A PRIMER ON INJUNCTIVE RELIEF IN FEDERAL AND STATE COURT
BY WILLIAM FRANK CARROLL AND RICHARD M. HUNT
INJUNCTIVE RELIEF IS AN EQUITABLE REMEDY finding its genesis in the power of the English chancellor to relieve litigants from
the strictures of the law as applied by the law courts. The remedial power was so undefined and unlimited that it was said to be
determined by “the length of the chancellor’s foot.”
Today injunctive relief in the federal and state courts is much
more strictly circumscribed by statute, rule, and governing case
law. Nevertheless, injunctive relief retains its ability to do that
which is beyond the strict limitations of the law.
A suit for injunctive relief is one of the most effective tools
available to a litigator, especially when a request for immediate
relief is included. At the same time, suits seeking injunctive relief
are almost always extraordinarily expensive, and make unusual
demands on the lawyers and clients on both sides. This paper will
discuss the mechanics of obtaining injunctive relief as well as the
strategic considerations that must inform the decision to seek
such relief.
I. Injunctive Relief in Federal Court A. Introduction
Two primary forms of preliminary injunctive relief are
available in federal court, temporary restraining orders and
1
preliminary injunctions. Federal Rule of Civil Procedure
65 outlines the general standards for obtaining injunctive
relief; however one must look to other federal rules, local
court rules, and case law for the procedural and substantive
2
law applicable to injunctive relief.
B. Temporary Restraining Orders 1. Generally Most
courts, and particularly the federal courts, are reluctant to
issue temporary restraining orders because they have
substantial impact on the case but are determined on an
incomplete record, without oral testimony and often on an
3
ex parte basis.
2. Pleading and Notice Requirements The complaint
seeking the temporary restraining order must be verified or
4
supported by affidavit testimony. In addition, the
complaint must demonstrate by “specific facts” that
“immediate and irreparable injury, loss or damage” will
result to the applicant before the adverse party can be heard
5
in opposition. It is most important that the complaint
establish facts through persons with personal knowledge, of
irreparable harm. Unlike some courts, federal courts do not
generally grant temporary restraining orders based upon
conclusions (the foreclosure would be wrongful) or
questionable testimony.
The applicant’s attorney must also certify to the court in
writing as to the efforts which have been made to give
notice to the opposing party and the reasons supporting
6
why such notice should not be required.
3. Substantive Showing The Fifth Circuit Court of
Appeals has delineated a generally accepted four prong test
which must be satisfied in order to obtain a temporary
restraining order. The applicant must establish each of the
following: “(1) a substantial likelihood of success on the
merits; (2) a substantial threat that failure to grant the
injunction will result in irreparable injury; (3) that the
threatened injury outweighs any damage that the injunction
may cause the opposing party; and (4) that the injunction
7
will not disserve the public interest.
Thus the federal test requires a balancing of the injury to be
suffered by both parties, not just by applicant. Also, the
court is required to consider the impact the injunction will
have on “the public interest,” even in suits between private
8
parties.
4. Duration A temporary restraining order issued without
notice may not exceed 10 days in duration unless “for good
cause shown” the order is extended “for a like period” or
unless the party against whom the order is entered
9
“consents that it may be extended for a longer period.” If
the temporary restraining order is extended, the reasons for
10
any extension of time must be entered of record.
5. Terms of the Order and Filing Because of the
extraordinary nature of injunctive relief, the temporary
restraining order must contain specified findings and
information. The temporary restraining order must: (1) be
endorsed with the date and hour of issuance; (2) define the
injury and state why it is irreparable; (3) state why it was
issued without notice; (4) specify that it expires within 10
days after entry; and (5) be filed “forthwith” in the clerk’s
11
office and entered of record.
In addition the temporary restraining order must (1) set
forth the reasons for its issuance; (2) be specific in terms;
and (3) shall describe in reasonable detail, without
reference to the complaint or other document, the act or
12
acts sought to be restrained.
6. Security The party obtaining the temporary restraining
order must give security in whatever sum the court deems
proper for the payment of costs and damages “as may be
incurred or suffered by a party who is found to have been
13
wrongfully enjoined or restrained.”
7. Conference With Court In Texas state court practice
the applicant’s attorney generally has the opportunity to
present the temporary restraining order request to the judge
on an ex parte basis. This almost universal state court
practice is not prevalent in federal court. Depending upon
the predilections of the particular judge, the applicant’s
request may be decided on the papers, or at best, after the
attorney has had a brief conference with the judge’s law
14
clerk. Consequently, it is especially important when
seeking a temporary restraining order in federal court that
the papers clearly demonstrate the need for and entitlement
to relief without benefit of counsel’s presentation.
8. Service of Temporary Restraining Order A temporary
restraining order must be formally served, which is
traditionally done with the service of the complaint. Any
person who is not a party and is of 18 years of age may
serve the temporary restraining order, including someone
15
appointed by the court for that purpose. The person
serving the temporary restraining order is then required to
16
file a proof of service with the court.
9. Persons Bound by Temporary Restraining Order The
person or entity named as the defendant is bound by the
terms of the temporary restraining order. However,
additional actors are also subject to the restraints of the
temporary restraining order. It binds the parties and “their
17
officers, agents, servants, employees and attorneys.”
Further, it is binding upon those persons “in active concert
or participation with them who receive actual notice of the
18
order by personal service or otherwise. Therefore, if
service is for any reason delayed, it is important to give
notice of the issuance of the temporary restraining orderincluding a copy of the same-to the opposing party and
those acting in concert with that party.
