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Equitable Remedies
Wayne State University Law School
Chardavoyne, David G.



I. What is an Equitable Remedy Anyway?

A. Types of Equitable Remedies

1. Injunctions: An order by a judge to a person to do something or not do something that is punishable by contempt

2. Specific Performance

3. Contempt itself

o Civil

o Criminal

4. Equitable Restitution (as opposed to legal restitution)

o Constructive Trust

o Tracing

5. Rescission

B. Maxims of Equity

1. Equity regards as done that which ought to be done

2. Equity will not suffer a wrong to be without a remedy

3. Equity is Equality

4. Equity regards substance rather than form

5. One who seeks equity must do equity

a. Can’t be unjust and turn to the court to expect justice is done

6. Equity aids the vigilant, not those who slumber on their rights

7. Equity imputes an intent to fulfill an obligation

a. Example: assume that you meant to sign the contract

8. Equity acts in personam.

9. Equity will not concern itself with abstract wrongs

10. Equity abhors a forfeiture

11. Equity does not require an idle gesture

12. One who comes into equity must come with clean hand

13. Equity delights to do justice and not by halves

14. Equity will take jurisdiction to avoid a multiplicity of suits

15. Equity follows the law

16. Equity will not aid a volunteer

17. Between equal equities the law will prevail

18. Between equal equities the first in order of time shall prevail

II. Why the Law / Equity Distinction Still Matters

– Monetary vs. forcing someone to do something.

o Important because of jury trial or not (legal or equitable), equity = those cases that don’t require jury

o If have adequate remedy at law can’t use equity – in wrong hands, equity can be dangerous (due to sense of judge’s sense of equity), otherwise, why have laws

o Irreparable harm

A. U.S. Constitution, Amendment 7 – Civil Trials

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”

o Not applicable to states, but every state has their own similar provision in state const. to preserve right to jury trial

o Suits in CL – see Parsons v Bedford

B. Michigan Constitution (1963), Art. I, sec. 14. – Jury Trials

“The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law. In all civil cases tried by 12 jurors a verdict shall be received when 10 jurors agree.”

C. Federal Rule of Civil Procedure 38

(a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution–or as provided by

a federal statute–is preserved to the parties inviolate.

(b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by:

(1) serving the other parties with a written demand–which may be included in a pleading–no later than 14 days after the last pleading directed to the issue is served; and

(2) filing the demand in accordance with Rule 5(d).

(c) Specifying Issues. In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues,

any other party may–within 14 days after being served with the demand or within a shorter time ordered by the court–serve a demand for a jury trial on any other or all factual issues triable by jury.

(d) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.

§ Must use it or lose it (can’t raise on appeal)

(e) Admiralty and Maritime Claims. These rules do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h).

D. Federal Rule of Civil Procedure 39 – Trial by Jury or by the Court

(a) When a Demand Is Made. When a jury trial has been demanded under Rule 38, the action must be designated on the docket as a jury action. The trial on all issues so demanded must be by jury unless:

(1) the parties or their attorneys file a stipulation to a nonjury trial or so stipulate on the record; or

(2) the court, on motion or on its own, finds that on some or all of those issues there is no federal right to a jury trial.

(b) When No Demand Is Made. Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded.

(c) Advisory Jury; Jury Trial by Consent. In an action not triable of right by a jury, the court, on motion or on its own:

(1) may try any issue with an advisory jury; or

(2) may, with the parties’ consent, try any issue by a jury whose verdict has the same effect as if a jury trial had been a matter of right, unless the action is against the United States and a federal statute provides for a nonjury trial.

o In equity action, court can impanel an advisory jury whose function is to act like normal jury, but give opinion and judge can accept or reject.

§ If parties consent, equity can be tried by jury same as if normal trial by jury

§ Trial by jury has been dying out for civil cases even though it’s preserved in statutes and cases.

E. 48 U.S. Statutes at Large 1064

“To give the Supreme Court of the United States authority to make and publish rules in actions at law.”

– Unified rules of equity and law, also provides right of trial by jury shall be preserved. Those drafting rules had to make sure trial by jury wasn’t contracted (can’t make rights smaller). No right to trial by judge, it’s just too bad if jury hears an equity case.

– Rules enabling act

F. Parsons v. Bedford, 28 U.S. 433 (1830) – Tobacco Sales

· Facts: Bedford and Robeson (P) brought suit to recover the amount of certain sales of tobacco, made by the plaintiffs to Fiske, as agent of Parsons (D); and for which he drew bills of exchange on the defendant, and which bills were refused acceptance and payment.

· The case was submitted to a special jury, and a verdict was rendered for the plaintiffs.

· District court judge refused to take down verbal evidence, which was permitted under Louisiana state law

· Analysis:

o Only reason D wanted to record the evidence was to establish error of the verdict in matters of fact.

o 7th Amendment – Trial by Jury in suits at common law

o Judiciary Act of 1789 – Jury trial for all actions in law; No fact tried by jury is re-examinable, other than in accordance with the rules of the common law (i.e., grant of a new trial and de novo review)

· Holding: if the evidence were now before us, it would not be competent for this court to reverse the judgment for any error in the verdict of the jury at the trial; the refusal to allow that evidence to be entered on the record is not matter of error, for which the judgment can be reversed. AFFIRMED.

o Buyer Fiske was issuing bills of exchange (IOU) as he was picking up tobacco, sellers believe Parsons is going to pay them back (Fiske acting as agent for Parsons) – Parsons denies knows Fiske is their agent.

o Fiske disappears and they go after Parsons. Parsons loses jury trial and wants to establish error

o In LA ok for board of appeals to look at facts and determine if mistake (in most other places and in fed

ly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

(2) Contents; Expiration. Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk’s office and entered in the record. The order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.

(3) Expediting the Preliminary-Injunction Hearing. If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order.

(4) Motion to Dissolve. On 2 days’ notice to the party who obtained the order without notice—or on shorter notice set by the court—the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.

(c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.

(d) Contents and Scope of Every Injunction and Restraining Order.

(1) Contents. Every order granting an injunction and every restraining order must:

(A) state the reasons why it issued;

(B) state its terms specifically; and

(C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.

(2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise:

(A) the parties;

(B) the parties’ officers, agents, servants, employees, and attorneys; and

(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

(e) Other Laws Not Modified. These rules do not modify the following:

(1) any federal statute relating to temporary restraining orders or preliminary injunctions in actions affecting employer and employee;

(2) 28 U.S.C. §2361, which relates to preliminary injunctions in actions of interpleader or in the nature of interpleader; or

(3) 28 U.S.C. §2284, which relates to actions that must be heard and decided by a three-judge district court.

(f) Copyright Impoundment. This rule applies to copyright-impoundment proceedings.