Chapter 4 Injunctions - powerpoint slides Weaver, et al. Remedies

8/13/2019 Chapter 4 Injunctions - powerpoint slides Weaver, et al. Remedies

1/133

Remedies

Spring 2014

Chapter 4 Injunctions

Prof. George W. Conk

[email protected]

Room 409

212-636-7446

Adjunct Professor of Law &

Senior Fellow

Stein Center for Law & Ethics

Ch. 4 Injunctions 1
mailto:[email protected]:[email protected]


2/133

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 ofreal estate or sale of unique goods

preserve or turnover tangible and intangibleproperty

2Ch. 4 Injunctions


3/133


Employment Law

labor disputes (illegal strikes, unfairlabor practices)

cease discriminatory practices

reinstate an employee wrongly denieda promotion

3Ch. 4 Injunctions


4/133


Civil liberties/fair trial

Permit or limit picketing/marches

enjoin enforcement of unconstitutionalstatute

enjoin a bad faith prosecution or civilproceeding

(Dombrowski, Younger, Pennzoil)

enjoin a trial in an unfair forum(Garden State Bar Association)

4Ch. 4 Injunctions


5/133


Structural Injunctions

Desegregate a school (Brown, Schoolbusing)

Racial gerrymanderinglegislative

redistricting (Baker v. Carr) Restructure the financing of a school

system (Abbott v. Burke, Campaign for

Fiscal Equity)

5Ch. 4 Injunctions


6/133

Precedent, Rules, Statutes

Chancery vs. Law CourtsFRCP 65

CPLR Art. 63

Standards for injunctive

relief

Ch. 4 Injunctions 6


7/133

F.R.C.P. 65 - Injunctions

Plaintiffs must show:

(1) that unless the restraining order issues, they willsuffer irreparable harm;

(2) that the hardship they will suffer absent theorder outweighs any hardship the defendants wouldsufferif the order were to issue;

(3) that they are likely to succeed on the merits oftheir claims;

(4) that the issuance of the order will cause nosubstantial harm to the public; and

(5) that they have no adequate remedy at law.

7Ch. 4 Injunctions


8/133


(a) Preliminary Injunction.

(1) Notice. The court may issue apreliminary injunction only on notice to

the adverse party.

(2) Consolidating the Hearing with the

Trial on the Merits.

8Ch. 4 Injunctions


9/133


Before or after beginning a hearing on

a motion for a preliminary injunction,the court may advance the trial on themerits 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 andneed not be repeated at trial.

The court must preserve any party's

right to a jury trial. 9Ch. 4 Injunctions


10/133

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

(1) Issuing Without Notice. The court may

issue a temporary restraining order withoutwritten or oral notice to the adverse party orits attorney only if:(A) specific facts in an affidavit or a verified

complaint clearly show that immediate andirreparable injury, loss, or damage will resultto the movant before the adverse party canbe heard in opposition; and

(B) the movant's attorney certifies in writingany efforts made to give notice and thereasons why it should not be required.

10Ch. 4 Injunctions


11/133


(2) Every TRO issued without noticemust -

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 expiresat the time after entry--not

to exceed 10 days--that the court sets,unlessbefore that time the court, for good

cause, extends it for a like period or theadverse party consents to a longer extension.

The reasons for an extensionmust beentered in the record.

11Ch. 4 Injunctions


12/133

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

(3) Expediting the Preliminary-

Injunction Hearing. If the order is issued without notice,

the motion for a preliminary injunction

must be set for hearing at the earliestpossible time

At the hearing, the party who obtained

the order must proceed with themotion; if the party does not, the courtmust dissolve the order.

12Ch. 4 Injunctions


13/133


(4) Motion to Dissolve. On 2 days'

notice to the party who obtained theorder without notice--or on shorternotice set by the court--the adverse

party may appear and move to dissolveor modify the order.

The court must then hear and decide

the motion as promptly as justicerequires.

13Ch. 4 Injunctions


14/133


c) Security. The court may issue a

preliminary injunction or a temporaryrestraining order only if the movantgives security in an amount that thecourt considers proper to pay the costs

and damages sustained by any partyfound to have been wrongfully enjoinedor restrained.