10. Hearing on Preliminary Injunction if Temporary
Restraining Order Granted If a temporary restraining
order is granted without notice, the court must set a hearing
on the preliminary injunction at “the earliest possible time,”
which may not exceed 10 days with one extension for good
19
cause shown. A party against whom a temporary
restraining order is granted without notice may move on 2
days notice for a hearing to dissolve or modify the order
and the court will hear such motion “as expeditiously as the
20
ends of justice require.”
11. Strategy on Temporary Restraining Orders in
Federal Court Given the general reluctance of the federal
courts to grant ex parte temporary restraining orders, it is
imperative that careful consideration be given to whether a
temporary restraining order should even be requested. If the
basis for liability is less than clear or the nature of the
irreparable injury suspect, caution should be exercised in
seeking a temporary restraining order. Consideration
should rather be given to requesting an expedited hearing
on a preliminary injunction.
The second factor to consider is whether the client can post
the required bond. Unlike some courts, the federal courts
rarely permit posting of nominal bonds to secure
substantive injunctions ($500.00
foreclosure on $l million home).
bond
to
present
The third factor to consider is whether there is any real
advantage to filing suit in federal court for such temporary
relief. Of course, in some instances the federal courts have
exclusive jurisdiction and the application must be filed in
21
that forum. Absent such limitation, it will often be easier
to obtain ex parte injunctive relief in the state court system.
Finally, make sure that the federal court has an independent
22
basis for federal subject matter jurisdiction and that venue
23
is proper in the district in which the suit will be filed.
12. Checklist for Federal Court Temporary
Restraining Orders
a) Determine jurisdiction and venue.
b) Decide whether standards are satisfied for
temporary restraining order.
c) Prepare complaint and application for temporary
restraining order.
d) Select witness(es) to verify complaint or provide
affidavit testimony supporting the temporary
restraining order application.
e) Prepare brief in support of your application.
Although this is not required, generally it will be very
helpful in those cases where there is any legal issue as
to entitlement to relief or where there is no
opportunity to visit with the judge to supplement the
written presentation.
f) Arrange for bond or posting of cash security with
the district clerk once the temporary restraining order
has been signed. If a bond is to be utilized,
arrangements should be made in advance.
g) Arrange for service/notice to all impacted parties.
This might include filing an application and order for
appointment of someone to serve process and the
temporary restraining order at the time the complaint
is filed.
h) Consider filing a motion for expedited discoverybut be reasonable. Asking the court to order the
production of 40 categories of documents in 5 days
and to present 10 witnesses for deposition is not only
unlikely to be granted, but is also unlikely to enhance
your credibility with the court.
i)
Review the local rules to determine any special
procedures or requirements for obtaining a
temporary restraining order.
preliminary injunction may be dissolved or may be made
permanent depending upon the form and scope of relief
required by the final judgment.
j) Check with the district cleric (if you do not practice in
the district or in federal court generally) to determine
how such filings are handled and what is done if the
judge to whom the matter is assigned is not available.
Unlike some courts, it would be the most unusual of
cases if you were allowed to pick up your file and
wander from court to court until you could find a
judge who was available to consider the application.
5. Terms of the Preliminary Injunction A preliminary
30
injunction must set forth the reasons for its issuance. The
order must be specific in its terms and must describe in
reasonable detail (and not by reference to the complaint or
31
other document) the act(s) to be restrained. Although Rule
65(d) does not so require, it is advisable for the order to set
forth the specific equitable findings which justify the
32
issuance of a common law injunction. Thus the order
should clearly describe why the injunction is necessary to
prevent irreparable harm, the reasons the applicant is likely
to prevail on the merits, and a balancing of the parties’ and
33
the public’s interest in having the injunction granted.
k) Prepare a detailed order granting the relief requested-but
be reasonable. Requesting to enjoin a national bank
from disposing of “all documents relating to its check
cashing policies since 1980” is not likely to find favor
with most federal judges.
l) Determine if the district clerk expects you to prepare the
writ of injunction or whether they have a form
available.
m) Be sure you have checks for all applicable filing fees.
n) The attorney should “hand walk” the filing through the
district clerk’s office and then take the file marked
judge’s copies to the judge’s secretary or
administrative assistant.
o) If the temporary restraining order is granted, promptly
post the bond and effect service/notice as applicable.
C. Preliminary Injunctions 1. Generally The purpose of a
preliminary injunction is to preserve the status quo pending
24
a final decision on the merits of the case. The status quo is
“the last peaceable uncontested status” prior to the parties
25
present disagreement.
2. Pleading and Notice Requirements A complaint
seeking a preliminary injunction is subject to the same
pleading requirements generally applicable in federal
26
court. There is no requirement that the complaint be
verified. However, sworn proof establishing entitlement to
relief must be submitted before a preliminary injunction
will be granted. The normal procedure for seeking a
preliminary injunction is by motion or by an order to show
cause, the former being preferred.
Unlike a temporary restraining order, a preliminary
injunction may not be granted without notice to the adverse
27
party.
3. Substantive Showing The substantive requirements for
obtaining a preliminary injunction are the same as for
28
obtaining a temporary restraining order. The court will
again perform a balancing of interests test assessing the
impact of granting the requested relief on the respective
29
parties and on the public interest.
4. Duration The preliminary injunction remains in effect,
unless dissolved or modified, during the pendency of the
litigation. When the case is decided on the merits the
6. Security The successful applicant for a preliminary
injunction is required to post security in the same manner
34
as for a temporary restraining order.
