07-28 Primer on Fed Injunction

8/11/2019 07-28 Primer on Fed Injunction

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A PRIMER ON INJUNCTIVE RELIEF IN

FEDERAL AND STATE COURTBY WILLIAM FRANK CARROLL AND RICHARD M. HUNT

NJUNCTIVE RELIEF IS AN EQUITABLE REMEDYfinding its genesis in the power of the English chancellor torelieve litigants from the strictures of the law as applied bythe law courts. The remedial power was so undefined andunlimited that it was said to be determined by the lengthof the chancellors foot.

Today injunctive relief in the federal and state courts ismuch more strictly circumscribed by statute, rule, andgoverning case law. Nevertheless, injunctive relief retainsits ability to do that which is beyond the strict limitations ofthe law.

A suit for injunctive relief is one of the most effective tools

available to a litigator, especially when a request forimmediate relief is included. At the same time, suitsseeking injunctive relief are almost always extraordinarilyexpensive, and make unusual demands on the lawyers andclients on both sides. This paper will discuss the mechanicsof obtaining injunctive relief as well as the strategicconsiderations that must inform the decision to seek suchrelief.

I. Injunctive Relief in Federal Court

A. Introduction

Two primary forms of preliminary injunctive relief areavailable in federal court, temporary restraining orders and

preliminary injunctions.1 Federal Rule of Civil Procedure

65 outlines the general standards for obtaining injunctiverelief; however one must look to other federal rules, localcourt rules, and case law for the procedural and substantivelaw applicable to injunctive relief.2

B. Temporary Restraining Orders

1. Generally

Most courts, and particularly the federal courts, arereluctant to issue temporary restraining orders because theyhave substantial impact on the case but are determined onan incomplete record, without oral testimony and often onan ex partebasis.3

2. Pleading and Notice Requirements

The complaint seeking the temporary restraining order

must be verified or supported by affidavit testimony.4 Inaddition, the complaint must demonstrate by specificfacts that immediate and irreparable injury, loss ordamage will result to the applicant before the adverse

party can be heard in opposition.5 It is most important thatthe complaint establish facts through persons with personalknowledge, of irreparable harm. Unlike some courts,federal courts do not generally grant temporary restrainingorders based upon conclusions (the foreclosure would bewrongful) or questionable testimony.

The applicants attorney must also certify to the court inwriting as to the efforts which have been made to givenotice to the opposing party and the reasons supportingwhy such notice should not be required.6

3. Substantive Showing

The Fifth Circuit Court of Appeals has delineated agenerally accepted four prong test which must be satisfiedin order to obtain a temporary restraining order. Theapplicant must establish each of the following: (1) asubstantial likelihood of success on the merits; (2) asubstantial threat that failure to grant the injunction willresult in irreparable injury; (3) that the threatened injuryoutweighs any damage that the injunction may cause the

opposing party; and (4) that the injunction will not disservethe public interest.7

Thus the federal test requires a balancing of the injury to besuffered by both parties, not just by applicant. Also, thecourt is required to consider the impact the injunction willhave on the public interest, even in suits between private

parties.8

4. Duration

A temporary restraining order issued without notice maynot exceed 10 days in duration unless for good causeshown the order is extended for a like period or unlessthe party against whom the order is entered consents that itmay be extended for a longer period.9 If the temporaryrestraining order is extended, the reasons for any extensionof time must be entered of record.10

5. Terms of the Order and Filing

Because of the extraordinary nature of injunctive relief, thetemporary restraining order must contain specified findingsand information. The temporary restraining order must: (1)

be endorsed with the date and hour of issuance; (2) definethe injury and state why it is irreparable; (3) state why itwas issued without notice; (4) specify that it expires within10 days after entry; and (5) be filed forthwith in theclerks office and entered of record.11

In addition the temporary restraining order must (1) set

forth the reasons for its issuance; (2) be specific in terms;and (3) shall describe in reasonable detail, withoutreference to the complaint or other document, the act oracts sought to be restrained.12

6. Security

The party obtaining the temporary restraining order mustgive security in whatever sum the court deems proper forthe payment of costs and damages as may be incurred or

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suffered by a party who is found to have been wrongfullyenjoined or restrained.13

7. Conference With Court

In Texas state court practice the applicants attorneygenerally has the opportunity to present the temporaryrestraining order request to the judge on an ex partebasis.