The United States, its officers, and itsagencies are not required to givesecurity.

14Ch. 4 Injunctions


15/133


(d) Contents and Scope

(1) Contents. Every order granting aninjunction and every restraining ordermust:

(A) state the reasonswhy it issued;(B) state its terms specifically; and(C) describe in reasonable detail--andnot by referring to the complaint orother document--the act or actsrestrained or required.

15Ch. 4 Injunctions


16/133

Hughes v. Cristofane, (D MD 1980) p. 146

Why does the court grant a TRO?

How does plaintiff meet the five FRCP 65factors?

What is the purpose of the security bond?

Why $500?

What will happen at the preliminaryinjunction hearing?

Why not file suit in state court?

Why not grant Younger extension

16Ch. 4 Injunctions


17/133

TROHughes v. Cristofane, p. 146

(2) that effective immediately, defendants

Mayor and Councilmen of the Town ofBladensburg and their agents be, and thesame hereby are Restrained from enforcing

Ordinance 3-80 of the Town of Bladensburgfor a period of ten daysfrom the date of thisOrder

Why ten days?

17Ch. 4 Injunctions


18/133

Order Hughes v. Cristofane

(3) that plaintiffs give securityby filing

forthwith a bond in the sum of $ 500.00for the payment of such costs anddamages as may be incurred or

suffered by defendants if found to bewrongfully enjoined or restrained;

(4) that this matter be heard onplaintiffs' request for preliminaryinjunction at 4:30 p.m. on Monday,March 3, 1980

18Ch. 4 Injunctions

Ab t ti


19/133

Abstention

The initial question for a federal court

confronted with a challenge to theconstitutionality 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 anopportunity to resolve the dispute.

Younger v. Harris, 401 U.S. 37 (1971)

19Ch. 4 Injunctions


20/133

Abstention

None of the three plaintiffs is presentlyinvolved in a state court proceeding of anykind.

The plaintiffs have satisfied the court thatthe threat of their being prosecuted under

Ordinance 3-80 is substantial and immediate. Three of the dancersemployed by the

plaintiffs have already been arrested underthe new law

Since the last arrest on February 14th, thepolice have visitedthe plaintiffs' restaurantat least once a day.

20Ch. 4 Injunctions


21/133

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 65prerequisites.

If a restraining order did not issue, the owners of theThree Captains Restaurant would suffer irreparableharm both to their financial interests and to theirinterest 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 isnot preserved, the passage of time required tolitigate the plaintiffs' claims will work the irreparableinjury the plaintiffs have described.

21Ch. 4 Injunctions


22/133

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 fromenforcement of the ordinance prior to

today's date.

22Ch. 4 Injunctions


23/133

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?

Ch. 4 Injunctions 23


24/133

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

1969)

Franchise player Rick Barry seeks to jumpto Golden State Warriors

Is the 13thAmendments bar oninvoluntary servitude implicated?



25/133

Washington Capitols Basketball Club, Inc. v.

Barry 304 F. Supp. 1193 (D. Cal. 1969) P. 155

Plaintiff seeks a preliminary injunctionto enjoin Barry from playingprofessional basketball with any teamother than plaintiff

The grant or refusal of injunctive reliefis a matter of equitable jurisdiction

The purpose of the preliminaryinjunction maintain the status quobetween the litigantspending finaldetermination of the case is to.

25Ch. 4 Injunctions


26/133



For plaintiff to succeed it must show at

least first, a reasonable probability of

successin the main action and second,that irreparable damagewould result

from a denial of the motion

26Ch. 4 Injunctions


27/133



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 actionwas that peaceable state of affairs existing

when Barry was under contract to Oaks and,prior to his injury, playing professionalbasketball for that team during the 1968-69season.

27Ch. 4 Injunctions


28/133



Irreparable harm

Irreparable injury is that which cannot

be compensated by the award of moneydamages; it is injury which is certainand great. Such injury exists when an

athletic team is denied the services ofan irreplaceable athlete. Barry is justsuch an irreplaceable athlete.

28Ch. 4 Injunctions


29/133



Weighing the Equities No matter which side prevails on the

merits in this controversy, it is

indisputable that the other side maysuffer substantial harm.

