EQUITABLE REMEDIES
REYNOSO
SPRING 2016
CH 1: INTRODUCTION TO REMEDIES
Specific, Substitutionary, and Declaratory Damages
Specific Remedies: remedies the wrong by requiring the D to perform a legal duty, such as returning stolen property or performing the terms of a K.
Substitutionary Remedies: substitutes money for the specific relief
Damages or award of $ in a typical tort suit
But, money can also be specific relief (i.e. fraud context)
Declaratory Damages: tells people what their rights are, but orders no other remedy.
Equitable actions (ex. Quiet title)
Suits involving nominal damages
Collateral estoppel
Subdivision- legal v. equitable relief: whereas the law acts on the thing, equity acts on the person
Equitable Remedies: often specific but can be substitutionary- ex. Back pay in discrimination cases.
Often a court order directing D to do/ not do something.
Since it’s court order, if D doesn’t comply, can be held in contempt
Legal Remedies: usually substitutionary, but can be specific- ex. Legal replevin and ejectment.
Often a judgment stating that the P is entitled to some type of substitutionary remedy- ex. Damages.
Ds that don’t satisfy the judgment can’t be held in contempt, rather P can only levy execution on the judgment –ex. Taking D’s property.
Jury trial usually available
Remedies for Tortious Wrongs, Breach of Contract, and Unjust Enrichment
Historical Introduction to Law and Equity
CH 2: BASIC PRINCIPLES OF SPECIFIC EQUITABLE REMEDIES
Overview of Procedures and Standards for Issuing Injunctive Relief
Introduction to Basic Terms
Dan B. Dobbs, Law of Remedies
Introduction to FRCP 65
Introduction to Standards for Issuing Injunctive Relief
Temporary Restraining Orders
Clinton v. Nagy: Sought TRO and prelim and perm injunc to enjoin Ds from depriving her of equal recreational rights b/c sex (football). Issue- whether P has shown a substantial likelihood of success on the merits of her claim that the Ds should be enjoined from excluding P bc she’s female & P will suffer irreparable harm.
P has shown a substantial likelihood of success on the merits of her claim that Ds have not allowed her to play just bc she’s female. Ds haven’t shown evidence that P isn’t qualified to play based on physical abilities or that she’s more susceptible to injury. Yes will suffer irreparable harm because season almost over.
Preliminary Injunctions
Adams v. Baker: similar facts- P not able to wrestle because she’s female. Wants a preliminary injunction. Already had TRO but about to expire.
To obtain preliminary injunction, must establish (1) substantial likelihood of prevailing on the merits; (2) will suffer irreparable injury unless injunction issues; (3) the threatened injury to the P outweighs whatever damage the proposed injunction will cause D; and (4) injunction will not be adverse to public interest.
Held- (1)- D’s reasons offered for gender discrimination not persuasive and doesn’t meet exceedingly persuasive justification/ substantially related to achieving important govt objectives, required for gender discrimination. (4)- public interest to protect constitutional rights.
Permanent Injunctions
Force v. Pierce City R-VI School District: Girl wants to play football. No rush on case because season already over and next season won’t be for a while.
When there’s gender-based classification, D needs to show that the gender-based classification bears a sufficiently “substantial” relationship to important governmental objectives.
Held- (a) maximization of equal athletic educational opportunities for all students, regardless of gender; (b) maintenance of athletic educational programs which are as safe as possible; (c) complying with Title IX and regulations may be worthy and important governmental objectives, but they don’t bear a sufficiently “substantial” relationship to the objective to withstand a constitutional challenge. Permanent injunction granted.
Provisional Injunctions
Procedures and Standards for Issuing Temporary Restraining Orders
Marquette v. Marquette: [procedure for ex parte TRO] Divorce case, wife wants injunction against husband. Granted, husband then appeals saying statute requires domestic abuse and his action’s don’t rise to that level. Says not letting him visit his kids is a violation of due process.
An ex parte order is not issued unless good cause is shown by P at a hearing held by the court. Only then can a court issue such an order that is necessary to protect the victim from immediate and present danger of domestic abuse. Under 1983 version of Act, the hearing must be held within 10 days of filing the petition. At hearing, judge will have opportunity to judge the credibility of the P prior to issuing order.
the procedural safeguards employed under Act prior to issuing ex parte order, coupled with the state’s interest in securing immediate protection (promoting health, safety, and general welfare of its citizens) for abuse victim have sufficient weight to meet husband’s due process challenge.
In re Vuitton Et Fils S.A: P wants ex parte TRO bc trademark infringement by selling deceptively similar leather goods.
