§ 1.2.2 Injury Must Be Threatening-

• Jurisdiction: Arizona

§ 1.2.2 Injury Must Be Threatening¾Not Moot. A further requirement for injunctive relief is that the injury must be threatening. Kubby v. Hammond, 68 Ariz. 17, 198 P.2d 134 (1948) . In Arnold on Behalf of H.B. v. Lewis, 803 F. Supp. 246, 258 (D. Ariz. 1992) (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) ), District Judge Muecke reiterated the classic statement that “‘[t]he basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies.’” As the District Judge also observed, “‘[s]uch determination requires a balancing between the conveniences of the parties and possible injuries to them as they may be affected by the granting or withholding of the injunction.’” Arnold, 803 F. Supp. at 258 . “[S]peculative injury does not constitute irreparable injury.” Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 849 (9th Cir. 1985) . As stated in Association of Professional Engineering Personnel v. Radio Corp. of America, 183 F. Supp. 834, 839 (D.N.J. 1960) , judgment reversed by 291 F.2d 105 (3d Cir. 1961) , “to warrant the granting of an injunction on ground that irreparable injury is threatened, the injury contemplated must be real, not fancied; actual, not prospective; and, threatened, not imagined.”

An injury is not threatening when there is literally no threat to commit the harm to be avoided. Dowling v. Stapley, 218 Ariz. 80, 87, 179 P.3d 960, 967 (Ct. App. 2008) (“the record … does not indicate that the Board has taken any specific, concrete steps to unilaterally stop accommodation services … [t]hus, there is no action by the Board … to be enjoined”). Where an act has occurred in the past, a court may not “issue an injunction unless ‘there exists some cognizable danger of recurrent violation.’” United States v. Laerdal Manufacturing Corp., 73 F.3d 852, 854 (9th Cir. 1995) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S. Ct. 894, 897 (1953) ). Injunctive relief should not be granted when the “events make it absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” SAL Leasing, Inc. v. State ex rel. Napolitano, 198 Ariz. 434, 442, 10 P.3d 1221, 1229 (Ct. App. 2000) (quoting State ex rel. Babbitt v. Goodyear Tire & Rubber Co., 128 Ariz. 483, 486, 629 P.2d 1115, 1118 (Ct. App. 1981) ). Accord Modular Mining Systems, Inc. v. Jigsaw Technologies, Inc., 221 Ariz. 515, 519, 212 P.3d 953, 957 (Ct. App. 2009) . Whether injury is threatening is a question of fact. Professional Fire Fighters, Inc. v. City of Los Angeles, 60 Cal. 2d 276, 32 Cal. Rptr. 830, 384 P.2d 158 (1963) .

“If seeking to enjoin future conduct, the movant must also show that it is likely the defendant will engage in the conduct, an inquiry for which the defendant’s past conduct is relevant. TP Racing, LLLP v. Simms, 232 Ariz. 489, 495, 307 P.3d 56, 62 (Ct. App. 2013) . “[W]hen wrongful conduct has been discontinued, court ‘must look at factors which indicate proof of likelihood to engage in future violations’ to...