4.2 Motions for Preliminary Injunction

LibraryFederal Civil Practice in Virginia (Virginia CLE) (2023 Ed.)

4.2 MOTIONS FOR PRELIMINARY INJUNCTION 933

4.201 Preliminary Injunctions Governed by Fed. R. Civ. P. 65.

Fed. R. Civ. P. 65 permits a district judge to enter an injunction that will remain in place pending the trial or other disposition of the case. The injunction may prohibit the opposing party from doing some act (prohibitory injunction) or require the opposing party to perform some act (mandatory injunction).

The traditional purpose of a preliminary injunction is to prohibit conduct in order "to protect the status quo and to prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court's ability to render a meaningful judgment on the merits." 934 However, because mandatory relief alters the status quo, "[t]he Fourth Circuit has viewed mandatory relief with caution, explaining that it should be granted only in those circumstances when the exigencies of the situation demand such relief." 935

Notice to the adverse party is required under Fed. R. Civ. P. 65(a)(1). 936 Specifically, the court should consider whether the responding party had a "fair opportunity to oppose the application for an injunction." 937

A preliminary injunction or temporary restraining order may only be issued by a court "if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained." 938

4.202 Temporary Restraining Order Distinguished.

A temporary restraining order (TRO) may be entered under Fed. R. Civ. P. 65(b). Issuance of a TRO is generally governed by the same standards as applied to preliminary injunctions. 939 However, procedural differences exist between the two. These differences are discussed in the following paragraphs.

A TRO may be issued without notice to the adverse party or its attorney if (i) it appears by affidavit or verified complaint that immediate and irreparable harm will result before the adversary can be heard, and (ii) the applicant's attorney certifies in writing the efforts he or she has made to provide notice and the reasons notice should not be required. 940

A TRO itself must state the date and hour it was issued, describe the injury, state why it is irreparable, and state why the order was entered without notice. 941 TROs must be promptly filed with the clerk's office and entered into the record. 942

A TRO expires at the time set by the court but cannot exceed 14 days. However, before expiration, the TRO may be extended either by the court, for good cause, for a like period or if the adverse party consents to a longer extension. The reasons for an extension must be entered in the record. 943

A hearing must be set for the preliminary injunction "at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character." 944 If, at the hearing, the party who obtained the TRO does not proceed with the motion for preliminary injunction, the court must dissolve the TRO. 945

The grant or denial of a TRO is generally not appealable under 28 U.S.C. § 1292(a)(1). 946

Where a TRO is obtained without notice, the adverse party may appear and move to dissolve or modify the TRO on two days' notice (or shorter notice as the court may prescribe). 947

After providing the parties with clear and unambiguous notice, the court may consolidate the hearing on a motion for preliminary injunction with the trial on the merits. 948 Before consolidation, "the parties should normally receive clear and unambiguous notice to that effect either before the hearing commences or at a time which will still afford the parties a full opportunity to present their respective cases." 949 If consolidation is ordered at the hearing itself, the court should permit the parties "to request additional time to assemble their entire presentation on the merits." 950

4.203 Formal Requirements for Obtaining a Preliminary Injunction.

In most cases, the filing of a complaint and effective service of process must precede a plaintiff's request for preliminary injunctive relief. 951 However, at least one circuit has treated an affidavit supporting an order to show cause as a "complaint" where the "exigencies of time" favored an expedited process. 952

A written motion for preliminary injunction should be filed. 953

A properly formatted memorandum in support of the motion should set forth the reasons for entitlement under the applicable legal standard. 954 A memorandum organized around the Winter factors, 955 as outlined in Real Truth About Obama956 (discussed below in paragraph 4.206), is usually the most effective presentation.

