GUIDE TO TRO and INJUNCTIVE RELIEF

IN FEDERAL COURT

  1. Temporary Restraining Order

1)Purpose: Preserve the status quo of the subject matter of litigation and prevent irreparable harm until a hearing can be held on a preliminary injunction

2)Statutory Basis

  1. FRCP 65
  2. Local Rule 65: Complaint, Application for TRO and Application for Injunctive Relief must all be separate documents

3)Ex Parte:

  1. Locally, ex parte TROs are rarely allowed. If Judge will agree to decide instantly, it is done on the written application while the attorney waits. Don’t expect to gain entrance into chambers or courtroom to argue it.
  1. Must include affidavit or verified complaint showing immediate loss or injury will result if not heard immediately, i.e. without notice to adverse party.
  1. Must include certification from movant’s attorney stating efforts were made to give notice and why notice should not be required.
  1. Notice not required if impractical or impossible or there is no less drastic means to protect movant’s interest.
  1. If granted, hearing on injunctive relief must be set at that time for a time that is as soon as immediately possible.

4)Judge Assignment:

  1. If original filing, the case gets randomly assigned to a judge; the TRO carries a separate random assignment rotation. If the assigned TRO judge is not available or is in trial, it is given to the duty judge assigned that month, who will coordinate with assigned judge. The duty judge could hear it if the assigned judge is in trial (and cannot be interrupted) or is out of town. However, it is not re-assigned based upon unavailability. It could be that it waits until the assigned TRO judge is available.
  1. If in pending litigation, it should be filed in that pending case and will go before the judge already assigned in the pending case.

5)Elements of Brief:

  1. Must show same equitable factors for injunctive relief
  2. Irreparable injury:
  3. Must be imminent, not speculative
  4. Must be more than just monetary injury
  5. No adequate remedy at law
  6. Substantial likelihood of success on the merits
  7. Balance of hardships
  8. No adverse effect on public interest
  1. Identify the relief sought
  1. State willingness to post bond and recommend an amount
  1. Attach evidentiary support
  1. Attach affidavit and verified complaintshowing immediate and irreparable injury
  1. Attach proposed order with all the elements listed in FRCP 65(b)

6)Procedure

  1. Pending Case:
  2. Attempt to confer with opposing counsel
  3. Call ahead to Judge
  4. File in pending case
  5. Judge will decide on brief or set hearing within two days, if needed
  1. New Case:
  2. File in Clerk’s Office
  3. Will be assigned a judge for new case and judge for TRO
  4. Judge will decide on brief or set hearing within two days, if needed

7)Bond

  1. Application must state that the party is willing to post a bond.
  2. The movant should also recommend a bond amount
  3. Bond should relate to the potential damage to enjoined party if found to be wrongfully enjoined.
  4. If TRO granted, amount must be stated in the order.
  5. The bond must be paid in the Clerk’s Office immediately.
  6. TRO,Injunction will not issue without payment of bond.
  7. File Motion for Return of Bond once reasonable possibility of harm to enjoined party passes.

8)Duration

  1. No longer than 14 days.
  2. Can be extended only once upon showing of good cause
  3. Consideration of removal after TRO in state court because can shorten duration. Will not lengthen duration.

9)Typical Reasons/Cases for TRO

  1. Enforcement of non-compete agreement
  2. Compel medical treatment for detainee
  3. Evictions; foreclosures
  4. Deportations
  5. Environmental matters; Perishable Agricultural Commodities Act

10)Helpful Hints/Dangers

  1. Include a Proposed Order. Rule 65(b) and (d) state the necessary elements that must be included in the Order. Don’t leave it up to chambers staff to ensure everything is included. Leave blanks to be filled in if you are unsure or if something needs to be determined (bond amount)
  1. In a pending case, call ahead and let the judge and the staff know it is coming and when to expect it
  1. Consider consent to Magistrate Judge limited to decision of merits of TRO or Preliminary Injunction
  1. Don’t create the emergency. If you created the emergency or injury by waiting to the last minute, expect to have the application denied
  1. Always try to resolve the subject matter before resorting to TRO
  1. Brief all of the elements. The judge will not take the time to dig up or look for all of the elements. If any are missing, or if the elements and all evidence are not attached, the application will be denied.
  1. Don’t give the judge any reason to deny – he will take it
  2. Include a certificate of conference
  3. Explain why conference failed
  4. Explain why extraordinary relief is required
  5. Alert and send a copy to opposing counsel before head to courthouse
  1. Don’t use it as a way to argue the merits of the case
  1. Preliminary Injunctive Relief

(If different from TRO)

1)Purpose: preserve status quo pending a determination of the merits of litigation.

2)Statutory basis:

  1. FRCP 65
  2. May be done only upon notice to adverse party
  3. Opposing party must have 14 days notice and opportunity to respond
  1. Local Rule 65

3)Must show:

  1. Irreparable injury:
  2. Must be imminent, not speculative
  3. Must be more than just monetary injury
  4. No adequate remedy at law
  5. Substantial likelihood of success on the merits
  6. Balance of hardships
  7. No adverse effect on public interest

4)Procedure

  1. Notice
  2. File Motion
  3. Opposing party must have 14 days notice and opportunity to respond
  4. Hearing not required
  5. If Court holds a hearing
  6. Evidentiary to determine factual issues
  7. Only issue presented is need for immediate relief pending trial on the merits
  1. Dissolution

1)File Motion to Dissolve TRO or injunction

2)Opposing party must have two days notice prior to hearing

3)Given procedure and emphasis on notice and opportunity to respond, dissolution is very unlikely.

4)Order granting or denying temporary injunction may be appealed.

5)Order granting or denying Motion to dissolve injunction may be appealed

PHMY.COM 210-477-7400