Chapter 4 Injunctions - Powerpoint Slides Weaver, Et Al. Remedies

Remedies Spring 2014
Chapter 4 Injunctions
Prof. George W. Conk gconk@law.fordham.edu Room 409 212-636-7446 Adjunct Professor of Law & Senior Fellow Stein Center for Law & Ethics
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Types of cases amenable to injunctive relief

Classic prohibitions/mandates recurrent trespass Nuisance abatement Pulp infringing material in copyright cases Infringement in patent and copyright cases unfair competition trademark infringemnt Specific enforcement of contracts of sale of real estate or sale of unique goods preserve or turnover tangible and intangible property
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Employment Law labor disputes (illegal strikes, unfair labor practices) cease discriminatory practices reinstate an employee wrongly denied a promotion
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Civil liberties/fair trial Permit or limit picketing/marches enjoin enforcement of unconstitutional statute enjoin a bad faith prosecution or civil proceeding (Dombrowski, Younger, Pennzoil) enjoin a trial in an unfair forum (Garden State Bar Association)
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Structural Injunctions Desegregate a school (Brown, School busing) Racial gerrymandering legislative redistricting (Baker v. Carr) Restructure the financing of a school system (Abbott v. Burke, Campaign for Fiscal Equity)
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Standards for injunctive relief

Precedent, Rules, Statutes Chancery vs. Law Courts FRCP 65 CPLR Art. 63
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F.R.C.P. 65 - Injunctions
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;
(4) that the issuance of the order will cause no substantial harm to the public; and
(5) that they have no adequate remedy at law.
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(a) Preliminary Injunction.
(1) Notice. The court may issue a preliminary injunction only on notice to the adverse party.
(2) Consolidating the Hearing with the Trial on the Merits.
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Before or after beginning a hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing. Evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial. The court must preserve any party's right to a jury trial.
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F.R.C.P. 65 (b) Temporary Restraining Order.
(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
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(2) Every TRO issued without notice must state the date and hour it was issued - describe the injury and state why it is irreparable - state why the order was issued without notice The order expires at the time after entry--not to exceed 10 days--that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.
F.R.C.P. 65 Temporary Restraining Orders
(3) Expediting the PreliminaryInjunction Hearing. If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order.
(4) Motion to Dissolve. On 2 days' notice to the party who obtained the order without notice--or on shorter notice set by the court--the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.
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c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.
(d) Contents and Scope (1) Contents. Every order granting an injunction and every restraining order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail--and not by referring to the complaint or other document--the act or acts restrained or required.
Hughes v. Cristofane, (D MD 1980) p. 146 Why does the court grant a TRO? How does plaintiff meet the five FRCP 65 factors? What is the purpose of the security bond? Why $500? What will happen at the preliminary injunction hearing? Why not file suit in state court? Why not grant Younger extension
TRO Hughes v. Cristofane, p. 146
(2) that effective immediately, defendants Mayor and Councilmen of the Town of Bladensburg and their agents be, and the same hereby are Restrained from enforcing Ordinance 3-80 of the Town of Bladensburg for a period of ten days from the date of this Order Why ten days?
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Order Hughes v. Cristofane
(3) that plaintiffs give security by filing forthwith a bond in the sum of $ 500.00 for the payment of such costs and damages as may be incurred or suffered by defendants if found to be wrongfully enjoined or restrained; (4) that this matter be heard on plaintiffs' request for preliminary injunction at 4:30 p.m. on Monday, March 3, 1980
Abstention
The initial question for a federal court

confronted with a challenge to the constitutionality of a state or municipal ordinance is whether considerations of comity and federalism require the court to abstain from deciding the matter until an appropriate state court has had an opportunity to resolve the dispute. Younger v. Harris, 401 U.S. 37 (1971)
Abstention
None of the three plaintiffs is presently involved in a state court proceeding of any kind. The plaintiffs have satisfied the court that the threat of their being prosecuted under Ordinance 3-80 is substantial and immediate. Three of the dancers employed by the plaintiffs have already been arrested under the new law Since the last arrest on February 14th, the police have visited the plaintiffs' restaurant at least once a day.
Hughes v. Cristofane 486 F. Supp. 541, 543-544 (D. Md. 1980)