Declarations or affidavits with exhibits should be provided to establish all matters of fact upon which the moving party's motion is based. If available, depositions and verified pleadings may also be used to support the motion. 957 However, the Fourth Circuit has ruled that in determining whether to issue a preliminary injunction, the district court may consider hearsay and other inadmissible evidence. 958

Because the rules require a level of specificity in every order granting an injunction or TRO, and because imprecise language in the order can have adverse consequences, a proposed order granting a preliminary injunction should always be supplied to the court along with the motion. 959 The order should include:

A. The specific reasons for its issuance; 960
B. Specific, understandable terms as to what the injunction requires stated with reasonable detail, without reference to any other document, including the complaint or counterclaim; 961
C. The precise identity of the persons or entities over which the injunction is to be binding, including the parties; their officers, agents, servants, employees, and attorneys; and other persons acting in concert or participation with such persons; 962
D. Regarding TROs, the duration of the injunction. 963 Regarding preliminary injunctions, the duration may be stated as until superseded or modified by a subsequent order of the court; and
E. The amount of bond to be provided by the moving party, 964 with the statement that the injunction will take effect when the bond requirement is satisfied. 965

4.204 Special Requirements of Fed. R. Civ. P. 65(d).

The requirement in Fed. R. Civ. P. 65(d) that injunctive orders must "be specific in terms" and must "describe in reasonable detail, and not by reference to the complaint or other documents, the act or acts sought to be restrained" require special consideration, as they are considered "mandatory" and should be "observed in every instance." 966

The order must "describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required." 967 Orders where the act or acts sought to be enjoined are "merely incorporated by reference" to an outside document are not able to invoke the court's contempt power, as they fail to comply with plain requirements of the rule. 968

Fed. R. Civ. P. 65(d) serves the dual purposes of providing the affected parties with fair notice and facilitating appellate review. 969

4.205 Legal Standard for Issuance.

For almost 30 years, Fourth Circuit decisions followed the standard set forth in Blackwelder Furniture Co. v. Seilig Manufacturing Co.970

However, the Blackwelder standard is no longer applicable after Winter v. National Resources Defense Council. 971 In Real Truth About Obama, Inc. v. Federal Election Commission, 972 the Fourth Circuit explained that

[b]ecause of the differences with the Winter decision, the Blackwelder balance-of-hardship test may no longer be applied in granting or denying preliminary injunctions in the Fourth Circuit, as the standard articulated in Winter governs the issuance of preliminary injunctions not only in the Fourth Circuit but in all federal courts. 973

It is important to note that after the Supreme Court vacated the Fourth Circuit's decision in Real Truth About Obama on an unrelated issue, 974 the Fourth Circuit reissued the portion of its decision in Real Truth About Obama "articulating the standard for the issuance of preliminary injunctions." 975

Real Truth About Obama requires that the movant for a preliminary injunction make a clear showing as to the following four factors, each of which must be satisfied:

A. That it is likely to succeed on the merits;
B. That it is likely to suffer irreparable harm in the absence of preliminary relief;
C. That the balance of the equities tips in its favor; and
D. That an injunction is in the public interest. 976

4.206 Application of the Real Truth About Obama Factors.

The Winter standard, which replaced the earlier "hardship balancing test" employed by the Fourth Circuit in Blackwelder, requires the movant to satisfy each of the factors articulated in Winter. 977

The Winter requirement that the plaintiff clearly demonstrate it will likely succeed on the merits is far stricter than the Blackwelder requirement that the plaintiff demonstrate only a grave or serious question for litigation. 978 Courts will analyze the elements of the underlying claim to determine whether the movant has made a clear showing that there is a likelihood of success on the merits of the claims. 979 Where disputes of fact exist regarding the elements of a claim, courts will likely find that the moving party has failed to demonstrate a likelihood of success on the merits. 980

In addition to showing a likelihood of success on the merits, the movant must demonstrate that it is likely to suffer irreparable harm in the absence of preliminary relief. 981 The movant has the burden of proving "a clear showing of immediate irreparable injury" that is both actual and imminent. 982 It must be demonstrated that irreparable injury is likely in the absence of an injunction; the mere "possibility" of injury is not sufficient. 983 Except in extraordinary circumstances, courts likely will not find a harm irreparable where...

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