This almost universal state court practice is not prevalent infederal court. Depending upon the predilections of the

particular judge, the applicants request may be decided onthe papers, or at best, after the attorney has had a briefconference with the judges law clerk.14Consequently, it isespecially important when seeking a temporary restrainingorder in federal court that the papers clearly demonstratethe need for and entitlement to relief without benefit ofcounsels presentation.

8. Service of Temporary Restraining Order

A temporary restraining order must be formally served,which is traditionally done with the service of thecomplaint. Any person who is not a party and is of 18 yearsof age may serve the temporary restraining order, including

someone appointed by the court for that purpose.15 Theperson serving the temporary restraining order is thenrequired to file a proof of service with the court.16

9. Persons Bound by Temporary Restraining Order

The person or entity named as the defendant is bound bythe terms of the temporary restraining order. However,additional actors are also subject to the restraints of thetemporary restraining order. It binds the parties and theirofficers, agents, servants, employees and attorneys.17Further, it is binding upon those persons in active concertor participation with them who receive actual notice of theorder by personal service or otherwise.18 Therefore, ifservice is for any reason delayed, it is important to give

notice of the issuance of the temporary restraining order-including a copy of the same-to the opposing party andthose acting in concert with that party.

10. Hearing on Preliminary Injunction if Temporary

Restraining Order Granted

If a temporary restraining order is granted without notice,the court must set a hearing on the preliminary injunction atthe earliest possible time, which may not exceed 10 dayswith one extension for good cause shown.19A party againstwhom a temporary restraining order is granted withoutnotice may move on 2 days notice for a hearing to dissolveor modify the order and the court will hear such motion asexpeditiously as the ends of justice require.20

11. Strategy on Temporary Restraining Orders inFederal Court

Given the general reluctance of the federal courts to grantex parte temporary restraining orders, it is imperative thatcareful consideration be given to whether a temporaryrestraining order should even be requested. If the basis forliability is less than clear or the nature of the irreparableinjury suspect, caution should be exercised in seeking atemporary restraining order. Consideration should rather be

given to requesting an expedited hearing on a preliminaryinjunction.

The second factor to consider is whether the client can postthe required bond. Unlike some courts, the federal courtsrarely permit posting of nominal bonds to securesubstantive injunctions ($500.00 bond to present

foreclosure on $l million home).

The third factor to consider is whether there is any realadvantage to filing suit in federal court for such temporaryrelief. Of course, in some instances the federal courts haveexclusive jurisdiction and the application must be filed inthat forum.21Absent such limitation, it will often be easierto obtain ex parteinjunctive relief in the state court system.

Finally, make sure that the federal court has an independentbasis for federal subject matter jurisdiction22and that venueis proper in the district in which the suit will be filed. 23

12. Checklist for Federal Court Temporary Restraining

Ordersa) Determine jurisdiction and venue.

b) Decide whether standards are satisfied for temporaryrestraining order.

c) Prepare complaint and application for temporaryrestraining order.

d) Select witness(es) to verify complaint or provideaffidavit testimony supporting the temporaryrestraining order application.

e) Prepare brief in support of your application. Althoughthis is not required, generally it will be very helpful inthose cases where there is any legal issue as toentitlement to relief or where there is no opportunityto visit with the judge to supplement the written

presentation.

f) Arrange for bond or posting of cash security with thedistrict clerk once the temporary restraining order has

been signed. If a bond is to be utilized, arrangementsshould be made in advance.

g) Arrange for service/notice to all impacted parties. Thismight include filing an application and order forappointment of someone to serve process and thetemporary restraining order at the time the complaint

is filed.

h) Consider filing a motion for expedited discovery-butbe reasonable. Asking the court to order theproduction of 40 categories of documents in 5 daysand to present 10 witnesses for deposition is not onlyunlikely to be granted, but is also unlikely to enhanceyour credibility with the court.

