Injunctions

Question 1

Permanent Injunction

Answer 1

Is a court order issued after trial on the merits and commands the losing party to cease engaging in condcut the court has deemed illegal.

Question 2

Provisional Injunctions

2 types

Answer 2

Provisional injunctions are temporary in that they hold the status quo in place until the end of trial. In discussing permanent injunctions, one concern is that provisional injunctions will be vacated at the end of the litigation. The reason one mentions that the defendant’s action will begin again is that provisional injunctions halt his conduct during the time of litigation.

1. Temporary Restraining order
2. Preliminary Injunctions

Question 3

Temporary Restraining Order

Answer 3

Can be issued immediately after suit has been filed and ordinarily lasts until the plaintiff can obtain a hearing on her motion for a preliminary injunction.

Fed Rule 65; 14 day with one renewal allowed for good cause.

TRO by State Court limited to 14 days

Duration and Extension of a TRO 🗓️

• A TRO, including an ex parte TRO, lasts14 days.
• It can be extended for another 14 days withgood cause.????
• 28 daysis the maximum duration without the other party’s consent.

Federal Rule on Counting Days:If a TRO is issued on January 1st, the 14-day period begins on January 2nd and ends on January 15th. To extend, file a motion before the end of January 15th. Seeking the other party’s consent increases the chance of an extension. After a 14-day TRO and a scheduled preliminary injunction hearing, the opposing side may be more willing to extend the TRO since both sides need time to prepare for the hearing.

Question 4

4 factor test for Preeliminary Injunctions

For Federal and 5th Circuit (Texas)

Answer 4

Both TROs and preliminary injunctions are determined by afour-factor test, which considers the following factors:

• Likelihood of success on the merits: The party requesting the injunction must show that they are likely to succeed on the merits of their case.
• Irreparable harm: The party requesting the injunction must show that they will suffer irreparable harm if the injunction is not granted.
• Balance of equities: The court must balance the equities between the parties and consider whether the harm to the party requesting the injunction outweighs the harm to the other party.
• Public interest: The court must consider whether the granting of the injunction is in the public interest.

Question 5

Contempt

Answer 5

Either a fine or incarceration can be a “criminal contempt” or a “civil contempt.”

A criminal contempt’s primary function is to punish for the past disobedience.

A civil contempt compels obedience with the injunction in that a fine may increase or incarceration may continue until the defendant complies with the court’s order.

Question 6

Collateral Bar Rule

Answer 6

Prevents a contemnor from challenging validity of the injunction that he has violated.

This rule is based on the notion that a party must challenge an injunction in court rather than by violating it.

Question 7

Sliding Scale anaylisis

Answer 7

7th Circuit (Judge Posner):

• Uses a balance-of-hardships approach: Likelihood of plaintiff’s success * harm to plaintiff > likelihood of defendant’s success * harm to defendant.

-Winter Decision: Alters this balancing approach by requiring irreparable harm.

10th Circuit:

• If plaintiff proves irreparable harm, favorable balance of harms, and no public harm, only needs to raise serious questions on the merits (not likely to prevail).
• Example: Citigroup Global Markets (10th Cir. 2010).

5th Circuit (Traditional Four-Factor Test):

• Requires plaintiff to satisfy all four factors, including showing likelihood of success on the merits.

all these are applicable to state courts not federal courts

Question 8

Ex Parte TRO

Answer 8

Fed Rule 65b1: A tro may be granted without written or oral notice if
- if it clearly shows from specific facts or by verified complaint that immediate and irreaparable

• the applicant attorney certifies to the court in writing the reasons his claim that notice should not be required

65(b)(2): The order expires at the time after entry—not to exceed 14 days—that the court sets, unless

before that time

the court, for good cause, extends it for a like period or
the adverse party consents to a longer extension.

[NOTE: Although Rule 65(b) speaks only of an ex parte TRO, courts follow (b)(2) even when the TRO was issued with prior notice to the adverse party.]

Question 9

Injunction Bonds

Answer 9

Federal Rule 65(c):

A preliminary injunction or temporary restraining order can only be issued if the movant provides security, as deemed proper by the court, to cover costs and damages for any party wrongfully enjoined or restrained.
Federal Rule 65.1:

If security is provided via bond or undertaking with sureties, each surety submits to the court’s jurisdiction and appoints the court clerk as its agent for receiving service.
Surety’s liability can be enforced without an independent action.
Texas Rule of Civil Procedure 684:

Before issuing a temporary restraining order or injunction, the applicant must file a bond with the clerk, approved by the judge, ensuring payment of sums adjudged against them if the order is dissolved.
Texas Rule of Civil Procedure 693a:

In divorce cases, the court may waive the requirement for a bond in ancillary injunctions between spouses.

cannot retroactively

Damages and Bond Limits 💸

• In federal court, recovery for a wrongfully issued preliminary injunction is limited to the bond amount.
• A separate action for malicious civil prosecution may be possible in some states (like Texas), but it’s complex and difficult.
• Increasing the bond amount during the proceedings is crucial to ensure sufficient recovery for incurred damages.

Question 10

Appeals of Injunctions

Interlocutrary

Answer 10

INTERLOCUTORY APPEAL), a court of appeals can hear appeals from interlocutory – that is, non-final – decisions of the district courts “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.”

3. TRO: This statute speaks only of “injunctions” and does not allow appeal of a TRO because a TRO:

extends for only a short period of time;
may be issued without notice or a hearing; and
only briefly maintains the status quo with little chance of affecting the merits.
Courts **have allowed appeal of a TRO:

when it has extended beyond 28** days, without consent of the parties;
when, after sufficient preparation the parties had a full hearing, and the court entered findings of fact; and
when the TRO effectively decides the merits of the case.

Question 11

INJUNCTION PENDING APPEAL

Answer 11

Federal Rules of Appellate Procedure

Rule 8. Stay or Injunction Pending Appeal

(a)(1) Initial Motion in the District Court. A party must ordinarily move first in the district court for … an order suspending, modifying, restoring, or granting an injunction while an appeal is pending.

(a)(2) Motion in the Court of Appeals; Conditions on Relief. A motion for the relief mentioned [above] may be made to the court of appeals or to one of its judges. (A) The motion must: [show] that moving first in the district court would be impracticable; or … that … the district court denied the motion.

… (D) A motion under this Rule 8(a)(2) must be filed with the circuit clerk and normally will be considered by a panel of the court. But in an exceptional case in which time requirements make that procedure impracticable, the motion may be made to and considered by a single judge.

(E) The court may condition relief on a party’s filing a bond or other appropriate security in the district court.