Pretrial Proc's - Prelim Injunctions and TROs Flashcards
A preliminary injunction preserves
the status quo of the parties until a final judgment on the merits can be reached.
There are two types of preliminary injunctions:
Prohibitory Injunction
and
mandatory injunction
Prohibitory Injunction.
A prohibitory injunction prohibits or restrains a party from engaging in a specified behavior.
Mandatory Injunction.
A mandatory injunction requires the defendant to engage in an affirmative act.
Courts are much more reluctant to grant mandatory injunctions as opposed to prohibitory injunctions.
Every order granting an injunction must:
State the reasons as to why it was issued;
State its terms specifically;
AND
Describe in reasonable detail the act or acts restrained or required.
A plaintiff seeking a preliminary injunction must establish that:
She is likely to suffer irreparable harm if the preliminary injunction is not issued;
She is likely to suffer greater harm than the defendant will if the preliminary injunction is not issued;
She is likely to succeed on the merits;
AND
The injunction is in the best interest of the public.
As to prelim injunctions, the non-moving party MUST be given
notice and an opportunity to oppose the preliminary injunction at a hearing before the court.
A preliminary injunction is never awarded as
of right; it is an equitable order and viewed as “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”
A TRO preserves
the status quo of the parties until there is an opportunity to hold a full hearing on the application for a preliminary injunction.
A TRO may NOT last
longer than 14 days unless good cause exists or the non-moving party consents.
Every order granting a TRO must:
State the reasons as to why it was issued;
State its terms specifically;
AND
Describe in reasonable detail the act or acts restrained or required.
A plaintiff seeking a TRO must establish that:
.
She is likely to suffer irreparable harm if the TRO is not issued;
She is likely to suffer greater harm than the defendant will if the TRO is not issued;
She is likely to succeed on the merits;
AND
The TRO is in the best interest of the public
Ex Parte Notice. Unlike a preliminary injunction, the court may issue a TRO without written or oral notice to the non-moving party ONLY IF:
Specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable harm will result to the movant before the non-moving party can be heard in opposition;
AND
The movant’s attorney certifies in writing any efforts made to give notice to the non-moving party and the reasons why it should not be required.
Security required for TRO or prelim Injunction
Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.
