Chapter § 2.07 Preliminary Motions

• Jurisdiction: United States
• Publication year: 2020

§ 2.07 Preliminary Motions

As a strategic consideration, counsel should consider whether to seek a temporary restraining order or a preliminary injunction when filing the complaint. Both types of relief are governed by Rule 65 of the Federal Rules of Civil Procedure. As part of such a motion, a plaintiff may also seek to obtain early, expedited discovery. For instance, a court may alter the timing, sequence, and volume of discovery at its discretion, though the party seeking expedited discovery may have the burden of showing good cause to depart from the normal course of discovery practice.⁸¹ In addition, a preliminary injunction often involves an evidentiary hearing with live witnesses, which may become part of the record at trial. The district court is authorized to consolidate trial with a hearing on a preliminary injunction request under Rule 65.⁸² For purposes of settlement, a preliminary injunction motion can be helpful; it not only may provide the relief the plaintiff ultimately seeks in an action, but may also encourage settlement sooner. This may be especially true where a court finds in deciding a motion for injunctive relief that the plaintiff is likely to succeed on the merits.

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Notes:

^[81] See Fed. R. Civ. P. 26(b)(2) and 26(d); Qwest Commc’ns Int’l, Inc. v. Worldquest Network, Inc., 213 F.R.D. 418 (D. Col. 2003) (noting that good cause may be shown where a party seeks a preliminary injunction with...