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Civil Procedure II
Quinnipiac University School of Law
Abbott, Melanie Beth

Ø Remedies
·         Substitutionary Remedies
o   Remedies that seek to provide the Π with a reasonable substitute.
§ Most suits seek monetary damages b/c specific remedies are impossible.
o   Compensatory Damages
§ Damages that go beyond mere economic losses to compensate for the wrong.
·         Ex. Treble damages (3x the amount of economic damages) are common for PAIN AND SUFFERING.
§ All the Π has to show is that it is REASONABLY CERTAIN that they will suffer the harm claimed for compensatory damages.
§ It’s left up to the JURY to decide the amount of damages.
·         Some states completely bar non-economic damages in some or all cases.
·         Some states put a cap on the amount in some or all cases.
o   Liquidated Damages
§ Agreed upon in a ₭ for breaching the ₭.
·         LIMITED in several ways:
§ Actual damages have to be DIFFICULT TO CALCULATE.
§ Can’t be UNREASONABLY LARGE (this would be a penalty).
o   Statutory Damages
§ Most states allow minimum damages + attorneys fees in order to encourage good-faith Πs to bring their case & offset the cost of small cases.
§ Some states put min./max. damage amounts on certain transactions.
·         The theory behind min. damages is partly PUNITIVE.
o   Punitive Damages
§ Some states allow the Π to introduce testimony of ∆’s worth in order to decide the amount of damages (see how much it’s going to actually hurt the ∆).
§ Punitive damages are VERY RARE, only about 6% of cases that go to judgment, and they’re fairly LOW $, w/ a median of $50,000.
§ The 8th Amendment and the 14th Amendment come into play w/ damages.
·         8th – No CRUEL AND UNUSUAL punishment.
·         14th – No deprivation of LIFE, LIBERTY, AND PROPERTY.
·         BMW v. Gore – have to consider:
§ 1) The degree of reprehensibility of ∆’s misconduct
§ 2) The disparity between the actual or potential harm suffered by the Π and the punitive damages award
§ 3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.
o   State Farm Mutual Automobile v. Campbell – Πs (Campbell) negligently passed 6 cars, made an oncoming driver swerve out of the way and slam into another vehicle. The other drivers try and settle, but ∆ (State Farm) won’t pay anything but the $50k cap on the Π’s policy. ∆ tells Π that they have a good case (bad faith scheme to only pay out premium caps), Πs go to trial and lose, then Πs negotiate w/ other drivers to drop the suit against Π so long as Π brings a BAD FAITH CLAIM CASE against ∆ (for taking Π’s case to trial). Πs have evidence that ∆ has done this before across the country, so the jury finds for the Π for $1 million in compensatory and $145 million in PUNITIVE.
§ Is a $145 million punitive amount in violation of a party’s 14th Amendment rights, and what are the considerations for awarding a punitive damage award?
§ YES, a $145 million punitive amount is in violation of a party’s 14th Amendment rights, and the THREE CONSIDERATIONS for awarding punitive damage awards are:
·         BMW v. Gore (+ 5 factors under #1):
1.      The degree of REPREHENSABILITY of ∆’s misconduct.
a.      Was the harm physical as opposed to economic?
b.      Was the tortious conduct evidence of indifference or reckless disregard of the health and safety of others?
c.       Did the target of the conduct have financial vulnerability?
d.      Was the conduct a repeated action or an isolated incident?
e.       Was the harm the result of intentional malice, trickery, or deceit, or was it just a mere accident?
2.      The DISPARITY between the actual or potential harm suffered by the Π and the punitive damages award.
3.      The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in COMPARABLE CASES.
·         The PROBLEM in this case is that a lesser punitive award would suffice given the reprehensibility;
·         Although there is NO BRIGHT-LINE RATIO, < 9:1 usually suffices; ∆’s conduct here is not isolated (Πs are trying to punish them for national practices); Πs only suffered minor economic injuries (the majority of punitive coming from embarrassment of having to put a “for sale” sign on their home to “get things moving” according to ∆; ·         Punitive/compensatory can be BALANCED (if one is big, make the other smaller or vice versa); comparable cases only award ~$10k in punitive. § DISSENT à leave it up to the leg. to decide punitive damages… the Constitution says nothing.           ·         Specific Remedies o   Remedies that seek to restore directly and specifically that which the ∆ has taken from the Π. § Can be easy (stop dumping chemical waste) or complex (develop a system of racial integration).   o   Equity and Specific Relief § Obviously from the courts of equity in the BCL (Chancery Courts).   § Injunctions are the most common form of equitable relief, but Πs can also seek constructive trusts, ₭ rescission, ₭ cancellation, ₭ reformation, accounting, quiet title, remove clouds from title, replevin, ejectment, and mandamuses. ·         If a ∆ doesn’t comply, they’re held in CONTEMPT.   o   Preference to Legal vs. Equitable Remedies § LEGAL remedies are preferred OVER EQUITABLE remedies, BUT the court will find that an equitable remedy may be better IF the Π can prove: ·         The legal remedy is INADEQUATE, OR ·         The harm is irreparable (money won’t suffice). § If the HARDSHIP will be too great on ∆ or ∆ can show that the legal remedy is adequate or that the Π’s harm is not irreparable, then the court may just g

attorney’s fees… there is no requirement that the ∆ has to pay if Π’s attorney agrees to waive.
o   Buckhannon Board and Care Home v. W VA DHHR – during the discovery period of a trial, the legislature changes a statute (which was the basis of the Π’s action), ∆ voluntarily changes their conduct (to comply with the statute) and moves to dismiss the case as moot. The DC grants ∆’s motion. Π moves for ATTONREY’S FEES b/c they feel that they were the CATALYST that brought about ∆’s change in conduct, but the DC and the DCoA DENY Π’s fees.
§ Can a party that has failed to secure a judgment on the merits or a court-ordered consent decree collect attorney’s fees if the ∆ has simply given in and voluntarily changed their conduct?
§ NO. The Π was NOT the “prevailing party” in that the Π was not granted relief by the court and they were NOT the CATALYST.
·         Catalyst Theory: The Π has to prove that the ∆ changed their conduct because of the lawsuit (looking at the timing and nature of the change).
·         Provisional Remedies
o   Relief pending final adjudication of the dispute.
§ This helps Πs seeking relief where waiting for trial may be too costly.
§ However, it poses 2 PROBLEMS:
1.      How should a court decide whether to grant temporary relief when all the relevant information is not yet available?
2.      When does the curtailment of ordinary procedures in granting provisional relief amount to a denial of due process?
o   Preliminary Injunctions / TRO’s
§ Temporary Restraining Orders
·         Rule 65(b)
§ TRO’s can be issued WITHOUT NOTICE to the other party IF:
·         (1)(A): specific facts + immediate/irreparable injury
·         (1)(B): attorney certifies (in WRITING) efforts made to provide notice + why it shouldn’t be required.
·         (2): only lasts 10 days max, has to state time + injury + why irreparable.
o   Court can EXTEND for good cause.
·         (c): Movant gives SECURITY that the court considers proper
§ William Inglis & Sons Baking v. ITT Continental Baking – Πs claim that ∆s are violating the anti-trust Acts by pricing their bread below cost, ∆s claim they were meeting competition prices, Πs seek a PRELIMINARY INJUNCTION to make ∆s raise their prices so that Πs won’t be further injured before trial. The DC denies their request, so Πs remove to the CoA pursuant to §1292(a)(1).