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Remedies
Villanova University School of Law
Dobbyn, John F.

REMEDIES OUTLINE – FALL 2008 DOBBYN
 
I.                   Introduction and History of Equity Courts
a.      History of Courts of Equity – dates back to England
                                                  i.      Before there were equity courts, there were only courts of law
                                                ii.      These courts had three problems
1.      They were run by Barons, so that if you had a problem with the Baron, you had no form of recourse
2.      The court was NOT an equal playing ground – you needed a lawyer to navigate you through the hyper-technical nature of the court system; if you didn’t have a lawyer you would lose
3.      There were very specific causes of action, most of them having to do with property rights, and if you didn’t fit into one of these pigeon holes, then you didn’t have a case
                                              iii.      The failings of the court sent many to the king, asking him to grant justice. He got tired of doing this and created the equity courts
1.      Appointed Chancellors who were to exercise the same jurisdiction and power as he would
2.      Chancellors could grant any form of relief they wanted
3.      Courts at law were upset because the Equity courts were taking all the cases (which meant all the business), so King James, not wanting to abolish the courts of equity, limited their jurisdiction
a.      Equity jurisdiction – limited to cases where the remedy at law was inadequate
b.      Court of Law v. Court of Equity
                                                  i.      Court of law
1.      Can only give money damages as relief
2.      No restriction on what types of cases it can take
3.      Right to jury trial
                                                ii.      Courts of Equity
1.      Jurisdiction limited to civil actions (no wills, criminal cases, etc); can only try tort or contract claims
2.      Jurisdiction is continuous – court retains jurisdictions over matters to ensure its orders are followed/ enacted
3.      No right to a jury
4.      Equity jurisdiction applies – these are self imposed court created maxims meant to limit the equity court’s jurisdiction. 
a.      The court does not have to follow these maxims, but should
b.      Example: doctrine of latches, should not take cases where there is an adequate remedy at law
c.       Abolishment of Separate Court Sysems
                                                  i.      The Federal Rules of Civil Procedure abolished the separate systems and meshed them into one system. Therefore
1.      you dont go to a separate court
2.      you don’t state on your complaint in terms of equity of law
                                                ii.      Judge will determine whether or not your action is one of equity or law depending on the form of appropriate relief. So that if the remedy at law is adequate, the it will be an action at law
II.                Powers of the Court: Injunctive Relief
a.      Three Kinds of Injunctions 
                                                  i.      Temporary Restraining Orders
                                                ii.      Preliminary Injunctions
                                              iii.      Permanent Injunctions
b.      Three Elements of an Injunction
                                                  i.      Jurisdiction (personal + subject matter)
                                                ii.      Equity Jurisdiction
                                              iii.      Discretion
c.       Temporary Restraining Order (TRO)
                                                  i.      Characteristics
1.      Ex parte hearing – only the P goes in
2.      No affirmative relief is granted; this just holds the status quo
3.      Only lasts for 10 days; need to obtain a preliminary and permanent injunction
                                                ii.      Process for Obtaining
1.      File an affidavit and petition with the appropriate court
a.      Affidavit: Call you client and get all the facts; put these into an affidavit, signed by the client under penalty of perjury that all facts are true
b.      Petition: Five Elements of Petition
                                                                                                                          i.      1) That there is a threat of impending irreparable injury to the plaintiff, specify what P’s injury will be
                                                                                                                        ii.      2) There is no counterveiling irreparable injury to the D if the order is issued. 
1.      This means you need to show that the only harm that D may suffer in monetary loss; monetary loss is not irreparable harm
2.      If the monetary loss is great, the court may require P to post a bond, which works like insurance in case P ultimately loses on the merits of the injunction, then D can recoup his money
                                                                                                                      iii.      3) Time is of the essence – There is no time for a hearing because the harm is going to happen now!
                                                                                                                      iv.      4) P is likely to win on the merits
                                                                                                                        v.      5) Public interest lies with the P – court will consider where the public interest lies when issuing the injunction
2.      Write out the injunctive order the way you want it to read.
a.      The judge is not going to have time to do this; you just leave a space for him to sign in case he grants this
3.      Run this it the judge sitting in emergency session
a.      Wait to hear what the judge says
b.      The Judge will issue the injunction if the petition has convinced him of two things:
                                                                                                                          i.      Irreparable Harm –  That P will be irreparably harmed and cannot be compensated with normal monetary damages
                                                                                                                        ii.      Court will lose power to grant relief – If the court does not stop the D, the court will lose all power over this case because it will no longer have the ability to grant meaningful relief to the P
4.      If the judge signs the order, give it to the sheriff and make sure that the order is served on D
a.       Once the order is served on D, D is bound by the injunction and subject to contempt if he does not follow the order
5.      Remember, this is only good for 10 days à need to meet with clerk of emergency judge and set up hearing for preliminary injunction
d.      Preliminary Injunction
                                                  i.      Characteristics:
1.      Must be issued within 10 days of the TRO
2.      Does not grant affirmative relief, just holds the status quo until a hearing on the merits is held
                                                ii.      Note on Strategy: Before you go into the preliminary injunction hearing, see if you cant settle the matter with the D. Right now, you already have the upper hand because the judge already granted you the TRO and is likely to also grant you the preliminary injunction. This gives D the incentive to settle
e.       Permanent Injunction
                                                  i.      Characteristics:
1.      Have an actual hearing on the merits; both sides are represented
2.      Now the judge can issue an injunction granting P actual relief
3.      Court retains jurisdiction over the matter (same court & same judge)
a.      Purpose of retaining jurisdiction:
                                                                                                                          i.      P never has to go through establishing service of process and getting jurisdiction over D again
                                                                                                                        ii.      If there is a violation, P can bring a petition for contempt to the court
                                                                                                                      iii.      If there is a change in circumstances, D can petition the court to vacate or minimize the injunction
                                                                                                                      iv.      Likewise, if there is a change in circumstances, P can ask for an expansion of the injunction
III.             Powers of Injunctions
a.      Three Kinds of Contempt Orders
                               

