REMEDIES NOTES: Spring 2014

1-22 Class 1

- The medical malpractice cap in NC is $500k, but there is no limit for noneconomic damages if the ∏ suffered a disfigurement, loss of use of part of the body, permanent injury or death. If the ∆’s acts or failures were committed in reckless disregard of the rights of others or grossly negligent.

- Legal rights have legal remedies. First, you must determine whether or not a legal right was invaded. Then, the remedy.

- Goal: to put the client in his rightful position/the position they would be in had the wrong not occurred. Assumption (that the ∆ is able to make the ∏ whole).

- A remedy is anything a court can do for a litigant that is wronged or about to be wronged.

- Why is remedy important? Give meanings to the substantive law. - Compensatory, preventative (coercive, injunctions, declaratory), restitutionary, punitive,

ancillary (costs, attorney’s fees).- Legal (monetary damages) v. equitable (the injunctive relief). MUST HAVE BASIS FOR

ANY REMEDY.- BASIS: Common law, statutory (federal, state, direct v. implied remedies), and

constitutional (us, state). - Two most common remedies? Damages (judgments), and injunctions (stop something

from happening). - Types of damages: compensatory, punitive (punishment, usually higher), and nominal

(usually one dollar), and presumed (ex: for trespass, if a person crosses onto your land, it is presumed that there is damage).

- Statute of Limitations: Why do we have them? Avoid old claims. It can be harder to prove something

years later as opposed to bringing a claim in a timely manner. Issues? Discovery, continuing harm, and multiple claims. Statutes of Repose “SOR”: §1-46.1 (Twelve years), this is different from a SOL

because it accrues at the time of the purchase for use or consumption as opposed to an SOL accruing at the time of the wrong. The claim can be barred before it even occurs. It’s an absolute end point from the SOL. Ex. SOR starts when the item is sold not when the harm was inflicted.

When does the action accrue? Snappy Tools ex: was it when the ∏ started the business or was it when the ∏ saw the news report on the fraud?

o The tape is prejudicial….D will try to stop it from shown to jury. Administrative Notice Requirements: for discrimination suits, a requirement that

you exhaust all administrative remedies first. §1-53 [see slides]

- Course Goals:

o Identify possible remedies and my issues related to pursing such remedies in the context of substantive law

o Understand the practice realities involvedo Analyze and argue in context of the proposed remedy...be able to distinguish

your case, your facts, your client’s situation.

PERSONAL INJURY-DAMAGES- General (noneconomic damages, like pain and suffering) things you really cannot put a

number on v. Special Damages (lost wages and medical expenses) things you can put a number on.

- Things to consider to prove these damages: Scarring and disfigurement: prove causation. Loss of the use of a body part. Mortality tables to determine the length of time that a person will likely live. NC

statutes don’t include race, gender, or other important factors.

- Why is personal injury and property handled separately? Property is easier to calculate, PI is harder to prove.

- HOW TO PROOF IT? Present Value: future medical expenses, future loss wages, the jury is supposed to reduce it to the present value. Present value is the computation of how much a ∆ is required to give a ∏ now so that once it is invested it will last.

- Future worth: - Offset approach: wage increases assumed to offset interest earned adjustment. - Rule of 72: divide your interest rate by 72 and this tells you how fast your money will

double. - Final mandate that the jury is given: the award must be fair and just. - Proving Damages at Trial:

Suggest an award (lump sum or category) Challenge the ∏’s contentions. Golden rule arguments (NOPE). Per Diem Arguments

- Damages award: monstrously excessive and shocks the conscious of the court. ∆’s given a new trial or remittitur.

Class 2, 1-29

- Is race an issue when deciding damages?o Life expectancy is an issue amongst races.o McMillan v. City of New York (reliance on race based statistics in estimating life

expectancy for individuals to calculating damage is not scientifically acceptable in our current heterogeneous population.

- Helicopter example:o Was the wife conscience during the 20 seconds when the Heli went down?

