FEDERAL CIVIL PROCEDURE

11. Adjudication Without Trial

11.1. Basic Idea
There are various ways a case can be resolved without going to trial. In addition, we
need to know about “provisional” (temporary) injunctive relief.

11.2. Preliminary Injunctive Relief

Here, P is planning to file suit (or has sued). P is worried that before suit can go to
trial, D may do (or fail to do) something that will prejudice P’s case. P wants
injunctive relief – a court order that D either (1) do something or (2) refrain from
doing something. The court is nervous about doing this because the merits of the
underlying dispute have not been decided.

Example
D worked for Employer for years. D learned Employer’s trade secrets and had
extensive contact with Employer’s clients. D quit his job with Employer and is
starting a rival business. Employer claims that D is misappropriating trade secrets
and soliciting clients in violation of a valid covenant not to compete. Employer sues
D and wants the court to enjoin D from using the trade secrets and soliciting clients
in the meantime, pending resolution of the underlying dispute.

An order that maintains the status quo until trial is a Preliminary injunction.

Before getting a preliminary injunction, to maintain the status quo until the hearing on
the preliminary injunction, you may seek a Temporary Restraining Order (TRO)

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11.3. Temporary Restraining Order (TRO)
Whenever a court does something without giving notice to the other party, it may be
called “ex parte.”

The court issues a TRO ex parte ONLY if:

 1. Applicant files a paper under oath clearly showing that if the TRO is not
issued, he will “suffer immediate and irreparable harm” if he must wait until
the other side is heard.

 2. Applicant’s lawyer certifies in writing her efforts to give oral or written

notice to D or D’s lawyer (or why such notice should not be required in this
case).

If the court issues the TRO, Applicant must post a bond (security) to cover the other
side’s costs and damages caused if it turns out the restraint is wrongful.

If the court issues a TRO, the order must be served on D as soon as possible.

If the court issues a TRO, what can D do? → Move to dissolve or modify the TRO
(within two days of notice)

TRO is effective for no more than 14 days (or lesser time stated by court). If Applicant
shows good cause before expiration, it can be extended for up to another 14 days.
So a TRO cannot extend beyond 28 days. If the court extends a TRO beyond 28 days,
it may be treated as a preliminary injunction.

Is a ruling granting or denying a TRO appealable as of right? → No!

11.4. Preliminary Injunction

Maintains status quo until the court can adjudicate the underlying claim on the
merits.

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Can a preliminary injunction be granted ex parte? → Never!

The burden is on the Applicant to show:

 He is likely to suffer irreparable harm if the injunction is not issued;

 He is likely to win on the merits of the underlying case;

 The balance of hardship favors him (threatened harm to Applicant outweighs

harm to other party if the injunction is issued); and

 The injunction is in the public interest.

There is no right to an injunction. The matter is in the court’s discretion.

If court grants the preliminary injunction, Applicant must post a bond.

Is an order granting or denying a preliminary injunction immediately appealable? →

Yes, even though it is not a final judgment.

MBE Question.

Two days before his home was to be sold at a foreclosure sale, a homeowner obtained
a temporary restraining order (TRO) in federal court that prevented his lender from
proceeding with the sale for 14 days or until a preliminary injunction hearing could take
place, whichever was sooner.
When a preliminary injunction hearing could not be scheduled within the original 14-
day period, the court extended the TRO for another 30 days.
The lender appealed the court's order extending the TRO. The homeowner has moved
to dismiss the appeal.
Is the appellate court likely to dismiss the appeal?
(A) No, because a TRO is immediately appealable.
(B) No, because the 30-day extension makes the TRO equivalent to a preliminary
injunction and therefore appealable.
(C) Yes, because a TRO is not appealable under the interlocutory appeals statute.

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(D) Yes, because there is no final judgment from which an appeal may be taken.

11.5. Voluntary dismissal

P wants to withdraw the case.

P can make a motion for voluntary dismissal anytime, which the court has discretion
to grant.

P has a right to take a voluntary dismissal by filing a “notice of dismissal.” But P

must do so before D serves an answer of motion for summary judgment. If P files a
timely notice of dismissal, the case is dismissed “without prejudice.” It means that P
can refile the case. But you only get to do it without prejudice once.

What if P files a notice of dismissal in the second case? That dismissal is “with
prejudice.” It means that P cannot refile the case.

MBE Question

A plaintiff filed an action in federal district court and served the defendant with the
summons and complaint. The defendant moved to dismiss the complaint for failure to
state a claim.
Instead of opposing the motion to dismiss, the plaintiff voluntarily dismissed the action
and filed a new action, alleging the same claims but also addressing the pleading
defects outlined in the defendant's motion to dismiss. The defendant then moved to
dismiss the second action, and the plaintiff again voluntarily dismissed the second
action instead of filing opposition papers.
The plaintiff then filed a third action, alleging the same claims but also including
additional allegations that were responsive to the defendant's second motion. The
defendant has moved to dismiss the third action; the plaintiff opposes the motion.
Is the court likely to grant the defendant's motion?

