Remedies
Overview
Specific, Substitutionary, and Declaratory Remedies
Specific relief remedies the wrong by requiring the defendant to perform a legal duty. Since it is a court order, if the defendant does not comply, the defendant can be held in contempt. Substitutionary relief substitutes money for the specific relief. The plaintiff can only levy execution on the judgment. Declaratory relief tells people what rights exist.
Equitable Remedies
Usually specific(but see, e.g., royalties, back pay, etc.). There is no 7th Amendment right to a jury trial in an equitable action. An equitable remedy takes the form of a court order that is enforceable by the contempt powers of the court.
Legal Remedies
Usually substitutionaryin the form of money (but see, e.g., replevin, ejectment, etc.). Guaranteed 7th Amendment right to jury trial in actions at law.Not enforceable by contempt, but rather a judgment lien on property, executed by sheriff.
Tortious Conduct and Breach of Contract
The remedial rules in tort law serve to make the plaintiff whole, as if there had not been a tort. At times, those rules will also punish. In contract law, the remedial rules serve to compensate people for breaches of contract as though the contract had been performed (i.e., benefit of the bargain) without deterring commerce/social efficiency with punitive damages. Today, remedies may be legal, equitable, or both, stemming from a single lawsuit in a single courtroom.
Unjust Enrichment
In unjust enrichment, the remedial rules focus on defining a gain and determining whether it should be disgorged.
Injunctions
An injunction is a remedy in the form of an in personam order, usually issued by a trial court of general jurisdiction. It directs the defendant to act, or to refrain from acting in a specified way, and it is enforceable by the contempt power. The injunction must be obeyed until it is stayed, dissolved, or reversed, even if it is erroneously issued.
Mandatory Injunction— orders an affirmative act or course of conduct (e.g., to permit something)
Prohibitory Injunction— forbids an act or course of conduct (e.g., to prevent something)
Reparative Injunction— requires defendant to restore plaintiff to a preexisting entitlement
Preventive Injunction— attempts to prevent the loss of an entitlement in the future
Structural Injunction— attempts to remodel existing institution into conformity with constitutional demands
Pre-trial “irreparable harm” not monetizable & unjust to wait
Permanent “inadequate remedy at law” not monetizable after trial on the merits
Contract: Rarely issued, except for real/unique property.
Property: Usually issued, but no presumptions.
Tort: May be issued for reasonably feared injury, but not past harm.
Provisional Injunctions
Preliminary Injunctions and Temporary Restraining Orders
FRCP 65(a): Preliminary injunction—notice to the enjoined party is required; usually results in an adversarial hearing.
FRCP 65(b): Temporary restraining order—may be issued ex parte (i.e., without notice) to the enjoined party. Initially expires after 14 days but may be extended another 14 days for “good cause,” or longer with consent. A TRO is likely to be in effect until the final decision in a case. Permanent injunction only results after a final dispositive ruling.
Procedure: Complaint → ex parte hearing by court → if granted → P posts bond & serves TRO on defendant.
Party who obtained order must proceed. Enjoined party can file motion to dissolve/modify with 2 days notice.
If a case is removed to Federal Court while TRO is in play, apply federal procedure rules.Gil Pharmaceutical.
FRCP 65(c): Bonding requirement for movant to compensate in case harm results to a wrongfully enjoined party.
FRCP 65(d): Injunctions bind the party, agents of the enjoined party, successors in interest of the enjoined party, and third parties “acting in concert”—i.e., actual knowledge of judicial decree and defiance for benefit of enjoined party.
Bonds
When a plaintiff moves for a pretrial injunction, she must post a bond if required by the court. (US Gov. doesn’t have to post bond.) Defendants may request a bond and/or increases if costs run up (Sprint). Failure to move for a bond waives that right. Court has obligation to (1) hold requested bond hearings; and (2) explain the bond amount it has selected.
3 Federal Court approaches to the “mandatory” bond requirement under FRCP65(c): ( 1) mandatory posting requirement + discretionary amount (nominal if indigent); (2) mandatory posting with exceptions (nonprofit public interest group) + discretionary amount; and (3) discretionary posting + discretionary amount.
Recovery of Damages
Defendant can recover damages against a bond under FRCP 65(c) only if: (1) wrongfully enjoined; (2) prevails on rebuttable presumption that defendant can recover against the bond, i.e., plaintiff can show bad faith, failure to mitigate, etc.; (3) what is the actual amount of Δs loss? compensatory damages for harm actually caused.
