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Villanova University School of Law
Dobbyn, John F.

Dobbyns – Remedies, Fall 2012, 29 pages

Court of Law:

$ Damages (only remedy available at law): Compensatory, Restitution, Punitive

Right to a jury trial

Purpose of court of law: apply the law.

Court of Equity:

Only available if you can prove that $ damages is not adequate relief

Complete relief: Injunctive – prevent harm and specific repair + $ damages

Right to deprive opponent of jury trial (judge only)

– Judge decides by precedent whether law is an adequate remedy for the facts/issues.

Purpose of court of equity: apply justice/fairness.

– must have in personam juris over the party bc the order is personal in nature

Injunctive spectrum:

Order not to cut down neighbor’s tree . . . . . . . Multiple specific orders for masses

(ie- Brown v Board of Ed) – Pblms: breach of federalism, breach of separation of powers – as if judge is handing down legislation. (cannot legislate morality)

Courts’ equitable power is neutralized – Bc court may only hold violators in contempt or fine. So, as P, you must know how enforceable the injunction you request will be. (MS prison with inhumane conditions example)

Types of Injunctions:

1) Temporary Restraining Orders

– Client will fill out affidavit of facts under pain/penalty of perjury.

– Client will petition to judge:

a) State facts + remedy at law is inadequate

b) D will not be deprived of any right (no harm)

c) immediate threat so no time for a hearing, so petitioning for ex parte order (hearing of only one side)

d) it is likely that client will win on the merits (include public interest in granting, if possible)

– Personally take petition to clerk of the judge in emergency session.

– Prepare the injunctive order for the judge to sign

– Have the TRO served on the D (TRO effective for 10 days)

Ie- D will run a commercial that reflects badly on client’s product tonight at midnight.

2) Preliminary Injunctions

Holds status quo of TRO until judge can decide the case on the merits. Only considers whether D is irreparably harmed by a preliminary injunction.

– Ask court for a hearing (with both parties present) within the 10 days of the TRO.

– D knows judge is already on your side, so negotiate settlement. Factual hearing if can’t agree. Or take agreed upon injunction to the judge.

3) Permanent Injunctions

Now we consider the merits of the issue.

– Final hearing and judge signs injunction

– Can also ask for $ damages at this point if P has already suffered harm.

Equity and Law actions in diff juris’s:

i. Get equity order from first jurisdiction

ii. Inform law court of second jurisdiction of the pending equity action and ask them to suspend court of law action pending the outcome of the equity action – Most always judge will suspend law action

– state courts can’t enjoin fed suits, vice versa

Platt v Woodruff:

Bank sues Leland for $ damages on bank note IOU at law. Leland claims note obtained by fraud – not a defense at law. So, Leland countersues in equity for: 1) preliminary injunction – to order bank to suspend the law action, and 2) permanent injunction – to cancel the note bc it was obtained by fraud, once the case is heard on the merits.

– If bank is under an injunction not to try the case and it is tried anyway = no effect on the court or the execution of judgment = still effective bc injunction against the party, not the court. Law/equity judges have equal power – can’t order each other around.

1) Injunction itself has no power to make/prevent anyone from doing anything (a warning)

2) Punishment for violation of injunction is limited to fine, contempt, and a specific order to undue what you did to violate the injunction

3) Only binds named/served parties (court not a party):

To bind 3rd parties under the injunction (without them being named/served):

a) knowledge of existence of injunction required to violate (no service required)

b) aid/abet a named party to violate the injunction

(shareholders, directors, parties to K, etc can be aiders/abettors)

So what good was the injunction if it didn’t prevent the law action:

– Bank violated the injunction so Leland would file a “contempt sanction” seeking civil contempt fine.

*Equity granted only where a property right is present.

Order you to do what you are already obligated to do.


Writer forms K with production company A to sell rights for production once novel complete.

Production company B comes to Writer and informs they are interested in buying manuscript upon completion. B does NOT know A and W have K1. B and W form K2.

Company A finds out about the order and goes to ct of equity and gets injunction – do not sell rights of manuscript to any other company. Injunction served on W

Company B does not know about injunction.

W transfers all rights of manuscript at completion to company B

Can W be held in contempt? = YES

W in contempt as named party – can get contempt sanctions against them

Can B be held in contempt? = NO

Must have knowledge of injunction to be aider and abettor (B had no knowledge so not aider and abettor)

B not named party so no possibility of sanctions against B

Scenario 2:

B has knowledge of injunction when it accepts the manuscript.

