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Remedies > Tort remedies Injunction > Flashcards

Tort remedies Injunction Flashcards

2
Q

What is the definition of an injuction?

A

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

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3
Q

What is the threshold inquiry for injunction relief?

A

Determine if you’re required to discuss “permanent” or “temporary/preliminary” injunctive relief.

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4
Q

When is a permanent injuction issued?

A

Issued after full trial on merits.

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5
Q

When is a temporary (Preliminary, Interlocutory) Injunction issued?

A

Issued pending trial on merits.

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6
Q

Exam tip, if in doubt go with what type of injuction?

A

Go with a permanent injuction

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7
Q

What is the Temporary/preliminary injunctive relief 2 part test?

A
  1. establish that there is an irreparable injury.2. Establish plaintiff’s likelihood of success.
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8
Q

What must one show to get a temporary injuction?

A

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.

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9
Q

How do you balance hardships of irreparable injury in a temporary injuction action?

A

Irreparable injury is weighed against any hardship defendant will suffer if a temporary injunction is granted.

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10
Q

If a preliminary injunction is sought what does the court need to impose on the plaintiff?

A

Mention the court should impose a bond requirement on plaintiff to reimburse defendant if the injunction injures him/her and the plaintiff does not succeed.

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11
Q

When discussing an irreparable injury, in what context must you discuss fact in your answer?

A

Facts must be discussed in a time frame context.

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12
Q

TEMPORARY/PRELIMINARY INJUNCTION MODEL BAR EXAM ANSWER

A

Temporary Injunction: In issue is whether plaintiff can obtain temporary/preliminary injunctive relief. To do so, plaintiff must meet a 2-part test:(i) Irreparable Injury: (Discuss facts in time-frame context.)(ii) Likelihood of Success: (Discuss the “probability.” Impose bond requirement.)

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13
Q

When is a temporary restraining order given?

A

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

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14
Q

What is the test for a temporary restraining order?

A

The test for a TRO is identical to that for preliminary injunction (but the time frame must be even tighter)

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15
Q

A temporary restraining order can be what?

A

Ex parte

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16
Q

Is notice required for a temporary restraining order proceeding?

A

No

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17
Q

Is an adversarial hearing required for a temporary restraining order proceeding?

A

No.

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18
Q

What if there’s an opportunity to give the defendant notice and a chance to appear and contest the temporary retaining order?

A

a good faith effort must be made to give them notice and a chance to appear and contest.

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19
Q

What are the three legal remedy alternatives to permanent injunctive relief (each one must be shown to be inadequate)?

A

REM

(1) REPLEVIN
(2) EJECTMENT
(3) MONEY DAMAGES

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20
Q

Why would replevin be inadequate? [2 Reasons]

A

(i) The sheriff may not be able to recover it, e.g., find or identify the chattel.
(ii) Defendant can file a re-delivery bond (and then, e.g., run off with or destroy chattel in the interim.)

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21
Q

How long are temporary restraining orders (TRO) limited to? In CA, in Fed court? What must be conducted during the TRO?

A

TROs are limited to 10 days (14 in federal court). Must have regular temporary injunction hearing by then.

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22
Q

Why would ejectment be inadequate?

A

The sheriff may refuse to act.

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23
Q

Why would money damages be inadequate? [4 Reasons]

A

Money Is So Inept

(i) Multiplicity- Avoiding a multiplicity of actions.
(ii) Insolvent- Defendant is insolvent.
(iii) Speculative- They’re too speculative
(iv) Irreparable -irreparable injury.

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24
Q

Hypo: Defendant builds structure which slightly encroaches on plaintiff’s property. Will sheriff rip it down under an ejectment theory?

A

No, he’ll tell you to get n injuction.

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25
Q

Hypo: Factory emits clouds of smoke containing metallic particles harmful to thelungs. Are money damages adequate? Why or why not?

A

No, there is an irreparable injury.

26
Q

How do you spot a fact pattern where the reason for damages being inadequate is avoiding a multiplicity of actions?

A

They will tell you there has been a prior history of litigation between the parties.

27
Q

Is there an enforcement problem for a negative injunction? If so what are the problems?

A

There is no enforcement problem.

28
Q

It is much easier to show money damages are inadequate if plaintiff is protecting an interest in _____________

A

land, e.g., injunctive relief against nuisance, trespass to land.

29
Q

Is there an enforcement problem for a mandatory injunction? If so what are the problems?

A

There may be an enforcement problem based on (i) the difficulty of supervision, or (ii) concern with effectively ensuring compliance.

30
Q

What are the two types of injunctions?

A

(1) Negative Injunction: orders a defendant to stop what they are doing(2) Mandatory Injunction: Orders a defendant to affirmatively do something

31
Q

Fact pattern where act involves the application of great taste, skill, or judgment. Best bar answer?

A

Injunction denied

32
Q

fact pattern where An out-of-state act is required. Best bar answer for a resident defendant? Non-resident defendant?

A

(i) Resident Defendant: Injunction granted.(ii) Non-Resident Defendant: Injunction denied.

