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PRIMER ON INJUNCTIONS AND TRO

PRIMER ON INJUNCTIONS AND TRO

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A PRIMER ON INJUNCTIONS AND TRO
A PRIMER ON INJUNCTIONS AND TRO

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Published by: 83jjmack on May 16, 2013
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 A PRIMER ON INJUNCTIVE RELIEF INFEDERAL AND STATE COURT
BY WILLIAM FRANK CARROLL AND RICHARD M. HUNT
NJUNCTIVE RELIEF IS AN EQUITABLE REMEDY
 finding its genesis in the power of the English chancellor torelieve litigants from the strictures of the law as applied bythe law courts. The remedial power was so undefined and unlimited that it was said to be determined by “the lengthof the chancellor’s foot.”Today injunctive relief in the federal and state courts ismuch more strictly circumscribed by statute, rule, and governing case law. Nevertheless, injunctive relief retainsits ability to do that which is beyond the strict limitations of the law.A suit for injunctive relief is one of the most effective toolsavailable to a litigator, especially when a request for immediate relief is included. At the same time, suitsseeking injunctive relief are almost always extraordinarilyexpensive, and make unusual demands on the lawyers and clients on both sides. This paper will discuss the mechanicsof obtaining injunctive relief as well as the strategicconsiderations that must inform the decision to seek suchrelief.
I. Injunctive Relief in Federal CourtA. Introduction
Two primary forms of preliminary injunctive relief areavailable in federal court, temporary restraining orders and  preliminary injunctions.
1
Federal Rule of Civil Procedure65 outlines the general standards for obtaining injunctiverelief; however one must look to other federal rules, localcourt rules, and case law for the procedural and substantivelaw applicable to injunctive relief.
2
B. Temporary Restraining Orders1. Generally
Most courts, and particularly the federal courts, arereluctant to issue temporary restraining orders because theyhave substantial impact on the case but are determined onan incomplete record, without oral testimony and often onan
ex parte
basis.
3
2. Pleading and Notice Requirements
The complaint seeking the temporary restraining order must be verified or supported by affidavit testimony.
4
Inaddition, the complaint must demonstrate by “specificfacts” that “immediate and irreparable injury, loss or damage” will result to the applicant before the adverse party can be heard in opposition.
5
It is most important thatthe complaint establish facts through persons with personalknowledge, of irreparable harm. Unlike some courts,federal courts do not generally grant temporary restrainingorders based upon conclusions (the foreclosure would bewrongful) or questionable testimony.The applicant’s attorney must also certify to the court inwriting as to the efforts which have been made to givenotice to the opposing party and the reasons supportingwhy such notice should not be required.
6
3. Substantive Showing
The Fifth Circuit Court of Appeals has delineated agenerally accepted four prong test which must be satisfied in order to obtain a temporary restraining order. Theapplicant must establish each of the following: “(1) asubstantial likelihood of success on the merits; (2) asubstantial threat that failure to grant the injunction willresult in irreparable injury; (3) that the threatened injuryoutweighs any damage that the injunction may cause theopposing party; and (4) that the injunction will not disservethe public interest.
7
Thus the federal test requires a balancing of the injury to besuffered by both parties, not just by applicant. Also, thecourt is required to consider the impact the injunction willhave on “the public interest,” even in suits between private parties.
8
4. Duration
A temporary restraining order issued without notice maynot exceed 10 days in duration unless “for good causeshown” the order is extended “for a like period” or unlessthe party against whom the order is entered “consents that itmay be extended for a longer period.”
9
If the temporaryrestraining order is extended, the reasons for any extensionof time must be entered of record.
10
5. Terms of the Order and Filing
Because of the extraordinary nature of injunctive relief, thetemporary restraining order must contain specified findingsand information. The temporary restraining order must: (1) be endorsed with the date and hour of issuance; (2) definethe injury and state why it is irreparable; (3) state why itwas issued without notice; (4) specify that it expires within10 days after entry; and (5) be filed “forthwith” in theclerk’s office and entered of record.
11
In addition the temporary restraining order must (1) setforth the reasons for its issuance; (2) be specific in terms;and (3) shall describe in reasonable detail, withoutreference to the complaint or other document, the act or acts sought to be restrained.
12
6. Security
The party obtaining the temporary restraining order mustgive security in whatever sum the court deems proper for the payment of costs and damages “as may be incurred or 
MHDocs 1742655_1 990001.101
 
