Prof. Penny Davis – REMEDIES – Fall 2011
Injunctions
1. INTRODUCTION TO BASIC TERMS
A. Injunction as a Coercive Order
A. Any in personam order enforceable by the contempt power is an injunction
B. directs D to act or refrain from acting in a specified way
B. Types
i. specific performance
ii. reinstatement
iii. preliminary injuries
iv. restraining orders
v. automatic stay (bankruptcy)
C. Mandatory v. Prohibitive
i. P: forbids an act
ii. M: affirmative act or course of conduct
1. might be difficult to supervise/enforce
2. may be too intrusive
iv. Reparative, preventative, and structural injunctions
i. R: requires D to restore P to preexisting entitlements
ii. M: prevent loss of entitlement in the future
1. if D is threatening to commit wrong in future
iii. S: attempts to remodel an existing social/political institution to bring it into conformity with constitutional demands
2. ALABAMA RULE OF CIVIL PROCEDURE 65
(a) Preliminary Injunction.
(1) NOTICE. No preliminary injunction shall be issued without notice to the
adverse party.
(2) CONSOLIDATION OF HEARING WITH TRIAL ON MERITS. Before or after the
commencement of the hearing of an application for a preliminary injunction, the
court may order the trial of the action on the merits to be advanced and
consolidated with the hearing of the application. Even when this consolidation is
not 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. This subdivision
(a)(2) shall be so construed and applied as to save to the parties any rights they
may have to trial by jury.
(b) Temporary restraining order; notice; hearing; duration.
o Without written or oral notice if
· (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition, and
· (2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record,
o not to exceed ten (10) days, as the court fixes (except in domestic relations cases, the ten- (10-) day limitation shall not apply),
o may receive extension for good cause
o adverse party may consent for extension
o after TRO is granted, P shall proceed with application for the TRO
o On two (2) days’ notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
(c) Security. No restraining order or preliminary injunction shall issue
except upon the giving of security by the applicant, in such sum as the court
deems proper, for the payment of such costs, damages, and reasonable attorney
fees as may be incurred or suffered by any party who is found to have been
wrongfully enjoined or restrained; provided, however, no such security shall be
required of the State of Alabama or of an officer or agency thereof, and provided
further, in the discretion of the court, no such security may be required in
domestic relations cases.
The provisions of Rule 65.1 apply to a surety upon a bond or undertaking
under this rule.
(d) Form and scope of injunction or restraining order.
(1) Every order granting a restraining order shall describe in reasonable
detail, and not by reference to the complaint or other document, the act or acts
sought to be restrained; and 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 by
personal service or otherwise.
(2) Every order granting an injunction shall set forth the reasons for its
issuance; shall be specific in terms; shall describe in reasonable detail, and not
by reference to the complaint or other document, the act or acts sought to be
restrained; and 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 by
personal service or otherwise.
· Does not apply in district courts
· Section 12-12-30(1), Code of Ala., generally precludes the district courts
from exercising jurisdiction over actions seeking equitable relief
· specific reference in paragraph (c) of Ala. rule added from Fed. rule to allow for attorneys’ fees
· notice and a hearing must be given to the adverse party before prelim. injunction is issued
· TROs issued only in extraordinary circumstances where immediate action is necessary
· verified facts of the complaint must clearly justify P’s apprehension about the threat of irreparable injury
· not as strenuous as federal rule
· TRO expires by its terms
§ extensions for good cause are permissible
· D must submit motion to dissolve or modify
· Party seeking TRO files simultaneous application for TRO and motion for prelim. injunction
· whether TRO app. is successful or not, P should anticipate hearing on motion for prelim. injunction
· Court is permitted to hear reasons in support of a claim that notice should not be required
· if successful, D will usually be the movant in efforts to set hearing
· if not successful, P will press for hearing on motion for prelim. injunction
· 65(a)(2): Trial court can consolidate
erious bodily injury
1. give rise to apprehension of danger to life, to health or limbs
iii. Marquette v. Marquette
1. infringement must be balanced against the government’s interest in issuing the order and the risk of erroneous deprivation under existing procedures
2. state’s interest is in promoting health, safety, and general welfare of its citizens
3. ex parte order is not issued unless good cause is shown by petitioner at a hearing held by the court
4. court shall then issue order as is necessary to protect the victim from immediate and present danger of domestic abuse
5. Federal law requires hearing within 10 days
6. holding: procedural safeguards, employed under the Act prior to issuance of ex parte order, coupled with the state’s interest in securing immediate protection for abused victims, is of sufficient weight to meet due process challenge
ii. TRO
i. ex parte TROs should be restricted to serving their underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer
ii. In re Vuitton
1. notice would cause it to be too late for the TRO to be useful
iii. Comcast
1. a court may order a seizure ex parte only if providing notice to the D would render fruitless the further prosecution of the action
2. seizure order granted only upon a showing that the failure to do so would render further prosecution of this action
a. i.e., D will destroy evidence
b. P must show either that the D has a history of violating court orders or destroying evidence or that person similar to him have such a history
3. P must show less intrusive means of protecting interest not available
4. ex parte orders should be avoided if at all possible
5. seizure is particularly drastic form of ex parte relief because it implicates rights protected by the 4th Amendment
iv. Morgan Stanley
1. mere loss of income, no matter how great, does not constitute irreparable harm
2. restrictive covenants enforced only where the restrictions are strictly limited both in time and geographical effect, and when the restrictions are otherwise reasonable, considering the business interests of the employer needing protection and the effect of the restrictions on the employee
3. a single unreasonable provision in a restrictive covenant will void the entire contract, and courts will not blue line the covenant to salvage any non-offending parts
4. traditional test for TRO and prelim injunction
