§ 1.6.3 Considerations Governing Issuance.

• Jurisdiction: Arizona

§ 1.6.3 Considerations Governing Issuance. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. NRDC , Inc., 555 U.S. 7, 24 (2008); Friendly House v. Whiting , 846 F. Supp. 2d 1053, 1061 (D. Ariz. 2012). A preliminary injunction “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Villegas Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012), quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Towery v. Brewer, 672 F.3d 650, 656 (9th Cir. 2012); Arizona Hospital & Healthcare Ass’n v. Betlach, 865 F. Supp. 2d 984, 988 (D. Ariz. 2012); Beaty v. Brewer, 791 F. Supp. 2d 678, 681 (D. Ariz. 2011).

The Basic Test. For many years, the courts have focused on a four-part test in deciding whether to grant or deny an injunction:

1. The likelihood of irreparable harm to the plaintiff during litigation if restraints are not granted;

2. The probability the plaintiff will ultimately succeed on the merits;

3. The balancing of hardships¾the harm to be suffered by defendant if restraints are granted pending litigation that cannot be compensated by a bond, as opposed to the harm plaintiff will suffer if the injunction is not granted; and

4. The impact issuance or nonissuance will have on third parties and the general public.

Notwithstanding Winter, the Arizona courts have continued to embrace the four-factors test of Shoen v. Shoen, 167 Ariz. 58, 63, 804 P.2d 787, 792 (Ct. App. 1990) ; TP Racing LLLP v. Simms, 232 Ariz. 489, 495, 307 P.3d 56, 62 (Ct. App. 2013) ; IB Property Holdings, LLC v. Rancho Del Mar Apartments. LP, 228 Ariz. 61, 64, 263 P.3d 69, 72 (Ct. App. 2011) ; Arizona Ass’n of Providers for Persons with Disabilities v. State, 223 Ariz. 6, 12, 219 P.3d 216, 222 (Ct. App. 2009) , as had Arizona decisions preceding Winter. Smith v. Arizona Citizens Clean Elections Commission, 212 Ariz. 407, 410-11, 132 P.3d 1187, 1190-91 (2006) ; Kromco v. City of Tucson, 202 Ariz. 499, 501, 47 P.3d 1137, 1139 (Ct. App. 2002) ; see also Mobilisa, Inc. v. Doe, 217 Ariz. 103, 111-112, 170 P.3d 712, 720-21 (Ct. App. 2007).

Balancing. The four factors are virtually always balanced against one another. TP Racing, LLLP, 232 Ariz. at 495, 307 P.3d at 62 ; Arizona Ass’n of Providers, 223 Ariz. at 12, 219 P.3d at 22 . Powell-Cerkoney v. TCR-Montana Ranch Joint Venture II, 176 Ariz. 275, 280, 860 P.2d 1328, 1333 (Ct. App. 1993) ; Gotland v. Town of Cave Creek, 172 Ariz. 397, 399-400, 837 P.2d 1132, 1134-35 (Ct. App. 1991) , vacated on other grounds, 175 Ariz. 614, 858 P.2d 1217 (1993) ; Shoen v. Shoen, 167 Ariz. 58, 63, 804 P.2d 787, 792 (Ct. App. 1990) ; see also Mobilisa, Inc., 217 Ariz. at 111-12, 170 P.3d at 720-21 . For example, if the plaintiff can clearly show immediate and irreparable harm in the event the temporary injunction is not granted and at the same time establish the defendant will suffer little or no harm if the injunction is granted, the showing of probable success on the merits should be correspondingly less. “[T]he required degree of irreparable harm increases as the probability of success decreases.” Ogunleye v. Arizona, 66 F. Supp. 2d 1104, 1111 (D. Ariz. 1999) (quoting Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir. 1985) ). Conversely, if the plaintiff can clearly establish, even at an early stage, that he is ultimately entitled to relief the balancing of harm should not be an important factor so long as the harm to be suffered by plaintiff pending litigation is substantial. But see Continental Airlines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099, 1104 (9th Cir. 1994) “[I]rreparable injury is required for preliminary injunctions, but once actual success on the merits has been established, ‘a party is entitled to relief as a matter...