Remedies -- Equitable remedies

Question 1

Equitable remedies generally

Answer 1

1. bar: injunctive relief is the most commonly tested tort remedy
2. injunction: ∆ is ordered to do or refrain from doing something
   i. permanent injunction: issued after full trial on merits (more common on bar)
   ii. preliminary, temporary, or interlocutory injunction: issued pending trial on the merits

Question 2

Preliminary injunction

Answer 2

establish
i. irreparable harm if injunction not granted IN THE TIME waiting for full trial on the merits

ii. next: balance the hardships
a. harm to movant outweighs cost to enjoined defendant
b. public policy favoring injunction
c. likelihood of success on the merits

iii. also, applicant must post a bond if a preliminary injunction is issued

Question 3

TRO

Answer 3

i. issued pending a hearing for preliminary injunction (so even faster than preliminary injunction)

ii. test for TRO is identical to preliminary injunction
(irreperable harm if not granted + balance hardships + bond)

iii. must provide notice of hearing to defendant or explain why notice was futile
a. can be issued ex parte if notice was futile

iv. limited to 10 days (or 14 in federal court)

Question 4

Permanent injunctive relief

Answer 4

1. bar: most commonly tested tort remedy on bar
2. four part checklist: inadequate legal remedy, feasibility of enforcement, balance, defenses (IFBD—I’m feeling bold and determined)

Question 5

Permanent injunctive relief – step 1 is there an inadequate legal remedy?

Answer 5

i. show legal remedies will not work:
a. money damages:
i) money damages too speculative
ii) defendant is insolvent
iii) irreparable injury
iv) avoiding multiplicity of actions (prior history of litigation between parties)
v) inadequate money damages (special goods or land)

b. replevin:
i) sheriff may be unable to recover, find, or identify the chattel
ii) defendant can file a redelivery bond, and destroy the chattel in the interim

c. ejectment:
i) sheriff may refuse to act (ex. house that slightly encroaches won’t be torn down)

Question 6

Permanent injunctive relief – step 2: is enforcement feasible?

Answer 6

i. no enforcement issues for negative injunctions (orders ∆ to stop doing something)

ii. mandatory injunctions (orders defendant to affirmatively do something) may be denied for enforcement issues if:
a. act involves the application of subjective taste, skill, or judgment (no arbiter)
b. an out-of-state act is required of a non-resident defendant (court cannot exercise jx)

Question 7

Permanent injunctive relief – step 3: balance the hardships

Answer 7

i. for balancing to apply, ∆’s conduct must be not willful
a. no balancing required if ∆’s conduct was willful
b. ex. if willful encroachment, tear the whole house down

ii. balancing rules:
a. balance plaintiff’s benefit vs. defendant’s hardship if relief is granted
b. there must be a gross disparity between ∆’s detriment and π’s benefit
c. consider the hardship to the public
i) (nuisance caused by factory that is harming the π, but the factory employs a lot of people in town, and the only person breathing in the fumes is the π)

iii. consider awarding π money damages (despite inadequacy) if the injunction is denied
iv. bar: balancing of hardships defense is almost always a primary discussion item when the tort is nuisance or trespass to land

Question 8

Permanent injunctive relief – step 4: any valid defenses?

Answer 8

i. unclean hands
a. the plaintiff’s improper conduct must be related to the lawsuit
b. bar: the fact the plaintiff is a really bad guy does not matter

ii. laches
a. vs. statute of limitations
i) unlike SoL, laches is concerned with the effect of passage of time
ii) laches period never exceeds SoL time (otherwise just use SoL)
b. clock starts to run on laches when π learns of the injury
c. the delay must be unreasonable and unduly prejudicial to ∆
d. delay cuts off right to equitable relief (ex. π watches encroaching structure being built and does nothing)
e. even if π is barred from equitable relief by laches, consider awarding money damages

iii. free speech
a. injunction could be denied on free speech grounds
b. appears in defamation or a privacy tort (false lights, private facts)

iv. impossibility
a. impossible for ∆ to carry out terms of injunction

Question 9

Incunctive relief issues

Answer 9

1. crimes:
   i. equity will not enjoin ∆ from committing crime
   ii. bar: try to characterize the crime as a tort
2. bound parties: (other than ∆)
   i. employees and agents acting with notice of the injunction
   ii. 3Ps acting in concert with notice
   a. ex. manufacturer makes fake t-shirts is enjoined, vendor selling the shirts is bound
3. erroneous injunction:
   i. ex. injunction under a prior statute that is no longer law
   ii. erroneous injunctions must be obeyed
   iii. can go to court and get the injunction modified or resolved
4. contempt:
   i. civil contempt:
   a. purpose is to coerce ∆ to comply with the injunction, by money or imprisonment (∆ can get out of jail when they comply with the injunction)
   ii. criminal contempt: purpose is to punish. ∆ cannot get out of prison.
5. bar: injunctive relief discussion almost always coupled with damages incurred in period prior to injunction
   i. for example for the 2 mos the π has been breathing gunk until they got the injunction.

Question 10

Tort Approach I

Answer 10

1. is π injured? look at compensatory damages
2. has ∆ derived a benefit? look at restitution
3. does π want the property returned? look at replevin or ejectment
4. is π still being harmed? look at injunction (IFBD)
5. note: ask all questions, can be more than one

Question 11

Tort Approach II

Answer 11

1. do the wrongs relate to the past only? look at damages
2. the wrongs relate to future only? look at prospective relief: replevin, ejectment, injunction
3. note: can be both
   most common: real/ property torts, and most common is disposition.