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i) Review the local rules to determine any specialprocedures or requirements for obtaining a temporaryrestraining order.

j) Check with the district cleric (if you do not practice inthe district or in federal court generally) to determinehow such filings are handled and what is done if the

judge to whom the matter is assigned is not available.Unlike some courts, it would be the most unusual ofcases if you were allowed to pick up your file andwander from court to court until you could find a

judge who was available to consider the application.

k) Prepare a detailed order granting the relief requested-but be reasonable. Requesting to enjoin a nationalbank from disposing of all documents relating to itscheck cashing policies since 1980 is not likely to findfavor with most federal judges.

l) Determine if the district clerk expects you to preparethe writ of injunction or whether they have a formavailable.

m) Be sure you have checks for all applicable filing fees.

n) The attorney should hand walk the filing through thedistrict clerks office and then take the file marked

judges copies to the judges secretary oradministrative assistant.

o) If the temporary restraining order is granted, promptlypost the bond and effect service/notice as applicable.

C. Preliminary Injunctions

1. Generally

The purpose of a preliminary injunction is to preserve the

status quo pending a final decision on the merits of thecase.24 The status quo is the last peaceable uncontestedstatus prior to the parties present disagreement.25

2. Pleading and Notice Requirements

A complaint seeking a preliminary injunction is subject tothe same pleading requirements generally applicable infederal court.26There is no requirement that the complaint

be verified. However, sworn proof establishing entitlementto relief must be submitted before a preliminary injunctionwill be granted. The normal procedure for seeking a

preliminary injunction is by motion or by an order to showcause, the former being preferred.

Unlike a temporary restraining order, a preliminaryinjunction may not be granted without notice to the adverse

party.27

3. Substantive Showing

The substantive requirements for obtaining a preliminaryinjunction are the same as for obtaining a temporaryrestraining order.28 The court will again perform a

balancing of interests test assessing the impact of grantingthe requested relief on the respective parties and on the

public interest.29

4. Duration

The preliminary injunction remains in effect, unlessdissolved or modified, during the pendency of thelitigation. When the case is decided on the merits the

preliminary injunction may be dissolved or may be madepermanent depending upon the form and scope of reliefrequired by the final judgment.

5. Terms of the Preliminary Injunction

A preliminary injunction must set forth the reasons for itsissuance.30The order must be specific in its terms and mustdescribe in reasonable detail (and not by reference to thecomplaint or other document) the act(s) to be restrained.31Although Rule 65(d) does not so require, it is advisable forthe order to set forth the specific equitable findings which

justify the issuance of a common law injunction.32Thus theorder should clearly describe why the injunction isnecessary to prevent irreparable harm, the reasons theapplicant is likely to prevail on the merits, and a balancingof the parties and the publics interest in having theinjunction granted.33

6. SecurityThe successful applicant for a preliminary injunction isrequired to post security in the same manner as for atemporary restraining order.34

7. Persons Bound By Preliminary Injunction

The same broad category of persons are bound by apreliminary injunction as are those subject to a temporaryrestraining order. The same procedure discussed previouslywith respect to service and notice of a temporaryrestraining order should be followed with respect to a

preliminary injunction.35

8. Hearing on Preliminary Injunction

Before granting a preliminary injunction the opposing partymust be given notice and an opportunity to be heard.36However, it is not necessary for the court to hold anevidentiary hearing where the parties are allowed to presenttestimony.37 A hearing may be required if there is amaterial factual dispute;38 however, some courts haveupheld the denial of a hearing even when the facts arecontroverted.39 In fact it is the standard practice of somefederal judges to resolve all preliminary injunctionapplications without an oral hearing.40

Evidence at a hearing on a preliminary injunction mayinclude verified pleadings, affidavits, deposition testimony,documentary evidence and oral testimony. Because thefunction of a preliminary injunction is to maintain the

status quo rather than adjudicate the matter on the merits,the federal courts are more lenient in demanding strictcompliance with the rules of evidence. Consequently,affidavits are not held to the strict requirements of thosesupporting summary judgment41and hearsay evidence may

be considered by the court.42

It should be noted that the court may, before or aftercommencement of any hearing on a preliminary injunction,order that the hearing be consolidated with the trial on the

