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Substitutionary Remedies: give plaintiff money in exchange for an otherwise non-compensable loss.

Specific Remedies: operate to restore to P the exact item or state of being of which she was wrongfully deprived. Equitable Remedies: have been regarded as in personam remediesinvolving a direct order to a D to engage or refrain from engaging in a particular act. Legal Remedies: Do not involve in personam orders but rather monetary judgments in favor of one party or another. Damage Remedies: Damages are substitutionary remedies. The primary forms are compensatory damages and punitive damages. Other forms include nominal, statutory and liquidated damages. Coercive Remedies: The primary forms of coercive remedies are injunction and specific performance. When the court orders to do something it is a mandatory injunction. When it orders someone to refrain it is a prohibitory injunction. The goal or purpose of coercive remedies is to prevent irreparable harm before it occurs Declaratory Remedies: The goal or purpose of declaratory relief is simply to provide an authoritative pronouncement regarding the rights, obligations or legal relationship of the parties. Restitutionary Remedies: The primary specific forms are constructive trust, equitable subrogation, rescission and reformation, accounting for profits, ejectment and replevin. The primary substitutionary forms are equitable lien and quasi contract. The goal and purpose of restitutionary remedies is to prevent defendants unjust enrichment, by making defendant give back that which defendant wrongfully or unjustly gained at plaintiffs expense. It awards a plaintiff the amount that defendant gained as a result of the wrong, NOT the amount that the plaintiff lost. *Equity and Equitable Remedies Equitable relief is discretionary even if the plaintiff is suffering irreparable injury, a court has discretion to deny equitable relief. Discretion may be exercised to deny relief when an injunction would involve the court in continuing supervision problems: In general, courts of equity are reluctant to grant specific performance in situations where such performance would require judicial supervision over a long period of time. Grossman v. Wegmans Food Markets Equitable Defenses (1)Unclean Hands Doctrine - The unclean hands or clean hands doctrine states that he who comes to equity must come with clean hands. Equity will deny relief to a plaintiff who comes with unclean hands. Includes all misconduct and wrongdoing that is sufficiently related to Ps claim. Almost any conduct considered to be unfair, unethical, or improper (including illegal conduct) can be raised as a bar against equitable relief. May be raised sua sponte by the court. In determining the issue of clean hands, the courts look solely at the conduct of the plaintiff (Salomon Smith Barney v. Vockel) Relatedness Requirement: the clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains. (2) Unconscionability Since equity developed as a court of conscience, courts feel free to deny equitable relief on the grounds of conscience. (3). Laches Equity Aids the Vigilant: Laches is any unreasonable delay by the plaintiff in instituting or prosecuting an action under circumstances where the delay causes prejudice to the defendant. Four Factors: In determining whether the doctrine of laches applies in a particular case, an examination is made of the (1) length of delay,(2) the reasons therefore, (3) how the delay affected the other party, and the (4) overall fairness in permitting the assertion of the claim. Nahn v. Soffer Promissory Estoppel - estoppel used offensively. RULE: A promise which the promisor should reasonably expect to induce reliance and does induce reliance is binding if injustice can be avoided only by enforcement of the promise. Feinberg v. Pfeiffer Co. (long-time employee sued to enforce special benefit package in recognition of her service to company and to secure future service for years before retirement; agreement enforced based on PE- P retired from a lucrative position in reliance upon defendants promise to pay her an annuity or pension.). Used offensively to permit foreseeable reliance as a substitute for consideration. Equitable Estoppel estoppel used defensively. RULE: Four Elements: (1) The party to be estopped must know of the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) the latter must rely on the formers conduct to his injury. United States v. Georgia-Pacific Co. The Right To Trial By Jury The Seventh Amendment: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the U.S., than according to the rules of Common Law. The Rule: The right to a jury in civil trials in federal court exists in actions at law (i.e., causes of action that existed at common law at the time of the ratification of the 7th Amendment), but not in actions in equity. *Enforcement of Equitable Decrees - Contempt The contempt power provides the teeth of equity. Equitable remedies are enforceable through the contempt power. Contempt is broadly defined as an offense against the dignity of a court. Mechanics of Contempt: 1)Must be served with judgment or decree i.e., must have notice of the order. 