TEMPORARY RESTRAINING ORDERS [EE 200]

TEMPORARY RESTRAINING ORDERS [EE 200]

1. IN GENERAL: purpose is to maintain the status quo pending issuance of a preliminary injunction. [Gilbert 58]

1. Generally not appealable. However, if lasts more than 20 days, it might be considered a preliminary injunction, which you can appeal.

2. Note: rules don’t say how long a TRO with notice will last

1. TRO WITHOUT NOTICE (ex parte): REQUIREMENTS

1. IMMEDIATE THREAT OF IRREPARABLE INJURY WHICH WILL OCCUR BEFORE AN EVIDENTIARY HEARING CAN BE HELD.

   1. APPLICANT’S ATTORNEY MUST CERTIFY EFFORTS TO GIVE NOTICE. MUST EITHER

1. GIVE NOTICE

   1. ATTEMPT TO GIVE NOTICE OR

   2. OR REASON WHY NO NOTICE SHOULD BE REQUIRED. Must be strong showing of why notice and hearing should not be required because D has constitutional due process rights. [Gilbert 58]

   3. Note that a t.r.o. issued without notice is not binding until D receives at least informal notice of its existence and contents. [Gilbert 58]

1. Must also satisfy all Rule 65 requirements under preliminary injunctions. [Gilbert 59]

1. GENERALLY LASTS TEN DAYS. Expires by its terms.

1. CAN GET A TEN DAY EXTENSION UPON SHOWING OF GOOD CAUSE

   1. DEFENDANT CAN AGREE TO AN EXTENSION

4. PRELIMINARY INJUNCTION HEARING MUST BE SET AT THE EARLIEST POSSIBLE TIME

4. PRELIMINARY INJUNCTION [EE 188] (sometimes this is where you have to start because you can’t get a TRO).

1. AKA temporary injunctions, interlocutory injunctions, or injunctions pendente lite. [Gilbert 59]

   1. Issued only after notice and an adversary hearing. [Gilbert 59, 60 (Exam Tip)]

   2. Purpose is to retain the status quo pending a trial on the merits. [Gilbert 59]

4. RULE 65 REQUIREMENTS

1. STRONG LIKELIHOOD OF SUCCESS ON THE MERITS

   1. IRREPARABLE INJURY

1. MUST SHOW THAT WILL OCCUR BETWEEN NOW AND THE TIME OF TRIAL

   1. Defined in various ways: injury that cannot be compensated in damages, sometimes including intangible harm not readily subject to measurement by any certain pecuniary standard, possibly emotional distress. [Gilbert 60]

1. BALANCE OF HARDSHIPS IN GRANT OF INJUNCTION FAVORS THE PLAINTIFF

1. COURT CONSIDERS THE EQUITIES IN MAINTAINING THE STATUS QUO

1. Status quo: the way things were before the dispute arose.

1. WHAT IS THE BURDEN ON DEFENDANT IF ERRONEOUS?

2. Consider Posner’s formula: ratio of each side’s harm x probability of winning.

3. Timeframe is from now until trial date.

4. Tanya Harding case, balancing hardships of Harding and skating association’s embarrassment to have her representing them in the Olympics. Not as big of a hardship as her missing the Olympics. Argue both sides, then weigh for that period of time.

5. Different balancing than will be done for permanent injunction, because it is a shorter timeframe.

4. GRANT ADVANCES THE PUBLIC INTEREST (court doesn’t like getting dragged in to cases if the parties are just trying to use an injunction to improve its negotiating position. See shopping center case. Sarah Creek?)

5. Status quo should be maintained.

1. 9^TH CIRCUIT RULE – SLIDING SCALE (Don’t need to know. Somewhat like the TRO analysis/continuum and not as much like the Rule 65 requirements)

1. THE GREATER THE POTENTIAL FOR IRREPARABLE INJURY AND THE CLEARER THE BALANCE OF HARDSHIPS, WITHOUT THE ORDER THE LESS THE SHOWING FOR LIKELIHOOD OF SUCCESS ON THE MERITS

1. CASES

1. NARRAGANSETT INDIAN TRIBE V. GUILBERT

   1. HARDING V. USFSA

   2. CASSIM V. BOWEN

   3. CARIBBEAN MARINE SERVICES V. BALDRIDGE

   4. PROBLEM: THE THREATENED LANDMARK

   5. FENGLER V. NUMISMATIC AMERICANA, INC.

   6. CARROLL V. PRINCESS ANNE

1. PERMANENT INJUNCTIONS

1. THE REMEDY AT LAW MUST BE INADEQUATE.

1. MUST ANALYZE THE DAMAGE REMEDY BEFORE CAN DETERMINE THAT THE REMEDY IS INADEQUATE

   1. INADEQUACY IS THE KEY TO OBTAINING AN EQUITABLE REMEDY

1. AVOIDS MULTIPLICITY OF SUITS

   1. DEFENDANT CANNOT PAY DAMAGES

   2. DAMAGES ARE TOO SPECULATIVE

   3. DAMAGES WILL NOT GIVE COMPLETE RELIEF

1. IRREPARABLE INJURY [EE 188]

1. THREAT OF HARM MUST BE REAL SO THAT COURT HAS A REASON TO ACT

   1. JUSTICE DEMANDS JUDICIAL INTERVENTION

   2. SUBSTANTIVE EQUITY- COURT MUST ACT BECAUSE THERE IS NO REMEDY AT LAW

1. THE BALANCE OF EQUITIES FAVORS THE PLAINTIFF

1. BALANCE THE INTERESTS TO DETERMINE THE EQUITIES

   1. BALANCE HARDSHIPS IN FASHIONING RELIEF

1. PUBLIC INTEREST SERVED BY GRANT OF THE INJUNCTION

1. TRIBUNAL INTEGRITY MAINTAINED

   1. THE COURT CAN SUPERVISE THE INJUNCTION

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