CivilProcedureOutlineSpring2007

CivilProcedureOutlineSpring2007 - Civil Procedure...

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Civil Procedure Outline Spring 2007 I. Bringing a Suit a. 2/3 of suit settled by some sort of motion b. states model their rules on FRCP; NY CPLR not modeled on FRCP c. 25% of judicial filings deal w/ family law d. torts jury Δ51%, Π49% contracts judge Π 2/3 to win e. diversity jurisdiction is 25% of federal docket II. Why do we litigate? a. Want money; made to feel better, punishment b. Hierarchy of remedies i. Compensation; always economic ii. Specific relief; orders of protection; evict; return item iii. Punitive; punish for bad behavior c. must decided if taking the case is economically viable d. State Farm v. Campbell, Punitive must be proportional to compensatory i. must have a single digit multiplier to compensatory for punitive ii. Exception if compensatory so low can have more than single digit multiplier; excessive punitive violate due process of 14 th e. punishment in civil v. criminal i. vindicate rights in criminal; proceedings give Δ lots of protections ii. very little protection in civil; punitive use civil judicial system to punish iii. due process requires civil proceedings to have a better relationship b/w wrong and damages awarded Specific Relief I. Permanent injunctions are an end remedy granted at end of trial. a. It is a court order to do or refrain from doing something II. test for granting permanent injunction a. 1) did Π win 2) is there an adequate remedy at law 3) did Π suffer irreparable harm 4) balance harm to Δ 5) is it in the public interest to grant the injunction 5) can it be administered? Can Δ comply? III. Sigma ;proving violation of non compete clause doesn’t get injunction; must show elements how do you equate harm of giving out trade secrets to $ amount? a. Alternative to not having court grant injunction is to pay $; very difficult in this case to compute damages; Δ had no money IV. Judgments a. specific performance; someone told to do something b. declaratory; quiet title; court says who owns property c. restitution; give something back d. constructive trust; own property someone else may/may not own V. hierarchy of relief a. permanent injunction is after trial on merits; it is a final remedy i. if not granted cannot go back and seek preliminary b. preliminary injunction granted while case is pending i. not trial on the merits but other side is put on notice c. TRO; emergency situation of very temporary relief
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i. ex parte relief; one sided; no notice to the other side ii. really dire circumstances; standard is irreparable, immediate harm; once other party becomes involved it’s hard to prove dire situation d. orders of protection; most common time hierarchy used i. incident; go to judge same day and get TRO ii. if respondent comes in now its preliminary injunction preliminary injunction I. 1) there’s no adequate remedy at law 2) harm will be irreparable 3) balance hardships b/w 2 parties 4) will Π be likely to prevail on merits II. whole point is to keep party at status quo during pendency of trial
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This note was uploaded on 04/17/2008 for the course LAW ? taught by Professor Harmon during the Spring '08 term at Touro NY.

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CivilProcedureOutlineSpring2007 - Civil Procedure...

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