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University of Oklahoma College of Law
Tabb, Murray

FALL 2013
UNIT I: Injunctions & Specific Performance- COERCIVE REMEDIES
1.     Equity jurisdiction: Refers to appropriateness of equitable relief as a matter of remedial equity.
2.     Equitable Remedy: Remedy that is based upon principles of fairness as opposed to rules of law; a remedy involving SP rather than money damages.
3.     Coercive remedies: Called “coercive because backed by contempt power.
a.      Two Types:
                                                               i.      Injunction: Court command directing enjoined party to do something (mandatory) or refrain from doing something (prohibitory injunction – most common).
1.      OK:  “Injunction is a command to refrain from a particular act.” – Does not contemplate prohibitory or mandatory injunction.
                                                           ii.      Specific Performance: Equitable remedy whereby Ct requires parties to perform their obligations pursuant to a Kx.
b.     Only available from Ct of Equity: Judge decides whether P is entitled to Extraordinary Relief (not a jury)
c.      Subject to equitable defenses: Laches, clean hands, promissory estoppel
d.     Extraordinary Circumstances Req: Ct hesitant issue an order binding party in personam.
e.      Hierarchy: Legal remedies > equitable remedies
4.     Procedural Issues of Injunction: (1) Notice & (2) Posting Bond
A. Preventative Injunctions
1.     Preventative Injunction: Court order designed to avoid future harm to a party by prohibiting or mandating certain behavior by another party. Seeks to prevent future harm by stopping current illegality, thereby preventing same legal harm in the future. General rule that scope of injunctive relief must match scope of harm (not too broad; rectify precise harm).
a.      Worded Two ways
                                                  i.      Prohibitory- “Do NOT trespass”
                                               ii.      Mandatory “Remove the obstruction”
b.     Precondition for asserting: Substantive Right; P must establish the substantive claim. Can stem from statute, CL, or Constitution in a court of equity.
                                                  i.      For Permanent: Right must be proved
                                               ii.      For Temporary: Must only show “probable right and a probable harm” rather than actually winning on the merits because a temporary injunction merely preserves evidence or maintains the status quo…Mertis can be tried later.   
Five Traditional Requirements
#1 P has a legally protectable right  [given]  
#2 Timing: Imminence of harm (or real threat of
 harm) [Ct’s assume issue]  
·         Problem: Gallela case – Where some pattern of inconvenience pointing to past conduct. Noonan – rock left on land is a continuing harm that won’t stop  without Ct’s intervention.
·         Scope of the injunctive relief must be narrowly tailored to match the scope of the harm. However, scope is a legal matter determined after necessity of an injunction is established.
Burden: Party seeking injunction must prove…
“Real threat of imminent harm” is a pre-requisite (subjective fear of harm alone = insufficient).
Prospective Relief: All injunctions must be necessary to prevent future harm. Injury already suffered from past invasion can be compensated with damage remedies at law.  Ct won’t generally use injunction retrospectively (go back & fix past harm) or harm not reasonably likely to reoccur because à Would not serve useful purpose of SP.
If future harm too far removed/speculativeà Equity will not intervene, Ct requires proof of imminent/probable harm bc avoids wasting judicial resource & protects D (from contempt).
 Burden of Proof: Movant required to demonstrate irreparable injury is LIKELY – not merely possible (i.e., some nexus of immediacy).
#3: P suffered irreparable injury; Quality of Harm
Harm that cannot be repaired by damages generally bc is some personal invasion/indignity that “no P should be forced to suffer.”
·         Qualitative part of inquiry à Is it personal?
·         Overlaps with inadequate remedy at law
·         Ex: Onasis: Some types of harm you don’t have to bear: If more personal, rather than more property, may deserve more protection
Irreparable Harm Rule: Requires P establish legal injury cannot adequately be remedied by damages. Irreparable harm is established where damages are difficult to measure, subject of Kx unique, or where intangible or personal harm is threatened. Establishes a doctrinal line between remedies at law & equity, which historically were awarded by different Cts with separate jurisdictions. Mere legal injury insufficient to establish injunctive relief. Injury-in-fact is necessary for P to establish standing to bring case. Injury in fact must be established by extrinsic evidence to entitle P to any remedy.
#4 Available remedies at law are inadequate
·         Relationship to legal remedy: Dmgs work?
