Hypos for 1-5 Flashcards
A movie theater operator would like to show a movie but is concerned the movie will be found to be obscene and that operator will be subject to criminal prosecution.
Can the movie theater operator sue for damages at this stage?
No. The movie theater operator has not suffered any actual damages or harm yet.
A movie theater operator would like to show a movie but is concerned the movie will be found to be obscene and that operator will be subject to criminal prosecution.
Can the movie theater operator obtain declaratory judgment as to whether movie is obscene prior to screening it?
No. Declaratory relief is not available because there is no actual case or controversy (i.e., no realistic threat of harm yet). The movie theater operator would like to know whether the movie is obscene but that question is (on these facts) essentially a hypothetical question.
A movie theater operator would like to show a movie but is concerned because the local prosecutor has publicly threatened to prosecute anyone who shows the movie for obscenity.
Now the operator can seek declaratory relief. When the prosecutor publicly threatens to charge the operator with a crime, there is a realistic threat of harm and thus an actual controversy that the court can decide.
The question (is the movie obscene?) is no longer purely hypothetical. The public threat of prosecution renders it concrete enough for a court to decide it.
And the availability of declaratory relief means the theater operator does not have to show the movie and get charged with obscenity by the prosecutor before being able to test the legality of the movie.
Theater operator could file an action against the prosecutor seeking declaratory relief (an adjudication of whether the movie is obscene) before showing it.
You live next door to a historic theater. You learn that they plan on performing the 1812 Overture with real cannons one week from today. You are convinced that the theater (which is more than 150 years old) will collapse when the cannons go off and irreparably damage your property. You request an ex parte hearing the same day seeking a TRO enjoining the performance.
No. The harm is expected one week from today. The theater is next door. It would be very hard to show that you will suffer irreparable injury before you could give notice to the theater. When D is easily locatable and close by, one week is sufficient time for notice and a hearing.
You live next door to a historic theater. You learn that they plan on performing the 1812 Overture with real cannons one week from today. You are convinced that the theater (which is more than 150 years old) will collapse when the cannons go off and irreparably damage your property. You request an ex parte hearing the same day seeking a TRO enjoining the performance.
No. The harm is expected one week from today. The theater is next door. It would be very hard to show that you will suffer irreparable injury before you could give notice to the theater. When D is easily locatable and close by, one week is sufficient time for notice and a hearing.
A man has a claim for $500 arising out of a dispute with a cell phone company. His lawyer tells him that he has a strong claim and that he is likely to win if it goes to trial, but that handling the claim will cost $2,500. Assume the American Rule applies.
Under the American Rule, the man is unlikely to sue, even if he has a strong claim, because his attorneys’ fees would be much higher than his eventual recovery.
The result would be different under the English Rule because the man would be able to recover his attorneys’ fees if he won and the facts tell us he has a strong case.
A woman owns a small business that does not carry liability insurance. One day the store owner receives a summons and complaint from a customer who alleges serious injuries from a slip and fall. The owner remembers the episode and doubts the customer was injured. A lawyer tells her defending the claim will cost $7,000. P’s lawyer says P will settle for $1,500. Assume the American Rule applies.
The owner will be under pressure to settle because settling would only cost $1500 but litigating will cost at least $7000 even if the owner wins the suit.
Again, the result would be different under the English Rule because the owner would be able to recover her attorneys’ fees if she won the suit.
Would the owner’s answer be different if the store had liability insurance?
Yes. Not only would liability insurance cover the cost of settling (assuming she settles), but if there is litigation it covers the cost of both the judgment (assuming the owner loses) and the attorneys’ fees. So, if the owner has insurance then opting for litigation over settlement is relatively costless (to her).
P seeks $100,000 in damages and ultimately wins $50,000 in a breach of contract case against D. During the course of the litigation and trial, P’s attorney spent:
$150 on fees for 3 witnesses to attend trial
$5,000 on an expert witness that P retained
$100 on copying of exhibits that were entered into evidence
$1,000 each to obtain transcripts of the depositions of Joe, Billy and Sue. Portions of Sue’s transcript were used at trial.
$500 in docket fees and filing fees
$10,000 on attorneys’ fees
Which of these costs (if any) is P entitled to receive under Rule 54(d)?
Plaintiff won a judgment in her favor for $50,000 at trial and is therefore the prevailing party even though Plaintiff was awarded less than she sought. Pursuant to Rule 54(d), P – as the prevailing party – is entitled to recover her costs. The particular costs permitted are described in 28 USC 1920. Plaintiff is entitled to recover the $150 spent on witness fees. See 28 USC 1920(3). P is also entitled to recover the $100 spent on the copying of exhibits because the fact that they were used at trial shows they were necessary. 28 USC 1920(4). Plaintiff is entitled to recover $1K for the transcript of Sue’s deposition because it was used at trial and was therefore “necessarily obtained for use in the case” but cannot recover for Joe or Billy’s transcripts because they were not used at trial. 28 ISC 1920(2). Plaintiff can recover the $500 in docket and filing fees under 28 USC 1920(1) and (5). Plaintiff cannot recover the money spent on the expert witness because the witness was retained by plaintiff, not appointed by the court. 28 USC 1920(6). Finally, plaintiff cannot recover attorneys’ fees because costs is explicitly defined to exclude attorneys’ fees. See Rule 54(d)(1). Plaintiff can recover total costs of $1,750.
P sues D for wrongful death. There are no counter claims. P is seeking $500,000 in damages. P serves on D an “offer of judgment” for $100,000 plus costs 21 days before trial.
No. P is not a “defending party”
P sues D for wrongful death. There are no counter claims. P is seeking $500,000 in damages. D serves on P an “offer of judgment” for $100,000 plus costs 11 days before trial.
No. Must be made at least 14 days before trial
P sues D for wrongful death. There are no counter claims. P is seeking $500,000 in damages. D serves an “offer of judgment” for $100,000 plus costs 21 days before trial.
Yes. Correct party, right timing, served, specifies terms for judgment. A valid offer of judgment
P sues D for wrongful death. There are no counter claims. P is seeking $500,000 in damages. D serves an “offer of judgment” for $100,000 plus costs 21 days before trial. P rejects offer. Case goes to trial and P wins $200,000.
No. B/c P recovered more than the offer of judgment.
P sues D for wrongful death. There are no counter claims. P is seeking $500,000 in damages. D serves an “offer of judgment” for $100,000 plus costs 21 days before trial. P rejects offer. Case goes to trial and jury returns verdict for D.
Yes (sort of). P did not recover more than the offer of judgment so would have to pay D’s costs incurred after the offer was made. See Rule 68(d).
Client walks into a lawyer’s office and says that his business partner breached a contract and that he wants to bring a lawsuit against the partner. Based solely on the conversation with the client, the lawyer files a lawsuit in federal district court alleging that the partner breached a contract and seeking actual damages plus punitive damages and attorneys’ fees.
Yes. The lawyer’s actions violate Rule 11(b). The lawyer did not do an adequate factual investigation prior to filing the lawsuit.
At a minimum, in a breach of contract action the lawyer would need to see the contract that has been breached to verify its terms. The lawyer would also probably want to look at any supporting documents the client has (emails, letters, receipts, etc.) that support the conclusion that the partner breached the contract. Simply relying on your client’s word is insufficient here.
