remedies

Question 1

6 categories of nonparties that may be bound by injunction:

Answer 1

• 1) agents of the enjoined party
• 2) aiders and abettors of the enjoined party;
• 3) persons cognizant of the decree;
• 4) successors in interest of the enjoined party;
• 5) those coming into contact with a particular res, and
• 6) members of the same class in a class action suit

Question 2

• Fed. R. of Civ. Pro 65(d)- parties bound by an injunction

Answer 2

65(d) provides that injunctions and TRO’s are “binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.”

they are not binding upon the world at large.• The mere fact that an actor may be sympathetic to the desires of one properly bound by an injunction, or that by his conduct the former accomplishes what the party enjoined wants accomplished, is not sufficient

Question 3

• Substitution of parties

Answer 3

if the parties to a controversy change, rule 25 of Fed. R. Civ. Pro, allows for the substitution of parties

Question 4

enforcement of an injunction against persons unnamed in the order

Answer 4

Π’s must show that ∆’s acted in concert or participation with named parties, that the order was specific and unambiguous, and that they violated the order with actual knowledge of its mandate.

Question 5

bond requirement

Answer 5

“no restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the US or of an officer or agency thereof.”

Question 6

deciding whether to withhold costs or injunction damages:

Answer 6

the ingredients of a proper decision are objective factors- such as the resources of the parties, the ∆’s efforts or lack thereof to mitigate his damages, and the outcome of the underlying suit- accessible to the judgment of a reviewing court.

Question 7

damages outside of a bond in an injunction

Answer 7

a party injured by the issuance of an injunction later determined to be erroneous has no action for damages in the absence of a bond.”

∆ dissatisfied with the amount of bond set by the district court can, on appeal from preliminary injunction, ask the court of appeals to increase the bond

Question 8

bond requirement for public interest

Answer 8

when a party is seeking to vindicate the public interest… a minimal bond amount should be considered

Question 9

stays

Answer 9

onewho believes that an ex parte TRP was improperly granted can seek relief from the court that issued the order. Under F. R. Civ. P. 65(b): “on 2 days notice to the party who obtained the temporary restraining order without notice or on such shorter notice as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such a motion as expeditiously as the ends of justice require.

Question 10

irreperable harm

Answer 10

when the legal remedy of monetary damages is inadequate to provide releif

Question 11

the defense of unclean hands

Answer 11

a court sitting in equity will not aid a wrongdoer who is “gained with inequitableness or bad faith relative to the matter in which he seeks relief, so long as the misdeeds of the π have an “immediate and necessary relation to the equity sought.”

the court will not consider conduct that has no immediate connection to the case at hand

determined soely on the conduct of the π, no matter how improper the ∆’s conduct may have been.

does not have to be an uncontionable act, but merely the knowledge of the act and inaction to fix it can be an unclean hands defense.

public policy considerations are part of this doctrine.

Question 12

the defense of laches

Answer 12

any unreasonable delay by the π in instituting or prosecuting an action under circumstances where the delay causes prejudice to the .

1) no legitimate excuse 2) prejudice ∆

where there is no excuse for delay ∆ needs to show little prejudice, a weak excuse for delay may, on the other hand, suffice to defeat a laches defense if no prejudice has been shown.

Question 13

promissory estoppel

Answer 13

1) a promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and, 2) which does induce such action or forbearance and is; 3) binding if injustice can be avoided only by enforcement of the promise.

Question 14

equitable estoppel:

Answer 14

1) the party to be estopped must know the facts, 2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe is so intended, 3) the latter must be ignorant of the true facts, 4) he must rely on the formers conduct to his injury.

Question 15

differences between equitable and promissory estoppel

Answer 15

promissory- creates a contract where none may have been intended

equitable- has the effect of absolutely precluding a party, both at law and equity, “from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy as against another person, who has in good faith releid upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right either of property, of contract, or of remedy.

Question 16

for fines in criminal contempt proceedings

Answer 16

1) notice describing the action as criminal contempt, 2) proven by the burden of reasonable doubt, and 3) must not be serious, or , if it is serious, must then be given the right to a trial by jury.

Question 17

rule for civil contempt on 3rd parties

Answer 17

those who act in concert to violate a court order are joint and severally liable for resulting damages.

Question 18

civil contempt coercive sanctions-

Answer 18

the fine must be pursuable, aka, capable of being avoided by ∆ through adherence to the court order,

Question 19

test to determine the justification for the exercise of contempt powers:

Answer 19

1) the act or omission must occur in the presence of the court so that no further evidence need be adduced for the judge to certify to the observation of the contumacious behavior and 2) the act must impact adversely on the authority of the court.