R. 65(b): TRO may be granted without written or oral notice to the adverse party or his atty only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loos, or damage will result to the applicant before the adverse party or his atty can be heard in opposition and (2) the applicant’s atty certifies to the court, the efforts, if any, which have been made to give the notice and the reason supporting his claim that notice should not be required.
ex parte TRO is indispensable to the commencement of an action when it is the sole method of preserving the state of affairs where the court can provide effective final relief. Immediate action is vital when imminent destruction of the disputed property, its removal beyond the confines of the state, or its sale to an innocent 3rd party is threatened. In these situations, giving the D notice of the application for an injunction could result in an inability to provide any relief at all.
Reno Air Racing Assoc’n, Inc. v. McCord: P wants D to stop selling merchandise with Reno Air Racing logo outside of the stadium. But describes the act to be enjoined “the trademarks set forth in Exhibit F… or any confusingly similar variations thereof”- ambiguous and confusing.
RULE: same as Vuitton case
TRO improperly granted in this case bc (1) P didn’t provide sufficient evidence to show there’s “significant risk” that D, who had been working in the area for many years, would leave. (2) P failed to describe the prohibited conduct with specificity; P didn’t clearly identify the trademark at issue in their TRO; D had to guess what conduct was being enjoined- R. 65 requires P to be “specific in terms” and describe in “reasonable detail” what acts they want to be restrained. If an injunction doesn’t clearly describe prohibited or required conduct, it’s not enforceable by contempt.
Gil Pharmaceutical Corp. v. Advanced Generic Corp.: P filed case in Puerto Rican court against D for violating PR Trademark Law for selling pharmaceutical products under marks or labels confusingly similar to the markings registered to P. D files removal to federal court.
TROs are meant to be temporary. When a case a removed to federal court, that court must dissolve an ex parte court injunction or TRO once the 14 day maximum set by R. 65(b) has been reached, unless the court extends it for another 14 days for good cause or the adverse party consents to a longer extension. Further, the reasons for an extension must be entered on the record. The court must hear and decide adverse party’s (D) motion to dissolve the ex parte TRO when that party gives 2 days notice to the party (P) who got the order.
Party seeking injunction has affirmative duties- they have to proceed with the application for a preliminary injunction, if they don’t the court has to dissolve the order. The Court that granted the ex parte TRO is generally required by R. 65(b) to hold a hearing on the preliminary injunction.
P never took affirmative steps to show good cause to extend the TRO or to apply for a preliminary injunction.
Morgan Stanley v. Frisby: [traditional procedur
arable injury is likely. Also Navy has been doing these types of training in the area for the last 40 yrs.
Basically public interest of national defense more important.
Dissent- Main issue here is whether the Navy should be required to prepare an environmental impact statement (EIS), required by National Environmental Policy Act for those who’s activities might harm the environment. P just wants the Navy to prepare an EIS.
substantial harm to environment is likely, P will likely win on the merits of their claim and NEPA required the Navy to prepare an EIS, the history of this litigation, and the public interest, the Navy should have been required to fill out the EIS (shouldn’t give them a short-cut on the process). If Navy would have just followed the law in the first lace, there wouldn’t have been any issues.
Citigroup Global Markets v. VCG Special Opportunities Master Fund Ltd.: Issue- whether the “serious questions” standard for assessing the P’s likelihood of success on the merits remains valid in the wake of recent SCOTUS cases- District Court had issued the injunction in favor of P on the basis of the “serious question” standard- when there’s an important issue and the court not sure whether P will win on the merits of their claim, Court should issue injunction anyway and then see what will happen at the full hearing.
Held- 2nd Cir. Found no command from SCOTUS that would foreclose the application of their established “serious questions” standard when evaluating element (2)- likelihood of success on the merits.
* circuit split on the standard with which to evaluate element (2)- likelihood of success on the merits- “possibility”, “serious question”, D in Citigroup args Winters standard is “probability of success”- greater than 50% chance.
Bonds and Other Forms of Security
FRCP R. 65(c): Court may issue a preliminary injunction or a TRO only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The U.S., its officers, and its agencies are not required to give security.”
Usually this security is a bond, but other forms of security also acceptable- ex. house
P’s seeking injunction, generally they have to provide clerk with bond.
Reasons for requiring:
Legal reason- Compensating the D that has wrongly been subjected to the injunction;
Practical reason- discourage people from trying to get injunctions without good cause- only applying for the relief when they’re in genuine need and reasonably confident of the outcome
Is The Giving of Security Under R. 65(c) Mandatory or Discretionary?
R. 65 text seems to say bonds are mandatory but doesn’t say how much. But equitable remedies are inherently discretionary in nature
Federal courts have adopted various techniques to soften R. 65’s apparent mandate
Some say that generally, bond is mandatory, but amount is discretionary
There are some rare instances where bonds aren’t required, but it’s so rare, the requirement is basically mandatory
Sometimes courts lenient and require nominal amount- $1 (ex. In non-commercial and public interest cases; or corporate P’s who are solvent and need the relief to continue their business)
Some courts say it’s mandatory, others say it’s discretionary.
