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Civil Procedure I
Wayne State University Law School
Fox, Gregory H.


I. REMEDIES: Incentives to Litigate
A. Substitutionary Remedies: Liquidated, Statutory, and Punitive Damages
1. Liquidated: contractual situations; damages for breach of K. Parties may not agree to liquidated damages unless the actual damages would be difficult to calculate.
2. Statutory: statutes sometimes set minimum damages not specifically tied to the amount of loss suffered.
3. Punitive: aims entirely at punishment; provides exception to the general rule that damages serve only to compensate P; must determine D’s net worth in order to decide how much a given award will hurt.
A. State Farm: D (insurance co.) refused to settle a case in Utah against P (policy holder) for the policy limits. Ps suffered emotional distress from judgment. Trial court allowed evidence of 20 yrs worth of alleged wrongdoings by D in states, other than Utah, most which had nothing to with issue at trial. Holding: Punitive damages of a ratio of 145-to-1, between compensatory and punitive damages, were far higher than the single-digit ratios the Court said would usually be the appropriate limit. Violation of due process rights. Irrelevant wrongdoing also.
B. Exxon Valdez: Issue of gross negligence. P claims Exxon (D) allowed an alcoholic to continue as captain of an oil tanker who was going thru sensitive areas. Holding: Court held $5 billion in punitive damages was not excessive—9.74-to-1 ratio.
C. 3 Guideposts in Reviewing Punitive Damages (BMW):
(1) the degree of reprehensibility of D’s misconduct
·Reprehensibility is from the act itself, and not the consequences.
(2) the disparity between the actual or potential harm suffered by P and the punitive damages award; (Ratio between compensatory and punitive damages) and
(3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

– Provisional Remedies: Relief w/out final adjudication of the suit
– Preliminary Injunctions & Temporary Restraining Order
o Mini lawsuit w/in a lawsuit (before proceedings). Plaintiff must file complaint w/ court before motion for Prelim. Injunction.
o Provisional Remedies are Equitable Remedies-$ damages are not available. Plaintiff wants the court to take an action, not award $.
o Preliminary Injunctions are made available because Plaintiff’s may suffer irreparable damages before the proceedings of the actual trial are finished.
o Two sided effects-Defendant could als

injunction will be issued without notice to the adverse party.
2. (a)(2) Consolidation of Hearing with Trial on Merits: can consolidate the hearing for prelim injunction with the actual trial; any evidence admitted during the PI hearing becomes part of the trial record, parties have the same rights as if they were at jury trial.

b. Temporary Restraining Order:an injunction granted for a very short time, just to keep things as they are until a hearing can be held to determine whether it would be appropriate to issue a preliminary injunction; May be issued Ex Parte (without notice).

a. Rule 65 (b):
1. Granted without notice if:
1. clearly appears from specific facts (in an affidavit or verified complaint) that irreparable and immediate injury, loss, or damage will result to the applicant before the hearing can be scheduled.
The applicants attorney certifies to the court in writing the efforts made, if any, to give notice, and reasons why notice shouldn’t be required.