 
suffered by a party who is found to have been wrongfullyenjoined or restrained.”
13
7. Conference With Court
In Texas state court practice the applicant’s attorneygenerally has the opportunity to present the temporaryrestraining order request to the judge on an
ex parte
basis.This almost universal state court practice is not prevalent infederal court. Depending upon the predilections of the particular judge, the applicant’s request may be decided onthe papers, or at best, after the attorney has had a brief conference with the judge’s law clerk.
14
Consequently, it isespecially important when seeking a temporary restrainingorder in federal court that the papers clearly demonstratethe need for and entitlement to relief without benefit of counsel’s presentation.
8. Service of Temporary Restraining Order
A temporary restraining order must be formally served,which is traditionally done with the service of thecomplaint. Any person who is not a party and is of 18 yearsof age may serve the temporary restraining order, includingsomeone appointed by the court for that purpose.
15
The person serving the temporary restraining order is thenrequired to file a proof of service with the court.
16
9. Persons Bound by Temporary Restraining Order
The person or entity named as the defendant is bound bythe terms of the temporary restraining order. However,additional actors are also subject to the restraints of thetemporary restraining order. It binds the parties and “their officers, agents, servants, employees and attorneys.”
17
 Further, it is binding upon those persons “in active concertor participation with them who receive actual notice of theorder by personal service or otherwise.
18
Therefore, if service is for any reason delayed, it is important to givenotice of the issuance of the temporary restraining order-including a copy of the same-to the opposing party and those acting in concert with that party.
10. Hearing on Preliminary Injunction if TemporaryRestraining Order Granted
If a temporary restraining order is granted without notice,the court must set a hearing on the preliminary injunction at“the earliest possible time,” which may not exceed 10 dayswith one extension for good cause shown.
19
A party againstwhom a temporary restraining order is granted withoutnotice may move on 2 days notice for a hearing to dissolveor modify the order and the court will hear such motion “asexpeditiously as the ends of justice require.”
20
11. Strategy on Temporary Restraining Orders inFederal Court
Given the general reluctance of the federal courts to grant
ex parte
temporary restraining orders, it is imperative thatcareful consideration be given to whether a temporaryrestraining order should even be requested. If the basis for liability is less than clear or the nature of the irreparableinjury suspect, caution should be exercised in seeking atemporary restraining order. Consideration should rather begiven to requesting an expedited hearing on a preliminaryinjunction.The second factor to consider is whether the client can postthe required bond. Unlike some courts, the federal courtsrarely permit posting of nominal bonds to securesubstantive injunctions ($500.00 bond to presentforeclosure on $l million home).The third factor to consider is whether there is any realadvantage to filing suit in federal court for such temporaryrelief. Of course, in some instances the federal courts haveexclusive jurisdiction and the application must be filed inthat forum.
21
Absent such limitation, it will often be easier to obtain
ex parte
injunctive relief in the state court system.Finally, make sure that the federal court has an independent basis for federal subject matter jurisdiction
22
and that venueis proper in the district in which the suit will be filed.
23
12. Checklist for Federal Court Temporary RestrainingOrders
a) Determine jurisdiction and venue. b) Decide whether standards are satisfied for temporaryrestraining order.c) Prepare complaint and application for temporaryrestraining order.d) Select witness(es) to verify complaint or provideaffidavit testimony supporting the temporaryrestraining order application.e) Prepare brief in support of your application. Althoughthis is not required, generally it will be very helpful inthose cases where there is any legal issue as toentitlement to relief or where there is no opportunityto visit with the judge to supplement the written presentation.f) Arrange for bond or posting of cash security with thedistrict clerk once the temporary restraining order has been signed. If a bond is to be utilized, arrangementsshould be made in advance.g) Arrange for service/notice to all impacted parties. Thismight include filing an application and order for appointment of someone to serve process and thetemporary restraining order at the time the complaintis filed.h) Consider filing a motion for expedited discovery-but be reasonable. Asking the court to order the production of 40 categories of documents in 5 daysand to present 10 witnesses for deposition is not onlyunlikely to be granted, but is also unlikely to enhanceyour credibility with the court.
MHDocs 1742655_1 990001.101
 