NEGLIGENCE- Duty, breach, causation, and damages.- States statutes effect the damages.

LOSS OF CONSORTIUM- Spouses, parents, and children can collect. Mainly spouses, but some courts allow the

others to as well.- The claim recognizes: the delicate emotional elements of the relationship, the services

provided by the other spouse, - Must be married and provide credible evidence that the injury disrupted the marital

relationship.- Loss of services: the types of services the victim provides like housekeeping,

transportation, and instruction.- Loss of relationship: loss of sexual relationships between spouses, loss of

companionship, society, and guidance, love and affection, and solace and moral support.

- Parental and Filial Consortium: Parental=claim by children, limited to the period of the child’s minority and the loss of a step-parent or guardian will not suffice. Filial=claim by parent, limited to claims involving severe or disabling injuries to the child.

- Domestic Partners: traditionally only asserted by lawfully married spouses. There are domestic partner statutes that can extend the right to bring such claims to registered partners.

REMEDIES WHEN THE PLAINTIFF DIES- At common law the cause of action died with the decedent.- Now there are survivor statutes that provide a survival of the action and allow the

survivors to assert claims.

- Survivor Actions: allows the decedents estate to maintain an action that had accrued during the decedent’s lifetime. Subject to the limitation that the damages must be confined to the pre-death period. They only preserve bodily injury claims, but not things like defamation or invasion of privacy. Tortious interference, professional malpractice, economic support rising out of the wrongful death of another and constitutional torts. Pre-death pain and suffering can also be awarded. For example, the amount of pain and suffering that a victim endured before they died.

- Wrongful Death Actions: matures on the death of the decedent and permits the holders of the action to recovery for the independent injury and loss resulting from the death.

- Each state has their own statutes and the damages are different. - In NC, the recovery for a WD suit cannot be used to pay the decedents debts. This does

not go through the estate, this is for the survivors. If the D has a will, that is irrelevant. o The Intestate Succession Act states the succession that the damages would go

to. The farther away from the D, the smaller the claim. The statute assumes that all of the people suing deserve an equal share.

o Damages that are recoverable: expenses for care, treatment, etc. Pain and suffering, and funeral expenses.

- What needs court approval in NC? Situations involving minors, or people under the age of 18. The court has to approve the settlement. Even if it involves one minor and 4 adults, it will still need to be approved.

- Punitive damages are a possibility, it will not go to the state. The same for nominal damages.

- Nursing Home Hypo: pain and suffering (how long was mom laying in the ditch?), showing the relationship.

- Two types:1. Loss to estate statutes: the work-life expectancy is determined, multiplied by the

decedents projected earnings to estimate his lost earning capacity. 2. Loss to survivor statutes: evidence is provided to show the regular contributions that

the decedent made in order to estimate a lifetime contribution. The focus is on what the survivors would have received but for the decedent’s death. General Rule: Wrongful death approaches will usually limit recoveries to those

that can be evaluated in monetary terms. Things that may be recoverable:

o Loss of support: contributions by the decedent that would have been made available during the life of the decedent to the wrongful death ∏’s. the court will deduct the amount the D would have spent on themselves, and if the D wasn’t supporting anyone that is also taken into consideration.

o Loss of services: personal service, advice, and training that the D would have provided.

o Loss of society: allows recovery for the loss of the D’s love, comfort, affection, society, solace or moral support, any loss of enjoyment of sexual relations, or any loss of assistance in the operation or maintenance of the home. This is not limited to surviving spouses, it is also available to the surviving children and grandparents. Not all jurisdictions recognize this award.

o Funeral and burial expenses: any that have been paid or incurred.o Loss of inheritance: ∏ must show proof that he had more than a mere

expectancy of inheriting from the D. EX: if the D already had the papers drawn up but didn’t have time to execute them before his death.

o Grief and sorrow: most jurisdictions do not allow a recovery by survivors for this.

o Punitive damages: split jurisdictions on whether this is recoverable for wrongful death.