7. Person’s Bound By Preliminary Injunction The same
broad category of persons are bound by a preliminary
injunction as are those subject to a temporary restraining
order. The same procedure discussed previously with
respect to service and notice of a temporary restraining
order should be followed with respect to a preliminary
35
injunction.
8. Hearing on Preliminary Injunction Before granting a
preliminary injunction the opposing party must be given
36
notice and an opportunity to be heard. However, it is not
necessary for the court to hold an evidentiary hearing where
37
the parties are allowed to present testimony. A hearing
38
may be required if there is a material factual dispute;
however, some courts have upheld the denial of a hearing
39
even when the facts are controverted. In fact it is the
standard practice of some federal judges to resolve all
preliminary injunction applications without an oral
40
hearing.
Evidence at a hearing on a preliminary injunction may
include verified pleadings, affidavits, deposition testimony,
documentary evidence and oral testimony. Because the
function of a preliminary injunction is to maintain the
status quo rather than adjudicate the matter on the merits,
the federal courts are more lenient in demanding strict
compliance with the rules of evidence. Consequently,
affidavits are not held to the strict requirements of those
41
supporting summary judgment and hearsay evidence may
42
be considered by the court.
It should be noted that the court may, before or after
commencement of any hearing on a preliminary injunction,
order that the hearing be consolidated with the trial on the
43
merits. Even if a consolidation is not ordered, any
evidence introduced at the preliminary injunction hearing
becomes a part of the final trial record if it would have been
44
admissible in a trial on the merits. Counsel should,
however, be cautious in relying on this rule if essential
testimony is included in affidavits or depositions, if it
would be inadmissible at trial because it is not based on
personal knowledge, is conclusory, or is hearsay.
9. Checklist for Preliminary Injunctions In addition to
the items suggested with respect to a temporary restraining
order, several additional matters are worth considering,
particularly if no oral hearing is permitted.
a) Prepare a brief in support of your motion. Although this
may not always be required by local rules generally it will
be very helpful in those cases where there is any legal issue
as to entitlement to relief or where there is no opportunity
to supplement the written presentation with testimony and
arguments.
b) Carefully filter the evidence to be presented in support of
the application. To the extent possible the affidavits should
comply with Fed.R.Civ.P.56(e). Also, limit the amount of
deposition testimony-highlighted-submitted to the court.
Also, limit the amount of documentary evidencehighlighted-submitted to the court.
c) Include all of the evidence in a clearly organized,
readable appendix.
d) If the case justifies it, and the client can afford it, provide
the court with a CD-ROM of your brief with links to case
citations, statutes, affidavits, documents and evidentiary
testimony. On critical factual issues, video taped excerpts
should also be included. This allows the court to consider
the demeanor of the witness without an oral hearing.
e) Prepare a detailed order making all of the findings of fact
and conclusions of law necessary to support injunctive
relief. If possible, provide the same to the court in a CDROM as well as a hard copy.
f) Arrange for a new bond to be posted since the terms of
the old bond will probably be confined to the temporary
restraining order.
D. Equitable Defenses The party opposing an application
for a temporary restraining order or a preliminary
injunction has the full range of legal defenses available to
the asserted claim for relief, even if injunctive relief is also
requested, These defenses are considered under the first
prong of the four prong test for granting injunctive relief-is
the applicant likely to succeed on the merits. Consequently,
it is a defense to injunctive relief if the applicant’s claim is
barred by limitations, the contract sued on is void on its
face, or the applicant has no standing to bring suit.
However, because the relief being sought is equitable and
discretionary, there are other defenses to an application for
45
injunctive relief which are based on a fairness concept.
Examples of such equitable defenses include:
46
1. Applicant acted in bad faith; 2. Applicant has unclean
47
48
49
hands; 3. Applicant has failed to do equity; 4. Laches;
50
and 5. Waiver.
E. Limitations on Federal Jurisdiction to Grant
Injunctions Although federal courts have the power to
grant injunctions in cases in which they have subject matter
jurisdiction, Congress has circumscribed that power in
three specific areas.
The Federal Anti-Injunction Act prohibits a federal court
from enjoining pending state court proceedings unless 1) it
is specifically authorized by an Act of Congress; 2) where
necessary in aid of its jurisdiction; or 3) to protect or
51
effectuate its judgments.
The first exception is for those Acts of Congress which
authorize issuance of an injunction. Examples include the
Federal Interpleader Statute which specifically authorizes
the issuance of an injunction to restrain the institution of
52
“any proceeding in any state...court.” Likewise, in a
habeus corpus action the court may enjoin any proceeding
53
“against the person detained in any state court,” Other
54
examples include the removal statute and the Bankruptcy
55
Act.
The second exception is where the injunction is necessary
in aid of the court’s jurisdiction. Although of limited
application, this exception is most often invoked to enjoin a
subsequent state court suit involving property which is in
56
the custody of the federal court.
The final exception permits the federal court to enjoin a
state court proceeding in order to protect or effectuate its
judgments. This exception is often referred to as the
“relitigation exception.” It is founded on the doctrines of
res judicata and collateral estoppel and “insulates from
litigation in state proceedings” those matters which
57
“actually have been decided by the federal court.”
Two other statutes also limit a federal court’s power to
issue injunctions. The Tax Injunction Act prohibits the
federal court from enjoining “the assessment, levy or
collection of any tax under state law;” if a “plain, speedy
58
and efficient remedy” is available in the state courts. The
Johnson Act prohibits the enjoining of rates charged by a
public utility if such rates are established by a state
administrative or rate-making body, if the case is based on
diversity jurisdiction, and if other requirements are
59
satisfied.
