Monday, September 15, 2014

Preliminary Injunctions vs. Temporary Restraining Orders

An issue that is sure to come up within Civil Procedure questions on the MBE is the difference between preliminary injunctions and temporary restraining orders. A preliminary injunction is an action in equity entered by a court prior to a final determination on the merits of a case. The purpose is either to restrain a party from moving forward with a course of conduct or to compel a party to continue with a course of conduct until the case has been decided. The result of a preliminary injunction is that it preserves the status quo, and the adverse party must be given notice and an opportunity to be heard before an injunction is ordered.

It is sometimes that case that irreparable injury will occur before the hearing on a preliminary injunction can be held, and such instances may call for a temporary restraining order to preserve the status quo until the hearing takes place. Once again it's generally true that notice must be provided before a temporary restraining order may be imposed. Here though there are instances in which notice is not necessary. Specifically, a temporary restraining order may be imposed without notice to the adverse party for a maximum 10-day period if the following conditions are satisfied:

--The moving party states specific facts in an affidavit or verified complaint of the irreparable injury that will occur if the temporary restraining order is not issued.

--The moving party certifies in writing the efforts made to notify the adverse party and the reasons why notice should not be required.

--The moving party provides security to pay for any damages incurred by the adverse party if the court later finds the restraining order to have been wrongful.

**note that although a temporary restraining order may be issued without notice if the above requirement are satisfied, a person must have notice of the order before being held in contempt for violating it.

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