injunctions Flashcards
TRO
Temporary restraining order - FRCP 65(b) - Lasts for no more than 10 days unless extended - bond required - generally not appealable - may be issued without notice if:
1) It appears clearly from the facts shown by affidavit or complaint that immediate and irreparable injury, loss, or damage will be suffered by the applicant before the adverse party can be heard; and
2) The applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give notice and the reasons supporting the claim that notice should not be required.
Plaintiff must show:
1) That unless the restraining order issues, they will suffer irreparable harm;
2) That the hardship they will suffer absent the order outweighs any hardship the defendants would suffer if the order were to issue;
3) that they are likely to succeed on the merits of their claims (some likelihood of success);
4) that the issuance of the order will cause no substantial harm to the public; and
5) that they have no adequate remedy at law.
Preliminary injunction
As a threshold matter, the party seeking preliminary injunction must show:
1) some likelihoos of succeeding on the merits; and
2) that it has no adequate remedy at law and will suffer irreparable harm if preliminary relief is denied.
If party meets these two threshold tests, then the court will consider
3) (balancing competing interest) the irreparable harm the non-moving party will suffer is balanced against the irreparable harm to the moving party if relief is denied; and
4) the public interest, meaning the consequences of granting or denying the injunction to non-parties
Courts usually employ a sliding scale when considering the likelihood of success and irreparable harm.
Rule for TRO and Preliminary injunction bonds
The majority rule is that if the Plaintiff is unsuccessful, then a prevailing defendant may recover damages up to the amount of the bond posted, even if the action is pursued in good faith. Absent proof of bad faith, the bond is the limit of damages that a defendant may recover. If defendant is not happy with the bond, then he may file an interlocutory appeal after the bond is set.
Prevailing defendant usually can recover, but may not under special circumstances (such as failure to mitigate).
Mandatory preliminary injunction
Requires an affirmative act ordered by the court. They are hard to enforce and are very rare. The courts have the power to do this, but usually don’t due to discretion.
However, when the preservation of the status quo requires action instead of rest, these may be issued. Still very rare and extreme.
They are still subject to the balancing factors of an injunction:
1) the probability of irreparable injury to the moving party absent relief;
2) the possibility of harm to the nonmoving party if relief is granted
3) the likelihood of success on the merits; and
4) the public interest.
Specificity requirement
FRCP 65(d)
Orders for injunctions and restraining orders must set forth reasons for issuance, be specific in terms, and shall describe in reasonable detail (not by reference to the complaint or other document) the act or acts sought to be restrained.
continuation of injunction
See if the injunction is permanent or temporary. If permanent, then the injunction lasts forever and cannot be overturned later (though this seems very wrong). If temporary, then the injunction is for a limited time.
The way to tell is what the court says and the purpose of the injunction.
Appeal
If injunction is mandatory, then it is stayed on appeal. If the injunction is prohibitory, then it is not stayed on appeal.
Modification
Swift rule (I know this is right): a decree cannot be lifted or modified absent a showing of grievous wrong invoked by new and unforeseen conditions.
Three grounds (from an outline): 1) ends of justice will be served by modification, 2) the law has changed, and 3) change in facts