Question 20

direct and indirect contempt

Answer 20

direct- happens in the presence of the court

indirect- happens outside the presence of the court

Question 21

Fed. R. Crim. Pro 42

Answer 21

a criminal contempt may be punished summarily if 1) the judge certifies that he saw or heard the conduct constituting the contempt and 2) that it was committed in the actual presence of the court

Question 22

order to show cuase

Answer 22

parties way of instituting a contempt proceeding.

Question 23

collateral bar rule:

Answer 23

court orders can be directly challenged by appealing to a higher court only. it is unimportant if a ∆ sincerely believed that a restraining order is ineffective, unconstitutional, or would eventually be vacated.

violations of an order are punishable as criminal contempt even though the order is set aside on appeal.

Question 24

defense to a contempt proceeding

Answer 24

1) ∆ can claim that they were not bound by decree; 2) that they did not receive notice of its requirement; or 3) that it was impossible to comply with the decree.

Question 25

rule on transparently invalid orders

Answer 25

if the court reviewing the order finds the order to have had any pretense to validity at the time it was issued, the reviewing court should enforce the collateral bar rule and hold all violators in contempt.

Question 26

prior restraint on a publication

Answer 26

may only be permitted when there is proof that the publication “will surely result in direct, immediate, and irreparable damage to our nation and its people.”

Question 27

to get a TRO

Answer 27

π must show:

1) that unless the restraining order issues, they will suffer irreparable harm;
2) that the hardship they will suffer absent the rider outweighs any hardship the ∆’s would suffer if the order were to issue;
3) that they are likely to succeed on the merits of the claim;
4) that the issuance of the order will cause no substantial harm to the public; and
5) that they have no adequate remedy at law.

Question 28

to get an injunction:

Answer 28

π must show 1) a reasonable probability of success in the main action and 2) that irreparable damages would result from a denial of the motion.

Question 29

status quo-

Answer 29

last, peacable, uncontested status between the parties which preceded the present controversy.

Question 30

measuring the probability of success at trial-

Answer 30

“it will ordinarily be enough that the π has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation.”

this burden is less where the balance of hardships tips decidedly towards the party requesting the temporary relief.

Question 31

anticipated nuisance

Answer 31

courts are reluctant to enjoin an alleged nuisance that has not yet come into existence, and is not yet causing injury. only when the challenged activity cannot be conducted without causing a nuisance will one be granted.

Question 32

rule 65(b) exparte TRO’s-

Answer 32

a TRO may be granted without written or oral notice to the adverse party or his attorney only if 1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damages will result to the applicant before the adverse party or his attorney can be heard in opposition, and 2) the applicants attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting his claim that notice should be required.

(1) failure to issue it would result in immediate and irreparable harm and 2) the applicant sufficiently demonstrates the reason that notice “should not be required.”

Question 33

Ex parte TRO’s purpose:

Answer 33

whether, during the period it takes to give notice, the opponent will take such measure to destroy the substance of the litigation or otherwise obstruct the court.

Question 34

notice requirement for an injunction/TRO-

Answer 34

1) it must proceed from a source entitled to credit; and 2) it must inform the ∆ clearly and plainly from what act he must abstain.

Question 35

appealing an injunctive order

Answer 35

as a general proposition, orders granting or denying TROs are un-appealable. However, orders granting or denying preliminary injunctions are immediately appealable pursuant to federal statutes.

Question 36

stay of an injunction

Answer 36

factors of a stay: 1) has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal; 2) has the petitioner shown that without such relief, it will be irreparably injured; 3) would the issuance of a stay substantially harm other parties interested in the proceedings; and 4) where lies the public interest?

Question 37

permanente injunctions

Answer 37

π seeking a permanent injunction must satisfy a 4 factor test:
• 1) that is has suffered an irreparable injury:
• 2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury;
• 3) that, considering the balance of hardships between the π and the ∆, a remedy in equity is warranted; and
• 4) that the public interest would not be disserved by a permanent injunction

Question 38

framing an injunction

Answer 38

65(d) imposes limits on the form, scope and content of injunctions:
• “every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and no by reference to the complaint or other document, the act or acts sought to be restrained.

injunctions are supposed to “be specific in term; and describe in reasonable detail the act or acts sought to be restrained.”

Question 39

injunctions limiting free speech

Answer 39

Elements of an injunction limiting free speech will be upheld if they burden no more speech than necessary to eliminate the unlawful conduct targeted. But, if the provisions sweep more broadly than necessary to accomplish the permissible goals of the injunction the injunction will be invalidated.

Question 40

structural injunctions

Answer 40

designed to eliminate past violations and regulate the way a school, prison, or police department functions in the future.