class 4 Flashcards
process of classic TRO
notice and hearing: can be informal because they are urgent
After decision- move forward to if they want to appeal
ex parte TRO
don’t need notice and informal hearing where other party is not required to be in attendance.
after decision, option for motion to dissolve- 2 days for the party to try to get rid of it.
Test for TRO
traditional test:
1. likelihood of success on the preliminary injunction
2. likelihood of irreparable harm/significant threat of irreparable injury that myst be imminent in nature in the absence of preliminary relief (the injury is going to occur during the time between the filing and the hearing on a preliminary injunction)
3. balance of hardship
4. public interest
5. maintain the status quo
Sliding scale test:
occupy sac v. city of sac
undue delay- there was enough time for a prelim injunction and denied a TRO because the P dragged their feet
status quo- the ordinance denying camping in the park was created before the protest; maintaining the status quo is keeping the ordinance that was being challenged. issuing the TRO would alter the status quo
Success on the merits- unlikely because it’s a time, place and manner restriction and is not unconstitutional.
irreparable harm- they waited so long which demonstrates that they were not at risk of imminent harm
ex parte TRO’s and due process
if unable to hold a pre-deprivation hearing, then least 4 minimum procedural safeguards must exist in the proceeding:
participation by a judicial officer;
a prompt post-depravation hearing;
verified petitions or affidavits containing detailed allegations based on personal knowledge; and
very high risk of immediate and irreparable harm
what is a Bond
a bond is collateral.
P pays a sum of money or other security, posted with the clerk or the court to hold during the time the injunction is in effect.
mitigates the unfairness, protects the enjoined party- getting paid if the P loses
deter meritless injunctions
bonds are discretionary
this is an equitable remedy and is thus discretionary
bonds generally are required for preliminary injunctions
because a TRO only lasts for 14 days, it is not as common that a bond is required because there isn’t much economic damage that can happen
bond hearing
the enjoined party offers evidence to prove the amount of loss that will be suffered during the short term injunction
modification
the enjoined party may request a modification of the bond and offer proof of an increased bond
evaluating bond amount
(evaluating compensatory damages framework)
determining actual bond amount- banking on the assumption that the D is wrongfully enjoined
reasonably foreseeable
certain in amount
certain in fact
avoidable
Did D contribute (or will contribute) to loss
do not get to make a number- prove it
exception to bond
indigents- injunctions are for everyone- equal access to justice
public interest P’s
domestic violence
execution on the bond
if a party was wrongfully enjoined, they are presumptively entitled to have the court execute on the bond. execution of the bond- discretionary
(recovery on the bond) amount of damages
provable damages at hearing- subject to injunction bond rule
injunction bond rule
an enjoined party’s recovery is limited to t he amount of the bond- cannot award damages beyond the amount of the bond.
Nintendo v. galoob
standard and presumption:
a wrongfully enjoined party is entitled to have the bond executed and recover PROVABLE damages up to the amount of the bond.
The wrongfully enjoined party only gets what they can prove the suffered and cannot exceed the bond amount.
damage has to be reasonably certain in amount and in fact