"In determining whether to grant a

preliminary injunction it is proper for acourt to 'weigh the equities' and'balance the hardships.'"

29Ch. 4 Injunctions


30/133



Although the consequences of thisdetermination may result in the departure ofBarry from the San Francisco Bay Area to hisclaimed detriment, equitable considerationsconstrain this Court to sign this day theproposed findings of fact, conclusions of law,and order granting to plaintiff a preliminaryinjunction.

Any relief granted herein is without prejudiceto defendant Barry's right to seek damagesfor any loss he may suffer and prove legallyduring the existence of this preliminary

injunction. 30Ch. 4 Injunctions


31/133

American Hospital Supply Corp. v. Hospital Products,

Ltd., 780 F.2d 589 (7th Cir. 1986) p. 160

A districtjudge must choose thecourse of action that will minimize thecosts of being mistaken.

Because he is forced to act on an

incomplete record, the danger of amistake is substantial. And a mistakecan be costly.

31Ch. 4 Injunctions


32/133


Ltd., 780 F.2d 589 (7th Cir. 1986) p. 160

If the harm to the plaintiff if theinjunction 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.

32Ch. 4 Injunctions


33/133


34/133


Ltd., 780 F.2d 589 (7th Cir. 1986) p. 160

The left-hand side of the formula is simplythe probability of an erroneous denialweighted by the cost of denial to the

plaintiff, and the right-hand side simplythe probability of an erroneous grantweighted by the cost of grant to the

defendant.

34Ch. 4 Injunctions


35/133


Ltd., 780 F.2d 589 (7th Cir. 1986) p. 160

The familiar four (sometimes five or six)factor test that courts use in decidingwhether to grant a preliminary injunction.

- whether the plaintiff will be irreparably

harmed if the preliminary injunction is denied

- sometimes also whether the plaintiff has anadequate remedy at law

- whether the harm to the plaintiff if thepreliminary injunction is denied will exceedthe harm to the defendant if it is granted,

35Ch. 4 Injunctions


36/133


Ltd., 780 F.2d 589 (7th Cir. 1986) p. 160

- whether the plaintiff is reasonably likelytoprevail at trial, and

- whether the public interestwill be affectedby granting or denying the injunction (i.e.,

- whether third parties will be harmed-- andthese harms can then be added to Hp or Hdas the case may be).

36Ch. 4 Injunctions


37/133

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.

37Ch. 4 Injunctions


38/133

Swygert, dissenting

The majority never attempts toassign a numerical value to thevariables of its own formula.

We are never told how to measure Por Hp or Hd.

The majority appears to concede,

that a numerical value could never beassigned to these variables.

38Ch. 4 Injunctions


39/133

Swygert, dissenting

Judges asked to issue a preliminary

injunction must, in large part, rely on

their ownjudgment, not on

mathematical quanta.

39Ch. 4 Injunctions


40/133

Extraordinary relief:

Mandamus

Ex Parte TemporaryRestraining Order (TRO)

The Hearing

Requirement


T P li i d


41/133

Temporary, Preliminary, and

Permanent relief TROTemporary restraining order

- ex parte (defendant cant be trusted orreached)

- on notice Preliminary Injunction

- bond or other security conditions

Permanent injunction - may be combined with damages and

other remedies



42/133

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 notice42Ch. 4 Injunctions

E t li f th TRO


43/133

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 enteran ex parte TRO

Vuitton states:

Vuitton's experience, based upon the 84actions it has brought and the hundreds ofother investigations it has made . . . has led

to the conclusion that there exist variousclosely-knit distribution networks forcounterfeit Vuitton products.

43Ch. 4 Injunctions


44/133

E t TRO


45/133

Ex parte TRO Immediate action is vital if there is risk of:

- imminent destructionof the disputedproperty

-removal beyond the confines of the state, or

- sale to an innocentthird party

If givingthe defendant noticeof the

application for an injunction could result inan inability to provide any relief at allanorder may be issued to preserve the statusquo.

45Ch. 4 Injunctions


46/133

Injunction Act (Ill Rev Stat 1975 ch 69


47/133

Injunction Act (Ill. Rev. Stat. 1975, ch. 69,

par. 3 -- 1).

