A preliminary injunction can come before the court with or without a (1) first. The hearing is (2) and includes (3), and the plaintiff has the (4). If the prelim. Is granted, it is in effect until the (5) but can also be vacated or modified by the court.
- TRO 2. adversarial 3. cross-examination 4. burden of proof (of the things he demonstrates in the application-injury, public interest, etc.) 5. trial on the merits
Proof presented at a hearing on a preliminary injunction need not be (1) for trial, and the two may be (2) with short notice.
- duplicated 2. consolidated
Attachment is the legal process in which someone’s (1) is seized to satisfy a (2). There are no (3), only procedures under the forum state’s laws. These are useful for plaintiff’s wanting (4) and to avoid (5).
- property 2. judgment not yet rendered 3. federal attachment statutes 4. quicker relief 5. asset dumping/lack of assets when judgment is made
4 general requirements for relief in the form of attachment
- available only on contract claims (if damages are for mixed claim–contract and tort–may not be possible) 2. contract claim must be for a specific amount of money 3. amount owed to plaintiff must be unsecured (no security for obligation) 4. must arise out of def’s trade or profession, not for personal debts
In extreme cases (great irrep. Injury), a court may grant an attachment (1).
- ex parte
3 defenses to motions for attachment
- point out any ground for attachment not met 2. demonstration that PLT is not likely to prevail at trial 3. exemptions for type of property seized
Writs of possession are issued when a plaintiff has (1) of the defendant, usually for (2). These are governed by (3).
- security in personal property 2. default on a debt 3. state statutes
3 things a PLT must show for writ of possession
- PLT has a security interest in tangible personal property being held by DEF 2. PLT has immediate right to possession of the property 3. property is being wrongfully withheld by DEF
A lis pendens places a (1) on property owned by the DEF. Notice of this is usually filed with the (2), and gives notice of (3) to parties having an interest in the property and will show up in a (4) usually done by potential buyers. Anyone buying the property does so subject to any (5).
- lien 2. county office that keeps public records (county/city recorder’s office) 3. pending litigation 4. title search 5. judgment entered in litigation
pretrial order of the court seizing property of the defendant for later satisfaction of any judgment received by the plaintiff
attachment
