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Remedies
University of California, Hastings School of Law
Zamperini, Michael A.

REMEDIES

SPRING 2011

ZAMERINI

I. Introduction/Overview

a. Legal history of law and equity – feudal concepts

i. Courts of Law – developed to assess money damages

1. Don’t provide specific performance, don’t operate on the person (in personam), operate on the thing (in rem)

ii. Courts of Chancery (Equity)

1. For in personam remedies, go to the Chancellor to receive “extraordinary” relief (specific performance, injunction, etc.)

2. To be done in “good conscience,” and in “equity” – doing what is fair

3. Involves discretion – hard to develop common law with differing outcomes in similar cases

iii. Led to parallel, stratified system based totally on remedy desired

iv. Transferred to US during colonization – Lasted until early 20th Century, until: Merger (still cannot get both.)

1. Each court can hear any matter, whether legal or equitable

2. Does not eliminate one category or the other – still different rights and obligations attach to each

v. Differences between the two:

1. Law acts in rem – on the thing (“the property belongs to defendant rather than plaintiff,” e.g.)

a. Equity acts in personam – on the person (“defendant shall refrain from doing X,” e.g.)

2. Jury trial – major difference

a. Equitable actions don’t get jury trials

b. Legal suits carry guarantee (7th Amendment) of jury trial

3. Invoke equitable remedy only when legal remedy is inadequate

4. Enforcement

a. Equitable judgments are enforced by the court through contempt (criminal) power

i. Example: If you are ordered to remove stones, and you do not do it, then you will go to jail.

b. Legal judgments: A plaintiff enforces a legal judgement by having it enforced by a sheriff or other official attaching the defendant’s assets, or by other means prescribed by statute.

5. Discretion

a. Equity is discretionary

i. Except with statutory authority, a party is not entitled to an equitable remedy

ii. Denial of equitable relief will only be overturned because of abuse of discretion

b. Legal remedies are not discretionary – If you’re entitled to some amount, you get it

II. Legal Remedies (ongoing matter)

a. Substitutionary relief (i.e. money damages for that which has been harmed.)

i. Compensatory damages

1. General damages: Type of harm that “flows as natural” from cause of action. (In negligence or personal injuries or battery, your general damages are pain and suffering.)

2. Special damages: Those damages that come from the cause of action that some plaintiffs might have.

a. Must be “pleaded and proved” with specificity

ii. Nominal damages: When there is difficulty in proving general or special damages.

1. When there are calculation problems; awarded to vindicate the cause of action or the loss to the P.

iii. Punitive damages: Focus on how bad and oppressive the defendant has been, no matter the harm caused to plaintiff.

iv. Measurement Goal

1. Tort: Make plaintiff whole. (Backwards looking)

2. Contract: As if contract was performed properly. (forward looking)

b. Specific legal remedy

i. Statutory

ii. Liquidated damages (damages designated during the formation of a K)

c. Declaratory relief (J* we are not covering declaratory judgements extensively – gave out a handout).

i. Tells people what their rights are but orders no other remedy

1. The concept it that once people know what the boundaries are, then they will obey and act accordingly.

2. A justiciable controversy is required in order to get a declaratory judgment. You have to have something that is right or ready for a judicial termination that will terminate the controversy.

3. There cannot be another pending proceeding that will adjudicate the rights.

III. Equity (on-going)

a. Injunctions

i. Characteristics – To get an injunction, the plaintiff has to show (J* emiibft) :

1. An “emergency”

2. The merits underlying the cause of action (likelihood of success)

3. That there is an inadequate remedy at law (inappropriate for what you want now).

4. Irreparable harm from denial of injunction

5. “Balance of harms” favors plaintiff

a. What is the harm to the plaintiff if the injunction is not granted?

b. What is the harm to the defendant if it is granted?

c. What is the public’s interest? (such as rights to third parties)

6. The injunction sought involves future acts (An injunction deals with facts in the present and looks to actions in the future. If the harm has already occurred, if the harm is in the past, there is no injunction.)

7. Tribunal Integrity – Can we get the defendant to do this? Is it workable? Is it feasible? Can the court effectively supervise?

8. (Not a requirement) Property Rights: This used to be a requirement, but is not anymore. If the cause of action involves property rights, then the P is more likely to get an injunction.

ii. Forms/Classifications

1. Preventive/Prohibitory Injunctions – negative order

2. Mandatory Injunction – affirmative order

3. Specialized Injunctions

a. Structural Injunctions (aim is to change the structure of the D).

i. Civil rights injunctions sought to change the structure of a segregated South, e.g.

b. Prophylactic Injunctions

i. Seeks to prevent potential harm – Requiring mandatory sexual harassment training to prevent future harassment, e.g. (J* Prophylactic injunctions require conduct that the law does not specifically require or prohibit conduct that is not necessarily wrongful.)

iii. Types

1. Depends on litigation timeline

a. (prior to trial) TRO – temporary restraining order or temporary injunction

i. Freezes the status quo at the threshold of litigation

1. Usually happens with the filing of the complaint where you want something right now.

b. (prior to trial) Preliminary Injunction (or interlocutory injunction)

i. Can be longer than TRO

ii. To hold the status quo until a final adjudication

iii. You develop your evidence a little more but you want it to last longer.

c. (after trial) Permanent Injunction

i. Final judgment of the court granting some injunctive relief

1. What you get at the end of a full blown trial.

b. TROs – Issuance

i. What does plaintiff need to show?