F. Appellate Review of Orders Granting Injunctive
Relief Congress has by statute authorized immediate
review of “interlocutory orders of the district
courts...granting, continuing, modifying, refusing or
dissolving an injunction or refusing to dissolve or modify
an injunction, except where direct review may be had in the
60
Supreme Court;...”
Appeals may be taken both from orders granting
.61
preliminary as well as permanent injunctions The appeal
is as of right, and is not subject to the discretion of either
62
the trial or appellate court.
Temporary restraining orders, however, are not
63
appealable. The fact that the order is titled a temporary
restraining order will not preclude an appeal if it is in fact
64
more than a temporary restraining order.
Likewise, an order need not specifically deny an injunction
to be appealable. If the practical effect of the order is a
65
denial of injunctive relief, then it is appealable. Finally, a
refusal to act on an application for injunctive relief will not
preclude appellate review. The refusal to rule will be
deemed to be a denial of the injunction thereby permitting
66
the order to be appealed.
II. Injunctive Relief in Texas State Courts A.
Introduction In most cases, a suit for injunctive relief
begins with a request for a Temporary Restraining Order,
followed by a request for a Temporary Injunction, followed
by a permanent injunction that is part of the final judgment
in a case. The Temporary Restraining Order may be issued
with or without notice to the opposing party but can remain
67
in effect only a short time. The Temporary Injunction is
issued after an evidentiary hearing that amounts to a minitrial of the case. It remains in effect until the entry of a final
judgment. The permanent injunction is issued after trial.
The two preliminary steps to permanent relief — temporary
restraining order and temporary injunction — build on the
standard for granting a permanent injunction, with the first
two steps requiring additional evidence to justify the
demand for relief before trial. A permanent injunction can
issue after trial if the claim is one for which injunctive
relief is appropriate. A temporary injunction can issue after
an evidentiary hearing if the claim is one for which
injunctive relief is appropriate and the moving party has
shown that it is substantially likely to prevail at trial and
that it will suffer irreparable harm before trial unless the
68
injunction is granted. A temporary restraining order can
be issued only if all the requirements for a temporary
injunction are satisfied and the threat of harm is so
immediate that it will occur before the Court even has time
to conduct an evidentiary hearing. In addition, most state
courts require evidence that the party moving for a
temporary restraining order have attempted to contact
opposing counsel so that there is at least a non-evidentiary
hearing before the temporary restraining order is granted.
In general, the more immediate the relief sought, the
greater the burden on the party seeking relief to
demonstrate that there is a real risk of immediate harm and
that it will prevail in the end.
B. Substantive Requirements for Granting Injunctive
Relief Before and at Trial Consideration of a claim for
injunctive relief must begin with the substantive
requirements for such relief. Injunctions are not available to
stop every kind of harm, and every claim for such relief
requires pleading an appropriate cause of action.
1. Claims for Which Permanent Injunctive Relief is
Available Injunctive relief, like every other form of
equitable relief, is generally available when there is no
“adequate remedy at law;” that is, when money
damages are not adequate. This requirement has been
codified in Section 65.011 of the Texas Civil Practice
& Remedies Code, which provides: A writ of
injunction may be granted if:
(a) the applicant is entitled to the relief demanded and
all or part of the relief requires the restraint of some
act prejudicial to the applicant;
(b) a party performs or is about to perform or is
procuring or allowing the performance of an act
relating to the subject of pending litigation, in
violation of the rights of the applicant, and the act
would tend to render the judgment in that litigation
ineffectual;
(c) the applicant is entitled to a writ of injunction
under the principles of equity and the statutes of this
state relating to injunctions;
(d) a cloud would be placed on the title of real
property being sold under an execution against a party
having no interest in the real property subject to
execution at the time of sale, irrespective of any
remedy at law; or
(e) irreparable injury to real or personal property is
threatened, irrespective of any remedy at law.
Various other statutes may expand or qualify the general
provisions of Section 65.011, and one of the first steps in
analyzing a possible claim for injunctive relief is to review
possibly applicable statutes to see if they grant a right to or
limit injunctive relief. Creative lawyers should not,
however, consider themselves limited to specific statutes or
even circumstances considered by courts in the past. If an
award of money damages will not adequately compensate
the anticipated future harm then injunctive relief should be
available.
2. Additional Substantive Requirements for the
Granting of a Temporary Injunction The purpose of a
temporary injunction is to preserve the status quo of the
litigation’s subject matter pending a trial on the merits.
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.
2002). Status quo is defined by the Texas Supreme Court as
“the last, actual, peaceable, non-contested status that
69
preceded the pending controversy.” In almost every case
where permanent injunctive relief is available, a temporary
injunction will also be available in theory, because the acts
that are sought to be enjoined will usually cause harm — a
change in the status quo — before there can be a final trial.
However, the requirement of imminent harm is not trivial,
and regardless of the validity of the claim proof of
imminent harm will be required for a temporary injunction.
a) There must be an imminent threat of harm. Because a
temporary injunction is issued before there is an
opportunity for complete discovery and development of the
case, its issuance requires more than a theoretical risk of
harm before trial. The Texas Supreme Court requires proof
of “a probable, imminent, and irreparable injury” in the
period before trial. Butnaru, supra. In EMSL Analytical,
Inc. v. Younker, 154 S.W.2d 693 (Tex.App. — Houston
2004, no writ) the Houston Court of Appeals affirmed the
denial of a temporary injunction because the plaintiff had
only shown a “theoretical possibility” of future harm. It
wrote that: At most, the testimony of EMSL’s regional
manager established only a fear of possible injury, and that
contingency is not sufficient to support issuance of a
temporary injunction.” Id. at 697. A party seeking a
temporary injunction should develop evidence of actual, as
opposed to theoretical harm, and a party resisting an
injunction may find that denying any intent to engage in
forbidden conduct is an effective defense.
b) The movant must show a probable right to final relief
after trial. A party seeking a temporary injunction must not
only plead a cause of action justifying injunctive relief; it
70
must also prove a “a probable right to the relief sought.”