2)A contempt proceeding can be commenced on the courts own motion or at the behest of a party. When a party institutes a contempt proceeding, it does so by filing a motion for an order to show cause why the defendant should be held in contempt. 3)Violation of order must be willful. 4)If a violation occurs, judge must issue order to show cause This means you must appear before the judge and show him why you should not be held in contempt for violating the equitable decree. Its the equivalent of an indictment in a criminal case. Contempt can be criminal! 5)Punishment: Judge has discretion: Prison, or Fine Civil Contempt: To coerce compliance of a party with court's order and to compensate complainant for losses from noncompliance. Criminal: Contempt: To vindicate the authority of the court by punishing past disobedience. Direct contempt committed in the presence of the court Indirect contempt committed outside the presence of the court The Duty to Obey: Collateral Challenges Valid Orders: an erroneous but jurisdictionally valid order must be obeyed until reversed or set aside on appeal. Violation of these orders may be punished by criminal contempt. Collateral Bar Rule: An order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings and cannot be attacked in the contempt proceedings. United States v. United Mine Workers of America (p. 101.Cannot violate an injunction and then challenge it, unless one of the exceptions applies. Defenses to contempt 1)Defendants can claim that they were not bound by the decree. 2. That they did not receive notice of its requirements. 3. That the court lacked personal jurisdiction (frivolous jurisdiction). 4. That it was impossible to comply with the decree *Injunctions - Requirements for Provisional Relief 1. Must still prove that there is no adequate remedy at law. 2. In order to obtain either a TRO or a preliminary injunction, a plaintiff must show that immediate and irreparable injury will result absent the injunction. When a preliminary injunction is sought, plaintiff must show that this injury will occur during the pendency of the lawsuit. RULETRO/Preliminary Injunction Requirements Under Fed. R. Civ. P. 65: In order to obtain relief by a temporary restraining order or a preliminary injunction under Rule 65 of the Federal Rules, the plaintiffs must show 1.That unless the restraining order issues, they will suffer irreparable harm; 2. That the hardship they will suffer absent the order outweighs any hardship the defendants would suffer if the order were to issue; 3. That they are likely to succeed on the merits of their claims; and 4. That the issuance of the order will cause no substantial harm to the public. AND Dont forget the discretionary argument that is, even if all the elements above are met, the judge still has discretion to deny equitable relief. TROs can be granted ex parte. Ex parte TRO test (1) It clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and (2) The applicants attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting his claim that notice should not be required. In Re Vuitton Et Fils S.A. (p. 147 TRO issued) e.g. destruction of evidence FRCP 65(b) Temporary Restraining Order. RULE: A TRO or preliminary injunction is binding only on those who receive actual (constructive) notice of the order by personal service or otherwise. Because TROs can be issued ex parte, some interested parties may not be present or represented at the hearing. Thus they may not know that injunction has been issued and must be given notice. for notice to be adequate: 1) The notice must come from a source that is entitled to credit (P or his lawyer who obtained the order) 2) The notice must adequately inform defendant of the act or acts sought to be prohibited. Bond Requirement One who obtains a preliminary injunction or a TRO must usually post security to protect the defendant against loss. Exception for Indigents and the Rich: courts can waive this mandate where the P is indigent or sometimes when P is rich and can easily afford to pay damages, and for other reasons Damages on the Injunction Bond: A prevailing defendant is entitled to damages on the injunction bond unless there is good reason for not requiring the plaintiff to pay in the particular case. Stays RULE . Criteria for Evaluating Stays: Washington Metropolitan Area Transit Comm. V. Holiday Tours, Inc. (p. 195 Motion to vacate the district courts stay is denied). 1.Has the P made a strong showing that it is likely to prevail on the merits of the appeal? 2. Has the petitioner shown that without such relief, it will be irreparably injured? 3. Would the issuance of a stay substantially harm other parties interested in the proceedings? 4. Where lies the public interest? Permanent Injunctions -Permanent injunctions are subject to the ordinary rules governing equitable relief. They are highly discretionary. Framing the Injunction Fed. R. Civ. P. 65(d) states that Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; be specific in terms; and describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained.