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F. Appellate Review of Orders Granting Injunctive

Relief

Congress has by statute authorized immediate review ofinterlocutory orders of the district courts...granting,continuing, modifying, refusing or dissolving an injunctionor refusing to dissolve or modify an injunction, exceptwhere direct review may be had in the Supreme Court;...60

Appeals may be taken both from orders grantingpreliminary as well as permanent injunctions.61The appealis as of right, and is not subject to the discretion of eitherthe trial or appellate court.62

Temporary restraining orders, however, are notappealable.63 The fact that the order is titled a temporaryrestraining order will not preclude an appeal if it is in factmore than a temporary restraining order.64

Likewise, an order need not specifically deny an injunctionto be appealable. If the practical effect of the order is adenial of injunctive relief, then it is appealable.65Finally, arefusal to act on an application for injunctive relief will not

preclude appellate review. The refusal to rule will bedeemed to be a denial of the injunction thereby permittingthe order to be appealed.66

II. Injunctive Relief in Texas State Courts

A. Introduction

In most cases, a suit for injunctive relief begins with arequest for a Temporary Restraining Order, followed by arequest for a Temporary Injunction, followed by a

permanent injunction that is part of the final judgment in acase. The Temporary Restraining Order may be issued withor without notice to the opposing party but can remain ineffect only a short time.67 The Temporary Injunction isissued after an evidentiary hearing that amounts to a mini-

trial of the case. It remains in effect until the entry of a finaljudgment. The permanent injunction is issued after trial.

The two preliminary steps to permanent relief temporaryrestraining order and temporary injunction build on thestandard for granting a permanent injunction, with the firsttwo steps requiring additional evidence to justify thedemand for relief before trial. A permanent injunction canissue after trial if the claim is one for which injunctiverelief is appropriate. A temporary injunction can issue afteran evidentiary hearing if the claim is one for whichinjunctive relief is appropriate and the moving party hasshown that it is substantially likely to prevail at trial andthat it will suffer irreparable harm before trial unless theinjunction is granted.68 A temporary restraining order can

be issued only if all the requirements for a temporaryinjunction are satisfied and the threat of harm is soimmediate that it will occur before the Court even has timeto conduct an evidentiary hearing. In addition, most statecourts require evidence that the party moving for atemporary restraining order have attempted to contactopposing counsel so that there is at least a non-evidentiaryhearing before the temporary restraining order is granted.In general, the more immediate the relief sought, thegreater the burden on the party seeking relief to

demonstrate that there is a real risk of immediate harm andthat it will prevail in the end.

B. Substantive Requirements for Granting Injunctive

Relief Before and at Trial

Consideration of a claim for injunctive relief must beginwith the substantive requirements for such relief.

Injunctions are not available to stop every kind of harm,and every claim for such relief requires pleading anappropriate cause of action.

1. Claims for Which Permanent Injunctive Relief is

Available

Injunctive relief, like every other form of equitable relief, isgenerally available when there is no adequate remedy atlaw; that is, when money damages are not adequate. Thisrequirement has been codified in Section 65.011 of theTexas Civil Practice & Remedies Code, which provides:A writ of injunction may be granted if:

(a) the applicant is entitled to the relief demanded and allor part of the relief requires the restraint of some act

prejudicial to the applicant;

(b) a party performs or is about to perform or is procuringor allowing the performance of an act relating to thesubject of pending litigation, in violation of the rightsof the applicant, and the act would tend to render the

judgment in that litigation ineffectual;

(c) the applicant is entitled to a writ of injunction underthe principles of equity and the statutes of this staterelating to injunctions;

(d) a cloud would be placed on the title of real propertybeing sold under an execution against a party having

no interest in the real property subject to execution atthe time of sale, irrespective of any remedy at law; or

(e) irreparable injury to real or personal property isthreatened, irrespective of any remedy at law.

