Relief + Remedies Flashcards
Remedy
- Court’s ability to enforce a right under the law.
- 3 types: injunctive, damages, declaratory
Provisional Relief (Equitable)
- Stems from equitable powers of the Ct [remedy, contra not “at law”]
- “Pre-judgment”: before the merits of the case have been proven [i.e. summary judgment, trial]
- 2 types:
1. Securing the Judgment [protect assets]
2. Maintaining the status quo [control behavior]
How to “Secure a Judgment”
Rule… Seizing Person/Property
- Specific Kinds of Remedies available under this rule are:
1. arrest
2. attachment [i.e. lien on bank account/deed]
3. garnishment [i.e. order directing money of a 3rd party]
4. Replevin [i.e. procedure to seize good to provisional restore]
5. Sequestration; and
4. Other correspoding/equivalent remedies
Rules to follow to Secure a Judgement
Remedies under State Law
- [At commencement/throughout action] Every remedy is available that under state law, provides to secure satisfaction of potential judgment.
Injunction
- Order restiricting someone from doing something
- Requiring someone to do something
– Generally about restricting/compelling “conduct”
2 Types [FRCP]:
1. TRO [immediate emergency, no notice]
2. Preliminary Injunction [preventive order at start of case, requires notice+ showinf of likehood of success at trial]
Temporary Restraining Order [TRO]
- may be issues without notice to non-movant, IF:
1. Accompanied by affidavit/verified complaint that clearly shows immediate/irreparable injury/loss/damage will result to the movant before adverse party can be heard;
2. Moving party made efforts to notice - Issued for no more than 14 days [but can be extended]
- Non-movant can seek vacatur w/ 2days notice/as justice requires.
Preliminary Injunction
Mat be issued before trial when movant shows [Ligon Standard]:
1. Likely to succeed on the merits
2. Likely to suffer irreperrable harm in the absence of relief
3. Balance of equities tip in favor of granting.
4. Injunction serves public interest.
- Notice required
- NO time limit
- Evidence from the hearing can be used/consolidated w/ trial on the merits
Equitable Relief [Final Relief]
- Permanent Injunction
-Declaratory Relief - Consent Decree
Legal/Damages “At Law” ($$) [Final Relief]
- Nominal
- Compensatory
- Punitive
Permanent Injunction [Final Relief]
Final Order directing/preventing Action
When is it issued?
1. Plaintiff has succeeded on the merits
2. No adequate remedy at law [$$$ isn’t sufficient]
3. Balance of hardship weighs in favor of injunction
4. Public interest is served by Injunction
Failure to comply with Injunctive Orders:
- Damages stemming from non-compliance
- Contempt [admonish/prejudicial orders/fines/jail]
UNLESS party “stays” the order first at trial level/via appeal
Note: It does not matter if the order is plainly unconstitutional –> you must abide by it/stay it
Declaratory Relief [Final]
Any Ct [upon the filing of an appropriate pleading] may declare the rights/other legal relations of any interested party seeking such declatation, whether or not further relief is/could be sought.
Any such declaration shall have the force + effect of a final judgment/decree.
Consent Decree [Final]
- Negotiated by parties
- Approved and enforced by Ct.s
[Combo of injunction+ contract]
Damages at Law
- Compensatory - To make whole
- I.e. Pain + suffering, lost wages - Punitive - To deter bad conduct
- Nominal - To recognize harm
Provisional Relief [Equitable] “Securing the Judgment”
- Seizing a Person or Property Rule 64 [state law] including:
– Attachment
– Garnishment
– Replevin
– Sequestration
