Assessment 2

Question 1

What are the 4 factors the court must consider when asked to grant a plaintiff preliminary relief?

Answer 1

1. An imminent threat of irreparable harm for which the law does not provide an adequate remedy
2. The balance of hardships between the plaintiff and defendant
3. Plaintiff’s likelihood of success on the merits
4. The impact on the public of granting the injunction

Question 2

For preliminary relief, must the plaintiff prevail on each of the 4 factors?

Answer 2

No, the majority position is that the courts will balance these factors to determine whether to grant preliminary relief

Question 3

What damages are covered by bond?

Answer 3

Damages caused by the wrongful issuance of the preliminary relief and in some jurisdictions, attorney’s fees incurred in challenging the preliminary relief

Question 4

Under what circumstances will a court grant the plaintiff an Ex Parte Restraining Order?

Answer 4

Per FRCP 65, when there is an affidavit or verified complaint in which plaintiff can clearly show that irreparable harm will occur before the plaintiff can be heard by the court.

Question 5

Can TRO’s be appealed? If so, under what circumstances?

Answer 5

The majority rule is that TRO’s that are extended by agreement of the parties or by the court past 14 days can be appealed. Otherwise a TRO cannot be appealed.

Question 6

What is the difference between a request for replevin and an injunctive order?

Answer 6

Replevin is a legal remedy which requests specific relief (usually the return of plaintiff’s property) without the showing of irreparable harm. Also, replevin is enforced by a sheriff seizing the property whereas injunctions are enforced by a contempt order.

Question 7

What must plaintiff prove to have the court grant an order of specific performance?

Answer 7

1. That the contract was definite and certain
2. That plaintiff has done or can do what he agreed to do
3. Enforcement is fair
4. Enforcement is possible

Question 8

What is the prior restraint doctrine?

Answer 8

In constitutional terms, the doctrine of prior restraint holds that the First Amendment forbids the Federal Government to impose any system of prior restraint, with certain limited exceptions, in any area of expression that is within the boundaries of that Amendment.

Question 9

When can an injunction be modified?

Answer 9

When the circumstances of the parties have changed so that it would be inequitable or unfair to keep the terms of the original injunction in place. Final judgments are governed by Rule 60(b)(5) which states that final judgment can be modified prospectively when it is equitable to do so.

Question 10

What is criminal contempt?

Answer 10

Criminal contempt of court is a criminal charge which is employed to punish behavior that interferes with the proceedings or orders of a court.

Criminal indirect contempt of court is based on violation of a court order, whereas

criminal direct contempt of court is based on conduct at court proceedings.

Question 11

What rights does the person or entity have when criminal contempt is sought against them?

Answer 11

For indirect criminal contempt the person or entity has all the rights of a criminal defendant; including the right to an attorney, the right to notice and due process, the right to a jury trial, and a higher burden of proof (beyond a reasonable doubt).

Question 12

What is civil coercive contempt?

Answer 12

A “coercive civil” contempt action is one wherein the principal object is respondent’s compliance with the court decree

Question 13

What does a person found in coercive contempt do to have the contempt penalty lifted?

Answer 13

Either comply with the order or convince the court that one will never comply with the order so that continued punishment is worthless

Question 14

What is civil compensatory contempt?

Answer 14

To correct a public wrong, the authorities impose a fixed and determinate sanction. Compensatory contempt is a money award for the plaintiff when the defendant has injured the plaintiff by violating an injunction.

Question 15

What is the collateral bar rule?

Answer 15

The collateral bar rule requires that court orders, even those later determined to be unconstitutional, must be complied with until amended or vacated. It applies to criminal contempt situations only.

Question 16

What is a declaratory judgment?

Answer 16

A declaratory judgment is a binding judgment from a court defining the legal relationship between parties and their rights in a matter before the court. It is considered a statutory remedy and not an equitable remedy.

Question 17

When is it appropriate for a court to enter a declaratory judgment?

Answer 17

For a declaratory judgment to be made, the issue must be ripe, that is

1. The parties must be adverse
2. The judgment should conclude the issue and
3. The judgment must be useful

Question 18

Can one get supplemental relief from the court after a declaratory judgment has been issued?

Answer 18

Yes, if you didn’t ask for supplemental relief when you filed the declaratory judgment action. However, if you did ask for supplemental relief when you filed the action, you can’t ask for supplemental relief later

Question 19

What is the Younger Rule?

Answer 19

The Younger doctrine mandates that federal courts must abstain from hearing cases involving federal issues already being litigated in state forums

Question 20

When is it appropriate for a court to reform a contract?

Answer 20

The act of changing a written contract when one of the parties can prove that the actual agreement was different than what’s written down. Reformation is usually made by a court, for example, when both parties overlooked a mistake in the document, or when one party has deceived the other (fraud or mistake).

Question 21

What is a writ of Quo Warranto?

Answer 21

Quo warranto is a specialized writ that is used to test a person’s legal right to hold an office, not to evaluate the person’s performance in the office.

Question 22

What is the American Rule regarding attorney’s fees?

Answer 22

That each party is responsible for paying their own attorney’s fees

Question 23

3 exceptions to the American rule.

Answer 23

1. Family law cases,
2. Statutory exceptions,
3. Bad faith litigation

Question 24

What is the lodestar approach for determining the appropriate amount of attorney’s fees to be awarded?

Answer 24

Lodestar method is a method adopted for calculating attorney’s fees where the court multiplies a reasonable hourly rate by a reasonable number of hours expended. In order to calculate a fee award, the court must determine:

1. The reasonableness of the hourly rate charged; and
2. The reasonableness of the hours expended on the litigation

In determining the reasonableness of the rate, an attorney’s usual billing rate is presumptively the reasonable rate, provided that this rate is in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.

To determine the reasonableness of the number of hours expended on the litigation, the fee petitioner must submit evidence to the court that supports the hours worked. The fee petitioner’s application must be sufficiently detailed to allow the court to determine, independently, that the hours claimed are justified.

Question 25

What is the prevailing party requirement for awarding attorney’s fees?

Answer 25

There is a contractual prevailing party and the statutory(?) prevailing party standard by SCOTUS. Contracts often contain clauses that, in the event of litigation, allow the prevailing party (i.e., the winner) to recover its attorneys’ fees and costs from the other side. In non contract, (usually statutory cases), a prevailing party may be one that performs “exceptionally” even if it isn’t necessarily the “winner.” However, there must be a consent decree or judgment; settlements by themselves do not provide a “prevailing party.”