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.
The status quo is “the last peaceable uncontested status” prior to the parties present disagreement.
2. Pleading and Notice Requirements
A complaint seeking a preliminary injunction is subject tothe same pleading requirements generally applicable infederal court.
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.
3. Substantive Showing
The substantive requirements for obtaining a preliminaryinjunction are the same as for obtaining a temporaryrestraining order.
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.
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.
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.
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.
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.
The successful applicant for a preliminary injunction isrequired to post security in the same manner as for atemporary restraining order.
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.
8. Hearing on Preliminary Injunction
Before granting a preliminary injunction the opposing partymust be given notice and an opportunity to be heard.
However, it is not necessary for the court to hold anevidentiary hearing where the parties are allowed to presenttestimony.
A hearing may be required if there is amaterial factual dispute;
however, some courts haveupheld the denial of a hearing even when the facts arecontroverted.
In fact it is the standard practice of somefederal judges to resolve all preliminary injunctionapplications without an oral hearing.
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
and hearsay evidence may be considered by the court.
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
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