33
Q

fact pattern where a series of acts over a period of time. Best bar answer?

A

Injunction is denied unless plaintiff’s case is otherwise great (really strong case on important issue)

34
Q

What are the 4 balancing of hardship rules?

A

Playing Good Willy Music

1) Public- Hardship to the public is taken into account.
2) Gross disparity- There must be a gross disparity between defendant’s detriment and plaintiff’s benefit.
3) Willful- no balancing if defendant’s conduct was willful.
4) Money damages- If you decide to balance hardships, in whole or in part, consider awarding plaintiff money damages.

35
Q

Hypo: Doofus informs Bowater that he’s going to build a building going up to their joint boundary line. Bowater returns from vacation to discover that, due to Doofus’ willful conduct, the now completed building encroaches slightly onto his property. What result? Why?

A

Because the conduct was willful there is no balancing of hardships. Tear the building down.

36
Q

Hypo: A factory spews out clouds of smoke and fumes. There is no cost effective way to sufficiently abate this nuisance. An injunction would force the factory to close down. It is located several miles from a small town and employs 500 persons. The only nearby structure is Plaintiff’s small home. Result? What do you discuss, in order?

A

First: Discuss the defendant’s hardship.
Second: Discuss the public’s hardship.
Third: deny the injunction.
Fourth award the plaintiff money damages

37
Q

What do you balance for permanent injunctive relief?

A

Plaintiff’s benefit vs. Defendant’s hardship if relief granted.

38
Q

What is the unclean hands defense?

When is it unclean hands defense available?

A

Unclean hands is the P’s alleged improper conduct

The “unclean hands” defense is available only if plaintiff’s alleged improper conduct is related to the lawsuit.

39
Q

When is the Balancing of hardships almost always a primary discussion item?

A

when the tort is nuisance or trespass to land.

40
Q

What is laches?

A

Laches is a “running of a period of time” defense. Unlike the statute of limitations, however, which involves the mere passage of time, laches is concerned with the effect of the passage of time.

41
Q

What are the 3 laches issues?

A

Click Click Moo

1) When does the “clock start to run”? - When the P learns of the injury
2) When does the delay cut off the right to relief? - When it has been both unreasonable and prejudicial to the defendant.
3) If laches applies, consider awarding the P money damages

42
Q

Will the laches time period ever be greater than the statute of limitations?

A

No. The laches time period will never be greater than the statute of limitations time period. (No need for laches – the statute will bar the claim.)

43
Q

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

A

Injunction denied based on free speech grounds.

44
Q

What are the elements you need to discuss for Injuction?

A

Injunction’s a Fucking Big Deal

  1. I_____Inadequate Legal Remedy
  2. F____ Feasibility of Enforcement
  3. B____ Balancing of Hardships
  4. D____ Defenses
45
Q

Hypo: Doofus informs Bowater that he’s going to build a building going up to their joint boundary line. The now completed building encroaches slightly onto his property. Plaintiff is home the entire time and watches construction proceed. What result, why?

A

The delay cuts off the right to equitable relief. We deny the injuction.

46
Q

Will equity enjoin a crime?

A

No (but check to see if the conduct could be characterized as a tort.)

47
Q

Who will be bound by an injunction?

A
  1. The parties (in particular the defendant)
  2. employees and agents acting with notice
  3. Others acting “in concert” with notice
48
Q

Hypo: Manufacturer makes Lebron James t-shirts without James’s permission and is enjoined from doing so. Vendor at stadium buys t-shirts for resale and continues selling them even though he knows of the injunction. Result? Why?

A

Bound by the injunction because they are others acting in concert

49
Q

If there is an erroneous injunction, does one have to obey it?

A

Yes

50
Q

What does one have to do if there is an erroneous injunction?

A

Therefore, what one must do is have it modified or resolved.

51
Q

What is contempt?

A

disobeyance of a court order

52
Q

What punishments are available for civil contempt?

A
  1. Money (Fine)

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

53
Q

What punishments are available for criminal contempt?

A
  1. Money (Fine)

2. Imprisonment: Can not get out of prison. Remain for set amount of time.

54
Q

Injunctive relief is almost always coupled with _________ for injuries incurred in the time period prior to obtaining the injunction.

A

damages

55
Q

What is the remedy you should be looking for?:

Has the plaintiff been injured?

A

If so think about compensatory damages

56
Q

What is the remedy you should be looking for?:

Does plaintiff want the property returned?

A

if so think about replevin or ejectment

57
Q

What is the remedy you should be looking for?:

Do the wrongs relate to the past only?

A

If so, think about damages.

58
Q

What is the remedy you should be looking for?:

Do the wrongs relate to the past only?

A

If so look at replevin, ejectment,

INJ relief.

59
Q

What is the remedy you should be looking for?:

Do the wrongs relate to both the future and the past?

A

look for a ton of remedies

60
Q

What is the remedy you should be looking for?:

Has defendant derived a benefit?

A

if so think about restitution, using the words of unjust enrichment

Remedies (9 decks)

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