Ended here 1-29CONCEPTION-RELATED CLAIMS

- These include:

1. Wrongful birth/wrongful life The ∆’s misconduct led to the parents being denied the opportunity to make

an informed decision to either conceive the child or continue the pregnancy after conception. The wrongful life is for the child being born impaired. Ex: usually occurs when a doctor fails to do tests for disabling diseases.

2. Wrongful conception/Wrongful pregnancy: claims by parents for the wrongful failure to provide effective birth control which has led to a pregnancy and the birth of an unplanned child. Damages are limited to medical expenses, loss of consortium, and lost earnings while pregnant.

Azzolino v. Dingfelder (1985)- The ∏’s filed a lawsuit wanting damages for the doctor’s negligence in not telling them

about certain tests that would have shown that the child had Down’s syndrome. If the ∏’s had known they said that they would have aborted the pregnancy.

Univ. AZ HSC v. Superior Court (1983)- The baby was healthy, but unwanted. The ∏’s performed a sterilization, but did it

negligently and the couple became pregnant with a fourth child.

- Mitigation of Damages: try to lessen the injury by taking reasonable measures. - Parents not mitigating damages by having an abortion or putting the child up for

adoption may be considered an offset. PUNITIVE DAMAGES

- Purpose is to punish the wrongdoer for willful or wanton conduct.- Must prove by clear and convincing evidence. - NC’s limit on punitive damages is $250k, the US Supreme Court doesn’t have a limit, and

it’s a case by case basis.- Caps are there to limit the amount of punitive damages that are recoverable. - Courts can bifurcate the trial if the ∏ seeks damages over $150k. That way the jury isn’t

poisoned by hearing the willful and wanton actions of the ∆. They want to keep irrelevant evidence out of different parts of the case.

- Personal injury and property damage cases are handled separately (ex: a car accident suit that has both property and PI elements)

Valuing Your Clients Claim or LiabilitySettlement Consideration:

- Strength of the claim and defenses: contributory negligence, liability claim, who is the client, the damages, liens or subrogation claims, attorney’s fees (yours and fee shifting), litigation costs advanced, taxes, prejudgment interest, and insurance coverage/collectability.

- The judgment can attach to the losing ∆ and can affect their ability to do other things, so it is ideal for the ∆ to settle claims. Even if it is for the max amount of insurance coverage.

- Liens or Subrogation Claims:

Does the amount that the client has to pay out effect the value of the case? It can make it more difficult to settle knowing that the ∏ has to pay out a certain amount of money leaving them with less.

First party insurance, disability, government programs. What can create a lien? Medicare, Medicaid, ERISA, etc. If the atty does not

protect that lien, they may end up having to pay it. Medicaid:

Arkansas Dept. of Health & Human Services v. Ahlborn (2006)- Medicaid paid $215k, she got a settlement of $550k. - Medicaid did not participate in litigation to get paid after the settlement. - Can they recover all that they paid, or do they only get a 6th of the amount? They can

only claim the amount that represents medical expenses. - The federal law only allows recovery from a 3rd party for medical expenses.

Wos v. Johnson (2013)- Damages were $42 million dollars, they settled for $2.8 million.- NC tried to take 1/3 of the overall settlement. Their statute said that they get a

presumptive 1/3 for medical settlements.- Medicaid had already paid out 1.9 million.

- Costs: things that client will likely have to pay if they lose like witness fees, jail fees, certified mail, etc. If the judge charges the client with $25k in costs, they have to pay it.

- Atty’s Fees: §6-21.1, the atty’s fees so awarded shall not exceed $10k in cases involving damages of $25k or less. Why? To encourage and push settlement and get parties to negotiate in good faith. To stop insurance companies from fraud. Must include a detail finding of fact for the finding of a refusal to negotiate. This is a fee shifting statute.