 
i) Review the local rules to determine any special procedures or requirements for obtaining a temporaryrestraining order. j) Check with the district cleric (if you do not practice inthe district or in federal court generally) to determinehow such filings are handled and what is done if the judge to whom the matter is assigned is not available.Unlike some courts, it would be the most unusual of cases if you were allowed to pick up your file and wander from court to court until you could find a judge who was available to consider the application.k) Prepare a detailed order granting the relief requested- but be reasonable. Requesting to enjoin a national bank from disposing of “all documents relating to itscheck cashing policies since 1980” is not likely to find favor with most federal judges.l) Determine if the district clerk expects you to preparethe writ of injunction or whether they have a formavailable.m) Be sure you have checks for all applicable filing fees.n) The attorney should “hand walk” the filing through thedistrict clerk’s office and then take the file marked  judge’s copies to the judge’s secretary or administrative assistant.o) If the temporary restraining order is granted, promptly post the bond and effect service/notice as applicable.
C. Preliminary Injunctions1. Generally
The purpose of a preliminary injunction is to preserve thestatus quo pending a final decision on the merits of thecase.
24
The status quo is “the last peaceable uncontested status” prior to the parties present disagreement.
25
2. Pleading and Notice Requirements
A complaint seeking a preliminary injunction is subject tothe same pleading requirements generally applicable infederal court.
26
There is no requirement that the complaint be verified. However, sworn proof establishing entitlementto relief must be submitted before a preliminary injunctionwill be granted. The normal procedure for seeking a preliminary injunction is by motion or by an order to showcause, the former being preferred.Unlike a temporary restraining order, a preliminaryinjunction may not be granted without notice to the adverse party.
27
3. Substantive Showing
The substantive requirements for obtaining a preliminaryinjunction are the same as for obtaining a temporaryrestraining order.
28
The court will again perform a balancing of interests test assessing the impact of grantingthe requested relief on the respective parties and on the public interest.
29
4. Duration
The preliminary injunction remains in effect, unlessdissolved or modified, during the pendency of thelitigation. When the case is decided on the merits the preliminary injunction may be dissolved or may be made permanent depending upon the form and scope of relief required by the final judgment.
5. Terms of the Preliminary Injunction
A preliminary injunction must set forth the reasons for itsissuance.
30
The order must be specific in its terms and mustdescribe in reasonable detail (and not by reference to thecomplaint or other document) the act(s) to be restrained.
31
 Although Rule 65(d) does not so require, it is advisable for the order to set forth the specific equitable findings which justify the issuance of a common law injunction.
32
Thus theorder should clearly describe why the injunction isnecessary to prevent irreparable harm, the reasons theapplicant is likely to prevail on the merits, and a balancingof the parties’ and the public’s interest in having theinjunction granted.
33
6. Security
The successful applicant for a preliminary injunction isrequired to post security in the same manner as for atemporary restraining order.
34
7. Person’s Bound By Preliminary Injunction
The same broad category of persons are bound by a preliminary injunction as are those subject to a temporaryrestraining order. The same procedure discussed previouslywith respect to service and notice of a temporaryrestraining order should be followed with respect to a preliminary injunction.
35
8. Hearing on Preliminary Injunction
Before granting a preliminary injunction the opposing partymust be given notice and an opportunity to be heard.
36
 However, it is not necessary for the court to hold anevidentiary hearing where the parties are allowed to presenttestimony.
37
A hearing may be required if there is amaterial factual dispute;
38
however, some courts haveupheld the denial of a hearing even when the facts arecontroverted.
39
In fact it is the standard practice of somefederal judges to resolve all preliminary injunctionapplications without an oral hearing.
40
Evidence at a hearing on a preliminary injunction mayinclude verified pleadings, affidavits, deposition testimony,documentary evidence and oral testimony. Because thefunction of a preliminary injunction is to maintain thestatus quo rather than adjudicate the matter on the merits,the federal courts are more lenient in demanding strictcompliance with the rules of evidence. Consequently,affidavits are not held to the strict requirements of thosesupporting summary judgment
41
and hearsay evidence may be considered by the court.
42
It should be noted that the court may, before or after commencement of any hearing on a preliminary injunction,order that the hearing be consolidated with the trial on the
MHDocs 1742655_1 990001.101
 

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