Various other statutes may expand or qualify the generalprovisions of Section 65.011, and one of the first steps inanalyzing a possible claim for injunctive relief is to review

possibly applicable statutes to see if they grant a right to orlimit injunctive relief. Creative lawyers should not,however, consider themselves limited to specific statutes oreven circumstances considered by courts in the past. If anaward of money damages will not adequately compensate

the anticipated future harm then injunctive relief should beavailable.

2. Additional Substantive Requirements for the

Granting of a Temporary Injunction

The purpose of a temporary injunction is to preserve thestatus quo of the litigations subject matter pending a trialon the merits.Butnaru v. Ford Motor Co., 84 S.W.3d 198,204 (Tex. 2002). Status quo is defined by the TexasSupreme Court as the last, actual, peaceable, non-

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contested status that preceded the pending controversy.69In almost every case where permanent injunctive relief isavailable, a temporary injunction will also be available intheory, because the acts that are sought to be enjoined willusually cause harm a change in the status quo beforethere can be a final trial. However, the requirement ofimminent harm is not trivial, and regardless of the validity

of the claim proof of imminent harm will be required for atemporary injunction.

a) There must be an imminent threat of harm. Because atemporary injunction is issued before there is anopportunity for complete discovery and development of thecase, its issuance requires more than a theoretical risk ofharm before trial. The Texas Supreme Court requires proofof a probable, imminent, and irreparable injury in the

period before trial. Butnaru, supra. In EMSL Analytical,Inc. v. Younker, 154 S.W.2d 693 (Tex.App. Houston2004, no writ) the Houston Court of Appeals affirmed thedenial of a temporary injunction because the plaintiff hadonly shown a theoretical possibility of future harm. Itwrote that: At most, the testimony of EMSLs regional

manager established only a fear of possible injury, and thatcontingency is not sufficient to support issuance of atemporary injunction. Id. at 697. A party seeking atemporary injunction should develop evidence of actual, asopposed to theoretical harm, and a party resisting aninjunction may find that denying any intent to engage inforbidden conduct is an effective defense.

b) The movant must show a probable right to final reliefafter trial. A party seeking a temporary injunction must notonly plead a cause of action justifying injunctive relief; itmust also prove a a probable right to the relief sought.70This does not mean proof that would result in victory at afinal trial, but is something more than presentation of a

prima facie case.71Appellate review of the grant or denialof a temporary injunction is based on an abuse of discretionstandard, and so as a practical matter the trial courtsdecision to grant or deny an injunction will be affirmed ifthere is evidence from which a reasonable person wouldreach the same conclusion as the trial court.72

3. The Additional Requirement of Immediate Harm for

Issuance of a Temporary Restraining Order

Temporary restraining orders are governed by Texas Ruleof Civil Procedure 680, which requires a showing that:immediate and irreparable injury, loss or damage willresult to the applicant before notice can be served and ahearing had thereon.73 A temporary restraining order canremain in effect for an initial period of only 14 days, and

can be extended for only an additional 14 days,74

whichmeans that any hearing on the follow up request for atemporary injunction must take place within 28 days. Thus,the requirement of immediate injury means injury withinthat 28 day period. To justify relief without notice theinjury must be even more immediate, and occur beforenotice can be served.

C. The Process for Obtaining Injunctive Relief

The process of obtaining injunctive relief begins with the

filing of a Petition, application for a Temporary RestrainingOrder (if desired) and application for a TemporaryInjunction (if desired). If a temporary restraining order isrequested, the motion will be presented to the Court at thetime of filing, or within a short time thereafter. It may be

presented ex parte and without notice, subject to limitsimposed by local rules or the Court, When the application

for temporary restraining order is presented the Court willeither grant or deny the temporary restraining order and seta date for a hearing on the application for temporaryinjunction. That hearing, which is evidentiary, ordinarilytakes place within 28 days, and will result in the grant ordenial of the temporary injunction. After the temporaryinjunction hearing the case proceeds to trial in the ordinaryfashion. This broad outline of the injunction process issubject to a number of qualifications, which are discussedin detail in the sections below.

