PROCEDURAL REQUIREMENTS TEMPORARY RESTRAINING ORDERS WITHOUT NOTICE

PROCEDURAL REQUIREMENTS

1. TEMPORARY RESTRAINING ORDERS WITHOUT NOTICE

1. CLEARLY APPEARS THAT IMMEDIATE IRREPARABLE INJURY WILL OCCUR BEFORE THE ADVERSE PARTY CAN BE HEARD.

   1. THE PLAINTIFF’S ATTORNEY CERTIFIES EFFORTS TO GIVE NOTICE AND THE REASONS WHY NOTICE SHOULD NOT BE REQUIRED

   2. THE TRO MUST BE STAMPED WITH THE DATE AND TIME OF ISSUANCE

   3. THE TRO MUST BE ENTERED AS OF RECORD

   4. IT MUST DEFINE THE INJURY AND WHY IT IS IRREPARABLE

   5. EXPIRES IN 10 DAYS; COURT CAN EXTEND FOR 10 ADDITIONAL DAYS WITH GOOD CAUSE; DEFENDANT CAN AGREE TO A LONGER EXTENSION.

1. THE REASONS FOR THE EXTENSION MUST BE ENTERED INTO THE RECORD.

1. THE PRELIMINARY INJUNCTION HEARING MUST BE SET FOR HEARING AT THE EARLIEST POSSIBLE TIME AND TAKES PRECEDENCE OVER ALL OTHER MATTERS

2. IF THE PARTY IS GRANTED THE TRO, IT MUST PROCEED WITH A MOTION FOR A PRELIMINARY INJUNCTION, OTHERWISE, THE COURT WILL DISSOLVE THE TRO.

3. ON 2 DAYS NOTICE TO THE PLAINTIFF, THE DEFENDANT MAY MOVE THE COURT FOR A DISSOLUTION OF THE TRO.

4. CASES

1. TIME PERIOD: SIMS V. GREEN

   1. PROBLEM: FENDING OFF THE FENCE

1. INJUNCTION BONDS [EE 196, Gilbert 62]

1. FRCP 65: No restraining order or preliminary injunc except upon giving of security for payment of costs and damages that may be suffered by any party found to have been wrongfully enjoined or restrained

2. Reduces risk of uncertainty by shifting some of the risk to P.

   1. Split as to whether recovery by D can exceed amount of bond.

   2. CASES

1. COQUINA OIL CORP. V. TRANSWESTERN PIPELINE, CO.

   1. PROBLEM: THE DEAF GRADUATE STUDENT

   2. COYNE-DELANY CO. V. CAPITAL DEVELOPMENT BOARD

3. SPECIFIC PERFORMANCE OF CONTRACTS (CB 90) [Gilbert 300]

1. IN GENERAL

   1. NOT PROPER FOR CERTAIN TYPES OF CONTRACTS

   2. REQUIREMENTS

1. NO ADEQUATE LEGAL REMEDY

   1. VALID CONTRACT EXISTS BETWEEN THE PARTIES WITH clear, DEFINITE, AND CERTAIN TERMS [Gilbert 36]

1. NEED ADEQUATE CONSIDERATION

   1. MUST BE EASY FOR THE COURT TO SUPERVISE

3. THE PLAINTIFF HAS SUBSTANTIALLY PERFORMED (and satisfied all conditions precedent to D’s obligation to perform) AND CAN CONTINUE PERFORMANCE

4. DEFENDANT IS ABLE TO PERFORM

5. Mutuality of Remedy: mutuality problems usually arise in personal service Ks, because the court couldn’t order a party to fulfill such a K without violating constitutional prohibitions on involuntary servitude. May also apply to minors.

6. THE DECREE IS SUPERVISABLE AND ENFORCEABLE, but court doesn’t want to supervise over a long period of time.

7. D has no AFFIRMATIVE DEFENSES

8. THE BALANCE OF HARDSHIPS FAVORS THE PLAINTIFF

1. ILLUSTRATIVE CASES

1. WALGREEN CO. V. SARA CREEK

   1. VAN WAGNER V. S&M ENTERPRISES

   2. NIAGARA MOHAWK V. GRAVER TANK

1. MUTUALITY OF REMEDY

1. IF P WERE THE D, HE/SHE COULD GET SPECIFIC PERFORMANCE

   1. CAN BE A PROBLEM IN PERSONAL SERVICES Ks

   2. Cases

1. HENDERSON V. FISHER

   1. CALIFORNIA

   2. PROBLEM: FAMILY CARE CONTRACTS

1. FASHIONING RELIEF

1. COURT BALANCES THE HARDSHIPS: DOVER SHOPPING V. CUSHMAN’S SONS

   1. COURT WILLING TO ALTER THE CONTRACT IN SOME CASES:

1. WOOSTER REPUBLICAN PRINTING V. CHANNEL 17

   1. PROBLEM: THE LAND DEFECT

1. CONTRACTS FOR THE SALE OF GOODS

1. IN GENERAL: UCC 2-716

1. MAY BE DECREED WHERE GOODS UNIQUE OR IN OTHER PROPER CIRCUMSTANCES

   1. TEST OF UNIQUENESS LOOKS TO TOTAL SITUATION

1. UNIQUE MEANS RARE BUT NOT ONE OF A KIND

1. DIFFICULTY IN VALUATION

2. DIFFICULTY IN FINDING SUBSTITUTE GOODS

1. OTHER PROPER CIRCUMSTANCES = INADEQUACY

1. IS INADEQUACY A REQUIREMENT?

1. CL ELEMENTS OTHER THAN INADEQUACY

1. ILLUSTRATIVE CASES

1. SEDMAK V. CHARLIE’S CHEVROLET

   1. PROBLEM: THE JILTED BUYER

   2. WEATHERSBY V. GORE

   3. KAISER TRADING V. ASSOCIATED METALS

   4. ACE EQUIPMENT V. AQUA CHEM.

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