- Contribution: the distribution of liability among the ∆’s. General approach is to divide it by the amount of ∆’s. §1B-1 is the NC right of contribution statute. If during a settlement one of the ∆’s settles and the others settle later, the amount paid is subtracted from the remaining amount.

- Indemnification: doesn’t make the paying party responsible, they are just agreeing to pay for it.

- Confidentiality clauses: mainly to protect the ∆ from other claimants knowing what they settled a case for with another ∏.

- §1B-2: Pro-rata shares: how the court determines each ∆’s share. (2): common liability arising from vicarious relationships (master and servant) they will be treated as one share.

- The one satisfaction rule: no double recovery (from one defendant), ∆ entitled to offset for any recovery previously obtained.

- Collateral Source Rule: Can get double recovery because it’s coming from different sources.

- Payment by installment: Why not just a lump sum? In cases with long term injuries it would not be fair for a ∆ to have to pay a large sum up front just to have the ∏ die a little bit later. The courts want to be as fair as possible to both sides.

Taxation of Damage Awards

- 26 USC 24: What is taxable and what is not taxable under the federal government.- Punitive damages are taxable, while compensatory damages in a personal injury case

and emotional distress damages are not.Prejudgment Interest

- §24-5: interest starts to accrue from the time that the case is filed until the payment of the judgment. Interest rate in NC is 8% per year.

- Why do we have this? To promote settlement, to prevent unjust enrichment of the ∆ by having money he shouldn’t have, and to compensate the ∏’s for loss of the use of their money.

- Can be statutory or common law. Review

- Attorney’s fees have to be designated by statute. - One satisfaction rule: there is no double recovery. - Punitive damages are taxable, others are not (compensatory).- Valuing the clients claim or liability: Midterm

Strength of liability claim & defenses (negligence on both parties) Damages Attorney’s fees Litigation costs Prejudgment interest What is Starbucks litigation philosophy? Will they pay on a case if they have a

80% chance of winning. Liens and Subrogation

- Medicaid, Medicare, insurance companies, etc.- They will only get the pro rata share of the damages. Ex: if 10% of the award is for

medical expenses, then the insurance will get that.- How do you determine that portion? Sometimes parties stipulate that, sometimes it is

statutory. - Actual notice of Medicare lien NOT required, Medicare has priority over Medicaid. - If the case is settled, then you have to pay the providers. - ERISA: insurance provided by the employer. Subrogation is limited.- Workers Comp: you get hurt at work, does not require negligence. But if they were,

then it would only matter for the lien. AUTO INSURANCE

- Coverage Types: 1. Liability (mandatory)2. Medical payments3. Collision4. Uninsured/underinsured coverage5. Umbrella/excess

- What vehicles, who is covered, the liability coverage.- The ∆ is underinsured when the damages exceed the damages. If the ∆ offers to pay the

full amount under the policy ($30k), then you have to tell the ∏’s insurance company.

Then the ∏’s insurance company can pay the rest of the damage, and go after the ∆’s insurance company to get the money back.

- §58-3-33; obtaining insurance policy limits pre suit. A ∏ is allowed to obtain the insurance policy limits.

Structure Settlements- A settlement that is a resolution. They are used in minor settlements (because the kids

can’t get it until later). It is paid out in timely increments. It is the courts discretion if the child is under 18, and it can last a lifetime.

- If you assign the right to another person they will get the payments and pay you a lump sum.

- If the recipient dies then the estate will get the money. - Annuities is a staggered amount of money that is tax free.

The Rightful Position Principle- The basic goal: to restore the ∏ to the position he rightfully would have come to/been

in but for the ∆’s wrong.- The position the ∏ would have been in but for the wrong.- Value as the Measure of the Rightful Position:

The Lesser of Two Rule: ∏ may recover the lesser diminution of the property’s market value or its replacement cost. Will apply even when the property has been completely destroyed. Why? It’s efficient, and the point is not to put the ∏ is a better position, but rather the same position.