This does not mean proof that would result in victory at a
final trial, but is something more than presentation of a
71
prima facie case. Appellate review of the grant or denial
of a temporary injunction is based on an abuse of discretion
standard, and so as a practical matter the trial court’s
decision to grant or deny an injunction will be affirmed if
there is evidence from which a reasonable person would
72
reach the same conclusion as the trial court.
3. The Additional Requirement of Immediate Harm for
Issuance of a Temporary Restraining Order Temporary
restraining orders are governed by Texas Rule of Civil
Procedure 680, which requires a showing that: “immediate
and irreparable injury, loss or damage will result to the
applicant before notice can be served and a hearing had
73
thereon.” A temporary restraining order can remain in
effect for an initial period of only 14 days, and can be
74
extended for only an additional 14 days, which means that
any hearing on the follow up request for a temporary
injunction must take place within 28 days. Thus, the
requirement of “immediate” injury means injury within that
28 day period. To justify relief without notice the injury
must be even more immediate, and occur “before notice
can be served.”
C. The Process for Obtaining Injunctive Relief The
process of obtaining injunctive relief begins with the filing
of a Petition, application for a Temporary Restraining
Order (if desired) and application for a Temporary
Injunction (if desired). If a temporary restraining order is
requested, the motion will be presented to the Court at the
time of filing, or within a short time thereafter. It may be
presented ex parte and without notice, subject to limits
imposed by local rules or the Court, When the application
for temporary restraining order is presented the Court will
either grant or deny the temporary restraining order and set
a date for a hearing on the application for temporary
injunction. That hearing, which is evidentiary, ordinarily
takes place within 28 days, and will result in the grant or
denial of the temporary injunction. After the temporary
injunction hearing the case proceeds to trial in the ordinary
fashion. This broad outline of the injunction process is
subject to a number of qualifications, which are discussed
in detail in the sections below.
1. The Initial Papers Seeking Injunctive Relief Like any
other lawsuit, a suit requesting injunctive relief is
75
commenced by filing a petition. If a temporary restraining
order or temporary injunction is sought they are ordinarily
included as part of the same document, although this is not
required by Rule 680, which specifically governs
temporary restraining orders, or by Rule 682; which
governs all pleadings and motions seeking injunctive relief.
The petition must be verified and contain “a plain and
76
intelligible statement of the grounds for such relief.” If a
temporary restraining order is requested the pleading must
go further and include sworn “specific facts” showing that
“immediate and irreparable injury, loss or damage will
result to the applicant before notice can be served and a
77
hearing had thereon.” A request for a temporary
restraining order must be accompanied by a request for a
temporary injunction, because Rule 680 requires that if a
temporary restraining order is granted a hearing on the
request for temporary injunction must be set as well.
Most Courts require, as part of the request for temporary
restraining order, a certificate to the effect that the attorney
presenting the motion has made a reasonable effort to
78
notify the opposing party that the request is being filed.
Individual judges often have very different views of the
benefits and desirability of notice for a temporary
restraining order, and before filing a request for a
temporary restraining order the attorney filing it should
determine what the judge requires. Because every
temporary restraining order is followed in a very short time
by an evidentiary hearing on the temporary injunction,
requests for temporary restraining orders are usually
accompanied by an Emergency Motion for Expedited
Discovery under Rule 191.1 that asks the Court to order
document production, depositions, and written discovery on
an expedited basis.
2. What Happens at the Courthouse When a TRO is
Requested Rule 685 anticipates that a request for a
temporary restraining order or temporary injunction will be
presented to the Court before they are filed with the clerk of
the Court; however, the usual practice if the request is
presented during business hours is to first file the Petition
with the clerk and then present to the Court along with a
proposed form of Order. In some counties all temporary
79
restraining orders are assigned to a single judge. In most
counties the temporary restraining order will be considered
by the judge to whose court the case is assigned; however,
if the judge of the assigned Court is not available, the
request may be presented to a non-resident judge under the
circumstances described in Section 65.022 of the Texas
Civil Practice & Remedies Code. In larger counties, the
procedure for approaching other courts other than, the
assigned court will probably be subject to local rules
80
specifying the procedure.
Whether the petition is filed before or after presentation to
the Court, once the temporary restraining order is signed,
the Order and file are turned over to the clerk of the court,
who prepares a citation to the defendant along with a writ
of injunction that repeats the contents of the order signed
by the judge. The citation and writ may be served like other
citations under the provisions of Rules 103 and 106. The
duties of the officer serving a writ of injunction are slightly
81
different from those of an officer serving an ordinary
citation, but as a practical matter the party seeking relief
will want to take whatever steps are needed to insure that
the restrained party gets notice of the Order as soon as
possible so that violations of the order can be punished by
82
contempt.
3. Contents of the Order Granting a Temporary
or Permanent Injunction and the Parallel
Writ of Injunction All orders granting an
injunction, whether permanent or temporary,
must:
set forth the reasons for its issuance,
be specific in terms, and
describe in reasonable detail and not by reference to the
complaint or other document the act or acts sought to be
83
restrained.
