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Remedies (incentives to litigate)
Terms in this set (24)
What are Compensatory Damages?
Damages that will compensate the plaintiff for, money lost, or paid or non-economic such as pain and suffering.
What is the function of compensatory damages?
Function of compensatory damages is to compensate for the harm you suffered not to establish the value of the right.
What does compensatory damages focus on?
it is focused on how were you hurt; scope of your injuries (Carey)
T/F In absence of any proof of actual injury only nominal damages may be recovered.
What do liquidated, statutory and punitive damages protect?
protects against the deprivation of property
What is equitable remedy?
What is the procedural requirement in states seeking punitive damages?
requires appellate review "de novo"
What is the substantive requirement in states seeking punitive damages?
requires courts to consider several different tests of "proportionality".
What must the court weigh in evaluating the appropriateness of a punitive damages award
1. the reprehensibility of the defendant's conduct,
2. the disparity between the actual harm caused and the amount of the punitive damages awarded AND
3. the disparity between the actual harm caused and the amount of the punitive damages awarded
What is fee shifting?
What is the main prerequisite to obtaining injunctive relief?
finding that P is being threatened by some injury for which he has not adequate remedy (Sigma)
Will negotiated fee waivers be enforced by the court absent unusual or unlikely to occur circumstances?
Yes; As a general rule, negotiated fee waivers will be enforced by the court absent unusual or unlikely to occur circumstances (Evans)
How is it determined to issue an injunction?
involves a balancing of the interests of the parties who might be affected by the court's decision.
T/F P can propose a settlement in private negotiations but the P cannot make an offer of judgment
T/F $100 made by D is a good faith offer
T; Generally $100 made by D will be deemed to be good faith offers unless the P can show otherwise (Fox)
What must the court consider when ruling on a request for a preliminary injunction?
the consequences to the public of granting the request (Winter)
How must a party qualify as the prevailing party under federal fee shifting statutes?
Under federal fee-shifting statutes, a party must obtain a judgment on the merits or court-ordered consent decree to qualify as the "prevailing party." (Buckhannon)
T/F A prevailing party may recover attorney's fees incurred from the losing party subsequent to an offer of settlement
F; A prevailing party may NOT recover attorney's fees incurred from the losing party subsequent to an offer of settlement (Marek)
What are temporary remedies?
How long does a temporary remedy last?
longest is 14 days but can be extended once for another 14 days
What is a provisional remedy?
What must be provided in order to comply with procedural due process?
notice and an opportunity to be heard (Fuentes)
What is the 4 part standard for temporary remedies?
1. Threat of irreparable injury
2. Likely to succeed on the merits
3. The balance of the equities tips in his favor
4. Injunction is in the public interest
When must it be provided?
prior to seizure of any protected property interest
THIS SET IS OFTEN IN FOLDERS WITH...
Venue, Transfer, and Forum non-conveniens
Subject Matter Jurisdiction Generally
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OTHER SETS BY THIS CREATOR
Civil Procedure Days I
Amendments (Amended Pleadings)