Specialty Property: whether the use to which the property is put at the time of the tort is a unique use, suitable only to the owner and without a fair market value. Ex: a church.

Damages based on value are routine and work well when the plaintiff can take the money and replace the thing lost. Fair market value, reduction of FMV, difference in FMV as delivered versus contract terms.

Three common measures of economic value:1. Fair market value: what a willing seller could get from a willing buyer, not a

forced sale.2. Replacement cost less depreciation3. Income or capitalization of earnings

Difficulties arise:1. When replacement is difficult and value is hard to determine2. When cost of repair exceeds the actual value3. When the damages does not reduce the FMV.

When do we value: Contract cases=date of the breach, property damage cases=date of the wrong.

The more egregious the ∆’s actions the more flexible the court may be in allowing the ∏ to use a valuation to maximize recovery.

Replacement or restoration costs are allowed in cases where the FMV is unavailable or unsatisfactory.

Damage to Personal Property- General rule: FMV at the time destruction

- Other considerations: reasonable loss of use, offset any salvage value, and there are no emotional distress damages allowed.

- Partial Destruction: General Rule: diminution in value or cost of repair Other considerations: reasonable loss of use (during repair time, fair rental

value), diminution in value after repairs, and no emotional distress damages.- Value to the owner: personal items, pets, sentimental value. - Pets: must be distinguished from others that are used for other purposes, like a guide

dog or one used for work. Interference with Possession of Property

- Conversion: General Rule: FMV at the time of taking. o Other considerations: not available for converted money, may apply to

intangible property, fluctuating value may be considered, value to the owner may be considered, loss of use as additional damage measure, and cost of recovery/attempted recovery.

o Emotional damages in addition and mitigation by accepting return of property (would they have to?).

- Replevin: equitable approach where the ∏ seeks forced return of the property.o Other considerations: loss of use as additional damage measure, depreciation

during the time of interference, special damages (lost profits), and may be governed by statute.

o NC §1-472: the ∏ in an action to recover the possession of personal property may claim that immediate delivery of the property as provided in this article at any time before the judgment in the principal action

- Truck Example: the FMV is $600, but the truck is a total loss. He uses the truck for work. How can he be compensated? Loss of use during the time that it rakes for him to replace the truck. It must be a reasonable time though.

Damage to Real Property- Land and Buildings: General Rule-diminution in the FMV or cost of repair, restoration,

or remediation. May depend on whether the damage is permanent or temporary.o Other considerations: noneconomic damages (emotional) typically excluded,

annoyance damages may be recovered (nuisance or trespass), replacement cost may be measure of damages for “unique” structures, or FMV of fixture for removal/destruction of same.

- Contamination/Environmental: General Rule: cost of restorationso Other: loss of use may be additional, statutes (federal or state), stigma damages

may be available. - Ejectment: specific relief via return of possession, likely governed by statute.

o Mense (mean) profits: reasonable rental value, actual value to the ∆, and actual worth to the ∏.

Nuisance- Invasions of the ∏’s private use of his property.- May apply to a variety of activities: light, odors, sound, obstructions, etc.

- Does not have to be intentional.- Lawful businesses are not normally a nuisance per se, but it can become a nuisance

because of it operation or other factors.- Nuisance does not require negligence.- The invasion may be intentional or unintentional through conduct which is negligent,

reckless, or ultra-hazardous.- A nuisance may come from an improper use of one’s property, such as an illegal

business, a threat of trespass, such as from a decayed tree, or an annoyance, such as visual height, noxious noise, odors, fumes, or fine particles.

- General Rule: in order to be liable for nuisance, a ∆ normally must have some prior knowledge of the threat on his property which allegedly creates a nuisance.

- Proof: substantial annoyance, material discomfort, or injury to the health or property of the adjoining landowner.

- Reasonableness: the social utility of ∆’s use is balanced against the harm and interference with the plaintiff’s use of her property.