In addition, an order granting a temporary injunction
must:
include an order setting the cause for trial on the
merits with respect to the ultimate relief
84
sought , and
fix the amount of security (i.e., a bond) to be given by
85
the party applying for the temporary injunction.
An order granting a temporary restraining order has
the same requirements as an order granting a
temporary injunction except that instead of a
trial date it must state the date of the hearing on
temporary injunction. In addition, if it is granted
without notice, the order granting temporary
restraining order must:
be endorsed with the date and hour of issuance,
define the injury and state why it is irreparable,
state why the order was granted without notice,
and
expire by its terms within such time as the court fixes,
86
not to exceed fourteen days.
The writ of injunction issued by the clerk and served on the
enjoined party generally contains the same information as
the order granting the injunction except that there is no
requirement that the writ include the various findings
justifying issuance of the injunction that must be in the
87
order itself.
4. The Requirement of a Bond Every order granting a
temporary restraining order or temporary injunction must
include a requirement that the party seeking the injunction
provide a bond, and that bond must be filed with the clerk
88
before the writ of injunction will be issued. The amount of
the bond is fixed by the Court, and should be sufficient to
compensate the enjoined party for any damage it will suffer
89
as a result of the injunction. The bond secures payment of
those damages in case it is found that the injunction should
not have been issued.
5. The Defendant’s Answer The defendant’s deadline to
file an answer is the same as in any other case; however,
because the defendant will ordinarily seek other relief
related to the temporary restraining order, the answer will
usually be filed very shortly after the temporary restraining
order is issued.
Defendants who wish to challenge personal jurisdiction by
making a special appearance under Rule 120a may find it
difficult to avoid unintentionally making a general
appearance given the levels of activity between the
issuance of a temporary restraining order and a hearing on
the request for a temporary injunction. Some decisions
indicate that very limited participation in such proceedings
90
does not constitute a general appearance; however, as a
practical matter the discovery and other battles that
immediately follow the entry of a temporary restraining
order may be difficult to manage without taking “some
affirmative action by the defendant which impliedly
recognizes the trial court’s personal jurisdiction over the
91
defendant.”
A defendant subject to a temporary
restraining order who wishes to make a special appearance
should, therefore, seek the early ruling required by Rule
120a in order to avoid waiver during the run up to the
temporary injunction hearing.
6. After the Temporary Restraining Order and Before
the Temporary Injunction Hearing — Request for
Dissolution, Mandamus, Discovery, and Mediation After
a temporary restraining order is entered and served the
lawsuit proceeds on several fronts simultaneously. The
party enjoined may, on two days notice, seek to have the
92
temporary restraining order dissolved or modified. A
93
temporary restraining order cannot ordinarily be appealed ,
94
but mandamus relief is available and may be applied for.
While fighting over the continued existence of the
temporary restraining order, the parties will also likely be
engaged in disputes about the scope and timing of
expedited discovery, and will be doing the discovery as
well. Many courts will order the parties to mediation under
Chapter 154 of the Texas Civil Practice & Remedies Code,
and, of course, all the parties must prepare witnesses and
exhibits for the temporary injunction hearing itself. In
short, the period between the granting of a temporary
restraining order and the hearing on the application for
temporary injunction is the entire pre-trial process
compressed to a period of no more than 28 days.
7. The Temporary Injunction Hearing Rule 680 requires
that if a temporary restraining order is granted without
notice, the request for temporary injunction must be heard
“at the earliest possible date and takes precedence of all
95
matters except older matters of the same character.” In
practice different judges interpret this requirement in
different ways. Some actually give the hearing the highest
priority while others merely try to set the hearing within the
28 day period representing the maximum time before a
temporary restraining order expires. Rule 680 does not
require that the Court grant any particular amount of time
for the hearing, and some judges may simply refuse to set
aside adequate time as a means to force the parties to
negotiate an agreed extension or complete settlement. The
only remedy for this kind of behavior is mandamus.
At the injunction hearing the applicant for a temporary
injunction must establish through competent evidence that
he or she has a probable right to the requested relief and
that he or she will probably suffer injury in the absence of
96
such relief. Texas courts have held that this does not mean
that the applicant must establish that he or she will prevail
97
at trial on the merits, but it does require more than
98
presentation of a mere prima facie cases. This means that
the decision to grant or deny a temporary injunction will be
affirmed if there is sufficient evidence for a rational person
99
to reach the same conclusion as the trial court. Although
the burden of proof is on the movant to establish its case, a
respondent relying on affirmative defenses has the burden
100
of establishing those defenses.
8. Appeals from Orders Granting or Denying a
Temporary Injunction Section 51.014 provides for an
interlocutory appeal of an order granting or denying a
temporary injunction. Like other interlocutory appeals, the
101
appeal of a temporary injunction is accelerated. This
102
means that the deadlines to file a notice of appeal, the
103
104
record on appeal,
and briefs
are all shortened. In
addition, the Court of Appeals may decide the case based
on a sworn and uncontroverted record provided by the trial
court or parties, and may dispense with the requirement of
105
briefs. If it chooses, the Court of Appeals may act on the
appeal within days by using Rule 28.3.
The filing of a notice of appeal does not suspend a
temporary injunction, but the injunction order can be
superseded by filing a bond at the discretion of the trial
106
court. A trial court’s refusal to provide for a supersedeas
bond can be reviewed by the Court of Appeals, which can
also make other temporary orders to protect the parties
107
during the appeal. Only the Court of Appeals can enforce
the underlying order during the appeal; however, the trial
court retains jurisdiction of the rest of the case, which can
proceed subject to limits on the authority of the trial court
to make orders that might be inconsistent with the
108
proceedings on appeal.