"No [TRO] shall be granted without notice to theadverse party unless it clearly appears fromspecific facts shown by affidavit or by theverified complaint that immediate and

irreparable injury, loss, or damage will result tothe applicant before notice can be served and ahearing had thereon.

Every temporary restraining order granted

without notice * * * shall define the injuryandstate why it is irreparable and why the orderwas granted without notice* * *."



48/133

American Can v. Mansukhani, p. 174

The ex parte order enjoined defendants

from selling jet inks of any type, includingdefendants' SK-2914 and SK-2916 jetinks, to any of plaintiff's customers,

previously serviced by Mansukhani whenhe was employed by plaintiff

What was the defect in the courts order?

What would have cured it? Does Mansukhani have a remedy?



49/133

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?



50/133

American Can v. Mansukhani

Such an order could have instructeddefendants 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 afew hours until a hearing could have

been held.



51/133

Appeals

TROs not subject to immediate right ofappeal

Grants, continuing, modifying, or refusing

injunctions are subject to right ofimmediate appeal 28 USC 1291

Why?



52/133

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?



53/133


54/133

Notice

ACTUAL Notice is required

FRCP 65 (d)

Mutuality of purpose is not enough!


Planned Parenthood v Garibaldi p


55/133

Planned Parenthood v. Garibaldi, p.

181

Operation Rescue organized andcoordinated regular protests at the clinic.

- "several 'very large . . . blockades' ofmore than 100 protestors [that] resultedin the clinic's temporary closure.

- 'rows of people blocked all the doors' tothe clinic.

Is actual notice, agency, employment oracting in concert too protective of theprotesters?


Planned Parenthood v Garibaldi p


56/133

Planned Parenthood v. Garibaldi, p.

181

Personal jurisdiction and notice are notenough

The Order must be directed against

that person as an individual or as

member of a class to which that

individual belongs


SUNY Denton p 186


57/133

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 ?



58/133

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

District Court had power in school

desegregation case to protect its abilityto render a binding judgment between theoriginal partiesby issuing an interim ex

parte order against an undefinable class ofpersons.

Willful violation by a person with notice

constitutes criminal contempt.



59/133

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 partyor subject to his control if he

is acting in concertwith a party, or if he

aids and abetsa party in violating an

injunction.

Is that constitutionally sufficient notice?


G ld St t B ttli NLRB 194


60/133

Golden State Bottling v. NLRB, p. 194

Although All American was a bona fide

purchaser of the business, unconnectedwith Golden State, the Board found that,having acquired the business with

knowledge of the outstanding Boardorder, All American was a "successor" forpurposes of the National Labor Relations

Act and liable for the reinstatement ofBaker with backpay

If equity is in personam why isnt AllAmerican off the hook?


Cape Ma & Schellengers Landing RR


61/133

Cape May & SchellengersLanding RR

Co. v. Johnson (Ch. 1882)

Notice to City Council by telegraphsufficient to support contempt conviction

Notice, to be sufficient, need possess buttwo requisites--first, it must proceed froma source entitled to credit; and second, itmust inform the defendant clearly and

plainly from what act he must abstain. Can notice by email, tweet, text message,

`like on Facebook page?Ch. 4 Injunctions 61

Midl d St l I tl U i 200


62/133

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? Ch. 4 Injunctions 62

Vermont Womens Health Ctr V


63/133

Vermont Women s 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




64/133



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?




65/133



Why are the protesters afforded an

opportunity to leave without arrest?



66/133

FRCP 65(c)

The Bond Requirement




67/133

F.R.C.P. 65 Injunctions

c) Security. The court may issue a

preliminary injunction or a temporaryrestraining order only if the movantgives securityin an amount that thecourt considers proper to pay the costs

and damages sustained by any partyfound to have been wrongfully enjoinedor restrained.

Does this unreasonably burden the right toseek redress of grievances?

