Remedies Outline INJUNCTIONS Introduction to Remedies A. Different Categories of Remedies a. Specific b. Substitutionary c. Declaratory B.

Basic Principles of Specific Equitable Terms Mandatory v Prohibitory Preventative, Reparative, Structural FRCP 65 Preliminary Injunction and TROs C. Provisional Injunctions TROs [SPIT] o Substantial likelihood on the merits o Irreparable Harm o Balance Tips in favor of the Plaintiff o Harmful to the Public interest? Sliding scale between the hardships v. likelihood of success Appeals o Writ of Mandamus o Writ of Prohibition Provisional Injunctions A. Procedures and Standards for Issuing TROs and Preliminary Injunctions Traditional Standard Requirements [SPIT] Substantial likelihood on the merits Irreparable harm Balance Tips in favor of the Plaintiff Harmful to the Public interest? Alternative Probable success on the merits + possibility of irreparable injury Serious questions raised + balance of hardships sharply tipped Ex parte TROs Requirements Harm cant be remedies by money (fruitless further prosecution) Immediate and irreparable injury Effort, if any, to give notice B. Notice and Hearing Requirements Prelim notice always required TRO May be given without notice C. Appellate Review Prelim - appealable TRO not appealable D. Duration Prelim - in effect until final judgment or dissolved TRO set period of time (10, 14 days?) 1

Remedies Outline E. No Adequate Remedy at Law This always must be show before obtaining injunctive relief. Does not mean wholly ineffectual, but deficient Bonds and Other Forms of Security A. Is the Giving of Security Under 65(c) Mandatory or Discretionary? Mandatory o But as the court deems proper Purposes o Compensation o Deterrence B. Exceptions to the Bond Requirement Plaintiff is the US government or officer Plaintiff is Indigent Plaintiff is financially responsible No possibility of financial loss Plaintiffs case is about constitutional rights? Plaintiff is public interest plaintiff C. Injunction Bond Rule Majority say face value (exceptions for malicious prosecution, ex parte TRO) o Minority can recover in excess Can raise so long as injunction is still in effect; can not retroactively raise Recovering some say automatic, other rebuttable presumption Federal discretion circuits strong / no presumption, good faith? Must still show injury and prove damages Permanent Injunctions A. Definition - final determinations on the merits for a specified period of time B. Standard for Granting (three or four factors?) Irreparable harm Remedies available at law are inadequate Balance the hardships Must not disserve the public interest Supervision? Success on the merits C. Protection against Personal Injury ok First Amendment Considerations with Injunctions A. Prior Restraint on Speech B. Ex parte TRO First Amendment Issue Must be impossible to give notice to the opposing party C. When Injunction Implicates the First Amendment Two choices: Stay the injunction or have Procedural safeguards

Remedies Outline Modification and Dissolution of Permanent Injunctions A. Rule 60(b) Can dissolve because no longer equitable, any other reason justifying relief, consent decree B. Rule for Modification of a Permanent Injunction Substantial change in law or facts (no longer grievous wrong evoked by new and unforeseen conditions C. Rule for Modification of a Consent Decree Can modify in federal court (court order); state courts reluctant (K) Other Issues in Granting or Denying an Injunction A. Practicability Concerns Futility, Foisting, Supervision B. Property Rights v. Personal Rights Distinction Equity used to be more concerned with property; distinction dead C. Constitutional Defense Especially important for prior restraint, First Amendment CONTEMPT The Nature of Contempt A. Two Types of Contempt Criminal Contempt o Direct contempt o Indirect contempt Civil Contempt o Compensatory And restitutionary o Coercive Daily fines, incarceration; prospective fines for prohibitory? B. Violations of Equitable Remedial Decrees Criminal contempt requirements o Clear and unambiguous order o Actual knowledge of the order o Willful violation o Fine or imprisonment definite and not variable Civil requirements o Clear and unambiguous order o Actual notice o Non-compliance by clear and convincing evidence Negligence standard Persons Bound by an Equitable Remedial Decree A. Different Jurisdictional Views Minority - actual knowledge and violation Minority only parties with notice 3