- Anticipated injuries must be more than conjectural and amount to actual interference with her use and enjoyment of her property. Mere diminution in market value will not suffice.

- Factors to consider:1. The surroundings and conditions under which the ∆’s conduct is maintained.2. Character of neighborhood.3. Nature and social value of ∆’s operation4. Nature, utility, and social value of ∏’s use and enjoyment which have been invaded.5. Suitability of locality for ∆’s operation6. Suitability of locality for use ∏ makes of his property7. Extent, nature and frequency of harm to ∏’s interest8. Priority of occupation as between parties9. Other considerations arising from the evidence.

- Different from trespass because trespass requires invasion, and nuisance does not.- Temporary Nuisance: activity may be enjoined by the court because it can be abated

(equitable remedy). Damages may be available.- Permanent Nuisance: cannot be abated and leads to an award of damages.

Proving Value and Lost Profits- Value (FMV, replacement less depreciation, or capitalization of earnings.- Expectancy: benefit of the bargain. Usually contract situations. - Reliance: out of pocket.- Broad Evidence Rule: courts will receive any evidence logically tending to show actual

value.- Value is a matter of opinion. - In determining the actual cash value of a building the court should take into

consideration: the cost of restoration or replacement of building less depreciation since it was erected, any element of obsolescence, the size of the building, the material of which it is composed, and its age and state of preservation.

Lost Profits

- New Business Rule: when a business is in contemplation, but not established nor not in actual operation, profit merely hoped for is too uncertain and conjectural to be considered. Bar to recovery. This is the old rule.

- Modern Approach: the courts will view the new business rule as a rule of evidentiary sufficiency rather than an automatic bar to recovery of lost profits by a new business.

- It is now a rule of evidence.- Proving Lost Profits:

1. Profits must have been prevented or lost as a natural consequence of the breach of contract. Causation.

2. Foreseeability3. The lost profits must be established with reasonable certainty.

- Means of proving prospective profits:1. Yardstick method of comparison with profit performance of business similar in size,

nature, and location.2. Comparison with profit history of ∏’s successor, where applicable.3. Comparison of similar businesses owned by the ∏ himself.4. Use of economic and financial data and expert testimony.

Economic Loss Rule- Prohibits recovery for purely economic loss in tort, as such claims are instead governed

by contract law.- The rationale for the ELR is that the sale of goods is accomplished by contract and the

parties are free to include, or exclude, provisions as to the parties respective rights and remedies, should the product prove to be defective; to give a party a remedy in tort where the defect in the product damages the actual product, would permit the party to ignore and avoid the rights and remedies granted or imposed by the parties contract.

- In NC, the ELR does not limit the tort actions that arise in the absence of a contract.- The ELR will also not apply in fraudulently entered into contracts.

Midterm- Strength of the proof as opposed to how you’re going to prove the case. - Don’t give conclusions. - What are the possibilities and contingencies?- What is the goal of the settlement offer?- Do not analyze in terms of fairness.

Insurance Company’s Duty to Defend- Nationwide Mutual Fire Insurance Company v. Bourlon (2005): this case was about how

the attorney-client privilege is relinquished when an insurance company provides an attorney for the insured.

o Claims: personal injuries, malicious prosecution, abuse of process, and punitive damages. These were the underlying claims by the man whose face was bitten by the dog.

o Insurance policy did not cover the last two claims. The ∏ would defend the entire lawsuit.

o Tripartite relationship exists between all three. o Once the ∆ sued them, the attorney client privileged disappeared.

- Cramblett v. Midwest Sperm Bank (2014): wrongful birth and breach of warranty claims against the sperm bank for giving the woman the wrong sperm. They gave her the sperm of a black man instead of a white man, so now she has a mixed race child.

