Remedies OutlineSpring 2003I. Equitya. Historical Backgroundi. Difference between law and equity1. Law- wins judgment, order that P is entitled to something.a. jury trial mandated by constitution. b. legal judgment is final. c. is in resd. to enforce legal judgment, if D doesn’t pay, send out sheriff to get sheriff’slien 2. Equity- order by a court to do or not to do somethinga. order in personab. judge decidedc. always has something to do with legal remedies being inadequated. if person disobeys, court can punish or coerce using contempte. orders can be modified (unlike law which is final) because courts have continuous jurisdiction in equity.b. Temporary Reliefi. two types of labels: preliminary and permanent injunctions AND temporary restraining ordersii. Standards for Issuance1. Temporary Restraining Order: (preliminary relief)a. Elementsi. likelihood of success on the meritsii. irreparable injury (goes to the idea that legal remedy is inadequate)iii. balancing of harm to P with harm to D (allows court to consider “seriousness of question” instead of only likelihood of success on the merits; ie if more harm to P than to D if order does not issue, then need a little less likelihood of success on the merits)iv. balance effect of ruling on public interestv. maintaining the status quovi. enforceability of injunction by courtvii. bondb. Timing elements: can be very fast, sought before triali. TRO lasts 10 days (Rule 65 FRCP), can be renewed for another 10 daysc. Ex parte issuance: TRO can be issued ex parte (w/o notice to the other side) if there will be irreparable harm if the TRO is not issued ex parte. in emergency situations when other party not able to get notice, or endangers person by giving notice.1Civil Procedure rule 65 (b) TRO may be granted w/o written or oral notice only if:1. it clearly appears from specific facts shown by affidavit or verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition AND 2. the applicant’s attorney certifies to the court the efforts made to give notice.2. Preliminary Injunction (preliminary relief)a. Elements: i. likelihood of success on the meritsii. irreparable injury to Piii. balancing of harm between P and Div. public interestv. maintaining status quovi. enforceability of injunctionvii. bond viii. **NOTICE § (preliminary injunctions cannot be issued ex parte) b. Timing:i. lasts until verdict at trial iii. Bonds1. Rule 65c: No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such a sum as the court deems proper, for payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States or of an officer or agency thereof.2. Purpose: to protect person being enjoined for damages.3. not required for permanent injunction b/c judge has made final decision, no danger in D being injured from wrong decision being made4. bonds requirement is mandatory BUT amount of bond is discretionary : is required, but there are exceptions. “sum that judge seems fit” means bonds can be issued as zero, or waives bond. Set these low for indigent defendants, public interest defendant etc. 5. Injunction bond rule: party injured by issuance of injunction later determined to be erroneous has no action for damages in absence of bond6. Bond Requirement Rule: Purpose of the rule is to cap the amount of recovery at the amount of the bond.7. When a court dispenses with a bond, the enjoined party is entitled to seek the full measure of the damages it sustained by reason of the wrongfully issued preliminary injunction. (so to protect themselves, moving party may want to post a bond even if it is not required)8. If a judge denies the preliminary relief, you have not paid the bond yet. The moving party is the party who posts bond. The non-moving party can seek a stay and then post 2bond. So, you will have two bonds paid – one in the lower court and one in the Court of AppealsTemporary Relief Review:A. TROs – 7 showings1. Some Js call it a sliding scale (balancing; not sure what factor weighs where). It is up to the judge what factors weigh into the scale. Equitable orders can include awards of money (Palmyra School District). Under Title VII, P is entitled to backpay or frontpay which is considered equitable relief. Child support is also anexample of money awarded in equity.2. Harm to P must tip so much in the favor or the moving party.3. Alternative Test4. More immediacy5. Governed by 65(c)B. Preliminary Injunctions – 7 showings1. Governed by 65(b)2. Bond – 65(c) (SEVENTH SHOWING)a. Mandatory/Discretionaryb. Court can post the bond at 0 for indigent Ps.c. Society’s cost in deterring valid suits where Ps cannot post bond is greater than the cost of a D is wrongfully enjoined.d. D can argue that issuing of bond is so harmful that it outweighs Ps harm. Instead, they want to go to trial and not have any preliminary relief. e. When companies don’t post bond, they are taking away the injunction bond rule that limits the payout to the amount of the bond.c. Permanent Injunctionsi. Elements:1. success on the merits (must win the case)2. inadequate legal remedy3. balancing of harm to D4. balancing of public interest5. enforceability6. **bond and status quo are NOT considered in permanent injunctionsii. Timing Issues:1. ?? permanent injunction is permanent, issued after trial. Can be modified b/c courts have continuing J? d. Equitable Defensesi. Laches- is equivalent to statue of limitation in legal action; ie. D brings suit too late.1. Elements:a. inexcusable/unreasonable delay on the part of P bringing suitb. defendant is prejudiced by this delay (undue prejudice)ii. Estoppel- ?????1. Idea: Can’t raise issue that is inconsistent with other action that you would expect other party to rely on and that they did rely on. Ps are estopped from raising issue that is inconsistent with action they took which they expected other party to rely 3on and the other party did rely on it. (café building on Ps property by D, where P lent money for Ds to build it, and watched construction, they are estopped from pursuing an injunction against D).2. Elements:a. P has acted or spoken out about present fact (at issue?)b. P expected D to rely on these