1. Substantive Components:

a. Emergency – preserves status quo. (harm is going to happen unless there is an injunction).

b. Likely success on merits (looking at the arguments in the complaint.)

c. Inadequate remedy at law (why cant money adequately compensate the P? calculation issues? Court has discretion of giving it to you – its not a given.)

d. Irreparable harm (something threatened to be finished)

e. Balance of harms (to D if granted and harm to P if not granted plus rights of a 3rd party/public).

f. Must affect the present or future (not past!!)

g. Tribunal integrity (Judge is being asked to give P something without the benefit of a trial).

h. Freeze status quo

2. Procedural Components:

a. Give Notice to Defendant that you are seeking a TRO.

i. Regular hearing before court (You give them notice that they have to appear in court). (J* You go to court and get a regular hearing on whether you would get a TRO. Quite often it can be done with affidavits or declarations.)

1. Could be abbreviated (phone call warning, e.g.)

ii. Ex parte – only one party shows up, no notice to the other

1. What harm plaintiff will suffer if notice is given; or

2. Can’t find defendant; (Harm to find D)

3. And TRO must articulate why court/judge is granting it ex parte

iii. Defendant must have notice of TRO itself (must be served, to allow for contempt proceeding if violated)

b. Duration – TRO (temporary) – Only freezes status quo until prelim hearing

i. Lasts only until a hearing on prelim can be held, or

ii. 14 days, whichever is shorter – Prompts parties to gather evidence in the interim.

c. Bond – Security in case plaintiff is wrong (The judge might not have access to all the information).

d. Appeal – Generally cannot appeal the granting or the denial of the TRO, because by the time you actually appeal, 14 days have passed and TRO expires before opportunity

i. SEE: Exceptions to general rule against appealing TROs (In appeal section below)

ii. Substantive:

1. Clinton v. Nagy (J* the girl was a nagy bitch) – Plaintiff (12 year old girl) sues for denial of equal protection based on gender. She sought a TRO and preliminary and permanent injunctions in connection with a civil rights action under §1983. She wanted to play football in a recreational league, but was denied because she was female. Season was ending soon

a. Emergency – Plaintiff would ultimately like a permanent injunction allowing her to play – in the meantime, she needs to play in next weekend’s game – now or never

b. Likely Success – Cause of action is §1983 denial of equal protection – will lose if there is a good reason to deny equal protection – ask:

i. What group is being discriminated against?

ii. What standard to use? (J* not so important to our class) (She has to show she was discriminated against, and because of being discriminated on the basis of gender, the level of scrutiny the court has to apply.) (strict, intermediate, minimal) If the group is a highly privileged group

1. Strict scrutiny

a. Must be a compelling purpose for discrimination

2. Intermediate Scrutiny

a. Gender discrimination ok, but less than compelling and more than legitimate

3. Minimal Scrutiny

a. Discrimination must meet a legitimate purpose of government

iii. Success depends on evidence yet to be presented, so she must show she’s got some likelihood

c. Inadequate remedy at law – Doesn’t want money, wants to play football

d. Irreparable harm – Not playing last two games of the season – will never get those games back

e. Balance

i. Harm to plaintiff is as above (denial of opportunity at camaraderie, discipline, etc.)

ii. Harm to defendant if she’s allowed to play

1. Open floodgates, liability if she gets hurt – greater chance of getting hurt than a boy, goes the theory, destroy male camaraderie, expose the team to ridicule

iii. Public interest

f. Future – next two games

g. Tribunal integrity – easy to enforce, not likely to result in public outrage

h. Effect is to freeze status quo (prior to athletic director telling her she couldn’t suit up)

i. Held: TRO because 1) there would be irreparable harm if she could not play; 2) there was substantial likelihood of success on the merits

j. Conclusion: They are prohibiting from preventing her from suiting up, rather than saying you must mandatorily put her in the starting lineup. This does not give her everything she wanted, but gives her more than before.

iii. Procedural:

1. (Ex Parte) Marquette v. Marquette – Divorced wife sought an ex parte TRO against her former husband – alleged that he harassed, assaulted, threw clothes, shoes, toys, children, and verbally threatened her in front of their children. Trial court granted the order on 10/13 subject to an OSC (order to show cause) on 11/1. Husband filed a demurrer and motion to dismiss on 10/26, and the OSC was continued by stipulation to 11/3, when the court modified the order to grant the husband visitation hours. The full hearing was continued to 11/19, when the court issued a mutual protective order. Was the granting of an ex parte order a violation of due process because husband was denied the right to visit with his children without an opportunity to be heard? (We have allowed these to be heard ex parte because there are allegations that providing notice will result in harm.)