Remedies Outline Majority actual knowledge + named party or in privity with named party B. Language of the Order boilerplate, not dispositive, failure to include C. Persons Bound by Injunctive Relief under Rule 65(d) Parties, officers, agents, servants, those in concert, etc. D. Categories of People Who Can Be Bound [PANIC ASKS] Public interest litigation Aiders and abettors acting in concert, not mere mutuality of purpose Named parties In rem Class members Agents, employees Successor in interest Knowledge, people who have actual State as surrogate E. Due Process Issues of Binding Non-Parties class alliance F. Violating an Order party may violate through non-party G. Notice actual, constructive H. Criminal v. Civil different standards? I. Defenses to Contempt [JNNVV] Jurisdiction Not bound No notice Did not Violate Substantive invalidity (majority collateral bar; not CA) Collateral Bar Theory A. Federal Rule and Majority of States Defenses [DIVIN] o Not bound by the Decree o Transparently Invalid o Did not actually Violate the order o Impossible to comply o No Notice B. California and a Few State (TX, WA) SCOPE OF INJUNCTIONS AND COMPARATIVE RELIEF [AMP FED] Injunctions Against Defamation A. In General, Equity will Not Enjoin Future Libels B. Roadblocks in Trying to Obtain an Injunction [FATE] First Amendment protections Adequate remedy at law Trial available, jury Equity protects property rights C. Exceptions 4

Remedies Outline Minority jury verdict that statements are libelous D. The Clear Trend is not to Issue an Injunction Against Defamation Not to distinguish between political speech and commercial speech Injunctions Against Privacy Torts A. Privacy Torts [SAFE] Intrusion upon Seclusion Appropriating plaintiffs name and likeness Puts plaintiff is a False light Public disclosure of Embarrassing private facts B. Defense of Newsworthiness Harder to get with public figure; has to be a morbid and sensational prying C. Notes public figure = actual malice Injunctions in Family Law A. Prohibitions of Speech - substantial government interest (best interests of kids) B. The Best Interests of the Children C. Prohibition of Speech in Child Custody Cases CA: Neither parent shall make any disparaging remarks about the other Injunction against Interference with Martial Relations A. Loss of Consortium - Not enforceable because of practicability B. Alienation of Affection seven or either states still allow Intervention with Private Associations A. Three Levels of Intervention Make the organization follow its own rules Procedural process o Adequate notice of the charges and opportunity to respond Substantively invalid (violates public policy) B. Admission to Membership versus Expulsion Expulsion breach of K, interference with relationships, deprivation of property interest C. Importance to Livelihood D. Religious and Political Associations E. Checklist for Dealing with Private Association Cases State action? o Treat like state; P at his strongest; subject to constitutional scrutiny; consider freedom of association State statutes business establishments and public accommodations Private associations - presumption against intervention Injunction as a Law Enforcement Tool: Enjoining Crime and Relation Wrongs A. Starting Point Equity will not Enjoin the Commission of a Crime Not when private individual or government seeking injunction against tort 5

Remedies Outline B. Exception Public Nuisance Defense Public nuisance doing or the failure to do something that injuriously affects the safety, health, or morals of the public, or works some substantial annoyance, inconvenience or injury to the public generally. o Some courts say they have the authority to define and abate Legislatures o MO cannot seek an injunction unless the activity is illegal o Some states limit to health or safety o Statute required Some say must be defined in statute and must authorize prosecutor to seek an injunction CA you need authorization in the statute and you must specifically define the public nuisance in the statute C. Types of Crimes Enjoined Typically petty crimes (major crimes have adequate remedy at law) D. Constitutional Limitations on the Public Nuisance Doctrine Prior restraint on speech o Can rule D protected or that issues be narrowly defined Right of association Right of travel E. When a Statute Lists Activities as Public Nuisances USSC - presume full scope; must make clear desire to limit REAL PROPERTY Interference with Real Property and Environmental Interests A. Three Different Types of Interest Protected in Real Estate [PIE] Owners right to Possession Physical Integrity of the land and improvements Interference with use and Enjoyment (private nuisance) B. Legal Remedies [DETS] Damages Ejectment o Must be out of possession; specific relief + damages Trespass o Must be in possession; normal remedy is damages Summary proceedings (unlawful detainer) C. Equitable Remedies [QET] Quiet Title o P is possession, no actual interference, but cloud by D Encroachments (Injunction) o Since sheriff will not eject buildings Trespass (Injunction against repeated and recurring) o Want to prevent multiplicity of actions Private nuisances (Injunction) 6