Application of the Five Factors The plaintiffs have satisfied each of the Rule 65 prerequisites. If a restraining order did not issue, the owners of the Three Captains Restaurant would suffer irreparable harm both to their financial interests and to their interest in the free exercise of constitutional rights.
The plaintiffs have also satisfied the court that they have no adequate remedy at law. If the status quo is not preserved, the passage of time required to litigate the plaintiffs' claims will work the irreparable injury the plaintiffs have described.
Hughes v. Cristofane 486 F. Supp. 541, 543-544 (D. Md. 1980)
Nothing in this opinion or in the order
should be deemed to affect any state

proceedings stemming from
enforcement of the ordinance prior to

today's date.
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Clinton v. Nagy, 411 F. Supp. 1396 (ND OH 1974) p. 151
What is the irreparable harm that Brenda Clinton would suffer if an injunction is not granted permitting her to try out for a football team?
Is the order too narrow?
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Washington Capitols v. Barry (N.D. Cal. 1969)
Franchise player Rick Barry seeks to jump to Golden State Warriors Is the 13th Amendments bar on involuntary servitude implicated?
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Washington Capitols Basketball Club, Inc. v. Barry 304 F. Supp. 1193 (D. Cal. 1969) P. 155
Plaintiff seeks a preliminary injunction to enjoin Barry from playing professional basketball with any team other than plaintiff The grant or refusal of injunctive relief is a matter of equitable jurisdiction The purpose of the preliminary injunction maintain the status quo between the litigants pending final determination of the case is to.
For plaintiff to succeed it must show at
least first, a reasonable probability of

success in the main action and second,
that irreparable damage would result

from a denial of the motion
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A. The Status Quo
The status quo is the last, peaceable, uncontested status between the parties which preceded the present controversy. ***
The status quo of the parties to the action was that peaceable state of affairs existing when Barry was under contract to Oaks and, prior to his injury, playing professional basketball for that team during the 1968-69 season.
Irreparable harm Irreparable injury is that which cannot be compensated by the award of money damages; it is injury which is certain and great. Such injury exists when an athletic team is denied the services of an irreplaceable athlete. Barry is just such an irreplaceable athlete.

Weighing the Equities No matter which side prevails on the merits in this controversy, it is indisputable that the other side may suffer substantial harm. "In determining whether to grant a preliminary injunction it is proper for a court to 'weigh the equities' and 'balance the hardships.'"
Although the consequences of this determination may result in the departure of Barry from the San Francisco Bay Area to his claimed detriment, equitable considerations constrain this Court to sign this day the proposed findings of fact, conclusions of law, and order granting to plaintiff a preliminary injunction. Any relief granted herein is without prejudice to defendant Barry's right to seek damages for any loss he may suffer and prove legally during the existence of this preliminary injunction. Ch. 4 Injunctions 30
American Hospital Supply Corp. v. Hospital Products, Ltd., 780 F.2d 589 (7th Cir. 1986) p. 160
A district judge must choose the course of action that will minimize the costs of being mistaken. Because he is forced to act on an incomplete record, the danger of a mistake is substantial. And a mistake can be costly.
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If the harm to the plaintiff if the
injunction is denied, multiplied by the

probability that the plaintiff will lose
exceeds the harm to defendant if the

injunction is granted the injunction
should not be granted.
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These mistakes can be compared, and the one likely to be less costly can be selected, with the help of a simple formula, grant the preliminary injunction if but only if P x Hp > (1-P) x Hd from the assumption that Hp = Hd Is he serious?
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The left-hand side of the formula is simply the probability of an erroneous denial weighted by the cost of denial to the plaintiff, and the right-hand side simply the probability of an erroneous grant weighted by the cost of grant to the defendant.
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The familiar four (sometimes five or six) factor test that courts use in deciding whether to grant a preliminary injunction. - whether the plaintiff will be irreparably harmed if the preliminary injunction is denied - sometimes also whether the plaintiff has an adequate remedy at law - whether the harm to the plaintiff if the preliminary injunction is denied will exceed the harm to the defendant if it is granted,
- whether the plaintiff is reasonably likely to prevail at trial, and - whether the public interest will be affected by granting or denying the injunction (i.e., - whether third parties will be harmed -- and these harms can then be added to Hp or Hd as the case may be).
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Swygert, dissenting
Equity, as the majority concedes, involves the assessment of factors that cannot be quantified.
A court must to some extent, the majority concedes, rely on the "feel" of the case.
Swygert, dissenting
The majority never attempts to assign a numerical value to the variables of its own formula. We are never told how to measure P or Hp or Hd. The majority appears to concede, that a numerical value could never be assigned to these variables.
Swygert, dissenting
Judges asked to issue a preliminary injunction must, in large part, rely on their own judgment, not on mathematical quanta.
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The Hearing Requirement

