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Remedies
University of Kentucky School of Law
Cardi, W. Jonathan

REMEDIES
Cardi—Spring 2010

CHAPTER 1: Intro to Remedies

4 Basic types of remedies:

(1) Injunctions
(2) Damages
(3) Restitution
(4) Declaratory Judgments

History of courts of law and courts of equity (in notes)
MODERN RULE—A plaintiff may only make a claim in equity if there is no adequate legal remedy

EQUITABLE V. LEGAL REMEDIES

Equitable remedies

In personam
Specific remedies
Enforced by contempt of court(go to jail, pay a fine—much heavier enforcement)
No jury trial in general
Always have emphasis in FAIRNESS
Only available if no adequate legal remedy

Legal remedies

§ In rem
§ Substitutionary remedies, usually with damages
§ Enforced by sheriff seizing assets
§ Jury trial generally
§ More RULE-BASED
§ Always available

Courts often do not say if the remedy they are giving is equitable or legal

HOW TO FIND OUT? Look at the nature of the order
ASK: Was the plaintiff entitled to something or was a person ordered to do something?

CHAPTER 2: Basic Principles of Specific Equitable Remedies

TYPES OF INJUNCTIONS

o Mandatory—a court can order a defendant to affirmatively do something now or to do something in the future; disfavored by the courts
o Prohibitory—court tells someone to stop doing something now
o Preventative—court tells someone to not do something in the future
o Reparative—repairs or restores an existing right
o Structural—essentially the court will take over and run a facility; force it to submit to a structural overhaul; also disfavored by the courts because they take a lot of its time

FEDERAL RULE OF CIVIL PROCEDURE 65

o Text of Rule 65 (p. 16 textbook)
o Only applies in federal cases; not in state court cases
o TIMING

TROs and preliminary injunctions are issued prior to a trial on the merits of a case
Permanent injunctions are issued after such a trial has taken place

TEMPORARY RESTRAININGORDER–Rule 65(b)
PRELIMINARY INJUNCTION—Rule 65(a)

TEMPORARY RESTRAINING ORDERS

Emergency order that cannot last more than 10 days or until there is a hearing on the preliminary injunction, whichever comes first
EXPIRES—after maximum of 10 days under Rule 65; if they can show cause, the plaintiff can get one 10-day extension

§ Court asks: Will the harm happen in the next 10 days?
§ 10 business days
§ Can last longer than the set time by MUTUAL CONSENT (Adams v. Baker); might do if negotiating a settlement and want to preserve status quo
§ States can have TROs that last longer than 10 days; but still have to watch out for constitutional limitations

NO ACTION FILED—A TRO can be sought even if there has not been an action filed

§ Ex.) Marquette v. Marquette—After filing for divorce, wife got an emergency ex parte order against her husband; court granted it and set show cause hearing. Even though no pending action, she was scared and wanted a TRO
§ Usually this is provided for by state statute; states will say that someone who feels threatened can file a TRO without a case
§ Another example—if dispute is in arbitration, not in court

NON-MOVANT—If you get served a notice of a TRO against you, you should first move for dissolution or modification

STANDARD FOR TRO(often the same for preliminary injunction)

(1) Substantial likelihood of success on the merits of the claim (court predicting the future)
(2) No adequate legal remedy

ú Constitutional violation—courts treat them as per se inadequate legal remedy
ú Environmental harm—when shown that it will occur, it is per se irreparable harm
ú Statutory violations—usually irreparable harm (not always true for common law violations)
ú In contract cases, damages are almost always appropriate

(3) Balance of the hardships

ú Weigh immediate irreparable harm to P if not issued vs. irreparable harm to D if it is issued
ú Idea of irreparable harm doesn’t mean that you couldn’t award damages for it

(4) Public interest in issuing the injunction

EX PARTE TRO— Both parties do not have to be present, but there is a different showing for an ex parte. Movant must clearly show:

(1) Immediate and irreparable harm, loss or damage (must show in all TROs, not just ex parte)
(2) Tried to give notice but unsuccessful
(3) Why notice should not be required
(4) Movant must move for and court must grant a preliminary injunction hearing asap

CONSTITUTIONAL LIMITS ON EX PARTE TRO(in addition to Rule 65)

(1) There must be some sort of important government interest that is furthered by the issuance of the ex parte TRO
(2) Weigh state interest (ex. preventing abuse in Marquette) against the potential deprivation of due process rights
(3) Length that TRO can last—court said that due process deprivation can only last 10 days before the non-movant has a hearing (must have adversarial hearing ASAP)
(4) Movant must still show immediate irreparable harm before the other party can be heard
(5) Must show GOOD CAUSE

ú (a) To protect movant against immediate irreparable harm to plaintiff’s person or property
ú (b) Injunction is necessary to preserve the evidence for a later trial
ú (c) Weighing of interests
ú (d) Prompt post-TRO adversarial hearing
ú (e) Particularized provable knowledge

Carroll v. President and Comm. of Princess Anne (1968)—Court issued ex parte TRO and later PI for 10 months barring white supremacists from holding public rallies

ú DP requires prompt adversarial hearing after the TRO
ú PRIOR RESTRAINT—Essentially when a court forbids someone not to speak , or to exercise their 1st Amendment rights before they have done so
ú Co

n case the injunction was wrongfully issued and if the enjoined party was injured by the injunction, the bond is a surety against that injury
GREAT DISCRETION given to the trial court
EXCEPTIONS—If party is indigent, if either party is the federal government, etc.

RELEVANT TIME PERIODS FOR JUDGING IRREPARABLE INJURY

(1) Ex parte TRO—Will it occur before the other party can be heard?
(2) TRO–Will it occur within 10 days?
(3) Preliminary injunction—Will it occur before the end of the trial on the merits?
(4) Permanent injunction—Will it occur some time in the future?

APPELLATE STANDARD FOR INJUNCTIONS

Abuse of discretion
If legal findings are wrong, the standard is de novo
If it comes to fact finding, the standard is clearly erroneous

CASES

Clinton v. Nagy(1974)—§1983 action; girl wanted to plan football but city wouldn’t let her. P sought TRO; granted by court

Sued for TRO instead of PI because usually faster to get on docket
Asked court to enjoin Ds from preventing her from playing rather than asking them to order D to put her in games because easier to get a prohibitory injunction
Lesson—This injunction is not good and doesn’t really give P what she wanted; make sure you craft it to get what you want

Morgan Stanley v. Frisby (2001)—Non-compete clause in employment contract; Motion for TRO denied because the clause was overbroad and Morgan Stanley hired employees doing the same thing

§ UNCLEAN HANDS DEFENSE—Basically, you cannot make a claim against me when you do the same thing
§ IRREPARABLE HARM?—In some cases even if there are actual money damages but they are very hard to calculate, the court may say they are irreparable
§ PUBLIC INTEREST REQ.—In favor of Ds because clients should be able to choose their broker

Save Our Sonoran v. Flowers (2004)—SOS granted a TRO and then a PI and D company appealed

§ IRREPARABLE HARM?—Environmental harm is per se irreparable
§ SLIDING SCALE TEST—Alternative test for injunction

Ayres v. City of Chicago (1997)—City wanted Ayres and her MPAC group to stop spreading their message of legalization of marijuana and used anti-peddling law to keep them from doing it

Problem for her is that she didn’t have a substantial likelihood of success