Nintendo v. Galoob: Face value of bond = ceiling on damages defendant can recover for wrongful injunction.
Purpose—Assures enjoined party that it may readily collect damages in event it was wrongfully enjoined w/o further litigation/insolvency. Provides plaintiff with notice of maximum extent of its potential liability.
Notice (Procedural Due Process)
Mathew v. Eldrige Balancing Test
Procedural due process is established by (1) the importance of the interest at stake; (2) the risk of an erroneous deprivation of the interest because of the procedures used, and (3) the government's (police powers) interest.
Mitchell 4 Factor Test
(1) Participation by a judicial officer; (2) a prompt post-deprivation hearing; (3) verified petitions or affidavits containing detailed allegations based on personal knowledge, and (4) risk of immediate and irreparable harm.
Temporary Restraining Order
(1) Substantial likelihood of success on the merits; (2) irreparable harm by (i) inadequate legal remedy or (ii) emergency; (3) balance of hardships tips in favor of the plaintiff; and (4) issuance of the injunction is in the public interest. Ex parte—
No notice under Marquette for actual or threatened injury; loss of parental visitation outweighed by Eldrige test.
No notice required under Vuitton when risk of imminent sale, removal, or destruction of disputed property.
Rule 65(b): (1) immediate and irreparable injury, loss, or damage will result before adversarial hearing;
(2) attorney must certify in writing the reasons supporting the claim that notice should not be required.
“The sole method of preserving the state of affairs in which the court can provide effective final relief.”
However, speculation is not enough;particularized evidence is required, e.g., a history of similar conduct.
The “specific terms” and “reasonable detail” mandated by Rule 65(d) should be understood by the lay person.
Similarly,McCord says no civil contempt if action based on good faith & reasonable interpretation of order.
Preliminary Injunction
Test: (1) A substantial likelihood that it will prevail on the merits; (2) that it will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the moving party outweighs whatever damage the proposed injunction will cause the opposing party; and (4) that the injunction would not be adverse to the public interest.
Nonsolicitation agreements: restraint of trade, anticompetitive; trade secrets, protecting investments in people.
Frisby: Loss of income does not constitute irreparable harm. / Rothe: Customer trust and goodwill is irreparable.
Permanent Injunction
Permanent Injunction Test: (1) P sufferedirreparable injury (i.e., trial on merits required before issue perm injunction);
(2) Inadequate legal remedy; (3) Balance of hardships tips for P; (4) Issuance of the injunction is in the public interest.
Cost/benefit analysis: Benefits—cheap private negotiation for market price; Costs—Supervision, unrepresented 3rd parties burdened, bilateral monopoly may be inefficient. Damages: Trial prep and adjudication expensive.
Walgreen: The costs (including forgone benefits) of the damages remedy would exceed the costs of injunction.
Exclusivity clauses generally favor injunctions b/c damages are difficult to estimate and little judicial supervision.
Ebay: The 4 factor test always applies. No categorical presumptions or automatic injunctions. Patent trolls lose.
Suicidal Stalker: In tort law, Δ may be enjoined for irreparable harm that a reasonable person fears will happen.
Smith Smoking Policy: Deterioration of health is irreparable. Future threat of physical injury has no legal remedy.
Secretary of Labor: Farmworkers’ injuries outweigh minimal inconvenience. Public interest against exploitation.
Note: Permanent injunctions are never issued for personal services contracts (e.g., unique performers.)
Modification and Dissolution of Permanent Injunctions
FRCP 60(b) Grounds for Relief from a Final Judgment, Order, or Proceeding
On motion, the court may relieve a party due to: (1) mistake; (2) new evidence; (3) fraud; (4) voidness;
(5) applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.
Swift Standard
Modifying a consent decree requires a clear showing of grievous wrong evoked by new and unforeseen conditions.
Note: When modifying a provisional injunction, a court exercises the same discretion that it exercised in granting or denying the injunctive relief in the first place. It is only when modifying a final or permanent injunction that the court must consider whether there has been a significant change in conditions.
Changed Conditions Standard
Modifications are permitted if the injunction is harmful/no longer equitable in light of changes in the law or the facts.