Extraordinary relief: Mandamus Ex Parte Temporary Restraining Order (TRO)
Temporary, Preliminary, and Permanent relief

TRO Temporary restraining order - ex parte (defendant cant be trusted or reached) - on notice Preliminary Injunction - bond or other security conditions Permanent injunction - may be combined with damages and other remedies
Ex parte relief
Immediate and irreparable harm will occur before hearing
Preserve the status quo/subject

matter of the courts jurisdiction
Notice is impractical
Notice would cause loss of `res

May be dissolved on short notice
Ex parte relief the TRO In re Vuitton Et Fils S.A. p. 171 606 F.2d 1(2d Cir. 1979)
On petition for a writ of mandamus to enter an ex parte TRO Vuitton states: Vuitton's experience, based upon the 84 actions it has brought and the hundreds of other investigations it has made . . . has led to the conclusion that there exist various closely-knit distribution networks for counterfeit Vuitton products.
Ex parte TRO
The ex parte temporary restraining
order is indispensable to the

commencement of an action when it
is the sole method of preserving a

state of affairs in which the court can
provide effective final relief.

Ex parte TRO

Immediate action is vital if there is risk of: - imminent destruction of the disputed property -removal beyond the confines of the state, or - sale to an innocent third party If giving the defendant notice of the application for an injunction could result in an inability to provide any relief at all an order may be issued to preserve the status quo.
Problem 1 Labor Strife p. 173
Strikers disrupting plant access, ignore company demands to cease & desist Why is this in state court? What would the employer have to show to get an ex parte TRO?
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Injunction Act (Ill. Rev. Stat. 1975, ch. 69, par. 3 -- 1).
"No [TRO] shall be granted without notice to the adverse party unless 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 notice can be served and a hearing had thereon. Every temporary restraining order granted without notice * * * shall define the injury and state why it is irreparable and why the order was granted without notice * * *."
American Can v. Mansukhani, p. 174
The ex parte order enjoined defendants from selling jet inks of any type, including defendants' SK-2914 and SK-2916 jet inks, to any of plaintiff's customers, previously serviced by Mansukhani when he was employed by plaintiff What was the defect in the courts order? What would have cured it? Does Mansukhani have a remedy?
American Can v. Mansukhani
Where there are no practical obstacles to giving notice to the adverse party, an ex parte order is justified only if there is no less drastic means for protecting the plaintiff's interests.
What would have been a better course for the court below?
American Can v. Mansukhani
Such an order could have instructed defendants not to disturb their inventory or to secrete documents pending the hearing Plaintiff must show, in effect, that the defendants would have disregarded a clear and direct order from the court to preserve the inks and documents for a few hours until a hearing could have been held.
Appeals
TROs not subject to immediate right of appeal Grants, continuing, modifying, or refusing injunctions are subject to right of immediate appeal 28 USC 1291
Why?
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Marquette v. Marquette, p. 179
Why should an ex parte order barring visitation with ones child be granted so readily?
Is this right likely to be abused in practice?
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Persons bound, p. 181