67Ch. 4 Injunctions

Security surety insurance


68/133

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 acontingent obligor to indemnify the obligorfor a specified type of liability



69/133

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)


Coyne-Delany Co v Capital Dev Bd
http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=717+F.2d+385%20at%20393http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=717+F.2d+385%20at%20393http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=717+F.2d+385%20at%20393http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=717+F.2d+385%20at%20393


70/133

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
http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=717+F.2d+385%20at%20393http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=717+F.2d+385%20at%20393http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=717+F.2d+385%20at%20393http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=717+F.2d+385%20at%20393http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=717+F.2d+385%20at%20393http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=717+F.2d+385%20at%20393


71/133

Arizona (1977)

Should we have a different rule ondamages 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?Ch. 4 Injunctions 71

Continuum Co v Incepts Inc 873 F 2d
http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=873+F.2d+801%20at%20803http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=873+F.2d+801%20at%20803


72/133

Continuum Co. v. Incepts, Inc., 873 F.2d

801, 803 (5th Cir. Tex. 1989)

Bond requirement:

1) assures enjoined party it cancollect damages

2) notifies good faith plaintiff of themaximum extent of its potentialliability

What interests are protected by sucha rule?


Continuum obtained injunction against
http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=873+F.2d+801%20at%20803http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=873+F.2d+801%20at%20803http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=873+F.2d+801%20at%20803http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=873+F.2d+801%20at%20803


73/133

Continuum obtained injunction against

Incepts, p. 212

Bond in favor of Incepts increased after 11day hearing from $200K to $2M

Continuum $2.5M annual profit

$2M bond would impose great hardship Bond reqtreduced but Continuum mustfile an undertaking that the amount of

the bond will not limit the amount ofdamages for which it might be liable.



74/133

STAYS

FRCP Rule 8

Notice

Risk of error

Bond

74Ch. 4 Injunctions


75/133

SEC v. Citigroup

Did Judge Rakoffsrejection of theproposed settlement and injunctionexceed 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?


Rule 8 Stay or Injunction Pending Appeal


76/133

y j g pp

(a) Motion for Stay.

(1) Initial Motion in the District Court. Aparty must ordinarily move first in thedistrict court for the following relief:

(A) a stay of the judgment or orderof adistrict court pending appeal;(B) approval of a supersedeas bond; or(C) an order suspending, modifying,

restoring, or granting an injunctionwhile anappeal is pending.

76Ch. 4 Injunctions

Rule 8 Stay or Injunction pending Appeal


77/133

y j p g pp

(2) Motion in the Court of Appeals;Conditions on Relief.

A motion for the relief mentioned in Rule8(a)(1) may be made to the court of appealsor to one of its judges.

(A) The motion must:(i) show that moving first in the districtcourt 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 anyreasons given by the district court for itsaction.

77Ch. 4 Injunctions



78/133

y j p g pp

(B) The motion must also include:

i) the reasons for granting the reliefrequested and the facts relied on;(ii) originals or copies of affidavits orother sworn statements supporting

facts subject to dispute; and

(iii) relevant parts of the record.

78Ch. 4 Injunctions



79/133

y j p g pp

(C) The moving party must give

reasonable notice of the motion to allparties.

79Ch. 4 Injunctions



80/133

y j p g pp

(D) A motion under this Rule 8(a)(2)

must be filed with the circuit clerk andnormally will be considered by a panelof the court.

But in an exceptional case in whichtime requirements make thatprocedure impracticable, the motionmay be made to and considered by a

single judge.

80Ch. 4 Injunctions



81/133

(E) The court may condition relief on a

party's filing a bond or otherappropriate security in the districtcourt.

81Ch. 4 Injunctions


82/133

A discretionary powerPermanent Injunctions


Framing the Injunction p 235


83/133

Framing the Injunction, p. 235

FRCP Rule 65 (d) (1) Contents. Every

order granting an injunction and everyrestraining order must:(A) state the reasonswhy it issued;

(B) state its terms specifically; and(C) describe in reasonable detail--andnot by referring to the complaint orother document--the act or actsrestrained or required.

83Ch. 4 Injunctions

Ebay v. MercExchange (U.S. 2006) p.


84/133

y g (226

Court of Appeals for the Federal Circuitstates categorical rule: injunction shall beissued in patent cases after liabilitydetermined

Reversed

Patent Act says injunctions mayissue inaccordance with the principles of equity

Four factor test must be used


Ebay v. MercExchange (U.S. 2006) p.


