Civ Pro Adjudication Without Trial

Preliminary Injunction vs TRO

A preliminary injunction is an order that maintains status quo until trial. A TRO maintains status quo until the hearing on the preliminary injunction.

Ex parte TRO Requirements

(1) The applicant files a paper under oath showing clearly that if the TRO is not issued, she will “suffer immediate and irreparable harm” if she must wait until the other side is heard; and (2) The applicant’s lawyer certifies in writing her efforts to give oral or written notice to the defendant or defendant’s lawyer, or why such notice should not be required

TRO Bonds

If the court issues a TRO, the applicant must post a bond to cover the other side’s costs and damages caused if the restraint is wrongful.

TRO Service

A TRO must be served on the defendant ASAP, since generally a party without notice of a TRO cannot be punished for violating it

TRO Appealability

A ruling granting or denying a TRO ordinarily may not be immediately be appealed

TRO Contents

A TRO must state its terms specifically and describe in detail what the defendant must do or refrain from doing, explain why the TRO was issued, and state why the threatened injury to P was irreparable

TRO Duration

A TRO is effective for a maximum of 14 days (unless lesser time is stated by the court) but the restrained party may move to dissolve or modify it earlier. If the applicant shows good cause before expiration, the TRO can be extended for another 14 days. If a court extends a TRO beyond 28 days, it is treated as a preliminary injunction

Preliminary Injunction, generally

Maintains the status quo until the court can adjudicate the underlying claim on the merits. Cannot be issued ex parte. Applicant must show: (1) he is likely to suffer irreparable harm if the injunction is not issued; (2) he is likely to win on the merits of the underlying case; (3) the balance of hardships favors him; and (4) the injunction is in the public interest

Additional Preliminary Injunction Requirements

The applicant must post a bond if the court grants the PI. The PI 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 PI, the court must make specific findings of fact and separate conclusions of law

Preliminary Injunction Appealability

An order granting or denying a PI may be appealed as a matter of right

Voluntary Dismissal

a P may withdraw a case without a court order before the defendant serves an answer or an MSJ. The parties may also stipulate to voluntary dismissal without court order.

Dismissal with Court Permission

After defendant files an answer or MSJ, plaintiff must make a motion for voluntary dismissal, which the court has discretion to grant

Dismissal Without Prejudice Limit

The first voluntary dismissal is generally without prejudice, meaning P can refile the case. The second voluntary dismissal is usually with prejudice, which operates as an adjudication on the merits and removes P’s ability to refile the case.

Default and Default Judgment Timing

A court can make an entry of default upon P’s request if D does not respond to the complaint within 21 days after being served with process.

Entry by Default

A default is a notation by the court clerk on the docket sheet in the case. P must move for entry of default and demonstrate D failed to respond in time. Until a default is actually entered, D can respond by motion or answer even beyond 21 days.

Effect of Entry of Default

Entry of default cuts of D’s right to respond but does not automatically entitle P to relief. P must seek a default judgment for relief.

Default Judgment Requirements

A clerk of the court can enter a default judgment if: (1) D has made no response at all (failed to appear); (2) the claim itself is for a certain sum of money; (3) P gives an affidavit of the sum owed; and (4) D is not a minor or incompetent. If any of these is not true, P must apply to the court for default judgment

Hearing for Default Judgment

A judge will hold a hearing and has discretion whether to enter the judgment. D is entitled to notice of the hearing if she has appeared in some fashion in the case. Unlike at trial, P’s recovery in a hearing for default judgment is limited to what is pleaded in the complaint

Motion to Set Aside Default or Default Judgment

D may move to have the court set aside a default or default judgment by showing (1) good cause (such as excusable neglect) and (2) a viable defense. Generally, a trial on the merits is preferred

Motion to dismiss for failure to state a claim

Aka a 12(b)(6) motion. The claim can be dismissed if P’s complaint fails to state a claim. The same motion, if made after the defendant has answered, is called a motion for judgment on the pleadings

Considerations in Ruling on the Motion

Court ignores P’s legal conclusions and only examines P’s allegations of fact on the face of the complaint. The court assumes that P’s facts are true and assesses whether the facts state a plausible claim. A court might also allow P to amend the complaint.

Motion for Summary Judgment (MSJ)

MSJ is used after the case has been filed and the plaintiff has survived any Rule 12 motions. Party moving for MSJ must show that: (1) there is no genuine dispute of material fact; and (2) he is entitled to judgment as a matter of law. If the standard is met, the court is not always required to grant the motion, but a denial is measured by “abuse of discretion” on appeal

Timing for MSJ

Any party can file an MSJ no later than 30 days after close of discovery.

Partial MSJ

An MSJ can be for “partial judgment” such as judgment only pertaining to liability, with the case proceeding to go to trial on damages. This is sometimes called summary adjudication

Evidence Considered

In reviewing an MSJ, the court views the evidence in the light most favorable to the nonmoving party. If the nonmoving party needs more time to find evidence to oppose the motion, he may file an affidavit or declaration with the court, and the court may allow for more time for the party to obtain evidence