Deck 1 Flashcards
Prelimary injunction
An irreparable harm will be suffered (or serious risk of it) as we wait for a final judgment. This needs to be avoided. Avoided by a court ordering a preliminary injunction ordering D to do what is necessary to avoid the irreparable harm (usually what P wants at the end of the case).
What does the court need to find to order a preliminary injunction
1) An irreparable harm, and 2) No adequate remedy at law.
+ that there is a substantial chance that P will win (balanced against harm if they win and don’t get preliminary injunction).
Two big issues in every procedural due process case
1) There is a due process right, 2) it has been violated.
Why do we value accuracy
Not for its own sake, but to the extent that it helps prevent harms.
Goldberg factors for deciding procedure
1) Reduce risk of outcome error, 2) to protect substantive interests (private and public), and 3) costs.
How is Mathews different than Goldberg?
Look at marginal costs. Not a hearing as a whole. Won’t disturb Congress, unless Congress acting in bad faith.
Mathews is utilitarian with a marginal weighing of benefits and costs. Goldberg is rights-based balancing. Rights weigh more than dollars and cents. Rights are so important that social costs figure in in a limited way.
Outcome oriented procedure factors (Dorothy Kelly hypo)
1) reduce outcome error, 2) to protect substantive intersts, 3) costs, 4) development of good law in long run.
Process oriented procedure approach argument
This isn’t about outcome. They should be able to participate not because of impact on outcome but because participation respects their dignity. Dignity argument supports a procedure even if it increases outcome error.
Permanent injunction factors
1) (required) Whether there is a significant risk of imminent and irreparable future harm.
2) (required) P must have no adequate remedy at law.
Balancing test
3) Balance hardship to the parties.
4) Whether an injunction will serve the public interest.
5) The administrative burden on the court.
Money judgment
Not an order to D; it is an adjudication of his rights or liabilities. No one may be held in contempt for failing to pay some debt as adjudicated by the law court.
What happens if losing D does not pay a money judgment?
P (judgment creditor) must take further action to enforce judgment against D (judgment debtor). May obtain a lien against all of D’s real property, can garnish wages.
Judgment creditor can also obtain writ of execution from court directing the sheriff or similar officer to levy an asset P knows D has. Asset could be physically seized and sold at auction. Other paeople may also have interests in the asset and those secured creditors (ex. Bank with lien on a car) get money first.
Not much can be done if D doesn’t have any money to pay at any point during SoL. Up to P to keep tabs on D over the years.
What happens if losing D doesn’t follow an injunction?
Court orders injunction itself. D may be cited for contempt for failing to comply with an injunction.
Are damages and injunctions rights?
You have a right to damages. Not to an injunction. Injunction is discetionary.
What is the judge allowed to look at when responding to a motion to dismiss for failure to state a claim 12(b)(6)?
The complaint and the response to the complaint.
12(b)(6)
Dismiss for failure to state a claim.
Specific performance
Injunction in law (as opposed to equity), ordering someone to do something.
Imminence
Policy based. Don’t define. Just ask if we should or shouldn’t intervene now (for preliminary injunction).
How long does an injunction last?
Preliminary: Until the case ends.
Permanent: Lasts indefinitely until the judge decides the injunction is no longer necessary and should be dissolved (in response to D filing a motion to dissolve the injunction).
Administrative burden for preliminary injunction?
Usually doesn’t matter. Preliminary injunction won’t be complicated. Present, but not significant.
Calculation for preliminary injunction
If erroenous harm from denial is greater than the erroneous harm from granting preliminary injunction, then grant the injunction.
Consider the odds of each side winning, and the harm caused by the wrong decision in each direction.
Even if probability of winning is low you can still get a preliminary injunction if harm is high and vice versa.
When can you appeal a preliminary injunction decision?
Immediately. It is one of the only things you can appeal before the trial is over (final judgment rule).
Standard of review for fact finding
Clearly erroneous standard. Appelate court can’t reverse unless they are conviced that the DC made a clear error.
Standard of review for the law
De novo. Appelate can do this just as well as DC. If DC gets this wrong they might as well correct. This is where the real revie is. If DC gets the law right, they have a ton of discretion.