Dowell: Oklahoma City sought dissolution of decree imposing school desegregation plan. Swift abandoned.
Rufo: (1) Change in law—new cases w/ contrary conclusions; (2) Change in facts—jail population has increased.
Appeals
Appealing Permanent and Preliminary Injunctions
Authority: 28 U.S.C. § 1291—Appellate courts have jx over district court final decisions, including permanent injunctions
Authority: 28 U.S.C. § 1292—and interlocutory orders granting, continuing, modifying, refusing, or dissolving injunctions.
Defendant may immediately(1) challenge grant to the trial court judge; or (2) appeal to appellate court. On appeal:
Motions Panel—awards pre-appeal injunctive relief to restore/preserve status quo until hearing by merits panel.
Merits Panel—reviews appeal from injunction ruling; reviews trial court’s decision for “abuse of discretion.”
Appealing Temporary Restraining Orders
An order granting, continuing, modifying, refusing, or dissolving a temporary restraining order (TRO) is not appealable.
Exceptions: (1) TRO extends beyond length granted by FRCP without consent; (2) TRO has the “effect” of a final decision;(3) Δ found in contempt; (4) especially onerous mandatory injunctions (e.g., objection, police action).
Exception 1: TRO extended beyond length granted by FRCP without consent
Chicago Contract: Debarment enjoinment became preliminary injunction because TRO extended by agreement beyond FRCP length (28 days) & judge modified the injunction without agreement. City may appeal during extension period.
Exception 2: TRO has the “effect” of a final order
Savings Bank: Bank gets state approval for converting into a public stock company with 45 day deadline. Class action for breach of fiduciary duty. Judge issues TRO that has the effect of a final decision because it extends past state’s deadline.
Note: TRO denial may also be considered a “final order” and treated like a permanent injunction on appeal.
Exception 3: Defendant is in contempt
If you are in contempt of court, you can appeal.
Exception 4: TRO is especially onerous mandatory injunction
Adams v. Vance: TRO ordering the U.S. to take a position on a treaty (too much interference with political branch).
Belknap v. Leary: TRO ordering the police department to protect anti-war protestors (too much judicial oversight).
Moving to obtain Pre-Appeal Injunctive Relief
FRCP 62(a) – Appellant must move to obtain pre-appeal injunctive relief in order to prevent immediate effectiveness of trial court’s injunction ruling. Under 62(c), the motion is first submitted to the trial court judge. Only when the appellant shows that moving first in the district court would be impracticable may appellant submit directly to the appellate court.
Automatic Stays
At federal level, there are no automatic stays of an interlocutory or final judgment for injunction actions pending appeal.
California provides automatic stay of mandatory injunctions & a stay of prohibitory injunctions on a showing of hardship.
Requesting a Stay pursuant to FRAP 8
An appellant may request to stay a preliminary or permanent injunction. The stay prevents the judgment from going into effect until after the merits panel holds a hearing. Its function is to maintain the status quo pending the hearing.
Toxic Sludge: Michigan’s low-level radioactive waste denied access to facilities in disposal states. Stay granted.
Traditional 4-Factor Test: (1) Likelihood of success on appeal; (2) Irreparable harm to the moving party if the stay is not granted; (3) Balance of hardships btwn opponents/others if the stay is granted;(4) Public interest in granting the stay.
Injunctions & First Amendment Considerations
Prior restraints are presumptively unconstitutional. A prior restraint is an administrative system or a judicial order that prevents speech from occurring. The Court has held that licensing systems constitute a prior restraint if they serve no important purpose or if they leave too much discretion in the hands of the administrators of the system.
Prior Restraints on Speech
An injunction prohibiting someone from exercising the right to free speech is a prior restraint.
Carroll: City obtains ex parte TRO to enjoin KKK rally.Notice was required to advise them of the proceeding.
Notice Requirement
If there is going to be a TRO for a prior restraint on speech, it cannot be issued ex parte, unless a showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate. The participation of both sides is necessary to narrowly tailor theessential needs of public order (permitted by constitutional mandate).
Strict Procedural Safeguards
Skokie: County enjoins Nazi parade in Jewish town. State courts wrongly denied Nazi application for stay pending appeal.
If a court issues an injunction against defendants claiming free speech rights, “strict procedural safeguards” require:
(a) Immediate and expedited review by merits panel; or
(b) Absent immediate appellate review, the state must instead allow a stay.
