THE EQUITABLE REMEDIES (Torts) Flashcards
INJUNCTIVE RELIEF
“EQUITABLE” REMEDY
Definition:
Defendant is ordered (enjoined) to do or refrain from doing something.
TEMPORARY INJUNCTIVE RELIEF
Temporary/preliminary injunctive relief requires a 2 part test.
- Establish that there is an irreperable injury
- Exam Fact Discussion: Facts must be discussed in a time frame context.
- In short, one must show that he or she will incur irreparable injury while waiting for a full
trial on the merits – and that’s why he or she needs relief now. - Note: Balancing of Hardships: Irreparable injury is weighed against any hardship defendant will suffer if a temporary injunction is granted.
- Establish plaintiff’s likelihood of success. (Plaintiff must establish this “probability.”)
- Bar Exam Tip: Bond Requirement: If a preliminary injunction is sought on the exam: Mention that the court should impose a bond requirement on plaintiff to reimburse defendant if the injunction injures him/her and the plaintiff does not succeed.
Temporary Restraining Order (TRO):
Issued pending a hearing to determine whether preliminary injunction should issue.
The Test for Obtaining a TRO:
Identical to that for preliminary injunction.
TRO proceeding can be ex parte. Thus:
(i) Notice: not required.
(ii) Adversarial Proceeding: not required.
PERMANENT INJUNCTIVE RELIEF
THE PERMANENT INJUNCTION
4-PART CHECKLIST
- INADEQUATE LEGAL REMEDY ALTERNATIVE
- FEASIBILITY OF ENFORCEMENT
- BALANCING OF HARDSHIPS
- DEFENSES
INADEQUATE LEGAL REMEDY ALTERNATIVE
THE 3 LEGAL REMEDY ALTERNATIVES
- REPLEVIN
- EJECTMENT
- MONEY DAMAGES
Feasability of Enforcement: Characterization Note: 2 Types of Injunctions
- Negative Injunction
- orders a D to stop doing something
- Mandatory Injunction
- orders a D to do something
Enforcability Problems for Negative and Mandatory Injunctions
(1) Negative Injunction: There is no enforcement problem.
(2) Mandatory Injunction: There may be an enforcement problem based on:
(i) the difficulty of supervision, or
(ii) concern with effectively ensuring compliance.
Mandatory Injunction - Act involves the application of great taste, skill, or judgment.
Bar Exam Answer: Injunction
Denied
Mandatory Injunction
An out-of-state act is required.
Bar Exam Answer:
(i) Resident Defendant: Injunction
(ii) Non-Resident Defendant: Injunction
- Resident Defendant: Injunction - granted
- Non-Resident Defendant: Injunction - Denied
BALANCING OF HARDSHIPS
Plaintiff’s benefit vs. Defendant’s hardship if relief granted.
THE 4 BALANCING OF HARDSHIPS RULES
- There must be gross disparity between defendant’s detriment and plaintiff’s benefit.
- Even then, there will be no balancing if defendant’s conduct was wilful
- If you decide to balance hardships, in whole or in part, consider awarding plaintiff money damages
- Hardship to the public is also taken into account
Bar Exam Tip: Balancing of hardships defense is almost always a primary discussion item when the tort is nuisance or trespass to land.
DEFENSES
- unclean hands
- laches
- Impossibility
- Free Speech
UNCLEAN HANDS
Bad guy plaintiff
Laches
Deals with the delay of the P
When does the delay cut off the right to relief?
When it has been both unreasonable and prejudicial to the defendant.