Standard for applying the law to the facts
ABuse of discretion. This is highly deferention.
Why is a preliminary injunction decision likely to decide the case?
Gives parties idea of how judge is looking at the case. Gives them idea of stenght of case. Leads to their opinions coming closer and increasing odds of settlement.
Temporary restraining order
Rule 65(b). Order granted without a full hearing. Usually granted ex parte (other side is not there).
Why would we temporarily restrain D without D there to contest issues?
1) When we have to act quickly (ex. bulldozer about to knock down the house), 2) if you give notice to the other side they will try to do what you are trying to restrain them from doing, so sometimes it is necessary to restrain before you give notice (ex. spousal abuse).
How long does a temporary restraining order last? What happens during this time?
It lats for 14 days and can be renewed for an additional 14 days. D can bring a motion to dissolve before this.
Judge will hold a hearing while the temporary restraining order is in effect.
Impact of cease and desist letter. What can recipient do about this?
Have to inform investors about potential liability stemming from the letter. This makes it harder to get money. Investors less willing to invest in a project that might get enjoined in the future.
You don’t have to sue to send the letter.
Recipient can seek a declaratory judgment. Ask the judge to declare what they are doing as lawful.
Hypo: D has 50% chance of winning the case at the end of the day. How does the preliminary injunction come out?
It comes out in favor of who the injuction or lack thereof would harm more.
Bond for prelimary injunction?
Supposed to be posted by P and given to D at the end if D wins. But it can’t compensate for irrepareable harms. Bonds are sometimes set at zero if P can’t afford to pay them (ex. Goldberg v Kelly).
Why isn’t the court’s decision an advisory opinion in a cease a desist letter scenario?
The letter creates an actual controversy.
Benefits to D of a declaratory judgment proceeding?
1) Future D gets to accelerate the lawsuit, and 2) D gets to choose the forum.
What does P have to do when D asks for a declaratory judgment?
P has to counter-claim and bring all the causes of action they would have brought later.
How does a case begin?
With the plaintiff filing a complaint in court (rule 3).
What do you have to plead? How much do you have to plead?
The burden of pleading. The quantum
Three ways 12(b)(6) motion to dismiss for failure to state a claim can be granted
1) There is no claim that fits what P is saying, 2) there is a claim but it has a hole in it, 3) there is a claim but they haven’t said enough about one or more of the elements (not enough detail).
Why is pleading an element assigned to one party or the other
Any element can logically be assigned to either party. Nothing says it has to be assigned to one party or the other.
Reasons to assign one way ex. Makes no sense to prove that no contract was formed for breach of contract because it is far easier to have someone prove that it does exist.
Rule 8(c) does defense need to plead any matter constitutitng an avoidance or affirmative defense?
The defense has the burden of pleading for any matter constitutting an avoidance or affirmative defense.
Is pleading the same as proving?
No. Pleading is just about stating/alleging.
Why did court say D had to plead qualified immunity in Gomez v Toledo?
8(c). Also D more likely to know about relevant facts because QI has a subjective strand to it. The information access problem that P would have would lead to mistakes. Meritorious claims would not be made by P because they didn’t realize they could plead QI if they had to plead it. This would be a false negative error.
False negative error in Gomez
Meritorious complaint that is not filed or that is but is dismissed do to failure to state a claim 12(b)(6) (hole).
Why does P have to plead that there was actual malice in NY Times v Sullivan when D is the one who knows?
Because in this case the constitutional right (freedom of speech) belongs to D. In Gomez P was the one who’s constitutional right was at risk.
Afraid of false positive errors here: Meritless suites proceeding through the system. This could chill aggressive reporting.
Goldberg v Kelly. False positive? False negative?
False negative error: Wrongful termination before hearing.
False positive: Ineligible recipient who gets benefits and state can’t stop them until holding a hearing.
Do we have to consider both false negative and false positive errors?
Yes. And we need to consider all four variables, 2 for each kind of error (the probability of error/risk and the cost of making such an error).
Statutory interpretation order
Text, structure, legislative history, historical context, purpose.