*Restitution - A person who has been unjustly enriched at the expense of another must make restitution to the other. Unjust Enrichment: A person is enriched if he has received a benefit. A person is unjustly enriched if the retention of the benefit would be unjust. A person obtains restitution when he is restored to the position he formerly occupied How To Measure Or Value the Benefit to the D? Unlike damages, which usually measure the plaintiff loss, restitution can be measured by the defendants gain. There are many alternatives. The appropriate choice will depend in large part on the facts of the case and on 1) the nature of the benefit conferred, 2) the nature or degree of Ds wrongdoing, and 3) the substantive policies underlying the claim or defenses. Special Restitutionary Remedies The equitable side of restitution includes a number of special restitutionary devices including the constructive trust, equitable lien and subrogation. The Constructive Trust - A remedy imposed to prevent unjust enrichment in which the unjustly enriched party (the D) becomes trustee over the unjustly acquired property and must transfer it to the innocent party (the P).Requirements: 1)D has legal title to the property and obtained it by wrongdoing.2) Retention of the property by the D would result in unjust enrichment. Equitable Lien An equitable lien is similar to a constructive trust, but instead of requiring defendant to hold the property in trust, the court imposes a lien against the property as security for plaintiffs interest. A lien is a charge on property to secure the debts or other obligations and gives the holder the right to sell the property to satisfy the debt. The equitable lien may be advantageous where the land has decreased in value, because the full amount of the debt is the maximum recovery allowed. Constructive Trusts: call for sale of the property. Equitable Liens: only imposes a lien to prevent unjust enrichment. Both the constructive trust and equitable lien offer plaintiffs special advantages over other remedies. The two most important advantages are that both devices allow plaintiffs to trace their property into other forms, and give plaintiffs priority over other creditors. Tracing is the idea that plaintiff can trace their property into different forms and impose a constructive trust or equitable lien on the property in those other forms. One of the principal advantages to be gained by electing the constructive trust remedy is the ability to trace the money to its product. Bona Fide Purchaser (BFP): Since the doctrine of tracing is equitable, the right of reclamation terminates when the property comes into the hands of a bona fide purchaser. Thus neither an equitable lien nor a constructive trust is available against a bona fide purchaser for value *Declaratory Judgments -The basic purpose of declaratory judgment is to determine rights, obligations or status.The declaratory remedy can be combined with other remedies, such as injunction, it can also function independently.A declaratory judgment does not act coercively.Not a pure equitable remedy.Not an extraordinary remedy.Declaratory judgments primary purpose is to eliminate uncertaintyIt is binding and has res judicata effect. Authority provided to the courts through The Uniform Declaratory Judgment Act (UDJA). Note: UDJA amended by the FDJA. The Federal Declaratory Judgment Act Case or Controversy Under FDJA, declaratory judgments operate only in a case of actual controversy. There is no exemption from requirements of standing, subprinciples of mootness and ripeness and the prohibition against collusive actions or advisory opinions. Thus, a request for declaratory judgment can be challenged on such grounds as ripeness and mootness. TEST: Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of declaratory judgment.BUT, irreparable injury and adequate legal remedy are not required. Jurisdiction Under FDJA, absence of personal or subject matter jurisdiction is fatal to declaratory judgments. Declaratory Judgments in Context Written Instruments A declaratory judgment enables parties to a written instrument (contracts, wills, trusts) to obtain an authoritative legal interpretation resolving incipient or full-fledged controversies over such issues as document validity, scope and coverage, waiver and appurtenant rights and obligations. Intellectual Property - Declaratory relief is a significant remedy for owners of patents, copyrights, and trademarks and may be at least as valuable to alleged infringers thereof. *Damage Remedies Damages seek to place the injured party (P) in the position she would have occupied if the wrong had not been committed by the D. The context of the injury is important in determining the amount of damages. Who suffered the legal wrong? Jurys Role: A trial judge may vacate a jury verdict for excessiveness only if it is monstrously excessive or if there is no rational connection between