1. ~INJUNCTIVE RELIEF~ Nancy Zisk Professor of Law

2. Rule 65—Injunctions and Restraining Orders  (a) Preliminary Injunction  (b) Temporary Restraining Order  (c) Security  (d) Contents and Scope of Every Injunction and Restraining Order

3. Rule 65( d ) Contents and Scope of Every Injunction and Restraining Order.  (1) Contents. Every order granting an injunction and every restraining order must:  (A) state the reasons why it issued;  (B) state its terms specifically; and  (C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.

4. Who must comply with an injunction?  (2) The order binds only the following who receive actual notice of it by personal service or otherwise.  (A) the parties;  (B) the parties’ officers, agents, servants, employees, and attorneys; and  (C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

5. The Court’s Power

6. To Prevent Waste

7.  With the help of a master  at defendant’s expense. Even to oversee reconstruction...

8. A court can prevent construction

9. First step Seek a temporary restraining order or preliminary injunction

10. To obtain preliminary injunctive relief, a plaintiff must show...  Likelihood of success on the merits  Irreparable injury  Legal damages will not suffice (no adequate remedy at law)

11. Does the Court balance the harms to plaintiff and defendant? And consider the public interest?

12. According to the South Carolina Supreme Court...  The “balancing the equities” requirement is  “neither necessary nor appropriate in a preliminary injunction case,  where the three requirements  (irreparable harm, success on merits, and inadequate remedy at law)  are well established and clearly delineate the burden of proof and of persuasion.”

13. But...  The “balancing requirement is subsumed by the irreparable harm and inadequate remedy at law components of the three- part test.”  Poynter Investments, Inc. v. Century Builders of Piedmont, Inc., 387 S.C. 583, 586-87, 694 S.E.2d 15, 17 (2010)

14. Court may (or may not) grant immediate relief  If the court does not grant immediate relief, what happens? $135,000 $200,000 Making it harder to obtain injunctive relief

15.  The party receiving the injunction must post a bond  “in such sum as the court deems proper,  for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.”  Rule 65(c) If the court does grant the injunction:

16. Exceptions in South Carolina  The posting of a bond is discretionary with the court in  divorce, child custody, and non- support actions, and  no security is required of the State or of an officer or agency of the state.

17. Permanent Injunctions With permission Without permission A continuing trespass An injunction may lie Trespass

18. Nuisance

20.  Every person may exercise exclusive dominion over his own property and may use it to best serve his private interests.  With one limitation :  No person could use his property to injure his neighbor’s. The General Rule

21.  What is reasonable under the circumstances  An “unreasonable, unwarrantable or unlawful” use of property so as to produce  “material annoyance, inconvenience, discomfort or hurt to his neighbor.” The standard

22.  Not usually  “One cannot erect a nuisance upon his land adjoining vacant lands owned by another and thus  measurably control the uses to which his neighbor’s land may in the future be subjected.” Is Coming to the Nuisance a Defense?

23. Noise

24. Injunction may lie To stop the noise

25. Encroachment  The encroachment extended 15’3” onto plaintiffs’ property But... What percentage of the property was that?

26. Court’s discretion

27. The Balance Plaintiffs’ property damage Value* of defendant’s operation Value of the business Value to the community

28. Do we take our plaintiffs as we find them? Not to define nuisance The standard is what is reasonable under the circumstances

29. Modification of an injunctive order

30.  It is for the court to determine what amounts to a nuisance.  Court’s jurisdiction remains to review and, perhaps,  dissolve an injunction in light of changed circumstances. The Power of the Court

31.  Constitutional right to a jury trial  Only at law  No right to a jury for an equitable claim Law or Equity

32.  If there is no right to a jury trial or that right has been waived, a jury may be used to help decide the case.  The court may order a trial by jury.  The court may try an issue with an advisory jury or,  With the consent of both parties, court may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right. Federal Rule of Civil Procedure 39

33. Questions?  nzisk@charlestonlaw.edu