Essay Tort Injuntion

Question 1

What are the steps in order for an essay to discuss injunctions in tort?

Answer 1

1. define an injunction.
2. list all injunctions applicable. (TRO, temp. injunction, Perm injuction)
3. discuss defenses (if they apply they apply to all of them. Laches, Unlclean hands, Freedom of Speech, Criminal act)

Question 2

Define injuction

Answer 2

Order to the defendant to refrain from doing something (negative injunction), or to do something (mandatory injunction).

Question 3

What are the 3 different types of injunctions?

Answer 3

1. Temporary Restraining Order
2. Temporary Injunction (also called preliminary injunction)
3. Permanent Injunction

Question 4

At what stage of the litigation is a TRO sought?

Answer 4

TRO is the order sought at the first stage

in the plaintiff’s request for injunctive relief

Question 5

What is the TRO’s purpose?

Answer 5

Purpose is to maintain the status quo pending issuance of a preliminary injunction.

Question 6

What litigation events needs to happen for a TRO to be issued?

Answer 6

Generally, may be issued after notice and a hearing

Question 7

When can the plaintiff bypass notice and hearing to the defendant and do an ex parte hearing?

Answer 7

on a sufficient showing of urgency

Question 8

What do you need to show to get a TRO?

Answer 8

1. Irreparable injury if the TRO is not granted now.

2. likelihood of sucess

Question 9

What is a preliminary injunction?

• What is it’s purpose?
• What litigation events need to happen for it to be issued?

Answer 9

A provisional remedy designed to maintain the status quo pending a trial.
Issued after notice and an adversary hearing.
The granting or refusing of the preliminary injunction is not based on a final determination of the merits of the case.

Question 10

What are the elements that the P needs to show to get a preliminary injunction?

Answer 10

1) Irreparable injury, weighed against any hardship to the defendant to make sure that the hardship to the defendant does not greatly outweigh the benefit that the plaintiff may get from the relief sought
2) Likelihood of success

Question 11

What do you need to show to get a permanent injunction?

Answer 11

Injunction's a Big Fucking Deal
1. inadequate legal 
remedy, 
2. feasibility, 
3. balancing of the hardships, and 
4. no defenses

Question 12

(Are the legal remedies inadequate?)

Why would Damages and money restitution be inadequate?

Answer 12

Damages may be inadequate because
Money Is So Inadequate

there may be a Multiplicity of suits
The injury may be Irreparable
Too speculative or too small to compensate fully for the actual injury
The D may be insolvent

Question 13

(Are the legal remedies inadequate?)

Why would replevin be inadequate?

Answer 13

Replevin may be inadequate if the defendant
can keep the property by posting a bond.
Or the sheriff may be unable to find the property

Question 14

(Are the legal remedies inadequate?)

Why would Ejectment be inadequate?

Answer 14

Ejectment is an inadequate remedy if the plaintiff wants removal of an encroaching structure.

Question 15

(Is it feasible?)

What two issues do you analyse for feasibility?

Answer 15

1. Must the court exercise too much supervision?

2. Is a negative or a mandatory injunction appropriate?

Question 16

(Should the hardships be BALANCED?)

What 2 situations do hardships need to be balanced?

Answer 16

1. Innocent encroachment

2. Nuisance

Question 17

Should you balance if there is intentional encroachment?

Answer 17

No, it is willful

Question 18

What are the 4 balancing of hardship rules?

Answer 18

Who’s had it hard? Willy Nelson so…Playing Good Willy Music

1) Gross disparity- There must be a gross disparity between defendant’s detriment and plaintiff’s benefit.
2) Willful- no balancing if defendant’s conduct was willful.
3) Public- Hardship to the public is taken into account.
4) Money damages- If you decide to balance hardships, in whole or in part, consider awarding plaintiff money damages.

Question 19

What do you balance if there is a private nuisance?

Answer 19

balance hardships of P and D

Question 20

If it is a private nuisance (with a public benefit) what do you discuss, in order?

Answer 20

First: Discuss the defendant’s hardship.
Second: Discuss the public’s hardship.
Third: deny the injunction.
Fourth award the plaintiff money damages

Question 21

What are the defenses to injuction?

Answer 21

1. Laches
2. Unclean hands:
3. Freedom of speech:
4. Criminal act

Question 22

What is Laches?

Answer 22

The effect of the passing of time.

Has the plaintiff’s inaction encouraged or allowed the defendant to act to his detriment?

Question 23

What is Unclean hands?

Answer 23

Plaintiff must come into equity with “clean hands.” Must be related to the transaction in the suit.

Question 24

What is the freedom of speech defense?

Answer 24

First Amendment rule against prior restraint. See exceptions for national security, and for trade libel, particularly in conjunction with another business tort.

Question 25

What is the criminal act defense?

Answer 25

“Equity will not enjoin a crime.”