Agents Aiders and abettors Persons with knowledge of the decree Successors in interest Those in contact with the `res Class members
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Notice
ACTUAL Notice is required FRCP 65 (d) Mutuality of purpose is not enough!
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Planned Parenthood v. Garibaldi, p. 181
Operation Rescue organized and coordinated regular protests at the clinic. - "several 'very large . . . blockades' of more than 100 protestors [that] resulted in the clinic's temporary closure. - 'rows of people blocked all the doors' to the clinic. Is actual notice, agency, employment or acting in concert too protective of the protesters?
Planned Parenthood v. Garibaldi, p. 181
Personal jurisdiction and notice are not enough
The Order must be directed against
that person as an individual or as

member of a class to which that
individual belongs
SUNY v. Denton, p. 186
Injunction aimed at students barred disruption and interference
45 Faculty entered Presidents office and refused to leave
Isnt that acting in concert ? Was the court too lenient in dismissing the contempt citations ?
Dalton v. Meister (WI 1978), p. 188
District Court had power in school desegregation case to protect its ability to render a binding judgment between the original partiesby issuing an interim ex parte order against an undefinable class of persons. Willful violation by a person with notice constitutes criminal contempt.
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Dalton v. Meister (WI 1978), p. 188
A nonparty may be held in contempt for violating an injunction if he is in privity with a party or subject to his control if he
is acting in concert with a party, or if he

aids and abets a party in violating an
injunction.
Is that constitutionally sufficient notice?

Golden State Bottling v. NLRB, p. 194
Although All American was a bona fide purchaser of the business, unconnected with Golden State, the Board found that, having acquired the business with knowledge of the outstanding Board order, All American was a "successor" for purposes of the National Labor Relations Act and liable for the reinstatement of Baker with backpay If equity is in personam why isnt All American off the hook?
Cape May & Schellengers Landing RR Co. v. Johnson (Ch. 1882)
Notice to City Council by telegraph sufficient to support contempt conviction Notice, to be sufficient, need possess but two requisites--first, it must proceed from a source entitled to credit; and second, it must inform the defendant clearly and plainly from what act he must abstain. Can notice by email, tweet, text message, `like on Facebook page?
Midland Steel v. Intl Union, p. 200
appellants knowledge of the two picket limit, as demonstrated by their compliance with that limit, raises an inference that they (actually) knew of the other limits in the TRO.
Justice Douglas says presumption has been piled on top of presumption. Is that correct?
Vermont Womens Health Ctr. V. Operation Rescue, p. 203
TRO, damages, attorneys fees, prospective coercive fines Elements for enforcement: Act in concert Order specific and unambiguous
Actual knowledge of mandate

Standard of review: is there substantial credible evidence to support the finding that each defendant knew of the terms
What did police do to sufficiently inform the protesters of the Order?
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Why are the protesters afforded an opportunity to leave without arrest?
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The Bond Requirement

FRCP 65(c)
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c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. Does this unreasonably burden the right to seek redress of grievances?
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Security, surety, insurance
Security: asset pledged to satisfy a contingent obligation Obligee: one owed money or service Principal: one who owes money or performance Surety: one who stands in the shoes of the obligor toward the obligee Insurance: a contract obtained by a contingent obligor to indemnify the obligor for a specified type of liability
Damages for wrongful injunction
a party injured by issuance of an injunction later determined to be erroneous has no action for damages in the absence of a bond WR Grace & Co. v. Local 759 (U.S. 1983)
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Coyne-Delany Co. v. Capital Dev. Bd.,

717 F.2d 385, 393 (7th Cir. Ill. 1983) p. 206
The bond is the limit of the damages the defendant can obtain for a wrongful injunction, even from the plaintiff, provided the plaintiff was acting in good faith.
Why recognize such a limit?

Smith v. Coronado, p. 210 Arizona (1977)
Should we have a different rule on
damages if an order is reversed or vacated

if it was obtained ex parte?
Even though 10 days is the limit and it can

be dissolved on short notice?
How can courts set reasonable sums for

injunction bonds?
Continuum Co. v. Incepts, Inc., 873 F.2d 801, 803 (5th Cir. Tex. 1989)
Bond requirement: 1) assures enjoined party it can collect damages 2) notifies good faith plaintiff of the maximum extent of its potential liability What interests are protected by such a rule?
Continuum obtained injunction against Incepts, p. 212