·          Equity = harsh (bc Contempt) à Extraordinary remedy    
Litmus Test:
·         Adequate Remedy at Law means: Complete, Available, & Effectual.
·         Continuing nature of harm paradigm
·         Nature interest affected– hard to quantify?
Inadequate Remedy at Law, Ex:
·         Valuation problems
Potential for multiple suits
Continuous harm
Nature of interest affected (Land typically worthy of equity protection)
Personal health & well being
Collectability of dmgs (against insolvent = D serves no purpose).
SP = Quantitative – No adequate remedy at law
Remedy at Law Inadequate where: dmgs would be too speculative or multiple damage actions.
Remedy at Law Adequate where: Harm can be easily and accurately ascertained in a single action; Condition causing harm = continuing but easily rectified.
Continuous Trespass: Equity will only intervene under peculiar circumstances where T = continuous & multiplicity actions at law req for complete relief à
Multiplicity basis: P must show D will not honor communicated demand to vacate/cease conduct; Pattern of continuous trespass (D likely to repeat invasion & immediate & likely harm to occur if allowed to continue); Demo probable likelihood of future harm, based on pattern of past behavior/other grounds.
#5 Balance of equities favor the moving party.
Meaning: After weighing/considering balance of hardships between P & D injunction relief = warranted.
Prospective Balance: “What if” Ct enjoins/does not.
·         Public Interest
·         Discretion: Judicial supervision – how will injunction impact the Ct? (1) Specificity: Must write with enough specificity that a party understands what they are supposed to do & not to do. (2) Long-term injunctions: Role of authority/admin of order considered
·         Who should bear harm? Recognize party will be harmed & harm cannot be avoided.
o   Choices limited: Muelman;
o   Other side: Bakery Case
o   Ct of equity trying to resolve tension
Injunctions = Discretionary remedy – not a matter of right; Ct weighs/consider relative hardships injunction would place on each party & problems of practicality in enforcing order.
Balancing Scale: (i) Judge weighs how much would P benefit from injunction VS. Burden/undue hardship to D; (ii) After P shows irreparable harm from D’s conduct, (iii) D must show harm that would be caused by a mandatory injunction (i.e., an order to change conduct).  
Economic waste to D is basis for undue hardship upon which Ct may deny P

                          ii.      Basis for Action a Multiplicity of Actions: To establish inadequacy of remedy at law on the basis of a multiplicity of actions for continuous trespass à 
1.     #1: P must show D will not honor a demand to vacate
a.      Ex: When there is a CONTINUING trespass that P cannot remove with self-help, property owner could sue for damages measure by the rental value of the land.
                                                                                                                          i.      Remedy is inadequate to prevent future invasions, however, if D was willing to pay damages in order continue use of P’s land.
                                                                                                                       ii.      Thus à D would become forced tenant of an unwilling landlord unless injunction forces an end to the trespass.
                                                                                                                     iii.      In which case, multiplicity of actions would be required to compensate landowner would = basis for meeting inadequacy rule.
2.      #2: Pattern of Continuing Trespass:
a.      P must show D likely to continue to repeat the invasion in knowing violation of Ps rights.
b.     Requires immediate and probable harm
                                                                                                                          i.      Policy: Avoids wasting judicial resources, protects D (equitable injunctions face D w/contempt)
3.      #3: Demonstrate probable likelihood of future, based on…
a.      Pattern of past behavior
                                                                                                                          i.      Injunction must be based on Ct’s prediction that harm is imminently likely to occur so P must establish basis for the probability.
1.      P’s demo of probable future invasion even more difficult were past invasions has been varied/unpredictable.
2.      But, permanent injunctive relief IS available (1) where there is no adequate remedy at law, (2) balance of equities favors the moving party, and (3) success on merits has been demonstrated. [Galella v. Onassis] b.      Other grounds
c.      Additional Consideration: Whether P has communicated a request to stop is also relevant—D may not repeat after asked to stop.
                                             iii.      Past/Non-Reoccurring Harm: But if harm already occurred and is not reasonably likely to reoccur, court will decline to issue injunction.
1.     Reason: Would not serve useful purpose to prohibit FUTURE conduct and damage remedies at law can compensate for any injury that P has already suffered from past invasions.
                                             iv.      Future Harm: Generally, Equity will NOT prohibit future harm that is considered too far removed or speculative. Court requires proof of IMMEDIATE and probable harm.
1.     Reason: Avoids waiting judicial resources and protects D (from contempt power)