Injunctions

Question 1

Injunctive Relief Generally

Answer 1

An injunction is an order by a court to a defendant to either do something (mandatory) or cease from doing something (negative). Personal jurisdiction is required for injunctive relief.

Enforcement of an injunction is by contempt, and both parties and persons in privity with parties can be bound by an equitable decree. Injunctions can be interlocutory or permanent. They must be obeyed until modified or dissolved.

Question 2

Injunctive Relief for Tortious Conduct

Answer 2

(i) the legal remedy is inadequate;
(ii) a property right or at least a protectable interest is involved;
(iii) enforcement of an equitable decree would be feasible, practicable, and effective to vindicate the plaintiff’s rights;
(iv) the hardships to the defendant, where relevant, do not greatly outweigh the gain that the plaintiff may get from the relief sought; and
(v) no defenses are available.

Question 3

Nuisance

Answer 3

Consider the balance of hardships. Injunctive relief against nuisance will generally be granted only against a private nuisance; an individual will not have the right to enjoin a public nuisance unless he can show that he has standing to sue.

Question 4

Trespass to Land

Answer 4

Consider the balance of hardships. Injunctive relief is proper where the trespass is continuous.

Question 5

Waste

Answer 5

If waste exists, is it destructive, permissive, or ameliorative? Generally, equity will not grant injunctive relief in ameliorative waste situations.

Question 6

Conversion of or Trespass to Chattels

Answer 6

These torts involve interference with an owner’s interest in a chattel. Injunctive relief is proper where the interference is continuous or the converted chattel is unique.

Question 7

Defamation

Answer 7

Remember that equity courts are hesitant to enjoin mere libel or slander because of free speech rights.

Question 8

Invasion of Right of Privacy

Answer 8

Consider potential free speech problems if a ‘publication’ is involved.

Question 9

Abuse of Judicial Process

Answer 9

This may be a

(i) wrongfully instituted suit or
(ii) wrongfully obtained judgment. Regarding the first type of abuse, recall that the court can enjoin the litigants, not the other court.

A similar rule applies to avoid a multiplicity of suits - a court with jurisdiction may enjoin parties from pursuing subsequently filed competing proceedings in another forum.

As to wrongfully obtained judgment, only extrinsic (not intrinsic) fraud is sufficient for equitable relief against enforcement of the judgment.

Question 10

Unfair Competition

Answer 10

There are various forms of unfair competition, including: interference with business relationships and interference with industrial property rights (which includes passing off one’s product as that of another, misappropriating another’s property right and representing it as one’s own, and using trade secrets).

Question 11

Infliction of Physical Harm

Answer 11

Plaintiffs may generally seek injunctive relief against infliction of physical harm.

Question 12

Money Damages

Answer 12

If money damages will make the plaintiff whole, equity will not act. Money damages might be inadequate if:

(1) Damages are speculative;
(2) The injury is irreparable;
(3) A multiplicity of actions might be necessary;
(4) Plaintiff has no right to damages; or
(5) Defendant is insolvent.

Question 13

Replevin and Ejectment

Answer 13

Replevin may be inadequate if the defendant could put up a replevin bond for a unique chattel or if there has been a change in the chattel (so that the sheriff would not be able to identify it). The legal remedy of ejectment may be inadequate because the sheriff refuses to act.

Question 14

Government Injunctions

Answer 14

Where the government seeks an injunction in order to enforce its police power, alternative remedies are ignored and irreparable harm is presumed.

Question 15

Negative v. Mandatory Injunctions

Answer 15

A negative injunction is easier to get since no supervision is required. The recent trend is to be more liberal in giving mandatory injunctions. In these cases, look to the complexity of the act to be performed and whether continuous acts are required. Remember, a court may avoid the problem by couching the decree’s terms negatively.

Question 16

Injunctions Requiring an Out-of-State Act

Answer 16

The recent trend is to grant such injunctions, but be sure the court has sufficient contacts with the defendant. Courts are even more hesitant to grant a mandatory injunction in these cases, but will still do so under proper circumstances.

Question 17

Hardship Balancing

Answer 17

Weigh the benefit to the plaintiff if the injunction is granted against the hardship to defendant that would result from the injunction. If the benefit to plaintiff is greatly outweighed by the burden on the defendant, the court generally will not issue an injunction. Also, consider the defendant’s behavior: a willful defendant generally will not profit from this rule. Neither will a defendant who has proceeded against the plaintiff’s assertion of right. Remember a court can award a combination of injunction and money damages.

Question 18

Unclean Hands

Answer 18

It is a defense that the party seeking the injunction has acted improperly in the transaction in question. Remember that to constitute unclean hands, the improper conduct must relate to the same transaction involved in the litigation. [Be careful in using the unclean hands defense. It is available only if the unclean hands conduct is related to the case at hand. Unrelated unfair conduct is irrelevant.]

Question 19

Laches

Answer 19

Laches may be available if plaintiff has unreasonably delayed in bringing an action, the delay is prejudicial to defendant, and defendant has no knowledge that plaintiff would claim the right alleged in the suit. Laches commences to run when the plaintiff has knowledge that a right has been infringed. Laches may serve as an earlier time bar than the statute of limitations, however, laches generally should not be longer than the statute of limitations (Florida courts will consider the facts). [It is important to remember that the statute of limitations concerns the mere passage of time, while laches concerns the effect of the passage of time.]

Question 20

Defenses of Impossibility, Hardship, and Freedom of Speech

Answer 20

In appropriate circumstances, impossibility, hardship, or free speech rights may be used as a defense to an action for injunctive relief.

Question 21

Temporary Injunctions

Answer 21

A temporary injunction is used to preserve the status quo between the parties until a full trial on the merits can be held. Notice of the hearing for a temporary injunction is generally required to be given to a defendant, and a bond is required to secure a defendant’s losses in case the injunction should not have been issued. To obtain a temporary injunction, the plaintiff must show that she is likely to prevail on the merits at trial, but will suffer irreparable injury, loss, or damage before the trial can be held unless a temporary injunction is granted. An ex parte temporary injunction may be granted in drastic circumstances. [If the question does not tell you what type of injunction is sought, assume you are dealing with a permanent injunction].

Question 22

Injunctive Relief Against Criminal Conduct

Answer 22

Injunctive relief generally is not available against criminal conduct on constitutional grounds, as it would deprive the defendant of his right to a trial by jury. But consider whether the crime is also a tort, which may be enjoined. Note also that Florida has a statute specifically providing for injunctive relief in theft crimes.

Question 23

Injunctive Relief Involving Political Rights

Answer 23

Injunctive relief involving political rights generally is not available because of the availability of legal remedies. But consider whether the conduct endangering the political right is also tortious and thus subject to relief.