Tort Equitable Remedies Flashcards
Injunctive Relief
Available where LEGAL REMEDY IS INADEQUATE (damages or restitution)
Decree ordering D to perform or refrain from performing certain acts
Permanent Injunction
issues after full trial on the merits
Preliminary injunction
issued pending trial on the merits. Purpose is to PRESERVE THE STATUS QUO
P must show (1) Irreparable injury, and (2) likelihood of success
Opponent must be given notice
Legal Remedy inadequacy
Ex: when money damages are too speculative, D is insolvent, or irreparable injury
Ex: Replevin may be inadequate b/c Sheriff can’t recover it
Ex: Ejectment is inadequate b/c Sheriff may refuse to act
Ex: Avoid a multiplicity of actions (On bar, they will tell you there has been prior history of litigation between the parties)
Irreparable Injury
Discuss in a time-frame context–relief is needed now otherwise P will suffer injury while waiting for a full trial on the merits
Hardship WEIGHED against any hardship D will suffer if injunction is granted
Likelihood of success
On Bar, mention that court should impose a bond requirement on P to reimburse D if the injunction injures D and P does not succeed
Temporary Restraining Order
Same test: (1) irreparable injury and (2) likelihood of success
Use in drastic instances – when no time to wait for preliminary injunction
NOTE: CAN BE EX PARTE (unlike Prelim injunction). No notice or proceeding required. But, if there is an opportunity to give D notice and chance to appear, good faith effort must be made to do so
Limited to 10 days (14 in fed court).
Permanent Injunctive Relief
IFBD
Test: (1) Inadequate legal remedy; (2) feasibility of enforcement; (3) balancing of hardships; and (4) no defenses
Negative Injunction
Order Defendant to stop doing something
NO FEASABILITY PROBLEM
Mandatory injunction
Order D to affirmatively do something
MAY have enforcement/feasibility problems based on (1) difficulty of supervision, or (2) ensuring compliance
BAR NOTES: If act involves “great taste, skill, or judgment,” injunction denied.
BAR NOTES: if an out of state act is required, granted for resident D’s but not non-resident D’s
NOTE: to avoid problems with mandatory injunctions, courts will often frame decree negatively
Balancing Hardships
Weigh P’s benefit v. D’s hardship if relief is granted. Requires GROSS DISPARITY. Public’s hardship may be taken into account, as well.
NOTE: if D’s conduct was WILLFUL or INTENTIONAL, no balancing of hardships
BAR TIP: balancing hardships is almost always a primary discussion item when the tort is nuisance or trespass to land
Unclean Hands
Defense to injunctive relief
Available if P is guilty of unfair dealing with respect to the transaction sued upon (requires relatedness between improper conduct and the lawsuit)
Laches
Unreasonable delay by P in initiating his equitable claim that results in PREJUDICE to the D
Effect of delay is key, not time. (can be shorter than the comparable SoL)
Clock starts to run when P learns of the injury
Consider $ damages as alternative if laches bars equitable relief
Impossibility
Defense to injunctive relief.
When impossible for D to carry out terms of the injunction
Free Speech
If tort is defamation or a privacy tort, beset answer is INJUNCTION DENIED ON FREE SPEECH GROUNDS