Bond in favor of Incepts increased after 11 day hearing from $200K to $2M Continuum $2.5M annual profit $2M bond would impose great hardship Bond reqt reduced but Continuum must file an undertaking that the amount of the bond will not limit the amount of damages for which it might be liable.
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STAYS
FRCP Rule 8 Notice Risk of error Bond
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SEC v. Citigroup
Did Judge Rakoffs rejection of the proposed settlement and injunction exceed his powers under FRCP 65 to take into account the public interest? Should his order to the SEC and Citigroup to proceed to trial be stayed?
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Rule 8 Stay or Injunction Pending Appeal
(a) Motion for Stay. (1) Initial Motion in the District Court. A party must ordinarily move first in the district court for the following relief: (A) a stay of the judgment or order of a district court pending appeal; (B) approval of a supersedeas bond; or (C) an order suspending, modifying, restoring, or granting an injunction while an appeal is pending.
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Rule 8 Stay or Injunction pending Appeal

(2) Motion in the Court of Appeals; Conditions on Relief. A motion for the relief mentioned in Rule 8(a)(1) may be made to the court of appeals or to one of its judges. (A) The motion must: (i) show that moving first in the district court would be impracticable; or (ii) state that, a motion having been made, the district court denied the motion or failed to afford the relief requested and state any reasons given by the district court for its action.
(B) The motion must also include: i) the reasons for granting the relief requested and the facts relied on; (ii) originals or copies of affidavits or other sworn statements supporting facts subject to dispute; and (iii) relevant parts of the record.
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(C) The moving party must give reasonable notice of the motion to all parties.
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(D) A motion under this Rule 8(a)(2) must be filed with the circuit clerk and normally will be considered by a panel of the court. But in an exceptional case in which time requirements make that procedure impracticable, the motion may be made to and considered by a single judge.
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(E) The court may condition relief on a party's filing a bond or other appropriate security in the district court.
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Permanent Injunctions
A discretionary power
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Framing the Injunction, p. 235
FRCP Rule 65 (d) (1) Contents. Every order granting an injunction and every restraining order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail--and not by referring to the complaint or other document--the act or acts restrained or required.
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Ebay v. MercExchange (U.S. 2006) p.

226
Court of Appeals for the Federal Circuit states categorical rule: injunction shall be issued in patent cases after liability determined Reversed Patent Act says injunctions may issue in accordance with the principles of equity Four factor test must be used
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Ebay v. MercExchange (U.S. 2006) p.

226

Kennedy, Stevens, Souter & Breyer Concurring but would be skeptical of injunction applications by patent trolls An industry has developed in which firms use patents not to sell and produce goods, but primarily for the purpose of obtaining licensing fees. Why should injunctions be viewed skeptically in such cases?
Weinberger v. Romero (1982) p. 230
Clean Water Act 33 USC 1251 (3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited.
Surely that includes detonation of high explosives off the shore of Vieques a resort island. Why does the court allow judges to make exceptions to what Congress has prohibited?
Framing the injunction
FRCP 65 Set forth reasons for issuance Specificity in terms Describe in reasonable detail the acts to be restrained
What are the policies behind these requirements?

Murray v. Lawson, 136 N.J. 32(N.J. 1994)
ORDERED that the defendants and all persons and organizations associated with or acting in concert or combination with them be ENJOINED and RESTRAINED as follows: 1. From gathering, parading, patrolling for the purpose of demonstrating or picketing within the immediate vicinity of plaintiffs' residence * * *. 2. Distributing flyers to plaintiffs' neighbors which contain references to [Dr. Boffard] as being a murderer or killer or his practice as involving murder or killing or which contains any other inflammatory language or which sets forth the plaintiffs' home address. 3. Carrying placards which contain depictions of a Ch. 4 Injunctions fetus * * *.
88
Murray v. Lawson (N.J. 1994)
p.235
Your husband is a murderer
Dr. Boffard lives on a one lane deadend street with only two houses on it. The injunction banned gathering in the immediate vicinity.
Whats wrong with that?
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Murray v. Lawson (N.J. 1994)
p.235
The Chancery Division has great flexibility in defining the scope of the ban; the court could, for example, - preclude picketing on plaintiffs' street - prohibit that activity - within a specific number of feet from, - within sight distance of or - in front of plaintiffs's residence.
Peggy Lawton Kitchens v. Hogan (1989) p. 241
Hogan enjoined from making, baking, and selling chocolate chip cookies that use or utilize Peggy Lawtons[secret] formula Hogan dropped nut meal and added a small amount of vanilla extract. The patent doctrine of substantial equivalence extends protection to imitators who make minor changes. Why not use that idea here?
Madsen v. Womens Health Center (U.S. 1994)

