REMEDIES OUTLINE SPRING 2008
Introduction
1. equitable v. legal remedies
a. why does this distinction matter?
i. Affects the right to a jury trial
1. no jury trial for actions in equity
2. there is a right to a jury trial with a legal claim
a. what if you have both a legal and equitable claim?
i. Equitable clean-up doctrine à if a court of equity claims jurisdiction over the case, they can adjudicate the entire case even if that involves giving some sort of legal relief
ii. Method of enforcing the remedy
1. equity acts in personem à equity will act against you, individually
a. if you don’t obey an equitable order, the court can hold you in contempt
iii. standard of review on appeal à at least in NE
1. standard of review in equity cases is de novo à judge’s factual findings aren’t entitled to any deference in theory
2. standard of review in legal cases is substantial deference to judge and jury findings
iv. statutory interpretation
1. Great-West Life & Annuity Co. v. Knudsen
a. Medical insurer was trying to get money back from an injured party
i. Historically, that person wouldn’t have an equitable claim, although a right at law of restitution to the injured person
ii. Court looked back to the historical interpretation of equitable relief
b. Legal remedies
i. Damages
1. compensatory damages à designed to compensate the Π for the losses they suffered as a result of the Δ’s wrongful conduct
a. to get damages, you have to prove an actual injury, actual damages
b. presumed à damages are simply presumed
i. slander per se à words that are inherently harmful, such as falsely attributing to a person unfitness to do a job, infectious disease, immoral character
ii. also include violation of the right to vote
2. punitive damages à designed to punish the Δ and to deter Δ and others similarly situated from engaging in similar conduct in the future
a. available in about 45 states à not available in NE
b. available in federal court for a number of federal causes of action
c. equitable remedies
i. injunctions à orders prohibiting the party from doing something (prohibitory) or mandating that the Δ do something (mandatory)
1. includes specific performance à mandatory injunction
2. permanent v. interlocutory
a. Permanent injunction à entered at the end of the case
i. Permanent in name only because they are subject to modification if there are subsequent developments that would render continuation of the injunction inequitable
b. Interlocutory injunction à entered during the case
i. How long it lasts depends on the type of the interlocutory injunction you’re dealing with
1. temporary restraining orders à last 10-20 days
2. preliminary/temporary injunctionsà last throughout the pendency of the litigation, or until the final judgment is reached
ii. restitution à literally means to restore something
1. basic idea is that we’re restoring property to its rightful owner
2. purpose à prevent unjust enrichment
3. how à force the Δ to give back to the Π what the Δ actually gained
a. this can be tangible or intangible property
b. this can also be a monetary substitute for the property taken
4. can be legal or equitable
a. legal à implied contracts, quasi contracts, replevin, ejectment
b. equitable à constructive trusts, equitable liens
iii. declaratory relief à a judicial determination of the rights and obligations of the parties available when there is an actual and present controversy between the parties
1. advantage à allows for a resolution of the dispute before the harm actually occurs and the litigation ensues
2. really neither legal nor equitable
2. where do remedies fit?
a. Hypo à Homer Simpson moved to NE and opened a Quickie Mart. The only problem is that there was some run-off from the land whenever it rained or snowed. He had some drains built to divert the run-off. However, the drains sent all of the water over to his neighbor’s property. The neighbor came home one day to find his land flooded and his corn crop was destroyed. The neighbor wants some money for his damaged corn crop and wants his land protected from Homer and his water.
i. Step by step, what are you going to do for the owner?
