Judgments and Appeals

Question 1

What rule governs provisional remedies?

Answer 1

Rule 64

Question 2

What does Rule 64(a) provide regarding remedies?

Answer 2

That the remedies available are tied to state law

Question 3

What are the specific kinds of remedies available under Rule 64(b)? (6)

Answer 3

1. arrest
2. attachment
3. garnishment
4. replevin
5. sequestration
6. other corresponding or equivalent remedies

Question 4

Regarding remedies, what is arrest?

Answer 4

Refers to the judicial process of seizing a person’s property to secure a judgment in a civil case, rather than the more commonly known criminal law context of taking a person into custody.

Question 5

What is attachment?

Answer 5

Real or personal property is seized to prevent the defendant from disposing of it pending litigation.

Question 6

What are the two factors in determining whether a state’s prejudgment attachment statute will be upheld?

Answer 6

1. the cause of action (e.g. a debt is a calculated sum versus tort damages that are determined when the case is over)
2. Whether the plaintiff had a pre-existing interest in the property to be attached

Question 7

What is garnishment?

Answer 7

The defendant’s assets in the possession of a third party are turned over to the plaintiff to satisfy an alleged debt.

Question 8

What is post judgment discovery used for? Rule?

Answer 8

To determine/locate assets/money. Rule 69(a)(2).

Question 9

What are examples of things that can be subject to garnishment?

Answer 9

Bank accounts, tax returns, pay checks, etc.

Question 10

What is replevin?

Answer 10

Wrongfully taken or held personal property is returned to the plaintiff pending resolution of an ownership dispute.

Question 11

What is sequestration?

Answer 11

Property whose ownership is disputed is taken from the possessor and held by a neutral third-party pending resolution of an ownership dispute.

Question 12

What is a temporary restraining order? Rule?

Answer 12

A TRO is a court order issued to temporarily protect a party from immediate harm by maintaining the status quo until the court has a chance to hear further evidence and decide whether to issue a preliminary injunction. Rule 65(B).

Question 13

What is the purpose of a TRO?

Answer 13

The primary purpose of a TRO is to prevent irreparable harm that could occur before a more formal, full hearing can be held for a preliminary injunction.

Question 14

How are TRO’s issued? Rule?

Answer 14

A TRO can be issued without written or oral notice to the adverse party or their attorney only if:
(A) It clearly appears from specific facts shown by affidavit or verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party can be heard in opposition; and
(B) The applicant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
Rule 65(b)(1)

Question 15

What is the duration of a TRO? Rule?

Answer 15

A TRO is a short-lived measure. It may last no longer than 14 days unless the court, for good cause, extends it fro a longer period. It can be extended beyond 14 days if the adverse party consents to an extension. Rule 65(b)(2).

Question 16

What is the bond requirement for TRO’s? Rule?

Answer 16

The court may require the party seeking the TRO to provide a bond or other security to cover potential costs and damages suffered by the party restrained or enjoined if later found to have been wrongfully restrained or enjoined. Rule 65(c).

Question 17

What is a preliminary (temporary) injunction? Rule?

Answer 17

A court order granted at the early stages of a lawsuit to prevent the parties from taking certain actions that could jeopardize the court’s ability to render a meaningful decision on the merits of the case. It is intended to preserve the status quo pending a final determination of the dispute. Rule 65(a).

Question 18

What is the purpose of a preliminary injunction?

Answer 18

The purpose of a preliminary injunction is to prevent irreparable harm and to maintain the status quo until the court can reach a final decision on the merits of the case.

Question 19

What is the procedure of a preliminary injunction?

Answer 19

• A preliminary injunction is typically sought through a motion accompanied by affidavits detailing the facts essential showing the need for immediate relief.
• Unlike a TRO, a preliminary injunction requires notice to the opposing party and a hearing where both sides can present evidence and arguments.

Question 20

What is the duration of preliminary injunctions?

Answer 20

A preliminary injunction lasts until the court makes a final decision in the case, unless the court alters its terms during the litigation.

Question 21

What is the appealibility of preliminary injunctions?

Answer 21

Orders granting or denying preliminary injunctions are immediately appealable to higher courts, which provides a mechanism for quick review of such decisions.

Question 22

What rule governs the procedure of enforcing money judgments?

Answer 22

Rule 69(a)(1)

Question 23

What can parties do after a judgment is obtained to find out information about assets? Rule?

Answer 23

Obtain post-judgment discovery. Rule 69(a)(2).

Question 24

What are the 3 general principles of enforcing judgments?

Answer 24

1. Execution is usually tied to applicable state statutes and all states are different.
2. Exempt property is governed by state law and provides what property is not subject to debt satisfaction.
3. If a judgment is given in one state, and must be enforced in another state, the judgment has to be enforced according to the second state’s laws.

Question 25

What are the 3 elements of claim preclusion?

Answer 25

1. Valid final judgment on the merits
2. Same parties or their privies
3. Same claim or cause of action that was raised (or should have been raised – e.g. compulsory counterclaim)

Question 26

What 6 situations allow preclusion against a non-party?

Answer 26

1. When the non-party agreed to be bound by the earlier judgment
2. When a substantive relationship justifies preclusion
3. When the non-party’s interests were adequately represented by a party to the earlier action
4. When the non-party assumed control over a lawsuit
5. When the non-party sought to avoid the appication of preclusion by litigating through a proxy
6. In special statutory schemes that are otherwise consistent with due process

Question 27

What preclusion theory against non-parties has been rejected?

Answer 27

Virtual representation

Question 28

How does claim preclusion operate as a defense?

Answer 28

Claim preclusion is an affirmative defense and the burden is on the movant. If it is not brought in the answer, it is waived.

Question 29

How does preclusion apply to state claims brought in federal court?

Answer 29

A diversity claim dismissed in federal court under one state’s laws may not necessarily be precluded in state court under another state’s laws.