If the appeal is from denial of a temporary injunction the
appellant may apply for injunctive relief to the Court of
Appeals on the basis that it is necessary to protect its
jurisdiction or keep the pending appeal from becoming
moot. The application for an injunction during an appeal is
governed by Rule 52 of the Texas Rules of Civil procedure,
which requires the filing of new original proceeding in the
Court of Appeals.
9. Enforcing Orders Granting Temporary Restraining
Orders, Temporary Injunctions and Permanent
Injunctions Refusal to obey an injunction of any kind is
109
punishable by contempt.
The detailed procedures for
filing or opposing motions for contempt are beyond the
scope of this paper, but are outlined in Rule 692 itself.
III. Conclusion To obtain the extraordinary remedy of
injunction, the wise practitioner will insure that the
pleadings, proof and relief requested conform exactly to
what the statutes, rules and case law require. In few other
areas is such careful preparation and attention to detail met
with a more effective reward than in the arena of injunctive
relief.
1
Fed. R. Civ. P. 65. Numerous federal statutes, however,
contain provisions authorizing injunctive relief in specific
areas. See e.g. 15 U.S.C. §4 (1994) (Sherman Act); 15
U.S.C. §25 (1994) (Clayton Act).
2
For example, Rule 65 does not provide an independent
basis for federal jurisdiction. See White v. National
th
Football League, 41 F. 3d 402, 409 (8 Cir. 1994).
3
See generally, Granny Goose Foods, Inc. v. Brotherhood
of Teamsters, Local No. 70, 415 U.S. 423 (1976).
4
Fed. R. Civ. P. 65(b).
5
Id.
6
Id.
7
Allied Mktg Group, Inc. v. CDL Mktg., Inc., 878 F.2d 806,
th
809 (5 Cir. 1989).
8
Mississippi Power &Light Co. v. United Gas Pipeline,
th
760 F. 2d 618, 625 (5 Cir. 1985).
9
Fed. R. Civ. P. 65(b).
10
Id.
11
Id.
12
Fed. R. Civ. P. 65(d).
13
Fed. R. Civ. P. 65(c).
14
See W. Carroll, “The Local Rules and The ‘Local’, Local
th
Rules,” Federal Bar Association 19 Annual Federal Civil
Practice Seminar (Feb. 25, 2005) at Tab 3, App.1.
15
Fed. R. Civ. P 4(c)(2).
16
Fed. R. Civ. P. 4(1).
17
Fed. R. Civ. P. 65(d).
18
Id.
19
Fed. R. Civ. P. 65(b).
20
Id.
See e.g. 15 U.S.C. §1 (Sherman Act).
22
28 U.S.C. §1331 et seq. There are innumerable other federal statutes which confer jurisdiction on the federal courts in specific
instances. 15 U.S.C.§1 (Sherman Act); 15 U.S.C. §78aa (Securities Exchange Act of 1934).
23
28 U.S. §1391. Many federal statutes also contain their own specialized venue provisions. See e.g. 15 U.S.C. §22 (Clayton
Act).
24
th
Hollon v. Mathis Indep. Sch. Dist., 491 F.2d 92 (5 Cir. 1974).
25
th
Stemple v. Board of Educ. of Prince’s County, 523 F. 2d 893, 898 (4 Cir. 1980), cert denied 450 U.S. 911 (1981).
26
See Fed. R. Civ. P. 7-11.
27
Fed. R. Civ. P. 65(a)(1).
28
See supra at notes 7-8 and accompanying text.
29
Id.
30
Fed. R. Civ. P. 65(d).
31
Id.
32
See C. Wright and A. Miller, Federal Practice and Procedure §2941 at p. 31.
33
See supra at n. 11 and accompanying text.
34
See supra at n. 13 and accompanying text.
35
See supra at notes 17-18 and accompanying text.
36
Fed. R. Civ. P. 65(a)(1).
37
st
th
See Campbell Soup Co. v. Giles, 47 F. 3d 467 (1 Cir. 1995); FSLIC v. Dixon, 835 F. 2d 554 (5 Cir. 1987).
38
th
Four Seasons Hotels &, Resorts, B.V. v. Consorico Bark, S.A., 320 F. 3d 1205 (11 Cir. 2003).
39
th
See, Stanley v. University of So. California, 13 F. 3d 1313 (9 Cir. 1994).
40
See, W. Carroll, supra, n. 14, at Tab 3, App. 1.
41
th
Fed. R. Civ. P. 56(f). FSLIC v. Dixon, 835 F. 2d 554 (5 Cir. 1987); Welker v. Cicerone, 174 F. Supp, 2d 1055 (C.D. Cal.
2001).
42
th
Sierra Club v. FDIC, 992 F. 2d 545 (5 Cir. 1993).
43
Fed. R. Civ. P. 65(a)(2).
44
Id.
45
See generally, C. Wright and A. Miller, Federal Practice and Procedure §2946.
46
th
Original Great Am. Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd., 970 F. 2d 273 (7 Cir. 1992).
47
th
Kentucky Fried Chicken Corp. v. Diversified Packaging Comp., 549 F. 2d 368, 372 (5 Cir. 1977) (“the bizarre element is the
facially implausible-some might say unappetizing-contention that the man whose chicken is ‘finger-licking good’ has unclean
hands”).
48
C. Wright and A. Miller, Federal Practice and Procedure §2946 at 14.
49
th
Kay v. Austin, 621 F. 2d 809 (6 Cir. 1980).
50
Henry I. Siegel Co. v. Koratron Co., 311 F. Supp. 697 (S.D.N.Y. 1970).