1. The Initial Papers Seeking Injunctive Relief

Like any other lawsuit, a suit requesting injunctive relief iscommenced by filing a petition.75If a temporary restrainingorder or temporary injunction is sought they are ordinarily

included as part of the same document, although this is notrequired by Rule 680, which specifically governstemporary restraining orders, or by Rule 682; whichgoverns all pleadings and motions seeking injunctive relief.The petition must be verified and contain a plain andintelligible statement of the grounds for such relief.76If atemporary restraining order is requested the pleading mustgo further and include sworn specific facts showing thatimmediate and irreparable injury, loss or damage willresult to the applicant before notice can be served and ahearing had thereon.77 A request for a temporaryrestraining order must be accompanied by a request for atemporary injunction, because Rule 680 requires that if atemporary restraining order is granted a hearing on therequest for temporary injunction must be set as well.

Most Courts require, as part of the request for temporaryrestraining order, a certificate to the effect that the attorney

presenting the motion has made a reasonable effort tonotify the opposing party that the request is being filed.78Individual judges often have very different views of the

benefits and desirability of notice for a temporaryrestraining order, and before filing a request for atemporary restraining order the attorney filing it shoulddetermine what the judge requires. Because everytemporary restraining order is followed in a very short time

by an evidentiary hearing on the temporary injunction,requests for temporary restraining orders are usuallyaccompanied by an Emergency Motion for Expedited

Discovery under Rule 191.1 that asks the Court to orderdocument production, depositions, and written discovery onan expedited basis.

2. What Happens at the Courthouse When a TRO is

Requested

Rule 685 anticipates that a request for a temporaryrestraining order or temporary injunction will be presentedto the Court before they are filed with the clerk of theCourt; however, the usual practice if the request is

presented during business hours is to first file the Petition

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with the clerk and then present to the Court along with aproposed form of Order. In some counties all temporaryrestraining orders are assigned to a single judge.79 In mostcounties the temporary restraining order will be considered

by the judge to whose court the case is assigned; however,if the judge of the assigned Court is not available, therequest may be presented to a non-resident judge under the

circumstances described in Section 65.022 of the TexasCivil Practice & Remedies Code. In larger counties, theprocedure for approaching other courts other than, theassigned court will probably be subject to local rulesspecifying the procedure.80

Whether the petition is filed before or after presentation tothe Court, once the temporary restraining order is signed,the Order and file are turned over to the clerk of the court,who prepares a citation to the defendant along with a writof injunction that repeats the contents of the order signed

by the judge. The citation and writ may be served like othercitations under the provisions of Rules 103 and 106. Theduties of the officer serving a writ of injunction are slightlydifferent81 from those of an officer serving an ordinary

citation, but as a practical matter the party seeking reliefwill want to take whatever steps are needed to insure thatthe restrained party gets notice of the Order as soon as

possible so that violations of the order can be punished bycontempt.82

3. Contents of the Order Granting a Temporary or

Permanent Injunction and the Parallel Writ of

Injunction

All orders granting an injunction, whether permanent ortemporary, must:

set forth the reasons for its issuance, be specific in terms, and

describe in reasonable detail and not by referenceto the complaint or other document the act or actssought to be restrained.83

In addition, an order granting a temporary injunction must:

include an order setting the cause for trial on the

merits with respect to the ultimate reliefsought84, and

fix the amount of security (i.e., a bond) to begiven by the party applying for the temporaryinjunction.85

An order granting a temporary restraining order has thesame requirements as an order granting a temporaryinjunction except that instead of a trial date it must state thedate of the hearing on temporary injunction. In addition, ifit is granted without notice, the order granting temporaryrestraining order must:

be endorsed with the date and hour of issuance, define the injury and state why it is irreparable,

state why the order was granted without notice,and

expire by its terms within such time as the court

fixes, not to exceed fourteen days.86

The writ of injunction issued by the clerk and served on theenjoined party generally contains the same information asthe order granting the injunction except that there is norequirement that the writ include the various findings

justifying issuance of the injunction that must be in theorder itself.87

4. The Requirement of a Bond

Every order granting a temporary restraining order ortemporary injunction must include a requirement that the

party seeking the injunction provide a bond, and that bondmust be filed with the clerk before the writ of injunctionwill be issued.88 The amount of the bond is fixed by theCourt, and should be sufficient to compensate the enjoined

party for any damage it will suffer as a result of theinjunction.89 The bond secures payment of those damagesin case it is found that the injunction should not have beenissued.