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(A) No, because the plaintiff has promptly and diligently attempted to address the
pleading defects.
(B) No, because the plaintiff voluntarily dismissed each previous action before the
defendant filed an answer or moved for summary judgment.
(C) Yes, because the plaintiff failed to seek a court order dismissing the second action.
(D) Yes, because the plaintiff's previously dismissed actions asserting the same claims
operate as an adjudication on the merits.
→

11.6. Default and Default Judgment

D does not respond to the complaint in time (21 days after being served with
process; 60 days from mailing of waiver if you waived service).

Default
A default is a notation by the court clerk on the docket sheet in the case.

Q. Does the court clerk enter default automatically on the 22nd day after service of
process on D? → , the P must move for entry of default. P must demonstrate that
D failed to respond in time. Until default is entered, D can respond by motion or answer
(even beyond 21 days).

Q. What is the effect of entry of default? → It cuts off the D’s right to respond. Entry
of default does not entitle P to recover.

Q. What does P need to do before P can recover from D? → get a default judgment.

Default Judgment
How to get a default judgment.

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 (1) by the Clerk

The clerk of court can enter judgment if:

 D made no response at all;

 The claim itself is for a sum certain in money;

 Claimant gives an affidavit (sworn statement) of the sum owed; AND

 D is not a minor or incompetent.

(2) by the Court

Q. If any of those is not true, though, where does P go for default judgment? → P
applies to the court itself.

Q. The judge will hold a hearing and has discretion to enter judgment. Does D get
notice of this hearing? → Only if D made some appearance in the case. If the
defendant has “appeared,” he is entitled to notice at least 7 days before the hearing
on the application for a default judgment.

MBE Question
A company incorporated and headquartered in State A sued a plumber domiciled in
State B in a federal court in State A, alleging that the plumber had negligently installed
pipes in a manner that resulted in $250,000 in damage to the company's headquarters
building. In response to the complaint, the plumber filed a motion to dismiss for lack of
personal jurisdiction. The court denied the motion.

Thereafter, the plumber did not file an answer or any other response to the company's
action.

Sixty days after the court's order denying the motion to dismiss, the company asked
the clerk to enter default, and the clerk did so. The company applied to the court for

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the entry of a default judgment and notified the plumber three days before the default
judgment hearing. After an ex parte hearing in which the court received evidence on
the damages amount, the court entered a default judgment for the full amount sought.
Ten days later, the plumber filed a motion to set aside the default judgment.

Is the court likely to grant the plumber's motion?

(A) No, because the court could fix the amount of damages even without hearing the
plumber's evidence.

(B) No, because the plumber failed to plead or otherwise defend against the
company's action.

(C) Yes, because the plumber was not given adequate notice of the hearing on the
company's application for the entry of a default judgment.

(D) Yes, because the State A federal court lacked personal jurisdiction over the
plumber as a State B citizen.

<If the defendant has “appeared,” even though he has not answered, he must be
notified of the request for a default judgment by first-class mail at least seven days
before the hearing on the application for a default judgment. Appearance includes
any actual formal appearance before the court and any other action that clearly
indicates that the defendant intends to contest the case on the merits (e.g., the
defendant’s continued settlement negotiations).>

Example

Q. P sues D for $100,000. What is the most she can recover on a default
judgment? → You can’t get more than you pleaded, but could get less.

Q. P sues D for damages and not an injunction. On default judgment, can the court
enter an injunction? → , P can’t get a different kind of relief than what P pleaded.

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Cf. If the case goes to trial, P can recover more (and a different kind of relief) than
she put in her complaint.

Motions to Set Aside

Motions to set aside. D may move to have the court set aside a default or default
judgment by showing good cause (like excusable neglect) and a viable defense on
the merits.

11.7. Motion to Dismiss for Failure to State a Claim (FRCP

12(b)(6))
This is about whether the case belongs in the litigation stream at all. If P’s complaint
fails to state a claim, the case can be dismissed.

In ruling on this motion, the court ignores P’s legal conclusions. It looks only at P’s
allegations of fact in the complaint and asks: If these facts are true, do they state a
plausible claim?

If the answer is no—P has not stated a plausible claim—there is no sense letting the
case proceed, because the law does not recognize a claim on these facts. The court
might let P amend to try to state a claim, though.

Remember, the judge uses her experience and common sense to see if the facts
state a plausible claim.

In ruling on this motion, does the court look at evidence? → The court just looks
at the face of the complaint.

The same motion, if made after D has answered, has a different name. What is the
name? → Motion for judgment on the pleadings (FRCP (c)).