1. file a complaint or motion with the court
a. remedies aren’t free-standing à they only exist in the context of an on-going lawsuit
2. think about liability
a. remedies are only for a legal wrong that the law has
b. NO RIGHT, NO REMEDY
i. There has to a liability measure pulling the remedial train
1. theory of recovery à negligence in that somebody who changes the ground water flow has to take reasonable care to prevent that water from collecting on somebody else’s land
a. worry about duty, breach, causation and damages
3. possible remedies and how to prove them
a. basic purposes of tort damages is to put the Π in as good a position they would have been in but for the wrongful conduct à want to make the Π whole
i. measure of general damages
1. damages for destruction of an annual crop à fair market value of the crop had it matured
a. the expenses saved in producing and marketing the crop and the salvage value, if any
2. if the crop was ruined on June 1, why not give the neighbor the value of the crop on that day?
a. On June 1, the crop isn’t worth anything because it hasn’t matured
i. Practical problem in valuing the crop in a way we would normally value
ii. What the neighbor is losing is the opportunity to sell the mature crop
b. What about the neighbor’s emotional attachment to the crop?
i. Not going to award damages for emotional harm because it’s not reasonable to have an emotional attachment to your crop
3. ***general approach in the legal system is to turn to the market to measure damages
a. If the loss involves something for which there is a market, the market is going to provide the measure of damages
i. True of contract law and tort law
b. Sometimes there isn’t a market à ex: pain and suffering, emotional humiliation
i. Here, would opt for soft damages
4. why subtract things from the market value of the crop had it matured?
a. There is the need to recognize that money would have to be spent to care for, nurture, and harvest the crop
i. if these amounts aren’t subtracted, the Π would end up in an even better position than they really would have been in à want to avoid betterment
b. subtract out the salvage value because the neighbor may be left with something that they can sell and they shouldn’t be allowed to profit twice
ii. actually proving the remedy
1. look to the yield from the crop, or how many bushels would have been filled à how do you go about determining this?
a. Compare the neighbor to somebody else à see if there is an almanac that contains the average yield of crops
b. Compare the neighbor to himself by looking at his previous years of farming
i. Before-and-after approach
b. Although you have proved past damages, you want to prevent potential harm in the future from the water run-off, and this is where equitable remedies come into play à injunctive relief in this case
Equitable Remedies
1. injunctions
b. basic requirements
i. future harm
ii. inadequate remedy at law à NE combines inadequate remedy at law and irreparable harm
iii. harm is irreparable
iv. balance of the hardships favors the issuance of the injunction
v. public interest, if relevant, favors the issuance of the injunction
vi. additional aspects in NE cases à person seeking injunction must have a clear right
c. analysis of requirements
i. future harm
1. must establish that there is a reasonable likelihood that the wrongful conduct will reoccur in the future and the Π will be harmed from that conduct
a. prevents the effects of that harmful conduct from carrying on in the future
i. this is the difference between injunctive relief and damages
b. Hudson v. School District of Kansas City
i. Π sought to enjoin the Δ school district from violating the state open meeting requirements
1. court says à there is no proof of any sort in the hearing before the trial court that the school board contemplated, planned or even threatened to conduct any future meetings in a manner violative of the Sunshine Law
2. usually sufficient to show that Δ is include or likely to engage in wrongful conduct in the future à wrongful conduct doesn’t necessarily have to already have occurred
3. voluntary cessation
a. the mere fact that a Δ has ceased the conduct that threatens future injury doesn’t necessarily mean that a claim for injunctive relief is moot
b. test à how likely is it that the Δ will resume wrongful behavior
i. lesser probability of recurrence
ii. don’t follow higher probability standard associated with ripeness test because Δ has already engaged in wrongful conduct
c. “mere possibility” or “reasonable fear” test
i. Applied on a case-by-case basis
ii. The more difficult it would be for the Δ to resume wrongful activities, the more likely it is that the cessation is permanent
d. factors considered
i. isolated or recurrent nature of the infraction
ii. Δ’s recognition of the wrongful nature of his conduct
1. by considering these objective factors, want to determine if there is an indication that the Δ is not going to go back to their old ways
iii. character of past violations
iv. threat of legal action not sufficient to deter Δ
e. rule recognizes that once past wrongdoing has been established, the likelihood of future repetition confers power and discretion on the court to provide injunctive relief
ii. inadequate remedy at law
1. damages can’t be ascertained with reasonable certaint
i. Hogeland
1. City tried to require firefighters to get training that would put them over statutorily prescribed hours.
a. Court says à no because legislature made determination that firefighters could not work more than a set number of hours
b. Interlocutory injunction à before you’ve had a final determination on the merits, balancing of the hardships will still play a role because it hasn’t been determined if the Δ’s conduct is violative of the statute
c. How can statutes affect the availability of injunctive relief?
