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you have to incur a damage of some sort for a battery

Threads like this make me question whether I actually attended law school. Maybe it was all a dream.

Damages are an element of some claims. Battery is a good example. Breach of contract is another. Damages existing as an element of a claim has no particular impact on MTDs or MSJs, other than the usual impact. If damages are an element, and you fail to plead facts that show damages are plausible (not merely possible), then your claim will be dismissed for failure to state a claim. If damages are an element of your claim and there is no genuine issue of material fact regarding such damages after discovery (either by both parties' admission, or as a matter of law, if no rational trier of fact could find such genuine issue of material fact), then your opponent's MSJ will be granted.

I think I'm missing this question's thrust.

If no harm/detriment, etc., was inflicted, and it isn't a claim in equity, then it may fail to be a tort/breach in the first place, which is where you can get summary judgment.

If you're talking about loss causation, then you just show that the harmful conduct isn't connected to any of the damages claimed (but still goes back to the above problem). Dura Pharmaceuticals is a case you can look up on this.

If it's statutory, then it's simple enough because it's written in the legal code and you just need to show that the conduct caused the damages outlined in the statute (the statute will probably outline the conduct, too). Same as above anyway, that was a 10-b5 case.

Deleted for complete lack of usefulness.

* Waits for others to answer OP. *

Man, as soon as I was about to ask what a MTD/MSJ was, I got an ephiphany: motion to dismiss/motion for summary judgment.

Short answer: if you've done a bunch of research and the cases are not discussing damages as an element, they are not.

I am just failing to see the relevance, esp. for an MSJ, of bringing a claim is there are no recoverable damages.

Depending on the statute authorizing the claim, there are often other remedies (i.e. injunction, equitable relief).

As a general matter, it would help if you present your question as it relates to a particular statute or issue you are researching. This stuff is difficult to deal with in the abstract.

amyLAchemist wrote:And also, how do you tell if they are an element of a claim? Does it need to be in the same statutory provision, or can it be mentioned in an accompanying section? Case law? Implied?

tl;dr -- most statutes will state what damages may be recovered, but typically damages are not an element of the claim per se; they may be required by state or federal constitution to bring suit; if there are no damages, then a court will likely dismiss the case for lack of jurisdiction.


I am going to pontificate for awhile about claim creation and damages.

Whether statute provides for damages will be an issue of statutory interpretation (i.e., where the damages provision is). You may want to check out a statutory interpretation treatise.

If there is statutory language that prohibits action and does not provide for damages upon breach of that action, then there is usually no claim for damages. In fact, there is no claim at all. For example, a statute prohibits a company from polluting. You can't sue for a violation unless the statute authorizes some sort of damages. (Of course, you can sue under a common law theory of nuisance or negligence, but then you're not suing under the statute. At common law, courts determined the elements of claims. Damages are elements of many of those claims.)

Generally speaking, there are three types of statutory provisions. There are single-barrel rights/conduct statutes, single-barrel enforcement statutes, and double-barrel statutes (obviously not technical terms).

An example of a single-barrel rights statute is the Fourth Amendment prohibition on unreasonable seizures. The Fourth Amendment alone does not provide you with a claim for relief. You can't get your Fourth Amendment rights violated and then say "Hey, I'm going to sue you for a violation of the Fourth Amendment." No, the Fourth Amendment prohibits conduct, but it does not provide you with a claim for relief.

However, a single-barrel enforcement statute can be combined with a single-barrel rights statute. For example, Section 1983 authorizes people to sue state officials for injuries resulting from violations of certain single-barrel rights statutes (most Constitutional rights). Injuries are required (but don't think of injuries requiring a bloody nose or something--you may be "injured" if you have are detained for 12 hours without reasonable suspision or probable cause).

The final type of statute is the one most common for creating claims (and usually required): double-barrel statutes. As you might imagine, these statutes both prohibit conduct and provide a claim for relief. A statute that prohibits polluting alone does not provide a claim for relief. It is a single-barrel rights statute (maybe you could call this a "single-barrel conduct statute" -- same thing). A double-barrel statute would expressly state that a person may bring a cause of action against anyone in violation of the statute. Damages would be an element of the claim, stated in the statute.

Now, the tricky part is that some claims are implied by the courts. Bivens, for example, is the Section 1983 equivalent against federal officers. There is no statute that allows you to sue federal officers for constitutional violations. But the Supreme Court was going to have none of that--so they created the Bivens claim. Nowadays, however, if you are trying to argue that a statute has an implied cause of action, you are most likely gonna lose. Courts don't like to do this. For more info about implied causes of action, see http://en.wikipedia.org/wiki/Alexander_v._Sandoval.

Finally, damages are usually required. If there are no damages, your state or federal constitution will likely prohibit your suit (e.g., there is no "case or controversy" in federal court). This is a matter of jurisdiction, not claims.

amyLAchemist wrote:I am just failing to see the relevance, esp. for an MSJ, of bringing a claim is there are no recoverable damages.

Damages is a separate concept from "injury," which is where you might be getting tripped up. Trespass to land, for example, is a common law theory that does not require injury on behalf of the claimant. But the common law has provided for damages--nominal and maybe punitive damages. Many causes of action require injury--contract, negligence, etc. Some causes of action do not require a particular showing of injury--e.g., trespass to land, and certain types of slander/libel. "Injury is presumed" is another way of saying "damages are available regardless of injury." Damages need not be proven by showing injury, although the more injury you show, the more damages a judge or jury is likely to award.

To answer your question more directly, if there are no recoverable damages, then you would file a motion to dismiss for lack of jurisdiction (in federal court; a state court might call it something else). This is a mootness/ripeness/standing issue. In federal court, you might also raise this issue in a MSJ (defenses can be raised on SJ motion).