BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 7 - Miscellaneous Proceedings

    7.03 Injunctions (Fed. R. Civ. P. 65)

        7.03.1   Injunctions (I): Temporary Restraining Orders -- Background
        7.03.2   Injunctions (I): Temporary Restraining Order -- TRO Without Notice
        7.03.3   Injunctions (I): Temporary Restraining Order -- TRO With Notice
        7.03.4   Injunctions (I): Temporary Restraining Order -- Contents Of Order
        7.03.5   Injunctions (I): Temporary Restraining Order -- Motion For Dissolution After Notice
        7.03.6   Injunctions (I): Temporary Restraining Order -- Security
        7.03.7   Injunctions (I): Temporary Restraining Order --The Hearing Record
        7.03.8   Injunctions (II): Preliminary injunctions -- Notice And Hearing
        7.03.9   Injunctions (II): Preliminary injunctions -- Burden of Proof
        7.03.10 Injunctions (II): Preliminary injunctions -- Preparing For The Hearing
        7.03.11 Injunctions (II): Preliminary injunctions -- Advancing Trial On The Merits
        7.03.12 Injunctions (II): Preliminary injunctions -- Decision and Findings
        7.03.13 Injunctions (II): Preliminary injunctions -- Security

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

Considering an application for a temporary restraining order (TRO) is, by definition, an emergency proceeding of such urgency that relief may be granted ex parte. At the outset, the court should be satisfied that there is truly an emergency and decline to consider the application if there is not. The court should also verify that it has jurisdiction over the matter.

Note that whether or not the TRO is granted, Fed. R. Civ. P. 52(a) requires the court to "set forth the findings of fact and conclusions of law which constitute the grounds for its action. . . . It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court."

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

7.03.2 Injunctions (I): Temporary Restraining Order -- TRO Without Notice

Fed. R. Civ. P. 65(b) permits granting a TRO without written or oral notice to the adverse party or the party’s attorney [Footnote 1] only if

1. there are specific facts, shown by affidavit or verified complaint, clearly indicating that immediate and irreparable injury will result to the applicant before the adverse party or his or her attorney can be heard in opposition; and

2. there is a written certification of the attorney’s attempts, if any, to give notice, and an explanation of why notice should not be required.

Other factors the court may consider are

1. probability of success on the merits;

2. balance of harm to other interested parties if the TRO is issued against the harm to the applicant if relief is denied; and

3. the public interest.

FOOTNOTES:

Footnote 1:    The advisory committee notes stress that “informal notice, which may be communicated to the attorney rather than the adverse party, is to be preferred to no notice at all.” Note to 1966 amendment to FRCP 65(b).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

1. If notice is given, the standards governing issuance of a preliminary injunction are applicable.

2. The petition may be treated like one for a preliminary injunction if there is notice and a hearing, and adequate opportunity is provided for developing legal and factual issues. The court should, however, consider the applicability of Fed. R. Civ. P. 6(d) (requiring five days’ notice before hearing on motion, but granting court discretion to modify the time period).

3. If there is notice but no hearing, or a hearing that does not permit adequate opportunity for the development of legal and factual issues, no preliminary injunction may issue.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

Fed. R. Civ. P. 65(b) provides that if the TRO is granted without notice, the order shall

1. be endorsed with the date and hour of the issuance;

2. be filed forthwith in the clerk’s office and entered on the record;

3. define the injury and state why it is irreparable and why the order was granted without notice; and

4. expire by its terms within such time after entry as the court fixes (but no more than ten days), unless within the time fixed by the court good cause is shown to extend the order for a like period, or unless the party against whom the order is directed consents to a longer period.

These requirements, particularly with regard to a restraining order’s duration, should be applied to a TRO even when notice has been given. In addition, Fed. R. Civ. P. 65(d) provides that every restraining order shall

1. set forth the reasons for its issuance;

2. be specific in terms;

3. describe in reasonable detail, and not by reference to the complaint or other documents, the act or acts to be restrained; [Footnote 2] and

4. bind only the parties to the action; the parties’ officers, agents, servants, employees, and attorneys; and persons in active concert or participation with the parties who receive actual notice of the order.

FOOTNOTES:

Footnote 2:    Care should be taken to ensure that the terms of the order are clear and specific. As one court phrased it, “a court must craft its orders so that those who seek to obey may know precisely what the court intends to forbid.” American Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407, 1411 (11th Cir. 1998).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

On two days’ notice to the party that obtained the TRO without notice, or on such shorter notice as the court may prescribe, the adverse party may appear and contest a TRO that was issued without notice. Fed. R. Civ. P. 65(b).

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A TRO may not be issued unless the applicant gives such security as the court fixes. This security requirement does not apply to the United States. Fed. R. Civ. P. 65(c).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

The hearing on an application for a TRO, including pleadings and evidence taken, becomes a part of the record in the later injunction hearing and need not be repeated.

Whether or not the TRO is granted, Fed. R. Civ. P. 52(a) requires the court to "set forth the findings of fact and conclusions of law which constitute the grounds for its action. . . . It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court."

