Pretrial procedures - Preliminary injunctions and temporary restraining orders

Learning Outcomes

After reading this article, you will be able to identify and explain the requirements for obtaining preliminary injunctions and temporary restraining orders (TROs) in federal civil procedure. You will understand the procedural steps, legal standards, and limitations for each remedy, and apply these principles to MBE-style questions involving urgent pretrial equitable relief.

MBE Syllabus

For MBE, you are required to understand the rules and standards governing urgent pretrial equitable relief. This includes knowing when and how a court may issue a preliminary injunction or a temporary restraining order, the procedural safeguards required, and the consequences of violating these orders. For revision, focus on:

• The distinction between preliminary injunctions and temporary restraining orders (TROs).
• The legal standards and procedural requirements for each remedy.
• Notice, hearing, and duration rules for TROs.
• The process for seeking, opposing, and appealing preliminary injunctions and TROs.
• The consequences of violating an injunction or TRO, including contempt.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT a required element for a preliminary injunction in federal court?
   1. Likelihood of success on the merits
   2. Irreparable harm if relief is denied
   3. The case must involve a federal question
   4. The balance of equities favors the movant
2. A court may issue a temporary restraining order without notice to the adverse party only if:
   1. The movant posts a bond and the adverse party consents
   2. The movant certifies in writing the efforts made to give notice and shows immediate, irreparable harm will result before a hearing
   3. The movant requests it in the complaint
   4. The adverse party is in default
3. What is the maximum duration of a federal TRO issued without notice, unless extended for good cause or consented to by the restrained party?
   1. 7 days
   2. 10 days
   3. 14 days
   4. 28 days

Introduction

In urgent civil disputes, parties may seek immediate court orders to prevent harm before trial. Federal courts provide two main forms of pretrial equitable relief: the preliminary injunction and the temporary restraining order (TRO). Both are powerful tools, but strict rules govern their use to protect fairness and due process.

Types of Pretrial Injunctive Relief

Federal Rule of Civil Procedure 65 authorizes courts to issue two main types of pretrial injunctions:

• Preliminary Injunction: Preserves the status quo pending a full trial. Requires notice and a hearing.
• Temporary Restraining Order (TRO): Provides short-term emergency relief, sometimes without notice, to prevent immediate harm before a preliminary injunction hearing.

Key Term: Preliminary Injunction
A court order issued before trial that maintains the status quo and prevents a party from acting (or compels action) until the case is resolved, after notice and a hearing.

Key Term: Temporary Restraining Order (TRO)
A short-term emergency order, sometimes issued without notice, to prevent immediate and irreparable harm before a preliminary injunction hearing.

Legal Standards for Preliminary Injunctions

To obtain a preliminary injunction, the moving party must show:

1. Likelihood of success on the merits.
2. Likelihood of suffering irreparable harm if relief is denied.
3. The balance of equities tips in the movant's favor.
4. The injunction is in the public interest.

All four elements must be satisfied. Money damages alone are not enough—there must be harm that cannot be remedied after trial.

Legal Standards for Temporary Restraining Orders (TROs)

A TRO may be granted if:

• Immediate and irreparable harm will occur before a hearing can be held.
• The movant certifies in writing any efforts made to give notice to the adverse party and explains why notice should not be required.

A TRO issued without notice must:

• State the injury and why it is irreparable.
• State why the order was granted without notice.
• Be limited in duration to 14 days, unless extended for good cause or consented to by the restrained party.

Key Term: Irreparable Harm
Injury that cannot be adequately compensated by money damages or remedied after trial.

Procedural Safeguards

• Notice: Preliminary injunctions always require notice to the adverse party and a hearing. TROs may be issued without notice only in true emergencies, with strict written certification.
• Bond: The court may require the movant to post security (a bond) to cover costs or damages if the injunction or TRO is later found to be wrongful.
• Specificity: Orders must describe in reasonable detail the acts restrained or required and be clear enough for compliance.
• Duration: TROs without notice last no more than 14 days unless extended. Preliminary injunctions last until trial or further court order.

Appealability

• Orders granting or denying preliminary injunctions are immediately appealable.
• TROs are generally not appealable unless they function as a preliminary injunction (e.g., if extended beyond 28 days).

Enforcement and Contempt

Violating a court order for a preliminary injunction or TRO may result in contempt of court, including fines or imprisonment.

Worked Example 1.1

A plaintiff sues a competitor for trademark infringement and seeks a preliminary injunction to stop the alleged misuse of its mark. The plaintiff files a motion and serves notice on the defendant. At the hearing, the plaintiff shows a strong likelihood of success, but the court finds that any harm can be remedied by money damages at trial.

Answer: The court should deny the preliminary injunction. Irreparable harm is required—if money damages are adequate, injunctive relief is not appropriate.

Worked Example 1.2

A landlord learns that a tenant is about to destroy valuable fixtures in a leased property. The landlord files for a TRO without notice, certifying in writing that the tenant will remove the fixtures before a hearing can be held. The court issues a TRO for 14 days, restraining the tenant from removing or damaging the fixtures.

Answer: The court's TRO is valid. The landlord certified immediate harm and explained why notice was not possible. The order is limited to 14 days, as required.

Exam Warning

A common MBE trap is confusing the requirements for a TRO with those for a preliminary injunction. Remember: TROs can be issued without notice only in emergencies, and have strict time limits.

Revision Tip

Always check if the question involves notice, hearing, or duration—these are frequent MBE test points for injunctive relief.

Key Point Checklist

This article has covered the following key knowledge points:

• Preliminary injunctions and TROs are urgent pretrial remedies to prevent irreparable harm.
• Preliminary injunctions require notice, a hearing, and four elements: likely success, irreparable harm, balance of equities, and public interest.
• TROs may be granted without notice only if immediate harm will occur and written certification is provided.
• TROs without notice last no more than 14 days (extendable to 28 days for good cause or consent).
• Both remedies may require the movant to post a bond.
• Violating an injunction or TRO may result in contempt.
• Orders granting or denying preliminary injunctions are immediately appealable; TROs generally are not unless extended.

Key Terms and Concepts

• Preliminary Injunction
• Temporary Restraining Order (TRO)
• Irreparable Harm