Subject to contempt? = YES

Aider and abettor = contempt (b/c had knowledge of injunction even though not served or named party. Remember named party always must be served)

B did not know of K but knew of injunction, can A get manuscript from W? (W already gave manuscript to B in exchange for $. B owns manuscript legally. INJUNCTION does not mean B owns it illegally.) W does not have rights to manuscript at this time… is there a way to bring that about (w having rights)?

A is bringing petition for contempt against 2 parties: W (named party) and join B as aider and abettor

Specific order for named party W and aider and abettor joined party B to undue the action they did to cause the violation of the injunction brought originally by A against W.

Now manuscript in W’s possessions

Now = get specific performance for the first injunction to sell to A as validly bound K stated.

Scenario 3:

If at time W transferred it to B, B did not know of injunction, could A have gotten rights to the manuscript? = NO à would not be able to join them as A/A in the action for contempt!

With the original Injunction – put word out broadly (mail letters to all companies possible and publish notice) = that way all possible A/A are put on legal notice and when second action for contempt of injunction brought in equity court you can properly join the true A/A since proper notice given of first equity action.

Do you have jurisdiction over the A/A who is not named at time of injunction?

NO – b/c unknown A/A at time of first filing.

MUST get proper jurisdiction over the aider and abettor – get service of process by state law (sheriff) – must have actual notice of contempt order served!

At contempt hearing, must establish:

1) injunction was issued

2) all the respondents in the contempt petition are bound by the injunction (explain how the 3rd party was bound)

3) how was the injunction violated

4) remedy requested – retransfer of the rights and attorney fees/court costs

You represent B. They had a defense and there

then file a motion to strike the injunction. Equity judge will likely grant this.

Scenario 8:

What if A decides to release W from K1 b/c it is not worth the hassle. Should W then go ahead and sell to B? No- you still have the outstanding injunction to deal with. First, W should draft a motion to vacate the injunction and get the attorney for A to assent to and sign the motion.

James v. Grand Trunk Western RR Co – counter injunction

(Some actions are local, some are transitory. With transitory, you can sue in any state that has jurisdiction of the D even though event occurred in another state – ie-tort actions, K actions, etc. With local, can only sue in juris where the action arose – ie-land actions (because you may want to jury to go view the land)).

• P, a Michigan administrator, brought a wrongful death action in IL in law under the Michigan statute to recover against D, an Ill. railroad corporation, for death arising out of an accident that occurred in Michigan…RR obtained an injunction against P in Michigan, enjoining her from proceeding w/ the Ill. Action (the injunction was granted bc of policy that RR actions can only be brought in MI courts)…P then files petition in IL to counter-enjoin RR from enforcing the injunction against her (she wont get a fair trial in Mich). IL refuses to issue counter injunction. P appeals in IL.

(So, she has law action and also equity action against the RR)

– Can she move forward? Yes. Does the court have to abstain? No.

• Held a ct, having prior JD over an action instituted by an nonresident, does not have to recognize another state’s injunction restraining the nonresident from proceeding w/ that action – if IL action first, then injunction by sister state, IL doesn’t have to recognize: FFC/Comity not compulsory here, but discretionary.

• Also held a ct can issue a counter injunction restraining D from enforcing its injunction against P in the state of her residence (So, IL doesn’t recognize MI injunction and feels it must issue a counter injunction to protect IL P from imprisonment in MI for violating their injunction).

We have proper juris over our resident and the right to final adjudication of the case.

• Michigan’s venue statute restricting the suits against railroads to the county in which P resides if the railroad lines traverse that county is not controlling – a state cannot create a transitory cause of action & at the same time destroy the right to sue on that transitory cause of action in any ct having JD

• In this case, even though the injunction is directed at the parties, its intended effect is to deprive the Ill. ct of its proper injunction

IL Court has 3 choices:

1) try case

2) dismiss

3) compel her to try case

In which juris should this case be tried? 4 Criteria:

1) Is this a local or transitory action? Wrongful death is transitory = ok that event did not occur here.

2) Where was the complaint filed first? Here, IL.

3) If not tried in IL, will the P get a fair trial in other juris? P in MI = no.

4) Is it unfairly burdensome to the D to try in this juris? RR in IL = no.