51
28 U.S.C. §2283.
52
28 U.S.C. §2361.
53
28 U.S.C. §2251.
54
th
28 U.S.C. §1446(d); Maseda v. Honda Motor Co., 861 F. 2d 1248 (11 Cir. 1988).
55
11 U.S.C. §362.
56
th
Green v. Green, 259 F. 2d 229 (7 Cir. 1958).
57
Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 148 (1998).
58
28 U.S.C. §1341.
59
28 U.S.C. §1342.
60
28 U.S.C. §1292(a)(1).
61
th
Sherri A.D. v. Kirby, 975 F. 2d 193, 202 (5 Cir. 1992).
62
Compare 28 U.S.C. §1292(b).
63
th
th
In Re Champion, 895 P. 2d 490, 492 (5 Cir. 1990); Belo Broadcasting Corp. v. Clark, 654 F. 2d 423, 426 (5 Cir. 1981).
21
64
th
Sampson v. Murray, 415 U.S. 61, 86-87 (1994); United States v. Bayshore Assoc., Inc., 934 F. 2d 1391 .(6 Cir. 1991).
Carson v. American Brands, 450 U.S. 79 (1981).
66
rd
Rolo v. General Dev. Corp., 949 F. 2d 695, 703 (3 Cir. 1991).
67
No more than 20 days in federal court (FRCP 65(b)) and 28 days in Texas state courts (TRCP 680).
68
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).
69
State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975).
70
Butnaru, supra n. 68.
71
Infra ns. 92 - 94.
72
See e.g., Tri-Star Petroleum Co. v. Tipperary Corp., 101 S.W.3d 583 (Tex.App. - El Paso 2003, no writ). In that case the trial
court’s issuance of a temporary injunction was affirmed because the trial court “could have rationally determined” that the
evidence supported the movant’s claims, and the court of appeals was obligated to ‘Mew the evidence in light most favorable to
the trial court’s order, indulging every reasonable inference in its favor.” Id. at 587, 590. In Associated General Contractors of
Texas, Inc. v. City of El Paso, 932 SW.2d 124, 126 (Tex.App. - El Paso 1996, no writ) the denial of a writ was affirmed because
the evidence was conflicting, and “If conflicting evidence is presented, the appellate court must conclude that the trial court did
not abuse its discretion in entering its order.”
73
TEX. R. CIV. P. 680.
74
Id.
75
TEX. R. CIV. P. 22.
76
TEX. R. CIV. P. 682.
77
TEX. R. CIV. P. 680.
78
See, e.g., Dallas County District Courts Local Rule 2.02.
79
See, e.g., Harris County District Courts Local Rule 3.5 and Bexar County District Courts Local Rule (C).
80
See, e.g., Tarrant County Local Rule 3.30(b).
81
Compare TEX. R. CIV.P. 103 and 107 to 689.
82
TEX. R. CIV. P. 683.
83
Id.
84
Id.
85
TEX. R. CIV. P. 684.
86
TEX. R. CIV. P. 680.
87
See, TEX. R. CIV. P. 687.
88
TEX. R. CIV. P. 684.
89
TEX. R. CIV. P. 684.
90
Crystalix Group Intern. Inc. v. Vitro Laser Group USA, Inc., 127 S.W.3d 425 (Tex.App. - Dallas 2004, no writ), Redwood
Group, LLC v. Louiseau, 113 S.W.3d 866 (Tex.App. - Austin 2003, no writ), Turner v. Turner, 1999 WL 33659 (Tex.App. th
Houston [14 Dist.] 1999).
91
Redwood Group, supra n. 90.
92
TEX. R. CIV. P. 680.
93
When the TRO acts as a temporary injunction that is, it does not set its own expiration date or provide for a later
hearing, it will be treated as an appealable temporary injunction. In re Texas Natural Resource Conservation Comm’n, 85 S.W.3d
201 (Tex. 2002).
94
Id. The procedures for mandamus relief are beyond the scope of this article.
95
TEX. R. CIV. P. 680.
96
See Camp v. Shannon, 348 S.W.2d 517 (Tex. 1961); Diesel Injection Sales & Serv., Inc. v. Renfro, 619 S.W.2d 20 (Tex. Civ.
App.—Corpus Christi 1981, writ ref’d n.r.e.).
97
The Texas Supreme Court has stated: “We have also said that to warrant issuance of a temporary injunction, the applicant need
only show a probable right and probable injury; that the applicant is not required to establish that he will finally prevail in the
litigation….” Sun Oil Co. v. Whitaker, 424 S.W.2d 216 (Tex. 1968).
98
See Deer Valley Ranch, Inc. v. Adair, 574 S.W.2d 592 (Tex. Civ. App.—San Antonio 1978, no writ).
99
See cases cited infra at n. 100.
100
Michelle Corp. v. El Paso Retailers Ass’n, Inc., 626 S.W.2d 615 (Tex.App. El Paso 1981, no writ), Lund v. Leibl, 1999 WL
546996 (Tex.App. - Austin 1999, no writ) (unpublished opinion).
65
101
TEX. R. APP. P. P. 28.1.
TEX. R. APP. P. 26.1(b).
103
TEX. R. APP. P. 35.1(b).
104
TEX. R. APP. P. 38.6(a).
105
TEX. R. APP. P. 28.3.
106
TEX. R. APP. P. 29.1.
107
TEX. R. APP. P 29.2, 29.3.
l08
TEX. R. APP. P. 29.4, 29.5.
109
TEX. R. APP. P. 69.2.
102