tion and subsequently Woolfe transfers the rights to ABC in spite of the injunction.
                                                v.      Can Woolfe be held in contempt?
1.      Yes
                                              vi.      Can ABC be held in contempt?
1.      No – they were not named in the injunction
2.      No – they couldn’t be considered an aider and abetter because they didn’t know anything about the injunction when it accepted the screenplay.
e.       Suppose that ABC knew about the injunction. They now own the rights to the screenplay. But this was in violation of the injunction. 
                                                  i.      Note: See that the injunction did not stop Woolfe from legally transferring the rights and from ABC legally getting the rights. See that the injunction does not effect anyone’s legal right to do anything
                                                ii.      Now can ABC be held in contempt?
1.      Yes, they knew about the injunction and still took the screenplay. Aider and abettor  
f.       Suppose that Top Hat wants to get the screenplay back, they do not want money damages. 
                                                  i.      Can they get the script back? How?
1.      Yes, Top Hat can get the script back because this is a unique good, so the court will issue specific performance for Top Hat to recover the screenplay from Woolf. 
2.      Problem: Woolf no longer has legal ownership of the screenplay
3.      Answer:Two Step Action in Equity Court
a.      Specific order contempt order against ABC corp as aider and abettor to re-transfer the rights to Woolf
b.      Specific performance breach of contract claim against Woolf ordering him to transfer the rights to Top Hat
c.       What to include in the petition:
                                                                                                                          i.      Your Honor, the following order was issued by this court “ . . .” quote it
                                                                                                                        ii.      Both of the respondents (Woolf and ABC) are bound by the order – as a party and as an aider and abettor
                                                                                                                      iii.      There has been a violation of your order
                                                                                                                      iv.      Request for appropriate sanctions
1.      Specific order
2.      Contempt fine – costs & attorneys frees for contempt petition
3.      Contempt fine – ask for the money that Top Hat lost due to the delay in production
4.      Criminal contempt – always worth asking for
4.      Note: This is only successful b/c Top Hat can prove that ABC Corp was an aider and abettor, but if ABC was not an aider or abettor, Top Hat would have no recourse because ABC could not be held in contempt
5.      Note: This remedy also requires Top Hat to be able to get jurisdiction over ABC Corp. If ABC Corp was in LA and this was all going on in NYC, then Top Hat would be out of luck
                                                ii.      Lesson: When you get an injunction, this will not stop D from violating the injunction. Therefore, you should do your best to put all parties that may aid or abet D on notice so that you can hold them in contempt if they help D break the injunction.  
IV.             Jurisdictional Limitations on Power of Injunctions