Injunctive Relief / Application of Remedies to Torts

Question 1

Injunctive Relief

Answer 1

Injunction = court orders D to do or not do something

Tip: Determine TEMPORARY injunction or PERMANENT injunction

Question 2

Permanent Injunction vs. Temporary Injunction

Answer 2

Permanent injunction = issued AFTER a trial on the merits

Temporary/Preliminary/Interlocutory Injunction = issued BEFORE a trial on the merits

Permanent injunction is the most common on the bar essays.

Question 3

Temporary Injunctive Relief

Answer 3

2 part test

1) need irreparable injury
-> during the time frame where they would be waiting during trial, which is why they need relief NOW
-> balancing of hardships (looking at hardships to P or D in short timeframe context)

2) Establish P’s likelihood of success. P needs to establish this probability that P is more or less likely to win at trial.
-> bond requirements (court should impose bond req on P to reimburse D if the injunction injures him or her and D does not proceed)

Temporary restraining order “TRO” = issued pending a hearing to determine whether a preliminary injunction should be issued. To obtain TRO, same as preliminary injunction, but TRO can be “ex parte” so notice and adversarial proceeding not required. Must show the harm will be IMMEDIATE in TIGHT TIMEFRAME. If D can be given notice and chance to appear and contest it, must do so. Limited to 10 days or 14 in fed ct.

Question 4

Permanent Injunctive Relief

Answer 4

Must have

1) Inadequate legal remedy alternative. Permanent injunctions are equitable remedies and we don’t get there unless legal remedies suck. Alternative legal remedies are replevin and ejectment.

Why money damages are inadequate:
-> too speculative
-> D is insolvent
-> irreparable injury will be suffered (money damages not adequate for polluting smoke that will give lung cancer)
-> avoid multiple actions. On bar they will say prior history of litigation between parties
-> easier to show damages inadequate if P is protecting an interest in land!

2) Feasibility of enforcement (it’s gotta actually be realistic to make an injunction)
-> negative injunction (orders D to stop doing something)
-> mandatory injunction (D go do something)

3) Balancing of Hardships (If D’s hardship outweighs P’s benefit, the injunction may be denied.)

1. There must be gross disparity between D’s detriment and P’s benefit in order to deny the injunction. Not just that D is incurring slightly more detriment. Gotta have D be way worse off than P would be benefitted.
2. No balancing of hardships if D’s conduct was willful. Ex: If D built a building that encroached on P’s land and D willfully did that, the hardships won’t be balanced. D will have to tear his building down despite only encroaching an inch. This is obviously retarded so in real life D just ends up paying P money, but on the bar D gets fucked.
3. If the detriment to D outweighs the benefit to P, consider awarding P money damages
4. Hardship to the public. Ex: you have big smoky factory next to town employing 500 people. Only P has small house close enough to breathe the smoke. Even if it’s a public nuisance situation, look to D’s hardship (shutting down smoky factory) then discuss the public’s hardship: 500 people would lose job. Deny the injunction.

4) Defenses
1. Unclean hands. Ex: bad guy P is terrible meanie except in this lawsuit. Unclean hands defense is only available if P’s improper conduct is related to the lawsuit.
2. Laches = the equitable equivalent of a statute of limitations. It’s a running of a period of time defense. Unlike statute of limitations, laches is concerned with the EFFECT of the passing of time on THIS DEFENDANT. The laches period will never be greater than the statute of limitations. The clock runs on laches when P learns of the injury. When does the delay cut off right to relief? Gotta be when delay has been unreasonable and prejudicial to D. If you sat there letting the problem fester as a P, and you could’ve said something, delay can cut off your right to equitable relief.
-> If laches applies, award money damages to P
3. Impossibility defense. Impossible for D to carry out the terms of injunction. Rarely tested.
4. Free speech. If tort is defamation or privacy publication like false light, privacy invasion -> best defense is deny injunction based on free speech grounds.

Mnemonic for 4-part test:
1) Inadequate legal remedy alternative
2) Feasibility of enforcement
3) Balancing of hardships
4) Defenses

“I’m Feeling Bold and Determined”

Question 5

Equity will Not Enjoin a Crime

Answer 5

They’ll give you crim statute that D is violating. Don’t take the bait. It won’t be enjoined.

BUT if it could be characterized as a tort, then it could be enjoined.

Question 6

Who will be bound by an injunction?

Answer 6

1. Parties (derp)
2. Employees/agents WITH NOTICE
3. Others acting in concert with notice (ex: manufacturer is making tshirts with Lebron’s face even though there is an injunction. The manufacturer stops making them as a party facing the injunction but then a vendor keeps buying and selling them. That vendor is also bound by the injunction as one of the “others acting in concert with notice”

Question 7

Erroneous Injunction

Answer 7

Does the party have to obey an erroneous injunction? Usually a prior statute on the books is the basis of the court order. If the court is clearly wrong to rely on a particular law, the injunction STILL must be obeyed. Gotta go to court and get it modified or resolved.

Contempt - for disobeying court order.
1) Civil contempt: tool to coerce parties to comply with injunction (ex: NY subway workers went on strike. The head of union said no we’ll keep striking. City got civil contempt order saying they’d be held in contempt $10M per day. Could also be imprisonment (D holds the keys to the jailhouse)).
2) Criminal contempt: punishment for failing to comply with injunction. Can’t get out of prison after complying because it’s a punishment, not just a coercion tool like civil contempt.

Question 8

Injunctive Relief is almost ALWAYS coupled with damages

Answer 8

Say in 3-4 months P has been awaiting injunction in their smoky air nuisance case. Gotta compensate them for damages during that period of time 3-4 months.

Question 9

2 Types of Exam Questions

Answer 9

1) Has P been injured? If so, talk about COMPENSATORY DAMAGES.

2) Has D benefitted? Think about RESTITUTION and use magic words UNJUST ENRICHMENT

3) Does P want property returned?
- Replevin
- Ejectment

4) Is P still being harmed?
- Injunctions
- “I’m Feeling Bold and Determined”F

Question 10

Frequency of Bar Questions on this Shit

Answer 10

75% - either property tort, personal or real property
- Largest category is dispossession > hit compensatory damages, restitutionary damages, replevin, ejectment, constructive trust, equitable liens

25% - personal injury torts