Remedies Outline Damages A. Trespass Measure of damages o Traditional The lesser of diminution costs or restoration costs o Traditional rule + Personal value exception Personal property Injury is capable of repair Repair cab ne accomplished without expending amounts wholly disproportionate to the value of land o Some use pre-trespass value o Some use diminution in value Commercial property Recover the lesser of the cost of repair or diminution Or additional amount that you would have gotten o California approach Start with traditional Personal property Must be personal meaning to landowner Reason to believe repairs will be made Must be a reasonable relationship to the pre-tort value of the real estate o Restatement Commercial owners replacement if not disproportionate Personal real estate - no limit for repairs, but have to do o Benefit rule D causes damages confers some benefit on the P P s claim may be diminished in the amount of benefit it received Restatement only done where it is equitable Add-ons o Lost rental value, lost profits (rx foreseeable), personal injury, pain and suffering, emotional distress, punitives (reckless) Punitives majority say actual damages; minority nominal B. Nuisance Definition: Unreasonable interference with the use and enjoyment of land Diminished Market Value o Permanent use diminution in value o Temporary diminished rental value, measure time period Cost of repair or abatement o Must be reasonable Damages not based on property value or repair o Personal discomfort, illness, anguish C. Trespass v. Nuisance P would prefer trespass because no determination of reasonableness (trespass intentional or negligent, not strict liability) 7

Remedies Outline Physical intrusion (or damage to land) Both nuisance and trespass require proof of damages (damages either diminution or restoration) D. Permanent v. Temporary Trespasses and Nuisances Statute of Limitations o Permanent - action commenced within SOL; starts at discovery o Temporary each new injury starts SOL again; damages on various temporary injuries during SOL; runs from the date trespass removed o Continuing Easily and promptly removable at reasonable expense successive causes of action Such regularity over a long period of time permanent Specific Relief [PEE PORT] A. Trespass [MIES] Mistaken improvers of land o Majority Micelli o Minority sell property or pay for value of improvements o Betterment statutes must have color of title & true owner Injunction o Must be in possession for trespass (not constructive_ o Regularly granted for recurring trespasses o Building being taken over o Dumping cases remove and sue for damages; issue and negotiate? Ejectment o Specific relief after trial on merits o Provides specific relief + damages o Leasee may bring o Encroachment not adequate; stop the clock on adverse possession o Equitable defenses no misconduct = delivery of land; unclean hands Self-help o Wont get ejectment or injunction for tree roots o Some jurisdictions require it to be a nuisance o Some depend it on whether natural or planted o CA probably self-help; if damages, neighbor removes (injunction) B. Encroachment on Fee Simple Absolute Injunction is the appropriate remedy Defenses [BALES] o Balancing the equities Factors: Intent (most important), size MA rule, Constitutional issues o Adverse possession o Laches Knowledge and ability to discover & unreasonable delay Defendant will be prejudiced by the delay (evidence, position)