85/133

y g (226

Kennedy, Stevens, Souter & Breyer

Concurring but would be skeptical ofinjunction applications by patent trolls

An industry has developed in which firmsuse patents not to sell and produce goods,but primarily for the purpose of obtaininglicensing fees.

Why should injunctions be viewedskeptically in such cases?


W i b R (1982) 230


86/133

Weinberger v. Romero (1982) p. 230

Clean Water Act 33 USC 1251 (3) it isthe national policy that the discharge oftoxic pollutants in toxic amounts beprohibited.

Surely that includes detonation of highexplosives off the shore of Vieques a resortisland. Why does the court allow

judges to make exceptions to whatCongress has prohibited?



87/133

Murray v. Lawson, 136 N.J. 32(N.J. 1994)


88/133

ORDERED that the defendants and all persons andorganizations associated with or acting in concert or

combination with them be ENJOINED andRESTRAINED as follows:

1. From gathering, parading, patrolling for thepurpose of demonstrating or picketing within the

immediate vicinity of plaintiffs' residence * * *.

2. Distributing flyersto plaintiffs' neighbors whichcontain references to [Dr. Boffard] as being amurderer or killer or his practice as involving murder

or killing or which contains any other inflammatorylanguage or which sets forth the plaintiffs' homeaddress.

3. Carrying placards which contain depictions of a

fetus* * *. 88Ch. 4 Injunctions

Murray v. Lawson (N.J. 1994) p.235


89/133

Your husband is a murderer

Dr. Boffard lives on a one lane dead-end street with only two houses on it.

The injunction banned gathering inthe immediate vicinity.

Whats wrong with that?

89Ch. 4 Injunctions

Murray v. Lawson (N.J. 1994) p.235


90/133

The Chancery Division has greatflexibility in defining the scope of theban; 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.

90Ch. 4 Injunctions

Peggy Lawton Kitchens v. Hogan


91/133

ggy g

(1989) p. 241

Hogan enjoined from making, baking,and selling chocolate chip cookies that useor utilize Peggy Lawtons[secret] formula

Hogan dropped nut meal and added asmall amount of vanilla extract.

The patent doctrine of substantial

equivalence extends protection toimitators who make minor changes. Whynot use that idea here?


Madsen v. Womens Health Center


92/133

(U.S. 1994)

There are three approaches:

Rehnquist (majority)

Stevens

Scalia

Which approach of the three do you

think is best?92Ch. 4 Injunctions


93/133

Madsen, p. 243


94/133

Madsen, p. 243

[W]hen evaluating a content-neutral

injunction, we think that ourstandard time, place, and manneranalysis is not sufficiently rigorous.

We must ask instead whether thechallenged provisions of theinjunction burden no more speech

than necessary to serve a significantgovernment interest.

36-foot buffer zone meets that test

94Ch. 4 Injunctions

Statutes and Injunctions


95/133

j

Justice Stevens: review of an

injunction is more lenient than of astatute.

A 36 foot exclusion zone via statute

would violate the constitution butnot an injunctionproviding the same.

How are they different? Should they be treated differently?

95Ch. 4 Injunctions

Just ice Scal ia : s t r ic t sc rut iny


96/133

Just ice Scal ia : s tr ic t sc rut iny

an injunction restricting speech mustbe no more restrictive thannecessaryto serve a compelling state interestand narrowly drawn to achieve that

end.

This order is really content-based

Scalia thinks an injunction is moredangerous than a statute.

Do you agree with Scalia?

96Ch. 4 Injunctions


97/133

M d W ' H lth Ct 512 U S 753 (1994)


98/133

Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)

The amended injunction prohibits

petitioners from engaging in the followingacts:

(1) At all times on all days, from entering

the premises and property of the AwareWoman Center for Choice [the Melbourneclinic] . . . .

"(2) At all times on all days, from blocking,

impeding, inhibiting, or in any othermanner obstructing or interfering withaccess to, ingress into and egress from anybuilding or parking lot of the Clinic.

98Ch. 4 Injunctions

Madsen v. Women's Health Ctr., 512 U.S. 753 (1994), p.


