THE EQUITABLE REMEDIES (Torts)

Question 1

INJUNCTIVE RELIEF
“EQUITABLE” REMEDY
Definition:

Answer 1

Defendant is ordered (enjoined) to do or refrain from doing something.

Question 2

TEMPORARY INJUNCTIVE RELIEF
Temporary/preliminary injunctive relief requires a 2 part test.

Answer 2

1. 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.
2. 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.

Question 3

Temporary Restraining Order (TRO):

Answer 3

Issued pending a hearing to determine whether preliminary injunction should issue.

Question 4

The Test for Obtaining a TRO:

Answer 4

Identical to that for preliminary injunction.

Question 5

TRO proceeding can be ex parte. Thus:

Answer 5

(i) Notice: not required.
(ii) Adversarial Proceeding: not required.

Question 6

PERMANENT INJUNCTIVE RELIEF
THE PERMANENT INJUNCTION
4-PART CHECKLIST

Answer 6

1. INADEQUATE LEGAL REMEDY ALTERNATIVE
2. FEASIBILITY OF ENFORCEMENT
3. BALANCING OF HARDSHIPS
4. DEFENSES

Question 7

INADEQUATE LEGAL REMEDY ALTERNATIVE

THE 3 LEGAL REMEDY ALTERNATIVES

Answer 7

1. REPLEVIN
2. EJECTMENT
3. MONEY DAMAGES

Question 8

Feasability of Enforcement: Characterization Note: 2 Types of Injunctions

Answer 8

1. Negative Injunction
   
   • orders a D to stop doing something
2. Mandatory Injunction
   
   • orders a D to do something

Question 9

Enforcability Problems for Negative and Mandatory Injunctions

Answer 9

(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.

Question 10

Mandatory Injunction - Act involves the application of great taste, skill, or judgment.
Bar Exam Answer: Injunction

Answer 10

Denied

Question 11

Mandatory Injunction

An out-of-state act is required.
Bar Exam Answer:
(i) Resident Defendant: Injunction
(ii) Non-Resident Defendant: Injunction

Answer 11

1. Resident Defendant: Injunction - granted
2. Non-Resident Defendant: Injunction - Denied

Question 12

BALANCING OF HARDSHIPS
Plaintiff’s benefit vs. Defendant’s hardship if relief granted.
THE 4 BALANCING OF HARDSHIPS RULES

Answer 12

1. There must be gross disparity between defendant’s detriment and plaintiff’s benefit.
2. Even then, there will be no balancing if defendant’s conduct was wilful
3. If you decide to balance hardships, in whole or in part, consider awarding plaintiff money damages
4. 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.

Question 13

DEFENSES

Answer 13

1. unclean hands
2. laches
3. Impossibility
4. Free Speech

Question 14

UNCLEAN HANDS

Answer 14

Bad guy plaintiff

Question 15

Laches

Answer 15

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.

Question 16

IMPOSSIBILITY

Answer 16

Impossible for defendant to carry out terms of injunction.

Question 17

If the tort is defamation or a privacy publication branch tort (false lights, private facts), your best exam answer is:

Answer 17

Injunction denied on free speech grounds

Question 18

“ERRONEOUS” INJUNCTION
If there is an erroneous injunction, does one have to obey it?

Answer 18

Yes

Must modify or resolve it if erronious

Question 19

CONTEMPT [This issues for disobeyance of a court order.]
Civil Contempt (to coerce)

Answer 19

Money (Fine)
Imprisonment: Defendant “holds the keys” to the jailhouse, i.e., can get out by agreeing to comply.

Question 20

Criminal Contempt (to punish)

Answer 20

Money (Fine)
Imprisonment: Can not get out of prison. Remain for set amount of time.