Missed Class Topics: Privacy, invasion of privacy, fraud, breach of fiduciary duty, false misrepresentation. INJUNCTIONS & EQUITABLE RELIEF

- Things the courts will look at before granting an injunction:1. The issue must be ripe (a real threat of injury to the ∏):

o Test: reasonable likelihood of future harm.o Requires a substantial or realistic threat of harm, a showing that the ∏

personally will be harmed, must show that the harm is imminent or immediate. 2. Propensity: will the ∆ continue to violate the law.3. Mootness: when the ∆ voluntarily stops the action, but the action could occur again.

a. Test: mere probability.4. Scope: 5. Irreparable injury6. Undue hardship and public interest.

- When can you get an injunction?o Inadequacy of a remedy at law (damages)o Irreparable injuryo Balance of hardships o Public interesto Ripeness (immanency of harm/propensity)

- Damages may only be available after the harm has occurred. - Prophylactic relief: enjoin conduct/action, create new programs/prevent reoccurring

violations, monitoring the ∆’s compliance, require the ∆ to get advanced approval for future actions.

Irreparable Injury Rule- Does not mean serious injury, just means that whatever is going to happen cannot be

remedied at law.- An adequate legal remedy must be as complete, practical, and efficient as the equitable

remedy.- Preserving the status quo: preserve the relative position of the parties until a trial on the

merits or the last peaceable uncontested status. Lee v. State of Oregon (1994)

- ∏ wanted an injunction to enjoin the state form putting into effect the assisted suicide law.

- ∏: two physicians, four terminally ill patients, and the resident care facility.

- Standing: o Must have sufficiently alleged a case or controversy. Also show:

They have suffered an injury in fact or an invasion of a legally protected interest which is concrete and particularized and actual or imminent.

There is a casual connection between the injury and the challenged conduct.

It must be likely that the injury will be redressed by a favorable injury.o Third party standing: This is how the physicians and residential homes get

standing. The litigant must have suffered an injury in fact giving them a sufficiently

concrete interest. The litigant must have a close relationship to the third party There must exist some hindrance to the 3rd party’s ability to assert their

own right.- To get preliminary injunctive relief:

o The moving party will suffer irreparable injury if the relief is not granted.o The moving party will probably prevail on the merits.o In balancing the hardships, the non-moving party will not be more harmed than

the moving partyo Granting the injunction is in the public interest.o This is a sliding scale determination.

- Death is an irreparable injury. Court issued the injunction so that the constitutionality of the law can be considered.

In re the Marriage of Weiss (1996)- The father asked for an injunction stopping his ex-wife from exposing their child to her

faith as opposed to the Jewish faith.- The couple in this case had joint legal and physical custody..- There must be harm that the court can look at.

Chalk v. Orange County Dept. of Education (1988)- The ∏ wants to be restored to his teaching job. The school put him in an administrative

position after his diagnosis of AIDS.- He cited his emotional and mental harm as his irreparable harm.

Undue Hardship- Compares the burden on the ∏ and the burden on the ∆. - Considers the burden on the court (a requirement for ongoing supervision) and the cost

to the ∆.- If the burden on the ∆ is disproportionate to any benefit the ∏ will receive.

Preliminary and Permanent Relief- Temporary restraining order(do not have to give the other person notice)-preliminary

injunction-trial on the merits-permanent injunction- Four part test for a preliminary injunction:

1. Likelihood of success on the merits

2. Irreparable injury absent the temporary relief3. Balancing the hardships4. Public interest

- Must give notice to the opposing party, in NC it is five days’ notice. - TRO (emergency remedy): doesn’t need notice (neither written nor oral) if immediate

injury will occur before the adverse party can be heard and the movant attorney certifies in writing any efforts to give notice and the reasons why it should not be required.

o FRCP 65(b): lists the federal requirements.o It can only last 14 days, in NC it is only 10 days. o Motion for the preliminary injunction must be set for the earliest time if the TRO

was given without notice.o Movant may have to pay a security deposit in case the TRO was improper and

the ∆ suffers damages.o Contents: Why it’s issued, states the terms specifically, and describe in

reasonable detail the acts restrained or required. o Binds the parties after they have notice of the motion: partieso Ex parte TRO, when? When the subject matter could be destroyed or moved

beyond the court’s jurisdiction if notice was to be given.o ∆ must be served in order for the TRO to be binding.o You have to give all of the known material facts to the court because you are an

officer of a court. The court is relying on you to make an informed decision.o Service: in person, by fax, and some informal (like a phone call).o What if it lasts more than 14 days, as the ∆ what are your options?

