Civil Procedure Outline
Preserving the Status Quo and Ensuring Security for a Final Judgment
I. Provisional Remedies
a. Preliminary Injunction: An order issued by the court at the commencement of an action requiring a party to refrain from conducting a specified activity that is the subject of the controversy until the matter is determined; will be issued only after a hearing.
a. To get a sense of security so that the defendant can not move assets around so they don’t have assets to pay company.
b. May be used in an employment contract, to stop employee from working with competitor.
c. A preliminary Injunction should be granted if the moving party demonstrates either a combination of probable success and the possibility of irreparable harm, or that serious questions are raised and the balance of hardship tips sharply in his favor. (See William Inglis v. ITT Continental)
d. Also if:
1. The plaintiff will suffer irreparable injury if injunctive relieve is not granted.
2. The plaintiff will probably prevail on the merits.
3. In balancing the equities, the defendant will not be harmed more than the plaintiff is helped by the injunction
4. Granting the injunction is in public interest.
e. Alternative test to a preliminary injunction:
1. On moving for a preliminary injunction it is assumed that the burden of demonstrating:
1. either a combination of probable success and the possibility of irreparable injury.
2. Or, that serious questions are raised and the balance of the hardships is not tipped.
2. It is not necessary that the moving party be reasonably certain to succeed on the merits.
m injunction will be issued without notice to the adverse party.
2. (a)(2) Consolidation of Hearing with Trial on Merits: can consolidate the hearing for prelim injunction with hearing of application; includes any evidence received for prelim hearing.
b. Temporary Restraining Order: an injunction granted for a very short time, just to keep things as they are until a hearing can be held to determine whether it would be appropriate to issue a preliminary injunction; May be issued Ex Parte (without notice).
a. Rule 65 (b):
1. Granted without notice if:
1. clearly shows that there will be immediate and irreparable harm or loss or damage if the party or party’s attorney is heard before the order is granted.
2. The applicants attorney certifies in writing the efforts which have been made to give the notice and the reasons supporting the claim that notice should not be required.
2. needs to define the injury and why it was irreparable and why no notice was given
3. can not be longer than 10 days unless
1. good cause is shown
2. or other party agrees
3. Can only be extended to a reasonable amount of time that the court decides on
4. when granted without notice a hearing for preliminary injunction needs to be set at earliest possible time and takes precedent.
5. if no application for preliminary injunction is pursued by applying party the TRO will be dissolved.
Can use Due Process as Defense (See Fuentez v. Shevin)