Barring Collateral Attacks on Injunctions
Defendant can challenge injunction by: (1) direct attack—motion to dissolve/modify; (2) collateral attack—exceptions.
Collateral Bar Rule: This rule bars someone who violates a court order from arguing that the order was unconstitutional. An injunction must be obeyed, no matter how erroneous or unconstitutional. Disobedience is punishable by contempt.
Exceptions to Collateral Bar Rule
(1) The wrongful exercise of subject matter jurisdiction; (2) The collateral bar doctrine is only relevant in criminal contempt proceedings—civil proceedings only have direct attacks; (3) This is a federal and majority jurisdiction rule.
Note: California does not follow the Collateral Bar Rule. See, e.g., In re Berry.
Prior Restraint Doctrine
Birmingham: Alabama issued TRO prohibiting civil rights marches and demonstrations. MLK made no effort to dissolve the injunction or to comply with it by applying for a permit. Despite vagueness and unfettered discretion, in contempt.
Dissent #1: Respect for the courts and judicial process was not increased by the history of the labor injunction.
Dissent #2: Requiring a person to pursue a judicial remedy before he may speak simply moots the controversy.
Dissent #3: A valid state interest must give way when it infringes on rights guaranteed by the U.S. Constitution.
Providence Journal: FBI conducted warrantless electronic surveillance. FBI wrongfully released the memoranda to the Journal’s request under the Freedom of Information Act. After an adversary hearing, a TRO was issued enjoining the Journal from publishing the memoranda. New exception: May challenge constitutionality at the contempt proceeding when dealing with (1) Pure speech; and (2) Timely emergency relief unavailable. If the party chooses to violate the order and the order turns out not to be transparently invalid, the party must suffer the consequences of a contempt citation.
Note: This case was distinguished from Birmingham because (1) the Journal was enjoined from speech as opposed to conduct; and (2) the Journal only had 8 hours as opposed to 2 days to modify/dissolve the injunx.
Contempt
Statutory Authorization
A federal court has the power to punish by fine or imprisonment (1) misbehavior by any person in its presence;
(2) misbehavior by officers in their transactions; and (3) disobedience of writ, process, order, rule, decree, or command.
Procedure
Civil contempt and criminal contempt must be administered within the framework of their respective procedures. This distinction is important in determining parties, pleading and practice, particularity of the charge, burden and quantum of proof, availability of the privilege against self-incrimination, jury trial, terms of the order, and scope of appellate review.
Right to Jury Trial
Two tests: (1) Common law historic test [Majority Jx]; (2) 7th Amendment Test [Minority Jx/Federal Jx]
Ross 3 part test: (1) pre-merger custom; (2) remedy sought; (3) practical abilities/limitations of juries.
Civil contempt: Used to coerce; operates prospectively; Per Diem fines and conditional imprisonment okay until∆ complies/term of grand jury;inability to perform or a resolute unwillingness to perform may lead to criminal contempt.
Criminal contempt: Used to punish; operates retroactively; serious offenses (more than 6 months jail time) orserious fines (more than $5,000 for an individual and $10,000 for an organization/corporation) trigger the right to a jury trial.
Violation of court rules may be summary or nonsummary.
Violation of a court order/consent decree must be nonsummary.
Summary proceeding: (1) Judge saw or heard (2) conduct constituting contempt (3) in the actual presence of the court.
Rationale: Speedy punishment is necessary in order to achieve summary vindication of the court’s dignity and authority.
Nonsummary proceeding:Less urgency for other conduct that is not highly disruptive—requires notice and a hearing.
The following cases address violations of judicial rules and orders relating to the administration of justice:
Notice & Hearing as a general rule
Harris: Witness who was granted immunity refused to answer questions at grand jury proceeding on the ground of self-incrimination. Later found guilty of criminal contempt for failure to testify in front of the judge in an ancillary, summary proceeding. Rule 42(a) summary dispositions are reserved for exceptional circumstances. Dissent: It is appealable.
Right to Jury Trial for Serious Criminal Contempt
Bloom: Lawyer willfully tried to probate a false will. Held in criminal contempt after notice & hearing but denied jury trial. Sentenced to two years.Due process trumps judicial economy and efficiency—severe punishment needs jury.