Appeal it, on a theory it’s a prelim injunction Ignore it, on the theory it has expired. File a motion with the trial judge asking them to vacate the order, if

denied then file an appeal.o NCGS §1-485 for preliminary injunction

- Injunction Bonds: it’s not very clear what the bonds cover. IT is a source of funds to ensure that the ∏ will be able to pay all or part of the cost of the damages if the PI is wrongly issued. Generally, the ∏ is only liable up to the amount of the bond.

o Is it mandatory? Under the FRCP it is. o Amount? Whatever the court deems is proper. o Factors? Loss to the ∆, financial hardship to the ∆, public interest.

- Who’s at fault for an erroneous injunction? The court or the plaintiff? - If a case is removed federal court, then the FRCP will control the duration of the TRO.

Permanent Injunctions: ∏ must show that1. It has suffered an irreparable injury2. Remedies available at law are inadequate to compensate for that injury3. Consider the balance between the ∏ and ∆4. Public interest would not be disservice by a permanent injunction.

- This is a discretionary balancing test.

Muffet v. City of Yakima (2012)- ∏ wanted to open a strip club in the city. - The city denied his zoning request.- ∏ says that he met all of the requirements for the zoning, but the city still refused to

grant him approval.- ∏ argues that they had too much discretionary power. - Nude dancing is protected speech, and so if the government is going to restrict it, they

need to have a real good reason.- What was the basis for the relief? The court found that the ordinance was

unconstitutional and enjoined them from applying the procedural steps. - Compensatory damages? Lost profits: reasonable certainty of the damages that he is

losing. They provided an expert witness accountant that determined the amount of profit the ∏ was losing by not being able to open the club.

John Doe & Jane Doe v. Bano’s (2010)-Complaint- The school has a policy that says that there is a 24/7 drug and alcohol policy that

parents are required to sign otherwise the child cannot play sports.- The father signs it but crosses out the 24/7 portion.- ∏ asked for compensatory and punitive damages, attorney’s fees, etc.- The court said that the ∆’s did not hurt the ∆’s first amendment rights.- Playing lacrosse is not a property or liberty interest.

Declaratory JudgmentsKramer v. Thompson (1991)

Equitable Defenses- Defense of Laches

o People that sleep on their rights will lose them.o Constructive Notice: the plaintiff should know about the violation. Five year

window to file the lawsuit. o SOL? Gives you the presumption that there was an unreasonable delay on filing

the lawsuit.o Prejudice? The ∆ would have changed his position of the ∏ had not delayed in

filing. - Traditional Application: (1)unreasonable delay by the ∏ (2)causing material prejudice to

the ∆- Concurrent Remedy Rule- Unclean Hands

o Has to be related to the activity that you seek to enjoin.o Applied to facts involving only two parties and one transaction.

- In Pari Delictoo In equal faulto ∏ bears at least substantially equal responsibility for the violations he seeks to

redress.- Waiver

o The knowing and voluntary relinquishment of a right.- Equitable Estoppel

Contempt- Certified: The judge has to see or hear the contempt.- Rule 42 of FRCP- Based on an Effect Test

1. Criminal Contempto Indirect: conduct that does not occur in the presence of the court and therefore

is not within the personal observation and knowledge of the judge.o Direct: occurs in the court room in front of the judge. Court can punish it

immediately. 2. Coercive3. Compensatory