Remedies Outline o Estoppel Admission statement or act inconsistent with later claim Act that leads to reasonable reliance Injury to party that has relief if we allow change of positions o S C. Encroachments on Easements Injunction is the preferred remedy (no ejectment; damages difficult to prove) Damages if denied injunction diminution to value of all lots Balance the equities intentional and how substantial? D. Violations of Restrictive Covenants Contracts between everyone and runs with land o Everyone in subdivision has COA o Negative easement prevent someone else from using land in way Cannot bring ejectment or trespass because not in possession Causes of action damages (difficult to measure) and injunction Substantive Defenses [ACES] o Abandonment o Change in character of neighborhood o Expiration by own terms o Substantive invalidity Procedural Defenses [BLEAU] o Balancing the Equities - if innocent o Laches o Estoppel o Acquiescence o Unclean hands E. Violations of Zoning Ordinances Standing o Sometimes private plaintiff if establishes special injury o Some statutes authorize in statute o Some states say no standing for private individuals Damages o Fines (state doesnt want property interests, so not diminution) F. Private Nuisance Question of Fact (unreasonable interference) First Balancing test to see if unreasonable o Harm to plaintiff [VACS] Value (social) of the plaintiffs activity (personal higher) Ability to avoid the harm Character of harm Suitability to the locality o Social Utility of Ds activity Social value of Ds activity Suitability of activity to the locality in question Ability of D to avoid harm Restatements 9

Remedies Outline o First Rest. nuisance? Get injunction (but hard against companies) o Second Intentional invasion unreasonable if gravity of harm outweighs utility OR harm is serious and financially compensatable Once nuisance bound, do balancing to determine injunction of damages o Social benefit outweighs harm damages (if big company and can afford( Coming to the nuisance as defense o Majority important, not dispositive (populous locales) o Minority absolute bar to injunction (low populations) Spite Fence no utility Aesthetics some say nuisance, others not Right to farm statutes Zoning as protection against injunction o Majority not nuisance per se, maybe nuisance in fact o CA protection Combination of damages and injunction o Temporary damages and injunction for future o Temporary damages and permanent damages o NO permanent damages and permanent injunctions o Partial permanent damages and injuction not complete G. Public Nuisance Who can bring o Government public nuisance in fact even if not criminal o Private individual if special injury Injunctions more likely to be issued (interest of the public will almost always outweigh the harm to D). o Remedies favors D substitute damages or tailor the injunction LEGAL AND EQUITABLE REMEDIES IN A CONTRACT SETTING Contracts Relation to Real Property A. Buyers Remedies when Seller Breaches Contract Restitution o Earnest money back + reasonable reliance damages o English rule if breach in GF, then restitution only option Specific Performance o Land is unique o When not available BFP, no title Damages o Loss of bargain + special damages Difference between K price and FMV at breach (closing date) B. Sellers Remedies when Buyer Breaches Contract Keep earnest money must be rx approximation of future damages 10

Remedies Outline Damages o Loss of bargain (K price vs. FMV) embarrassing to tell jury o Majority difference between K price and resale price Specific Performance o Majority buyer can get it, so can seller o Minority why remedy inadequate? Hard to sell? Fungible? C. Earnest Money and its Importance in a Contract for Land Can you get earnest money and specific performance? Yes, unless K makes it clear that earnest money is the only remedy (buyer has option essentially) D. Equitable Relief to Enforce Contracts to Lend Money Used to not be kosher (since fungible) Modern trend borrow from someone else and sue for % difference Equitable clean up if loan was from seller, specific performance Third party lender if loan secured on real estate, maybe specific performance E. Contracts that are unfair in Equity, but not at law Certainty doctrine court doesnt like, wont grant specific performance Affirmative mutuality of remedies Negative mutuality of remedies Unclean hands EQUITABLE CONVERSION Purchaser Dies Before Closing (RE to John, rest to Reb) K, will, death o Interest converted to RE at signing, so Reb pays purchase price to John Will, K, death o Same result Buyer Dies Before Closing Will, K, Death o Closing converted real property to personal property K, Will, Death o Specific devise Presume money goes to person who got RE in will (gift) o General Converted into personal property Damage after sale Some states buyer has to take damaged property, since converted to real estate, but insurance proceeds converted to buyer MA rule risk of loss on seller o Major K is null o Minor Either party can enforce, must deduct damages from price UURA depends on party in possession 11

Remedies Outline Contract for Deed When K signed, P has real estate and equitable title. CC can get lien on Ps interest determined by the order in which it was regorded Seller has debts personal property (money), so CCs can execute on judgments (sheriff sells payment) CONTRACTS RELATED TO SERVICES Damages A. Action by Buyer B. Action by Seller

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