Preliminary Injunctive Relief

Question 1

Basic Idea of Preliminary Injunctive Relief:

P is planning to file suit (or has sued). P is worried that before that case can go to trial, D may do (or fail to do) something that will prejudice P’s case. P wants injunctive relief – a court order that D either:

Answer 1

(1) do something or

(2) refrain from doing
something.

The court is nervous about doing this because the merits of the underlying dispute have not been decided.

Question 2

What does a Preliminary Injunction do?

Answer 2

maintains the status quo until trial

Question 3

Before getting a preliminary injunction, to maintain the status quo until the hearing on the preliminary injunction, you may seek:

Answer 3

a TRO

Question 4

Ex Parte

Answer 4

Whenever a court does something without giving notice to the other party

Question 5

Can the court issue a TRO ex parte?

Answer 5

Yes, in very limited circumstances

Question 6

Ex parte TRO is proper only if:

Answer 6

1. Applicant files a paper under oath clearly showing that if the TRO is not issued, he will suffer immediate and irreparable harm if he must wait until the other side is heard
2. Applicant’s lawyer certifies in writing his efforts to give oral or written notice to D or D’s lawyer (or why such notice should not be required under the circumstances).

Question 7

If the court issues the TRO, applicant must:

Answer 7

If the court issues the TRO, applicant must post a bond (security) to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.

Question 8

The TRO must state:

Answer 8

The TRO must state:

1. its terms in specificity,
2. describe in detail what D must do or refrain from doing,
3. and state why it was issued,
4. and why the threatened injury to P was irreparable.

Question 9

When must the TRO be served on the D

Answer 9

ASAP

Question 10

If the court issues the TRO, what can D do?

Answer 10

Move to dissolve or modify the TRO

Question 11

How long is a TRO effective for?

Answer 11

TRO is effective for no more that 14 days (or lesser time stated by court).

If Applicant shows good cause before expiration, it can be extended for up to another 14 days.

So a TRO cannot extend beyond 28 days.

Question 12

What does a preliminary injunction do?

Answer 12

Maintains status quo until the court can adjudicate the underlying claim on the merits

Question 13

Can a preliminary injunction be granted ex parte?

Answer 13

Never

Question 14

What must be shown for a preliminary injunction?

Answer 14

The burden is on the Applicant to show:

1. He is likely to suffer irreparable harm if the injunction is not issued;
2. He is likely to win on the merits of the underlying case;
3. The balance of hardship favors him (threatened harm to applicant outweighs harm to other party if the injunction is issued); and
4. The injunction is in the public interest.

Question 15

Is there ever a right to an injunction?

Answer 15

No - it is always discretionary

Question 16

What must the applicant do if the court grants a preliminary injunction?

Answer 16

Applicant must post a bond.

Question 17

What may the court do with case in regards to the preliminary injunction?

Answer 17

The court may consolidate the hearing on the motion for preliminary injunction with trial on the underlying case. It may advance trial on the calendar to do so.

Question 18

The preliminary injunction must state:

Answer 18

The preliminary injunction must state:

1. its terms in specificity,
2. describe in detail what D must do or refrain from doing,
3. and state why it was issued.

Question 19

In granting or denying the preliminary injunction, the court must:

Answer 19

make specific findings of fact and separate conclusions of law

Question 20

Is an order granting or denying a preliminary injunction immediately appealable?