Class 5 Flashcards
Stay pending appeal
asking to halt enforcement of the ruling until the appeal can be decided. preserve the status quo
injunction has been granted but seeking an injunction so that the injunction will not go into effect until the appeal of the injunction has been decided.
injunction has been denied and seeking an injunction pending the appeal of the denial of the injunction.
depending on the emergency nature of the appeal it may be very short- hours, days, maybe a week.
stay process
order issues for a preliminary or a permanent injunction
motion to stay is first filed with the trial court.
if denied at the trial court, then refile the motion to stay at the appellate court, usually before an emergency appeal.
typically no bond requirement- ultimately its discretionary (typically short term- like a TRO- and is harder to prove anyway that monetary damages will be incurred)
what can be stayed
appeals only pertain to permanent or preliminary injunctions. TRO’s typically may not be appealed (not that they can’t, they just typically are not)
TRO may be appealed if
tro is extended to function like a preliminary injunction
do not have a matter of right to appeal but can request permission
modify TRO or cancel a TRO can be appealed.
stay test
- likelihood of success on the appeal- serious questions on the merits
- likelihood of irreparable harm (during the time the decision is being appealed)
factors of irreparable harm: - the substantiality of the injury alleged;
- the likelihood of its occurrence;
- adequacy of the proof provided.
- balance of the hardships/prospect that others will be harmed if the court grants the stay.
- public interest
true sliding scale- tend to be granted
remedial defenses
affirmative defenses
D has the burden
Laches
time limitations for brining a claim but there is not a predetermined amount of time- the timeline is based on fairness and a case by case approach
generally, the court looks to see if, in a particular case, the delay and its consequences warrant denial of equitable relief in the interests of justice and fairness
applies to equitable remedies only
laches test
- lack of diligence by the party against whom the defense is asserted
AND - prejudice to the party asserting the defense
laches test; unreasonable/inexcusable delay
a delay becomes unreasonable and inexcusable when there is no good explanation for delay.
an unreasonable delay can only occur after the P discovers or should have discovered the facts giving rise to the cause of action
lack of diligence can be grounds for an unreasonable delay.
conduct reasonably attempting to resolve a dispute, other litigation, poverty, illness, and wartime conditions can be a reasonable explanation
laches; materially prejudices D
the delay causes prejudice by:
impacting the D ability to defend- documents get lost, witnesses die (you waited so long my main witness died and I can no longer defend myself because of your delay)
amount of liability (your damages would have been 1 mil if you filed right away but is now 10 mil. the P should not be rewarded with a windfall for their delay)
and D spending a whole bunch of money on the assumption that they will not be sued (building a housing development)
sliding scale;
unclean hands
mostly applied to equitable remedies but some jx’s apply it to both legal and equitable
can be used to prevent a party from seeking equitable remedies in the court when they themselves have engaged in misconduct.
it prevents a party from using the court system to gain advantage over the other party in cases involving fraud, misrepresentation or wrongful conduct
must be directly related
unclean hands test
- there is misconduct by the P
- that misconduct directly related to the subject matter of the claim ***
unclean hands misconduct; element 1
the misconduct does not have to be criminal or even unlawful
but it must be more than past moral failings
unclean hands; element 2
misconduct directly relates to the subject matter of the claim agains the D:
must be more than factual similarity
looked at narrowly, not broadly
whether it is directly related will probably be the biggest element with room for debate
ex: nuisance claim to hide drug lab is not related enough
unclean hands; element 3
the misconduct must be sufficiently egregious such that it would be inequitable for the P to proceed against the D
it is not a mere they did it too defense
it must be egregious
must be shown by clear and convincing evidence.
permanent injunctions
only available after a judgement on the merits.
just in place as long as needed to protect whatever the purpose is. is not necessarily an injunction forever- just what puts P back in their rightful position.
permanent injunction test
prerequisites: success on the merits
irreparable injury
inadequate remedy at law
balance of hardships
public interest
(PI) irreparable injury/inadequate remedy at law
is the harm irreparable- can money fix it?
is an injunction necessary to repair
factors:
nature of the injury- one for which courts will not require the P to accept money damages or other legal remedies, and
timing of the injury- is ongoing or likely to reoccur
(PI) balance of hardships/public interest
presumption that they are entitled to this remedy
weighs the benefit of the injunction to the P against the cost of the injunction to the D (51% P favor)
cost-benefit analysis:
personal harm, economic waste, culpability, constitutional
if the court finds that the injury to the complainant is slight in comparison to the injury caused by the injunction to the D and the public- relief will be refused
if the balance is even- no injunction
if the hardship tips in favor of the D- the P will get money instead
(PI) avoiding economic waste- balance of hardships
court is not/less likely to tear down a structure that has already been built (maybe if very culpable) ex: accidentally building 6 in over neighbors lot line
tailoring injunctions
injunctions are discretionary; judges try to tailor the injunction to create fairness and to step the irreparable harm- the court is not required to grant the injunction that the P has asked for- they can change it to meet needs.
applies to all types of injunctions
court ordered pre-judgement remedies
most debtors don’t have many assets- if faced with a lawsuit for a payment. complaint must be filed first
asset freeze
type of TRO or preliminary injunction which prevents the enjoined party from transferring certain assets, so assets will be available to satisfy a later judgement
the moving party must beet the tro/prelim injunction test
must show irreparable injury and that the party is likely to transfer assets and will not be able to pay judgement later.
asset freeze can be requested ex parte if can show the need for ex parte.
attachment lien- will not be tested
statutory
replevin
legal remedy- because it was created by courts of law (historical categorization)
parties are fighting over who owns something
specific personal property may be provisionally restored to their owner pending the outcome of an action to determine the rights of the parties concerned.
replevin determines pre-trial possession of an item.
the subsequent trial determines the right of ownership
examples of replevin
property that belong to the P- they want it back- and the person in possession will not return it
they want it back and they want the property and not money damages.
EX: grandmas ring- proposal went bad and want the ring back. Loan lawnmower to neighbor, neighbor thinks it’s theirs now.
elements of replevin
- P must file a complaint for the underlying cause of action.
- A P then seeks replevin- requires:
a. a description of the property to be replevied (it must be tangible property that is capable of identification and seizure- not be used for intangibles)
b. its location
c. proof of legal title or a right to possess the item that is superior to the D right and
d. the material facts upon which the claim is based- likelihood of success on the merits. - P typically will be required to post with a bond with a sum that is 2x the value of the property
replevin counter bond
D keeps possession of it but pays bond for the 2x amount
enforcement of replevin
court order requiring D to return the goods
writ of seizure- order from the court to order the sheriff to collect the property and deliver actual possession to the P
declaratory judgements
both a remedy and a cause of action- 1 complaint
to determine the rights of the parties to ensure that rights will not be broken
binding judgement from the court defining the legal relationship between parties and their rights.
when there is uncertainty as to the legal obligations or rights between two parties, a declaratory judgement offers an immediate means to resolve this uncertainty.
court have discretion whether to entertain a declaratory judgement action.
there is no requirement that the harm be irreparable
most common declaratory judgements
the object of the declaratory judgement is to permit determination of a controversy before obligations are repudiated or rights are violated
in contrast, where the facts and circumstances in a dispute are such that damages or rights have already occurred
effect of a declaratory judgement
parties must act in accordance with the judgement
if the party disregards the courts decree, the court can issue follow up equitable orders that directly order the party to comply.
additionally ,the courts declaratory judgement is binding on any future litigation
declaratory judgement test
the case must be a case or controversy under art 3