i. Sometimes statues simply state that no injunctive relief is available
1. Norris-LaGuardia Act
ii. Sometimes statues mandate that courts grant injunctive relief à CERCLA
iii. Sometimes statutes may give the court discretion to grant injunctive relief à Title VII
d. Courts say that if injunctive relief is consistent with the statutory purposes and the legislature hasn’t expressly prohibited it, then it is available
d. Classification of injunctions
i. Prohibitory v. mandatory injunctions
1. prohibitory injunction à prohibit some sort of conduct
a. often times you see injunctions defined negatively as commands not do so something
2. mandatory injunction à order something to be done
3. encroachment problem
a. if you got a prohibitory injunction, it would say something like “you shall not maintain or continue to maintain your house on your neighbor’s property”
i. you comply with this injunction by affirmative action, or tearing down you house à mandatory injunction disguised as a prohibitory injunction
4. preventative injunctions à prohibit Δ from engaging in wrongful conduct in the future
a. this is often times what you see for common law claims
5. restorative/reparative injunctions à undo the effects of the past wrongful conduct
a. hypo à Lenich is an employer who fires Erin solely on the basis of gender. Erin is thinking about what type of relief would be appropriate for her. What about an injunction that says Lenich can’t terminate Erin, threaten to fire her, etc. in the future on the basis of gender?
i. This wouldn’t do very much because Erin has already been fired and she’s not going to get rehired
1. you could require the employer to hire Erin back and put her in the position she would have been in but for that wrong à restorative
6. prophylactic injunctions à impose duties designed to reduce the risk of wrongful conduct occurring in the future
a. hypo à A company has a serious history of sexual harassment. Perhaps it would be appropriate to require the HR supervisors to undergo training on what the law requires and sexual harassment.
i. This duty would be imposed because it is necessary to reduce the likelihood of the harm reoccurring in the future
7. structural injunction à civil rights injunctions, but infrequently used
a. the federal government is running the jail system of the school system, so people say that the government is basically restructuring things
e. basic requirements for the terms of an injunction
i. FRCP 65(d)à every order granting an injunction…must
1. (B) state its terms specifically; and
2. (C) describe in reasonable detail – and not by referring to the complaint or other document – the act or acts restrained or required
ii. Specificity requirement
1. allows the parties to clearly know what they are and aren’t supposed to do
a. injunctions are enforced through the contempt power, which raises due process concerns
2. makes appellate review easier à involves efficiency concerns
iii. 4 corners rule à notion of there being one document that tells you what you are or aren’t supposed to do and you shouldn’t have to look elsewhere or incorporate things by reference
1. a court might allow contempt proceedings even if you needed to refer to additional documents, as long as the Δ had notice
2. but as a general rule, what the Δ is supposed to know re: what they are or aren’t supposed to do should be contained within the injunction or attached as an exhibit
iv. obey the law injunctions à tells the Δ to obey any and all laws that apply to them
1. that is too broad à if you have a specific statute that the Δ is enjoined from violating, say it, provided you have a reasonable belief the Δ will violate it in the future
f. Injunctions and employee reinstatement
i. For a general common law claim, general rule is that reinstatement can’t be sought and the damage remedy is adequate
1. part of this is simply hard à an employer got rid of an employee and you can figure that they didn’t like each other and it’s hard to make people like each other, enforce compliance and the court just wants to stay out of it
