remedies outline（补救措施概述）.docVIP

Remedies Outline Spring 2003 Equity Historical Background Difference between law and equity Law- wins judgment, order that P is entitled to something. jury trial mandated by constitution. legal judgment is final. is in res to enforce legal judgment, if D doesn’t pay, send out sheriff to get sheriff’s lien Equity- order by a court to do or not to do something order in persona judge decided always has something to do with legal remedies being inadequate if person disobeys, court can punish or coerce using contempt orders can be modified (unlike law which is final) because courts have continuous jurisdiction in equity. Temporary Relief two types of labels: preliminary and permanent injunctions AND temporary restraining orders Standards for Issuance Temporary Restraining Order: (preliminary relief) Elements likelihood of success on the merits irreparable injury (goes to the idea that legal remedy is inadequate) 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) balance effect of ruling on public interest maintaining the status quo enforceability of injunction by court bond b. Timing elements: can be very fast, sought before trial i. TRO lasts 10 days (Rule 65 FRCP), can be renewed for another 10 days c. 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. Civil 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 h