Winter 2004 Exam Key
Question 2
Bart - Is there a binding order?
TRO issued w/ notice to B but of indefinite duration. Under Granny Goose could treat as having expired
after 10 days. Under Sampson, could treat as preliminary injunction and still binding.
Court might treat more Sampson-like - that is the trend and B had an opportunity to participate in
hearing (although truncated) and to challenge TRO - knew was still in place from judge’s words
Assuming binding order - B intentionally violated it so is guilty of criminal contempt unless CB defense.
Ralph & Milhouse
Active Concert: Court order only against Bart but could argue they are “acting in concert” per
FRCP 65.
Are members of LLF and are trying to further its goals. Might depend
on evidence of collusion with B. (Also judge clearly aware of the
organization from comments).
Actual Notice:
FRCP requires notice of injunction to bind. R&M seem to have it because B
showed them the actual order BUT did they actually read it since he threw it on
the floor?
Relationship:
Isn’t in active concert - no collusion/just likes to break stuff. N also isn’t a
member of LLF so can’t find active concert due to that.
Nelson
Hall:
Maybe under Hall, could find in contempt - need notice & wilful violation.
Axl service not required - just needs to be reliable. Unclear if sign would be
enough notice as it is vague and may not be readable. BUT it appears that N
does understand why R&M are destroying.
Still - aren’t protecting public rights & it is hard to say order applies to Nas
identifiable 3d party and not others
Collateral Bar:
Normally can’t defend against contempt by saying injunction was wrong in the first place.
3 exceptions - (1) jurisdiction, (2) patently invalid, (3) delay & frustration
(1)
Injunction not patently invalid - clearly a split of authority so can’t say that
judge obviously wrong in issuing it
(2)
Judge does appear to have it in for B from statements & refusal to limit duration of TRO.
B did challenge the order & judge’s statements may indicate delay & frustration especially if B can’t appeal from TRO. (Of course, can’t probably convince this judge of
that and will have to wait for appeal)
CB defense available to B. Possibly to R&M who are acting in concert and could argue judge’s
attitude is re LLF and thus to them.
Winter 2004 Exam Key
Question 3
(A)
The Department’s statement should not preclude an injunction.
WT Grant - Promise of voluntary cessation alone is not enough to make an existing threat moot
3 factors determine mootness: (1) bona fides of expressed intent, (2) effectiveness of
discontinuance, (3) character of past violations
All of these suggest court should not find injunction moot - past viol’n was enormous
intrusion on civil liberties and there is no evidence Dept has done anything to prevent
from doing it again (especially when bugged offices while being sued for surveillance).
(B)
Roy should recover nothing.
FRCP gives “wrongfully enjoined” D right to recover under the bond.
B&R settled. Thus, there was no ruling on the merits here and R’s vol’y dismissal is not like
failure to prosecute. Even though R should not have been enjoined in some of the states, he could
have taken care of that in the SM agreement - there has never been an adjudication to that affect so
no recovery.
(C)
Ellen arguably should recover only $40 because in tortious damage to property the court
prefers to award market value where it is readily obtainable.
The manual used by the dry cleaning association appears to track market value so that
value is ascertainable.
Ellen may be able to argue, however, for replacement value because the sweater had
sentimental value because knitted by her grandmother. But there is nothing inherently
unique about the sweater and injecting value for sentiment may add too much confusion
to the issue.
(D)
Curly may be able to get Mo’s $50,000 profit as a result of equitable conversion.
Restitution is typically not available to get disgorgement of profits in breach of K cases, except
where land is involved as here.
Equitable conversion treats C as true owner of land once K with Mo is signed. Entitles C
to Mo’s profit from subsequent K to sell land to L - $50K.
Can’t use rescission because M & C haven’t performed so nothing to give back.
Can’t use CT to get land in L’s hands assuming that L is a bona fide purchaser.
(E)
Wilson can sue Larry Dessem in his official capacity for injunctive relief preventing future
violations of the Constitution.
11A bars Wilson from suing State of Missouri or Dept of Corrections - Hans
Young says 11A allows suit against officer in official capacity
Edelman limits Young to prospective relief (enjoin future acts) and bars retrospective relief
(damages or injunctions that order payment)
(F)
On rescission, L& T get:
Linduh:
Ted’s account
Total
10K
35K
20K
30K
Ted
10K
10K
-10K
Linduh
0
25K
20K
20K
opening balance
sale of 250 shares of ATT stock at $100/share
w/draws $15K for anchovies - T dissipates own $ first
deposits $10K from hospital - T’s unless manifested intent
(but points for a good argument)
Direct Exchanges of ATT stock
250 ATT after commingling of ½ of ATT proceeds above
100 of 250 ATT exchanged for 100 of GM at $100/share
Leaves - 150 ATT @ $100/share
100GM @ $10/share (price fell)
After rescission, L can get back via tracing:
20K in T’s checking account
150 ATT @ $100/share = $15K
100GM @ $10/share = $1K
Less than what she lost but that’s all she can trace into.
$5K from account for increased value of boat when returned to T
Ted:
Ted will get back the boat but will have to compensate L for its increased value