There are three approaches: Rehnquist (majority) Stevens Scalia
Which approach of the three do you

think is best?
Madsen v. Womens Health Ctr., (U.S. 1994) p. 243
Majority
Whether by statute or ordinance

content neutral restrictions on picketing, etc. must be narrowly tailored to serve a significant governmental interest.
Madsen, p. 243
[W]hen evaluating a content-neutral injunction, we think that our standard time, place, and manner analysis is not sufficiently rigorous. We must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest. 36-foot buffer zone meets that test
Statutes and Injunctions
Justice Stevens: review of an injunction is more lenient than of a statute. A 36 foot exclusion zone via statute would violate the constitution but not an injunction providing the same. How are they different? Should they be treated differently?
Justice Scalia : strict scrutiny
an injunction restricting speech must be no more restrictive thannecessary to serve a compelling state interest and narrowly drawn to achieve that end. This order is really content-based Scalia thinks an injunction is more dangerous than a statute. Do you agree with Scalia?
Strict scrutiny of injunctions?

Justice Scalia : The court could have ordered: Stay out of the street - limit number demonstrators on clinic side - forbidden walking on driveway P. 252
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Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)
The amended injunction prohibits petitioners from engaging in the following acts: (1) At all times on all days, from entering the premises and property of the Aware Woman Center for Choice [the Melbourne clinic] . . . . "(2) At all times on all days, from blocking, impeding, inhibiting, or in any other manner obstructing or interfering with access to, ingress into and egress from any building or parking lot of the Clinic.
Madsen v. Women's Health Ctr., 512 U.S. 753 (1994), p. 243
"(3) At all times on all days, from congregating, picketing, patrolling, demonstrating or entering that portion of public right-of-way or private property within [36] feet of the property line of the Clinic . . . . An exception to the 36 foot buffer zone is the area immediately adjacent to the Clinic on the east . . . . The [petitioners] . . . must remain at least [5] feet from the Clinic's east line.
(4) During the hours of 7:30 a.m. through noon, on Mondays through Saturdays, during surgical procedures and recovery periods, from singing, chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds or images observable to or within earshot of the patients inside the Clinic.
"(5) At all times on all days, in an area within [300] feet of the Clinic, from physically approaching any person seeking the services of the Clinic unless such person indicates a desire to communicate by approaching or by inquiring of the [petitioners]. . . . Isnt this a reasonable measure to protect privacy?
(6) At all times on all days, from approaching, congregating, picketing, patrolling, demonstrating or using bullhorns or other sound amplification equipment within [300] feet of the residence of any of the [respondents'] employees, staff, owners or agents, or blocking or attempting to block, barricade, or in any other manner, temporarily or otherwise, obstruct the entrances, exits or driveways of the residences of any of the [respondents'] employees, staff, owners or agents. Isnt this reasonable protection for the last citadel? Ch. 4 Injunctions 102
The [petitioners] and those acting in concert with them are prohibited from inhibiting or impeding or attempting to impede, temporarily or otherwise, the free ingress or egress of persons to any street that provides the sole access to the street on which those residences are located.
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(7) At all times on all days, from physically abusing, grabbing, intimidating, harassing, touching, pushing, shoving, crowding or assaulting persons entering or leaving, working at or using services at the [respondents'] Clinic or trying to gain access to, or leave, any of the homes of owners, staff or patients of the Clinic . . . .
Madsen
(8) At all times on all days, from harassing, intimidating or physically abusing, assaulting or threatening any present or former doctor, health care professional, or other staff member, employee or volunteer who assists in providing services at the [respondents'] Clinic.
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Madsen
(9) At all times on all days, from encouraging, inciting, or securing other persons to commit any of the prohibited acts listed herein.
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Madsen

Justice Stevens writes: As with [union labor] picketing, the
principal reason why handbills

containing the same message are so much less effective than "counseling" is that "the former depend entirely on the persuasive force of the idea."
Madsen