Where does error cost analysis come in when interpreting a statute?
It comes in for purpose, policy. You start with text, etc. But, lots of procedural questions come down to error-cost because they come down to policy.
Meritles suit
Zero percent chance of winning objectively.
What’s the problem with trying to keep out meritless suits?
That we keep meritorious sutis out too. We only really want to prevent frivolous suits.
Frivolous suits
P knows it’s meritless and files it anyway (intentional), or 2) P doesn’t know it’s meritless, but would have figured it out if they reasonably investigated (negligent).
What would happen if we had zero safeguards to prevent frivolous suits?
We will have frivolous suits where both sides know the suit is frivolous because it will be cheaper for D to settle then to go to court. If not one off, D will go to court to develop reputation as a fighter.
Also, if P knows the case is frivolous but D doesn’t, under many circumstances P can get a substantial settlement, because D will find it worthwile to treat P as meritorious.
How do we change the amount frivolous suits?
By assigning pleading burdens and adjusting the quantum of the pleading burden.
8(a)(2)
Tells us how many facts to include. Complaint must have a short and plain statement of the claim showing that the pleader is entitled to relief.
9(b) pleading specificity for fraud claims.
Requires more pleading specificity for fraud claims.
Conley v Gibson pleading rule
Notice pleading.
A complaint should not be dismissed unless it is beyond doubt that P can’t prove any set of facts that entitle P to relief. This is very broad. Only function of this sort of complaint is to give D notice of what the dispute is generally about. D finds the facts later on discovery.
Notice pleading doesn’t do much to deter frivolous suits.
Bell Atlantic v Twombly pleading rule
The plausibility test. Complaint must be plausible on its face.
From the facts in the pleading you need to be able to infer the elements with a certain confidence described by the term “plausible.”
Why the plausibility test?
2) Prevent high litigation costs due to discovery costs, 2) prevent bad settlements (of meritless suits).
The court thinks high discovery costs are leading to bad settlements.
They say summary judgment not enough because settlement can happen before then and case management by judges has proven ineffective because judges are reluctant to limit discovery.
Since these don’t work we have to screen frivolous suits out at the beginning via pleading specificity. The more you have to allege, the less likely you are to bring a suit that doesn’t have factual support.
Problem with plausibility test?
It can create more false negatives when there is an information access problem.
Why was plausibility not met in Twombley?
Twombly pled that 1) All 4 Ds used the same tactics to prevent others from entering the market and 2) that none of them entered one another’s markets. Says this looks fishy. Concludes that there must have been at least a tacit agreement to act this way.
Court: This behavior is consistent with what competitive firms would do in this scenario. They aren’t entering markets because they know each party is using effective deterrence techniques. They are using the same techniques because those are the most efficient ones.
This doesn’t meet the plausibility test because there was a perfectly lawful account of those facts. They have to say something that makes the situation look fishy relative to what would happen in a lawful way. It can’t just be specultive.
What is plausibility?
Plausibility is not probability. It simply calls for enough facts to raise a reasonable expectation that discovery will reveal what P is claiming. Well pleaded may proceed even if it appears that recovery is very remote and unlikely. May proceed even if proof of facts is improbable.
Ashcroft on plausibility
Your allegations can’t be legal conclusions. You look at allegations and take out all of the legal conclusions. Then we take what is left over and ask if those allegations are sufficient to make a plausibile inference.
Form 9
Meets the plausibility test.
It says on this date, in public highway called street, in city, d [negligently]* drove a motor vehicle against plaintiff who was the crossing said highway.
Negigently gets removed due to Iqubal. The remained meets 8(a)(2) which has been interpeted to mean plausibility.
People usually don’t get hit when walking across the crosswalk when everyone is acting lawfully. Because this is different than what we usually expect the basline lawful world to look like, the allegation is nudged over the plausibility line.
Swanson v City Bank Loan
Majority says that identying the type of discrimination, by whom. Then ask if these things could happen. This is closer to Conley v Gibson. It’s not a complex case (unlike Twombley) so not as much is required.
Dissent: Iqbal needs to be taken seriously.
But, it turns out that this type of discrimination was happening.