the evidence on damages and the verdict. And appellate review is governed by the extremely limited abuse of discretion standard. Joan W v. City of Chicago (p. 556). Three Interests Protected: Expectation: Contract damages protects the Ps expectation interest they are intended to put the P into an expected condition by awarding any profits that might have been realized from full performance of the contract. Restitution: similar/same as what we covered in equity for restitution return P to situation he was in before entering K or having tort committed against him..damages - what the D gained Reliance: similar/same as promissory estoppel repayment for costs/losses incurred in reliance. Breach of Contract for Sale of Real Estate: Benefit of Bargain: A seller who breaches an executor contract for the sale of real property is liable to the would-be purchaser for compensatory damages measured by the difference between the sales contract price and the fair market value of the property at the time the property should have been conveyed. (American Rule) Basiliko v. Pargo Corp.****** (p. 502)Even though this may result in a windfall to the P. Exception: Some jurisdictions make an exception when a seller of real estate in good faith cannot deliver good title to the property. Courts limit the recovery to a refund, plus expenses, plus interest. Breach of Contract for Sale of Goods: 1)Buyers Remedies: UCC 2-713:Measure of damages is the the difference between the market price at the time for tender under the contract and the contract price together with any incidental or consequential damages Incorporates incidental and consequential damages.Cover: Buyer also has an additional option to make a reasonable purchase of substitute goods and collect the difference between cover price and contract price. UCC 2-712. 2)Sellers Remedies: The seller gets the difference between the contract price promised and the market value of the goods. UCC 2-708.If seller actually resells the property to another, the difference between the contract price and the actual price at resale may be used if the transaction was reasonable. UCC 2-706. Repair v. Replace: When property can be repaired, the market value of the property may not be the best starting place for the calculation. The measure of damages in a case of injury to real property depends on a determination of whether the injury is permanent or temporary. Terra-Products v. Kraft Gen. Foods, Inc.****** (p. 514) Permanent Injury (Destroyed Property): the measure of damages is limited to the difference between the fair market value of the property before and after the injury. (Bc of economic waste concerns). Temporary Injury (Damaged Property): the measure of damages would be the difference between the value of the property before and after remediation. where the cost of repair doesnt provide adequate compensation, P needs to recover both the cost of repair (assuming repairs increase the value of the property by more than they cost) plus any remaining diminution in value. This is particularly true for environmental contamination cases. Three ways to assess the value of property: 1) Market value of similar property 2) Replacement cost less depreciation the price of new property, minus the percentage of the original property already used up. 3) Capitalization of earnings an estimate of the current value of an item based on how much income it will produce over time. Loss of Profits v. Loss of Use Damages: Id. Losses Beyond Value To put the party in the position she would have occupied if the wrong had not occurred, courts must allow recovery of the additional losses. Tort: damages are limited by the doctrine of proximate cause. A D is liable for injuries that are reasonably foreseeable as a natural consequence of the Ds wrongful act. Foreseeability only relates to the issue of liability. It doesnt impose a limit on the amount of damages, as in contract cases. Deprivation of Property: In a tortious deprivation of property case, reasonable compensation for inconvenience or monetary loss suffered during the time required for repair of damaged property is permitted (loss of use damages). Fukida v. Hon/Hawaii Service and Repair**** (p. 533). Loss of use measured by rental value of replacement and other evidence of actual use. Loss of use is a legal wrong and damages are irrebuttable. Legal wrong loss of use of P car. Who suffered the legal wrong Mr. Fukida. Mr. Fukida is entitled to damages that will put him in a position he would have been in had no wrong was committed. Loss of use damages ok, but the fact that he did not have to pay for the repair work put him in a better position than he was in had no wrong was committed. Rule that such cannot exceed total value of vehicle is rejected. Even where there is a total loss to the vehicle, P may recover loss of use damages for a reasonable period until

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