Stevens, contd Just as it protects [labor] picketing, the First Amendment protects the speaker's right to offer "sidewalk counseling" to all passers-by. That protection, however, does not encompass attempts to abuse an unreceptive or captive audience, at least under the circumstances of this case.
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Madsen

Stevens, contd One may register a public protest by placing a vulgar message on his jacket and, in so doing, expose unwilling viewers. Nevertheless, that does not mean that he has an unqualified constitutional right to follow and harass an unwilling listener, especially one on her way to receive medical services.
Experimental and conditional injunctions

Weighing the public interest and the private right p. 254
Boomer v. Atlantic Cement (NY 1970)
Nuisance found, temporary damages awarded, injunction denied Amelioration of air pollution will depend on technical research in great depth, carefully balanced consideration of economic impact of close regulation; actual effect on public health Isnt that exactly why an injunction should have been granted?
Spur Industries v. Del-Webb (1972) p. 260
When a person maintains a public nuisance, it can be banned without compensation via the police power. A court order is state action. Why should Webb be ordered to compensate Spur Industries when it could be shut down by the EPA (if there were one)?
Injunctions against litigation

State court injunctions against state litigation State court injunctions against federal litigation Federal against state
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113
Ex parte Young, 209 U.S. 123 (U.S. 1908)
A state railroad rate statute which imposes such excessive penalties that parties affected are deterred from testing its validity in the courts denies the carrier the equal protection of the law without regard to the question of insufficiency of the rates prescribed
Ex parte Young, 209 U.S. 123 (U.S. 1908)
It is within the jurisdiction, and is the duty, of the Circuit Court to inquire whether such rates are so low as to be confiscatory, and if so to permanently enjoin the railroad company, at the suit of one of its stockholders, from putting them in force, and it has power pending such inquiry to grant a temporary injunction to the same effect.
Federal injunctions of state court proceedings

What are the federal considerations? What authority does the U.S. have by virtue of the 14th Amendment?
Is Dombrowski v.Pfister an instance of
northern imperialism, running rough shod

over states rights?
DOMBROWSKI v. PFISTER, CHAIRMAN, JOINT LEGISLATIVE COMMITTEE ON UNAMERICAN ACTIVITIES OF THE LOUISIANA LEGISLATURE (1965) Dombrowski is Director of the Southern Conference Education Fund Arrested, offices raided, records seized, with continued threats of prosecution after invalidation by a state court of the arrests and seizure of evidence.
Subversive Activities and Communist Control Act of Louisiana
Declared void as unconstitutionally overbroad by 3 judge court 28 USC 2283 Continuing threat of prosecution has a chilling effect on free speech Equity therefore will enjoin such bad faith prosecutions
California Criminal Syndicalism Act " 11400. Definition
"'Criminal syndicalism' means: any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage, or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.
Younger v. Harris, 401 U.S. 37 (1971)
Federal courts will not enjoin pending state criminal prosecutions except under extraordinary circumstances where the danger of irreparable loss is both great and immediate. Why not use a substantial likelihood
of significant risk of injustice?

Younger v. Harris, 401 U.S. 37 (1971)
No pattern is alleged
Dombrowski involved alleged badfaith harassment and is factually
distinguishable from this case
Ch. 4 Injunctions
121
Younger Douglas, dissenting
Dombrowski recognized that in times of

repression, when interests with powerful spokesmen generate symbolic pogroms against nonconformists, the federal judiciary, charged by Congress with special vigilance for protection of civil rights, has special responsibilities to prevent an erosion of the individual's constitutional rights.
Ch. 4 Injunctions
122
Younger Douglas dissenting
The statute here is a blunderbuss, patently unconstitutional Therefore we should depart from our customary deference to state criminal prosecutions
Ch. 4 Injunctions
123
Limits of the structural injunction