99/133

, ( ), p

243

"(3) At all times on all days, fromcongregating, picketing, patrolling,demonstrating or entering thatportion of public right-of-way or

private property within [36] feet ofthe property line of the Clinic . . . . Anexception to the 36 foot buffer zone isthe area immediately adjacent to the

Clinic on the east . . . . The[petitioners] . . . must remain at least[5] feet from the Clinic's east line.

99Ch. 4 Injunctions

Madsen v Women's Health Ctr 512 U S 753 (1994)


100/133


(4) During the hours of 7:30 a.m.through noon, on Mondays throughSaturdays, during surgical proceduresand recovery periods, from singing,

chanting, whistling, shouting, yelling,use of bullhorns, auto horns, soundamplification equipment or other

sounds or images observableto orwithin earshot of the patients insidethe Clinic.

100Ch. 4 Injunctions



101/133

Madsen v. Women s Health Ctr., 512 U.S. 753 (1994)

"(5) At all times on all days, in an areawithin [300] feet of the Clinic, fromphysically approaching any person

seeking the services of the Clinicunless such person indicates a desireto communicate by approaching or by

inquiring of the [petitioners]. . . . Isnt this a reasonable measure to protect

privacy?




102/133

(6) At all times on all days, fromapproaching, congregating, picketing,

patrolling, demonstrating or usingbullhorns or other sound amplificationequipment within [300] feet of theresidenceof any of the [respondents']

employees, staff, owners or agents, orblocking or attempting to block, barricade,or in any other manner, temporarily orotherwise, obstruct the entrances, exits or

driveways of the residences of any of the[respondents'] employees, staff, owners oragents.

Isnt this reasonable protection for the last

citadel? 102Ch. 4 Injunctions



103/133

Madsen v. Women s Health Ctr., 512 U.S. 753 (1994)

The [petitioners] and those acting inconcert with them are prohibited frominhibiting or impeding or attemptingto impede, temporarily or otherwise,

the free ingress or egress of personsto any street that provides the soleaccess to the street on which those

residences are located.



104/133

Madsen


105/133

(8) At all times on all days, fromharassing, intimidating or physicallyabusing, assaulting or threatening anypresent or former doctor, health careprofessional, or other staff member,

employee or volunteer who assists inproviding services at the [respondents']Clinic.


Madsen


106/133

(9) At all times on all days, fromencouraging, inciting, or securing otherpersons to commit any of theprohibited acts listed herein.


Madsen


107/133

Justice Stevens writes:

As with [union labor] picketing, the

principal reason why handbills

containing the same message are somuch less effective than "counseling" is

that "the former depend entirely on the

persuasive force of the idea."


Madsen

S d


108/133

Stevens, contd

Just as it protects [labor] picketing, theFirst Amendment protects the speaker'sright to offer "sidewalk counseling" toall passers-by. That protection,however, does not encompass attemptsto abuse an unreceptive or captiveaudience, at least under the

circumstances of this case.


Madsen

S d


109/133

Stevens, contd

One may register a public protest byplacing a vulgar message on his jacketand, in so doing, expose unwillingviewers.

Nevertheless, that does not mean thathe has an unqualified constitutionalright to follow and harass an unwilling

listener, especially one on her way toreceive medical services.



110/133

Weighing the public interest andthe private right

p. 254

Experimental and

conditional injunctions


Boomer v Atlantic Cement (NY 1970)


111/133

Boomer v. Atlantic Cement (NY 1970)

Nuisance found, temporary damages

awarded, injunction denied

Amelioration of air pollution will dependon technical research in great depth,

carefully balanced consideration ofeconomic impact of close regulation;actual effect on public health

Isnt that exactly why an injunction shouldhave been granted?


Spur Industries v. Del-Webb (1972) p.


112/133

260

When a person maintains a publicnuisance, it can be banned withoutcompensation via the police power.

A court order is state action. Whyshould Webb be ordered to

compensate Spur Industries when itcould be shut down by the EPA (ifthere were one)?


Injunctions against


113/133

State court injunctions againststate litigation

State court injunctions againstfederal litigation

Federal against state

Injunctions against

litigation



114/133

Ex parte Young, 209 U.S. 123 (U.S.