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11.8. Motion for Summary Judgment
Here, P stated a claim, so we’re in the litigation stream. But we might not need a
trial. Summary judgment weeds out cases in which we don’t need trial. Why do we
ever have a trial? → to resolve disputes of material fact.

Party moving for summary judgment must show:

 There is no genuine dispute on a material fact and

 That she is entitled to judgment as a matter of law.

If the standard is met, must the court enter summary judgment? → the court has
“discretion” to deny.

Any party can move for this no later than 30 days after close of discovery.

The motion can be for “partial” judgment—e.g., as to liability, but allow the case to go
to trial on damages. This is called a partial summary judgment.

In summary judgment, the court looks at evidence. The court views that evidence in
the light most favorable to the nonmoving party.

The parties proffer the evidence, usually (1) affidavits or (2) declarations or (3)

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deposition testimony or (4) interrogatory answers. Why can these things be con-
sidered “evidence”? → because they are

If the party opposing summary judgment needs more time to find evidence to oppose
the motion, she may file an affidavit or declaration with the court stating what that
evidence would be. The court may allow more time for the party to obtain evidence.

MBE Question.

A construction worker sued an insulation manufacturer in federal court, claiming that

he had developed a chronic health condition as a result of 20 years of exposure to the
manufacturer's insulation at his work sites. The manufacturer answered, denying all
liability and stating that it had never supplied its insulation to the worker's employer.

The worker's attorney deposed the manufacturer's president, and the manufacturer's
attorney deposed the worker. Immediately thereafter, the manufacturer moved for
summary judgment on the ground that the worker had no evidence showing that the
insulation had ever been used by the worker's employer.

What would be the worker's best response to the motion for summary judgment?

(A) Argue that more time is needed for additional discovery to show the manufacturer's
liability, and attach a declaration describing the desired discovery.

(B) Argue that the motion should be denied, because a central issue in the case will
be the manufacturer's credibility on the question of its distribution of the insulation, and
only a jury can decide questions of credibility.

(C) Argue that the motion should be denied, because the manufacturer failed to attach
any evidence to its motion to show that the insulation was not used by the worker's
employer.

(D) Make a cross-motion for summary judgment arguing that the manufacturer has

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introduced no evidence to show that its insulation did not harm the worker.

MBE Question

A patient filed a medical malpractice action against a hospital in federal court, alleging
that hospital staff had failed to diagnose the patient's cancer based on an X-ray that
had been taken at the hospital. The patient's cancer was diagnosed six

months later, based on the same X-ray, when the patient sought a second opinion. In
the interim, the cancer had spread.

Fact and expert discovery have been completed in the action. The hospital has moved
for summary judgment. In support of its motion, the hospital has submitted a
memorandum identifying facts that it claims are not in dispute. It has also cited and
attached supporting exhibits, including a report from the hospital's radiologist, who
found no signs of cancer on the X-ray.

What is the best way for the patient to raise a genuine dispute of material fact?

(A) Submit a report from the patient's expert radiologist contradicting the findings in
the report of the hospital's radiologist.

(B) Submit an affidavit from the patient's attorney detailing his conversations with the
patient's expert radiologist.

(C) Submit an affidavit from the patient's expert radiologist with findings that contradict
the report of the hospital's radiologist.

(D) Submit the patient's medical records showing the patient's current cancer

diagnosis.

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 Exit Exercises
P was hit by a car driven by D. P sues D, alleging D ran a red light while P was in the
crosswalk and crossing the street on a green light. D answers and denies these
allegations. D moves for summary judgment, attaching affidavits from three
witnesses saying that they saw the accident, D had the green light, and that P
jumped in front of D’s car.

1. In response, P relies on his complaint, which said D ran the red light. Summary
judgment for D is probably granted. Why? → Pleadings (like P’s complaint) are not
. So based on the evidence presented, there is no dispute of material fact
and D is entitled to a judgment.

Can a pleading ever be treated as evidence? → Only if it is verified (under oath)

Usually, pleadings are not under oath and so are not considered evidence. But
pleadings might be relevant for summary judgment in this way: if D failed to deny an
allegation by P, it can be treated as fact on summary judgment.

2. Instead, P responds with an affidavit from somebody who swears that he heard
about the accident and was told that D ran a red light. Summary judgment for D is
probably granted here too; the court will ignore P’s affidavit. Why? → Evidence must
be first-hand knowledge, not hearsay.

3. Instead, P responds with deposition testimony from an alcoholic, drug addicted,

convicted swindler who swears he saw the accident and that D ran a red light.
Summary judgment must be denied. Why? → The evidence for P is first-hand
knowledge and creates a dispute on a material fact. The judge does not assess
credibility on a summary judgment motion. (Cf. Suppose an authenticated videotape
of the accident scene discredits P’s witness’s version of the facts. The court can
ignore P’s evidence and grant summary judgment.)

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