Prelim Injunctions + TROs + Pleadings Flashcards
(28 cards)
What is a preliminary injunction?
A preliminary injunction preserves the status quo of the parties until a final judgment on the merits can be reached.
It is a temporary court order aimed at preventing harm before a final decision is made.
What are the two types of preliminary injunctions?
- Prohibitory Injunction
- Mandatory Injunction
Prohibitory injunctions restrain a party from specified behavior;
mandatory injunctions require an affirmative act.
What does a prohibitory injunction do?
It prohibits or restrains a party from engaging in a specified behavior.
What does a mandatory injunction require?
It requires the defendant to engage in an affirmative act.
Courts are more reluctant to grant these compared to prohibitory injunctions.
Every order granting an injunction must:
- State the reasons as to why it was issued;
- State its terms specifically; AND
- Describe in reasonable detail the act or acts restrained or required.
These components ensure clarity and enforceability of the injunction.
A plaintiff seeking a preliminary injunction must establish that:
- She is likely to suffer irreparable harm if the preliminary injunction is not issued;
- She is likely to suffer greater harm than the defendant will if the preliminary injunction is not issued;
- She is likely to succeed on the merits; AND
- The injunction is in the best interest of the public.
These criteria help assess the necessity and justification for the injunction.
What must happen regarding notice for a preliminary injunction?
The non-moving party MUST be given notice and an opportunity to oppose at a hearing before the court.
This ensures due process and fairness in judicial proceedings.
True or False: Courts are more willing to grant mandatory injunctions than prohibitory injunctions.
False
Courts are much more reluctant to grant mandatory injunctions.
What is a temporary restraining order (TRO)?
A TRO preserves the status quo of the parties until a full hearing on a preliminary injunction
A TRO may NOT last longer than 14 days unless good cause exists or the non-moving party consents.
What are the contents required in every TRO order?
Every order granting a TRO must:
* State the reasons for issuance
* State its terms specifically; AND
* Describe in reasonable detail the act or acts restrained or required
These contents ensure clarity and justification for the order.
What must a plaintiff establish to seek a TRO?
A plaintiff must establish:
1. She is likely to suffer irreparable harm if the TRO is not issued;
2. She is likely to suffer greater harm than the defendant will if the TRO is not issued;
3. She is likely to succeed on the merits; AND
4. The TRO is in the best interest of the public.
Each of these points is essential for the court’s consideration.
True or False: A TRO can last indefinitely without consent from the non-moving party.
False
A TRO may NOT last longer than 14 days unless good cause exists or the non-moving party consents.
What is required for a court to issue a TRO without notice to the non-moving party?
The court may issue a TRO without notice only if:
1. Specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable harm will result to the movant before the non-moving party can be heard in opposition; AND
2. The movant’s attorney certifies in writing any efforts made to give notice to the non-moving party and the reasons why it should not be required.
This allows for urgent situations where waiting for notice could cause harm.
Fill in the blank: A TRO may NOT last longer than _______ days without good cause or consent.
14
This time limitation is crucial for maintaining fairness in the legal process.
What is the purpose of a complaint in a lawsuit?
To commence the lawsuit by stating grounds for subject matter jurisdiction, a short statement of the claim, and a demand for judgment for relief.
What are the three essential components that a complaint must state?
- Grounds for subject matter jurisdiction
- A short statement of the claim
- A demand for judgment for relief.
What is a pre-answer motion?
A motion filed by the defendant after the complaint is filed, raising defenses before responding with an answer.
List the defenses that may be raised in a pre-answer motion.
- Lack of subject matter jurisdiction
- Lack of personal jurisdiction
- Improper venue
- Insufficiency of process
- Insufficiency of service of process
- Failure to state a claim upon which relief can be granted [12(b)(6)]
- Failure to join an indispensable party under compulsory joinder.
What must an answer state?
- A specific denial or admission of each allegation in the complaint OR a general denial of all allegations with specific admissions if necessary; AND
- Any affirmative defenses that the respondent has, or that defense is deemed waived.
A failure to deny an allegation constitutes an admission.
What happens if a defendant fails to deny an allegation in their answer?
It constitutes an admission.
What is the time frame for a defendant to present an answer if no pre-answer motion is made?
21 days after service.
What is the time frame for a responsive pleading if a pre-answer motion is made?
14 days after the court’s denial or postponement of the motion.
What are the two ways a party may amend a pleading?
- By right
- By leave of the court.
Under what conditions can a party amend a pleading by right?
- if no responsive pleading is required:
Within 21 days
OR - If a responsive pleading is required:
- The service of the responsive pleading; OR
- Being served with a Rule 12(b) motion.