1908)


115/133

1908)

It is within the jurisdiction, and is theduty, of the Circuit Court to inquirewhether such rates are so low as to be

confiscatory, and if so to permanentlyenjoin the railroad company, at the suit ofone of its stockholders, from putting them

in force, and it has power pending suchinquiry to grant a temporary injunction tothe same effect.


Federal injunctions of state


116/133

court proceedings

What are the federal considerations?

What authority does the U.S. have by

virtue of the 14thAmendment?

Is Dombrowski v.Pfister an instance of

northern imperialism, running rough shod

over states rights?


DOMBROWSKI v. PFISTER, CHAIRMAN,


117/133

DOMBROWSKI v. PFISTER, CHAIRMAN,

JOINT LEGISLATIVE COMMITTEE ON

UNAMERICAN ACTIVITIES OF THELOUISIANA LEGISLATURE (1965)

Dombrowski is Director of the Southern

Conference Education FundArrested, offices raided, records seized,

with continued threats of prosecution after

invalidation by a state court of the arrestsand seizure of evidence.


Subversive Activities and


118/133

Subversive Activities and

Communist Control Act of

Louisiana

Declared void as unconstitutionally

overbroad by 3 judge court28 USC 2283 Continuing threat of prosecution has a

chilling effect on free speech

Equity therefore will enjoin such bad faithprosecutions


California Criminal Syndicalism Act

" 11400 D fi iti


119/133

" 11400. Definition

"'Criminal syndicalism' means: any doctrine or precept advocating,

teachingor aiding and abetting the

commission of crime, sabotage, orunlawful acts of force and violenceorunlawful methods of terrorism as a meansofaccomplishing a change in industrialownership or control, or effecting anypolitical change.



120/133

Younger v. Harris, 401 U.S. 37 (1971)


121/133

g , ( )

No pattern is alleged Dombrowski involved alleged bad-

faith harassment and is factuallydistinguishable from this case


YoungerDouglas, dissenting


122/133

g g , g

Dombrowskirecognized that in times ofrepression, when interests with powerfulspokesmen generate symbolic pogroms

against nonconformists, the federaljudiciary, charged by Congress withspecial vigilance for protection of civil

rights, has special responsibilities toprevent an erosion of the individual'sconstitutional rights.


YoungerDouglas dissenting


123/133

g g g

The statute here is a blunderbuss,patently unconstitutional

Therefore we should depart from ourcustomary deference to statecriminal prosecutions



124/133

Legitimacy and competence

Limits of the structural

injunction


Campaign for Fiscal Equity v. State, 86 N.Y.2d

307 (1995)


125/133

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 ofthis state may be educated."


Campaign for Fiscal Equity v. State, 86 N.Y.2d

307 (1995)


126/133

307 (1995)

Title VI provides:No person in the United States shall, onthe ground of race, color, or national

origin, be excluded from participation in,be denied the benefits of, or besubjected to discriminationunder anyprogram or activity receiving Federalfinancial assistance" (42 USC 2000d).



127/133

Disparate impact and the Structural Injunction

Plaintiffs have stated a disparate impact


128/133

Plaintiffs have stated a disparate impactcause of action under title VI'sregulations.

The State allocates only 34% of all Stateeducation aid to a school districtcontaining 37% of the State's students(81% of whom are minoritiescomprising 74% of the State's minority

student population)


Disparate impact and the Structural Injunction

If the facts are as alleged those


129/133

If the facts are as alleged, those

minority students will receive less aidas a group and per pupil than their

nonminority peerswho 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)


130/133

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.


Limits of structural injunctions

R h t Af i A i hild ll


131/133

Rochester African American children allege:

The State of New York failed to

mitigate demographic factorsthat

affect student performance,

resulting in inferior education for

minority children.




132/133

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.132Ch. 4 Injunctions


To emb ace plaintiffs' theo that the


133/133

To embrace plaintiffs' theory that the

State was responsible for the

demographic makeup of every school

district would subvert the importantrole of local control and participation in

education and would make the Stateresponsible for where people chose to

Chapter 4 Injunctions - powerpoint slides Weaver, et al. Remedies

Documents