Pre-Trial Equitable Relief

Question 1

Interlocutory Injunctions

Answer 1

Injunctions granted to maintain the status quo prior to a trial on the merits being held

• If Granted — must state
  
  • its terms in specificity, describe in detail what D must do or refrain from doing
  • the reason it was issued
• Findings & Conclusions
  
  • In granting or denying Prelim Injunction the court must make specific findings of fact and separate conclusions of law
    
    • Not TRO
• Bond
  
  • For both, must post bond
• Appeals
  
  • Can move to disolve TRO
  • Prelim Inj — Appealable as a Matter of Right
    
    • TRO isn’t

Preliminary Injunction

Court can issue only on notice to adverse party, who must receive an opportunity to be heard

• (1) Irreparable Harm — P will suffer irreparable harm if the injunction is not granted
• (2) No Adequate Remedy at Law
• (2) Balance of Hardships — harm to P if the injunction is not granted outweighs the harm to D if the injunction is granted;
• (3) Likelihood of Success on the Merits
• (4) Public Interest favors granting the injunction

TRO — Temporary Restraining Order

• Issued by court, in its discretion, when necessary to prevent irreparable injury to a party that may result before Preliminary Injunction hearing can be held

Time Limit

• Expires after 14 days — unless
  
  • Restrained Party consents to an extension
  • Extended by Court
• More than 28 Days → Prelim Inj (purp of appeal)
  
  • If the TRO is extended beyond 28 days from its issuance, it is considered to be a preliminary injunction for purposes of appeal.

Notice to Adverse Party — Ex Parte TRO

Notice is not required if moving party:

• (1) Shows immediate & irreparable injury will result to him before adverse party can be heard in opposition
  
  • Under Oath — must provide specific facts inaffidavit or verified complaint
• (2) Describes efforts made to give adverse party notice, and why notice should not be required
  
  • Lawyer must Certify in writing
• (3) Provides security, the amount of which is determined by the court, to pay for any costs and damages incurred by the adverse party if he was wrongfully enjoined or restrained
  
  • US, its officers, and its agencies are not required to give security

DP Reqs Actual Notice to be Held in Contempt

• One subject to TRO (or any inj) must have actual notice before they can be held in contempt for violating it

Question 2

Preliminary Injunction

Answer 2

Court can issue only on notice to adverse party, who must receive an opportunity to be heard

• (1) Irreparable Harm — P will suffer irreparable harm if the injunction is not granted
• (2) No Adequate Remedy at Law
• (2) Balance of Hardships — harm to P if the injunction is not granted outweighs the harm to D if the injunction is granted;
• (3) Likelihood of Success on the Merits
• (4) Public Interest favors granting the injunction

Question 3

TRO

Answer 3

Issued by court, in its discretion, when necessary to prevent irreparable injury to a party that may result before Preliminary Injunction hearing can be held

Time Limit

• Expires after 14 days — unless
  
  • Restrained Party consents to an extension
  • Extended by Court
• More than 28 Days → Prelim Inj (purp of appeal)
  
  • If the TRO is extended beyond 28 days from its issuance, it is considered to be a preliminary injunction for purposes of appeal.

Notice to Adverse Party — Ex Parte TRO

Notice is not required if moving party:

• (1) Shows immediate & irreparable injury will result to him before adverse party can be heard in opposition
  
  • Under Oath — must provide specific facts inaffidavit or verified complaint
• (2) Describes efforts made to give adverse party notice, and why notice should not be required
  
  • Lawyer must Certify in writing
• (3) Provides security, the amount of which is determined by the court, to pay for any costs and damages incurred by the adverse party if he was wrongfully enjoined or restrained
  
  • US, its officers, and its agencies are not required to give security

DP Reqs Actual Notice to be Held in Contempt

• One subject to TRO (or any inj) must have actual notice before they can be held in contempt for violating it

Question 4

Provisional Remedies

Answer 4

“Provisional Remedies” provide for the pretrial seizure of property for the purpose of securing satisfaction of a judgment that may be entered in the case.

Procedure will vary from state to state, but the party seeking the remedy generally must

• make out a prima facie case on the underlying claim and
• show that the property will likely not be available after trial if relief is not granted

Authorized by FRCP. But Rule notes that the remedy’s precise name and the precise procedure to be used will be governed by state law.

Common Names
(1) Garnishment

• A court order directing that money or property in the hands of a third party (e.g., wages) be seized;
  (2) Attachment
• A process by which another’s property is seized in accordance with a writ or judicial order for the purpose of securing a judgment yet to be entered. (See II.E.2.a.3), supra, and II.E.2.b., supra, for some restrictions on the use of attachment.); and
  (3) Replevin
• A process by which the P takes possession of and holds disputed property during the lawsuit (possession pendente lite).