§ 1.8.5 Actions on the Bond.

• Jurisdiction: Arizona

§ 1.8.5 Actions on the Bond. Where a preliminary injunction or restraining order is finally determined to have been erroneously issued an action may be brought against the bond. The defendant may recover any damages suffered as a result of the improper injunction and any expenses incurred in its dissolution.

Rule 65.1 permits an action on the bond by motion. Under former Arizona practice, a separate action had to be brought. Buggeln v. Cameron, 11 Ariz. 200, 90 P. 324 (1907) . The resulting action was at law and a jury could be requested. American Surety Co. v. Duvall, 22 Ariz. 261, 196 P. 457 (1921) .

A question still remains as to whether a jury may be demanded under a Rule 65.1 proceeding. The issue is apparently still unlitigated. 11A Wright & Miller § 2972 . Professor Miller, considering the equitable nature of the bond itself and the need for an expeditious determination, has concluded that a defendant should not be entitled to a jury. Id. at 646-47.

“[B]efore a court may execute a bond, it must find the enjoined or restrained party was ‘wrongfully enjoined or restrained.’” Nintendo of America, Inc. v. Lewis Galoob Toys, Inc., 16 F.3d 1032, 1036 (9th Cir. 1994) . Asevado v. Orr, 100 Cal...