09 Adjudication without Trial

Injunctive Relief is a court order that the defendant either [..1..] or [..2..]

do something, refrain from doing something

A TRO is an order issued to preserve the status quo until there is a hearing on the […]

preliminary injunction

T/F: TRO may be issued without notice to the other party.

T (ex parte TRO = OK)

Ex Parte TRO

• Applicant must show under oath that without it she will suffer [...] and [...] harm if she has to wait until the other side is heard.

• Applicant's Lawyer must certify in writing (a) she tried to [...] or alternatively, [...]

• immediate, irreparable

• give oral or written notice

• why such notice should not be required

If a court issues a TRO the applicant must [...] to cover the other side's costs and damages if the TRO was wrongful

post a bond

A TRO must be [...] on the defendant as soon as possible

served

A party without notice of a TRO ordinarily can’t be [...] for violating the TRO

punished

A ruling granting or denying a TRO ordinarily is not […]

immediately appealed

A TRO must state:

• […] what the defendant must do/not do

• why it was issued

• why the threatened injury to the plaintiff was […]

specifically

irreparable

A TRO is effective for no more than [...] or a lesser time stated by the court. The restrained party may move to [...] or [...] the TRO earlier

14 days

dissolve

modify

A TRO can be extended ONCE for up to [...] if the applicant shows [...] before its expiration. And it can’t ever exceed […] days and still be considered a TRO. Beyond that, it’s considered a […]

another 14 days

good cause

28

preliminary injunction

A preliminary injunction is an order that maintains the status quo until the court can […]

adjudicate the underlying claim on the merits

A preliminary injunction can NEVER be issued without […]

notice to the other side

Preliminary Injunction Standard

Applicant must show

1. she is [...] to suffer [...] harm if the injunction is not issued

2. […] on the merits of the underlying case

3. the [...] favors her

4. the injunction is in the […]

1. likely, irreparable

2. likely to win

3. balance of hardship

4. public interest

There is no [..1..] to an injunction—the matter is always in the [..2..]

right, court's discretion

If a court grants a preliminary injunction, the applicant must […]

post a bond

A preliminary injunction must:

• state its terms specifically, describing in detail what the defendant must [...]

• state […] it was issued

do/not do

why

In granting or denying a preliminary injunction the court must make specific [..1..] and separate [..2..]

findings of fact, conclusions of law

An order granting or denying a preliminary injunction MAY BE [..1..]

appealed as of right

A plaintiff may dismiss voluntarily without court order before the defendant serves what?

answer OR motion for summary judgment

Parties may also [...] to a voluntary dismissal without a court order

stipulate

Dismissal with court permission is required if the plaintiff [..1..] to dismiss without court permission UNLESS there is a [..2..] of parties

no longer has the right, stipulation

For dismissal with court permission the plaintiff makes a [..1..] and the court has [..2..] to grant it

motion, discretion

The first voluntary dismissal is [...], meaning the plaintiff can refile the case. Any after the first one is […], which operates as an [...] on the [...] and the claim is gone

without prejudice

with prejudice

adjudication

merits

Default is a notation by the [...] on the docket sheet indicating the defendant [...] to the complaint in time, which is within […]

Default is not entered [...]—plaintiff must [...] the entry of default

clerk

did not respond

21 days after service of process

automatically

move for

If service of process was waived, the defendant has [...] to respond from when plaintiff […] the waiver form

60 days

mailed

To get an entry of default the plaintiff must demonstrate that the defendant […] in time

failed to respond

Until default is on the [...] the defendant can still respond by motion or answer, even beyond the deadline

record

The entry of default [..1..] the defendant's right to [..2..]

cuts off, respond

By itself, entry of default does not […] to the plaintiff. Instead, default judgment is required for the plaintiff to obtain relief after an [..2..]

grant relief

entry of default

Default Judgment—Clerk Entry

Just the mnemonic

Default Judgment—Clerk Entry

• The clerk can act when the defendant's case SANC

• If any are missing, P must apply to the court for entry of default judgment.

S - Claim is for a Sum certain.

A - P gave Affidavit the amount is owed.

N - The defendant made No appearance.

C - D is Competent

• 18+

• Capacity

Default Judgment—Court Entry

For court entry of default judgment the judge will [..1..] and has [..2..] whether to enter the judgment

hold a hearing, discretion

The defendant is entitled to [..1..] of the court default judgment hearing if she has [..2..] in some way in the case

notice, appeared

A plaintiff cannot recover more in a default judgment than what was [...] in the complaint

pleaded

A plaintiff cannot get a [..1..] kind of relief in a default judgment from what she [..2..] in the complaint

different, pleaded

The defendant MAY move to [...] a default or a default judgment. To do this, D must show […] or a […] reason for not responding

set aside

good cause or

valid

MTD for Failure to State a Claim

The court looks only at the plaintiff's [...] in the complaint and asks, If these facts are [...], do they state a [...]? The judge decides using her own […]

allegations of fact

true

plausible claim

experience and common sense

MTD for Failure to State a Claim

If granted, the court might allow the plaintiff to [...] the complaint

amend

A motion for summary judgment is used after the case has been filed and the plaintiff has survived any motions under Rule […]

12

The only reason to have a trial is to [...]. If there are none, summary judgment may be entered, as long as the moving party shows she is entitled to judgment as a […]

• resolve genuine disputes of material fact

• matter of law

If the summary judgment standard is met is the court required to grant it?

No—court has discretion to deny

Any party can move for summary judgment no later than [..1..] days after the close of [..2..]

30, discovery

Partial summary judgment may be granted on part of a [...]—such as liability—and the case will proceed to trial on other issues, like […]

claim

damages

T/F: In summary judgment, the court can look at evidence.

T

Evidence in summary judgment is typically proffered in forms such as [...] or [...] all of which are under oath

affidavits, declarations

If the opposing party needs more time to find evidence for summary judgment, she may file an [...] or [...] under oath stating as much. The filing must state […]

affidavit

declaration

what the evidence would be

Pleadings, like the complaint and answer, are NOT evidence in summary judgment UNLESS they are […]

made under oath

If a defendant failed to deny an allegation in the complaint, it can be treated as a [...] on summary judgment

fact

The judge does not assess […] on summary judgment, unless video or audio of an […] totally discredits a witness's version.

credibility

accident scene

JMOL may be filed any time before submission of the case to the jury.