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

7.03.8  Injunctions (II): Preliminary Injunctions -- Notice and Hearing

A preliminary injunction may not be issued without notice. Fed. R. Civ. P. 65(a)(1). The rule does not specify the form of notice or how much notice is required. However, Fed. R. Civ. P. 6(d) requires that notice of a hearing, and affidavits that support a motion, be provided "not later than 5 days before the time specified for the hearing" unless the court provides otherwise. For shorter time periods, and for the form of notice, general considerations of due process and fairness should be applied.

Generally, some kind of hearing will be held, although the form of the hearing will depend upon the record before the court. For example, if there is no disputed issue of fact, the determination of whether to issue the injunction may be made on the papers alone, with or without oral argument. Even if there is a disputed issue of fact, a witness’s direct testimony may be presented by way of affidavit and the witness may be subject to cross-examination.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

7.03.9 Injunctions (II): Preliminary Injunctions -- Burden of Proof

The moving party has the burden of demonstrating entitlement to relief. Rule 65 does not specify the requirements for a preliminary injunction, and they vary from circuit to circuit, but the courts generally consider

1. the likelihood that the moving party will suffer irreparable injury in the absence of a preliminary injunction;

2. the moving party’s likelihood of success on the merits;

3. the balance of hardships between the parties (and any relevant non-parties); and

4. the effect on public policy of granting or denying the preliminary injunction.

Absent extraordinary circumstances, a preliminary injunction will not be issued where an adequate remedy at law exists, that is, where the moving party could be compensated by money damages. An exception to this general rule exists when it is shown that a money judgment will go unsatisfied absent equitable relief, such as when the target of the injunction is insolvent or is likely to transfer or dissipate assets to avoid payment.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

7.03.10 Injunctions (II): Preliminary Injunctions -- Preparing For The Hearing

Because a decision must be reached quickly and the time to prepare for the hearing may be brief, it may help the parties and the court if some matters are addressed before the hearing. The court may, for example,

1. narrow the legal scope of the hearing by eliminating claims, defenses, and counterclaims that do not relate directly to the decision of whether to issue a preliminary injunction;

2. narrow the factual scope of the hearing by directing the parties to submit statements of undisputed facts or requests for admission;

3. direct counsel to identify any witnesses in advance, along with the substance of their testimony and the exhibits they will sponsor;

4. require that direct testimony be offered in the form of adopted narrative statements, exchanged in advance, which will be subject to motions to strike, to cross-examination, and to redirect at the hearing if issues of credibility are presented;

5. direct counsel to exchange proposed exhibits in advance, give notice that objections may be treated as waived if not made in writing in advance of the hearing, and resolve objections to foundation before the hearing;

6. direct counsel to present stipulated summaries or extracts of any deposition testimony to be used in lieu of lengthy readings of transcripts; and

7. direct counsel to submit briefs in advance of the hearing, along with proposed findings of fact and conclusions of law.

If the court determines that no substantial factual disputes exist, consider holding the hearing only on the affidavits.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

7.03.11 Injunctions (II): Preliminary Injunctions -- Advancing Trial On The Merits

At any time before or during the hearing on the motion, trial on the merits may be advanced and consolidated with the preliminary injunction motion, on motion or by the court sua sponte. Fed. R. Civ. P. 65(a)(2). It should be done on notice and might be appropriate when, for example, expedited discovery has produced virtually all of the discovery that would be produced for trial on the merits. Adequate notice must be provided to allow sufficient preparation for trial, and the court should consider whether the case is sufficiently urgent to give it preference over others. Note that the rule provides that consolidation shall "save to the parties any rights they may have to trial by jury."

Whether or not consolidation is ordered, "any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial." Fed. R. Civ. P. 65(a)(2). However, the court’s findings of fact and conclusions of law made in connection with the motion for preliminary injunction are not binding at the trial and the decision on the merits.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

7.03.12 Injunctions (II): Preliminary Injunctions -- Decision and Findings

As with a TRO, see supra section I.D, Rule 65(d) sets out the form and scope of the order granting an injunction (or restraining order) and notes, inter alia, that such orders shall

1. set forth the reasons for issuance (which should, of course, include a finding of no adequate remedy at law); and

2. describe in reasonable detail and not by reference to other documents the acts to be restrained or compelled. Thus, such an order should adequately inform the reader of the acts that are enjoined or compelled.

In addition, Fed. R. Civ. P. 52(a) states that "in granting or refusing interlocutory injunctions, the court shall . . . set forth the findings of fact and conclusions of law which constitute the grounds for its action. . . . It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court."

Note that a preliminary injunction is binding "only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order of personal service or otherwise." Fed. R. Civ. P. 65(d).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

7.03.13 Injunctions (II): Preliminary Injunctions -- Security

As with a temporary restraining order, a preliminary injunction generally may not be issued unless the applicant posts security in an amount deemed appropriate by the court in its discretion, although a nominal amount may be required. Fed. R. Civ. P. 65(c). The court may also dispense with security when, for example, the movant has adequate resources to pay damages for a wrongfully issued injunction. If nominal or no security is ordered, the court should explain its reasons. The rule provides that no security shall be required of the government or its officers or agencies.