Pleadings Flashcards
What are the types of injunctions
TRO
Preliminary Injunctions
Permanent Injunction
What is a TRO and its consequences
maintain the status quo, may be offered without notice if harm is immediate to movant
can be dissolved without notice, not generally immediately appealable
When will preliminary injunction be issued?
issued prior to a full hearing on the merits & notice to defendant
What are the elements for a preliminary injunction or TRO
if P is likely to succeed
P likely to suffer irreparable harm
Balance equities in P favor
injunction in public interest
When must motion against the complaint be made?
21 days after service
What are reasons a party can assert a 12(b) motions to dismiss
lack of SMJD (raised at any time)
Lack of Personal JD, improper venue, insufficient process or service (raised in pre answer, or answer or within time to amend as of right otherwise waived)
failure to state a claim
failure to join a party
What are the grounds for 12(b)(6)
dismissal appropriate if fails to assert legal theory where recovery is available .
How should court treat 12(b)(6) motion to dismiss?
well-pleaded facts as true, resolve doubts/interferences in P;s favor. Court should also only consider allegations in the complaint
How should a party reply to an answer?
admit or deny all allegations or please insufficient knowledge (treated as denial)
do not need to reply to damages
What should be included in answer?
affirmative defenses or waived
When is do you respond to a complaint after it is amended?
respond to the amended pleading within the time that remains from the OG pleading or 14 days after service of the amended whichever one is later
Wil the failure to file proof of service does not affect validity of service
no