a. Mathews test –

i. weigh the government interest in issuing the (ex parte) order against the risk of erroneous deprivation under existing procedures (factor in the extent of reduced risk vs. administrative burden of additional procedure)

1. Signs of physical abuse may reduce the risk of erroneous deprivation

b. Required prior to issuance of an ex parte TRO (J* GN10):

i. Good cause must be shown by petitioner

ii. Order must be narrowly tailored just enough to protect petitioner from immediate danger

iii. Hearing must be held within 14 days (for ex parte or other orders)

c. Held: Good reason for not giving defendant notice here – fear of physical reprisal

2. [Ex Parte] In re Vuitton – Defe

Energy Case: There is no non-compete agreement. They allege two types of causes of action: (1) conversion of trade secrets, and (2) breach of loyalty.

a. If you can prove that you were harmed by their conspiring or by their disloyalty, then you must come up with a dollar figure. We cannot go back in time and make them loyal while they were employed in the past.

v. [time/place/manner restriction] Ayres v. Chicago – t-shirt sales case – plaintiff wants to sell shirts promoting legalization of marijuana. Chicago won’t allow sales at a fair. Plaintiff wants injunction. Claims 1st Amendment infringement, but this is a time/place/manner restriction, so she doesn’t have probable (or even likely) success

1. Plaintiff want to use sliding scale above – show serious questions and that balance sharply tips in favor of plaintiff

d. Bonds- FRCP 65(c)

i. To protect

1. Plaintiff – from being overly injunction-happy (think it over) and more deserving.

2. Defendant – creates ready pool of money for damages if injunction is improvidently granted

3. Court – tribunal integrity: The court is being asked to give something without full information. Prone to error.

ii. For TRO and Prelim, plaintiff must post a bond, unless:

1. Plaintiff has money (don’t have to worry about ability to pay later)

2. Plaintiff is indigent (poor)

a. Save our Sonoran – Nominal bonds in public interest litigation is proper

b. Palmyra Board of Edu (Dicta) – Some fed courts have extended the exception for “indigent plaintiffs” to selected corporate plaintiffs that are still solvent, but that are requesting provisional relief “to provide some cash flow.”

3. No dollar harm to defendant (Not a clear economic harm.)

4. Case involves constitutional rights (public interest suing government) (ie, Brenda Clinton case.)

5. Plaintiff is government. The Government does not need to post a bond (Gov Agencies etc.)

iii. Amount – court’s discretion (J* Purpose, Harm, Length)

1. The court has discretion.

2. Purpose is to protect defendant if wrongfully enjoined

3. Amount of $ harm to defendant should set the bond level (J* no bond if no money damage to D)

4. Dependent on length of injunction

5. Other forms of security such as posting the equity in one’s home; are also acceptable.

iv. Recovery by Defendant (J* PWPC)

1. Triggered by defendant prevailing (federal)

2. Or if injunction was wrongfully granted (state) – defendant can recover even if he loses at trial

3. And, Defendant must prove damages in order to get the bond – not enough to show that defendant was wrongfully enjoined – must have actually been damaged

4. Majority of jurisdictions say that the bond is the ceiling of recovery for defendant,

a. regardless of whether actual damages exceed this amount (Since the bond is the ceiling, then even if you have a lot of damages if the developer has 500,000 in delay damages, all they get is 50k. That is why the fight is to increase the amount of the bond when a bond is required.)

v. [Waiving A Bond]Borough of Palmyra Board of Education v. F.C. – Plaintiff wants preliminary injunction to compel defendant to accommodate his disabilities, and pay for tuition at an alternative private school in the meantime. Defendant wants a bond in the amount of the tuition. First ask:

1. Should there even be a bond?

2. What would be the point of ordering plaintiff to pay an amount he is only asking for because he can’t afford it? It would effectively decide the case against plaintiff, because he couldn’t afford it

3. In determining whether to waive a bond, a court should consider (J* BF):

a. The possible loss to the enjoined party;

b. Hardship of bond on applicant;

c. If its a fed right and if so whether the bond requirement would unduly interfere w/ right

4. Held: Bond requirement waived.

e. Appealing TROs & Prelims

i. Can appeal a prelim, where there has been a full adversarial hearing to develop a record on appeal, but not a TRO (just “granted” or “denied,” maybe even no adversarial hearing at all if ex parte)

ii. Exceptions to general rule against appealing TROs

1. If the TRO acts as a permanent injunction –effectively operates as final adjudication of the dispute

2. If it operates like a preliminary injunction, it may be treated as one, even if called a TRO

a. TRO acts as a prelim if you have N HEO: (1) full notice to the other side, (2) other side has an opportunity to be heard and they are heard, (3) and you have evidence, and (4) you have an opinion by the court.

b. If there is no more interlocutory relief available before trial

3. If the TRO lasts longer than the statutory period – if it “ripens” into a preliminary injunction (If it goes beyond 14+14 days, then even though there has not been an actual hearing, the appellate court will [treat it as a preliminary injunction.]

a. If TRO is granted, and defendant doesn’t like it, and wants to appeal it, D will try to characterize it as a preliminary injunction