Legitimacy and competence
Ch. 4 Injunctions
124
Campaign for Fiscal Equity v. State, 86 N.Y.2d 307 (1995)
Article XI, 1 of the State Constitution, the Education Article, mandates that "[t]he legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated."
Title VI provides: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance" (42 USC 2000d).
Plaintiffs allege the State's educational financing scheme fails to provide public school students in the City of New York an opportunity to obtain a sound basic education as required by the State Constitution.
Ch. 4 Injunctions
127
Disparate impact and the Structural Injunction
Plaintiffs have stated a disparate impact cause of action under title VI's regulations. The State allocates only 34% of all State education aid to a school district containing 37% of the State's students (81% of whom are minorities comprising 74% of the State's minority student population)
Ch. 4 Injunctions
128
Disparate impact and the Structural Injunction
If the facts are as alleged, those minority students will receive less aid as a group and per pupil than their nonminority peers who attend public schools elsewhere in the State, irrespective of how the City suballocates the education aid it receives Cause of action stated under Title I
Paynter v. State, 100 N.Y.2d 434 (N.Y. 2003)
15 African American schoolchildren alleged that various State policies, including school residency requirements and nonresident tuition requirements, had resulted in high levels of poverty and racial isolation, which in turn had led to deficient student performance.
Ch. 4 Injunctions
130
Limits of structural injunctions
Rochester African American children allege:
The State of New York failed to

mitigate demographic factors that affect student performance,
resulting in inferior education for

minority children.
Allegations of academic failure
alone, without allegations that the

State had failed in its obligation to
provide minimally acceptable

educational services, were insufficient to state a cause of action.
To embrace plaintiffs' theory that the State was responsible for the demographic makeup of every school district would subvert the important role of local control and participation in education and would make the State responsible for where people chose to live.

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Remedies Spring 2014

Types of cases amenable to injunctive relief

Types of cases amenable to injunctive relief

Types of cases amenable to injunctive relief

Types of cases amenable to injunctive relief

Standards for injunctive relief

Plaintiffs must show:

(a) Preliminary Injunction.

(2) Consolidating the Hearing with the Trial on the Merits.

F.R.C.P. 65 (b) Temporary Restraining Order.

F.R.C.P. 65 Temporary Restraining Orders

TRO Hughes v. Cristofane, p. 146

Order Hughes v. Cristofane

The initial question for a federal court

Hughes v. Cristofane 486 F. Supp. 541, 543-544 (D. Md. 1980)

Hughes v. Cristofane 486 F. Supp. 541, 543-544 (D. Md. 1980)

Nothing in this opinion or in the order

should be deemed to affect any state

enforcement of the ordinance prior to

Clinton v. Nagy, 411 F. Supp. 1396 (ND OH 1974) p. 151

Is the order too narrow?

Washington Capitols v. Barry (N.D. Cal. 1969)

For plaintiff to succeed it must show at

least first, a reasonable probability of

that irreparable damage would result

A. The Status Quo

If the harm to the plaintiff if the

injunction is denied, multiplied by the

exceeds the harm to defendant if the

should not be granted.

The Hearing Requirement

Temporary, Preliminary, and Permanent relief

Immediate and irreparable harm will occur before hearing

Preserve the status quo/subject

Notice would cause loss of `res

The ex parte temporary restraining

order is indispensable to the

is the sole method of preserving a

provide effective final relief.

Problem 1 Labor Strife p. 173

American Can v. Mansukhani, p. 174

American Can v. Mansukhani

American Can v. Mansukhani

Marquette v. Marquette, p. 179

Is this right likely to be abused in practice?

Persons bound, p. 181

ACTUAL Notice is required FRCP 65 (d) Mutuality of purpose is not enough!

Planned Parenthood v. Garibaldi, p. 181

Planned Parenthood v. Garibaldi, p. 181

Personal jurisdiction and notice are not enough

The Order must be directed against

that person as an individual or as

SUNY v. Denton, p. 186

Injunction aimed at students barred disruption and interference

45 Faculty entered Presidents office and refused to leave

Dalton v. Meister (WI 1978), p. 188

Dalton v. Meister (WI 1978), p. 188

is acting in concert with a party, or if he

Is that constitutionally sufficient notice?

Golden State Bottling v. NLRB, p. 194

Cape May & Schellengers Landing RR Co. v. Johnson (Ch. 1882)

Midland Steel v. Intl Union, p. 200

Vermont Womens Health Ctr. V. Operation Rescue, p. 203