USA Law and Practice Contributed by: Steven Molo, Robert Kry, Megan Cunniff Church and Walter Hawes, MoloLamken
the destruction of evidence or the secretion of assets. Certain types of motions, such as preliminary injunctions or temporary restraining orders, bet - ter lend themselves to being filed ex parte, as the relief requested may concern an opposing party’s destruction of evidence or secretion of assets. Nevertheless, in filing a motion ex parte, counsel should be aware of the additional hur - dles necessary to justify granting relief without notice to the opposing party. 2.5 Criminal Redress In the United States, the DOJ and state pros - ecutors are responsible for prosecuting criminal cases. While victims of fraud may inform the relevant investigating bodies – such as the FBI or state investigators – of possible fraud, there is no formal method for victims to commence a criminal action. Parallel proceedings may occur if the govern - ment has instituted criminal proceedings at the same time as a civil proceeding, or vice versa. Civil and criminal litigation have different dis - covery rules, leading to questions about what kind of discovery can be used in which matter. A court may also stay one action until the conclu - sion of the other. Because of the rules govern - ing criminal prosecutions, it is extremely unlikely that a criminal case would be paused to allow for the continuance of a civil case, so stays in par - allel proceedings generally concern civil cases. Whether a stay of civil proceedings is appropri - ate turns on the particular circumstances of the case. A civil case may be stayed where continu - ing would result in undue prejudice or a substan - tial interference with a defendant’s constitutional rights. The mere existence of a criminal case will not automatically stay a civil proceeding; the civil
case will only be stayed if there are unreasonable conflicts between the parallel proceedings. 2.6 Judgment Without Trial Where a defendant fails to appear within the required time or fails to answer a complaint, a plaintiff may seek a default judgment, which is a binding judgment in favour of the plaintiff and does not require a trial. The default judgment may be set aside by the court in limited circum - stances, such as where the defendant was not given proper notice of the proceeding. A plaintiff may move for summary judgment prior to trial. If the plaintiff can show there is no genu - ine dispute as to any material fact and the plain - tiff is entitled to judgment as a matter of law, the court will grant summary judgment in favour of the plaintiff without a trial. A motion for summary judgment may ordinarily be filed at any time until As discussed in 1.1 General Characteristics of Fraud Claims , claims sounding in fraud are subject to a heightened pleading standard. Fed - eral Rule of Civil Procedure 9(b) requires allega - tions of fraud to “state with particularity the cir- cumstances constituting” the fraud. State rules generally impose a similar heightened pleading requirement. Fraud claims therefore require more detail than other types of claims. Merely alleging that some type of fraud took place is not enough – the alle - gations must be supported by particular details describing the fraud. 2.8 Claims Against “Unknown” Fraudsters A plaintiff can sue “John Doe” or “Jane Doe” defendants for fraud. These fictitious defend - 30 days after the close of discovery. 2.7 Rules for Pleading Fraud
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