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.
IMPOSSIBILITY
Impossible for defendant to carry out terms of injunction.
If the tort is defamation or a privacy publication branch tort (false lights, private facts), your best exam answer is:
Injunction denied on free speech grounds
“ERRONEOUS” INJUNCTION
If there is an erroneous injunction, does one have to obey it?
Yes
Must modify or resolve it if erronious
CONTEMPT [This issues for disobeyance of a court order.] Civil Contempt (to coerce)
Money (Fine)
Imprisonment: Defendant “holds the keys” to the jailhouse, i.e., can get out by agreeing to comply.
Criminal Contempt (to punish)
Money (Fine)
Imprisonment: Can not get out of prison. Remain for set amount of time.