5. The Defendants Answer

The defendants deadline to file an answer is the same as inany other case; however, because the defendant willordinarily seek other relief related to the temporaryrestraining order, the answer will usually be filed veryshortly after the temporary restraining order is issued.

Defendants who wish to challenge personal jurisdiction bymaking a special appearance under Rule 120a may find itdifficult to avoid unintentionally making a generalappearance given the levels of activity between theissuance of a temporary restraining order and a hearing onthe request for a temporary injunction. Some decisionsindicate that very limited participation in such proceedings

does not constitute a general appearance;90

however, as apractical matter the discovery and other battles thatimmediately follow the entry of a temporary restrainingorder may be difficult to manage without taking someaffirmative action by the defendant which impliedlyrecognizes the trial courts personal jurisdiction over thedefendant.91 A defendant subject to a temporaryrestraining order who wishes to make a special appearanceshould, therefore, seek the early ruling required by Rule120a in order to avoid waiver during the run up to thetemporary injunction hearing.

6. After the Temporary Restraining Order and Before

the Temporary Injunction Hearing Request for

Dissolution, Mandamus, Discovery, and Mediation

After a temporary restraining order is entered and servedthe lawsuit proceeds on several fronts simultaneously. The

party enjoined may, on two days notice, seek to have thetemporary restraining order dissolved or modified.92 Atemporary restraining order cannot ordinarily beappealed93, but mandamus relief is available and may beapplied for.94 While fighting over the continued existenceof the temporary restraining order, the parties will alsolikely be engaged in disputes about the scope and timing ofexpedited discovery, and will be doing the discovery as

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well. Many courts will order the parties to mediation underChapter 154 of the Texas Civil Practice & Remedies Code,and, of course, all the parties must prepare witnesses andexhibits for the temporary injunction hearing itself. Inshort, the period between the granting of a temporaryrestraining order and the hearing on the application fortemporary injunction is the entire pre-trial process

compressed to a period of no more than 28 days.

7. The Temporary Injunction Hearing

Rule 680 requires that if a temporary restraining order isgranted without notice, the request for temporary injunctionmust be heard at the earliest possible date and takes

precedence of all matters except older matters of the samecharacter.95 In practice different judges interpret thisrequirement in different ways. Some actually give thehearing the highest priority while others merely try to setthe hearing within the 28 day period representing themaximum time before a temporary restraining orderexpires. Rule 680 does not require that the Court grant any

particular amount of time for the hearing, and some judgesmay simply refuse to set aside adequate time as a means to

force the parties to negotiate an agreed extension orcomplete settlement. The only remedy for this kind of

behavior is mandamus.

At the injunction hearing the applicant for a temporaryinjunction must establish through competent evidence thathe or she has a probable right to the requested relief andthat he or she will probably suffer injury in the absence ofsuch relief.96 Texas courts have held that this does notmean that the applicant must establish that he or she will

prevail at trial on the merits,97but it does require more thanpresentation of a mere prima facie cases.98This means thatthe decision to grant or deny a temporary injunction will beaffirmed if there is sufficient evidence for a rational personto reach the same conclusion as the trial court.99Althoughthe burden of proof is on the movant to establish its case, arespondent relying on affirmative defenses has the burdenof establishing those defenses.100

8. Appeals from Orders Granting or Denying a

Temporary Injunction

Section 51.014 provides for an interlocutory appeal of anorder granting or denying a temporary injunction. Likeother interlocutory appeals, the appeal of a temporaryinjunction is accelerated.101 This means that the deadlinesto file a notice of appeal,102 the record on appeal,103 and

briefs104are all shortened. In addition, the Court of Appealsmay decide the case based on a sworn and uncontrovertedrecord provided by the trial court or parties, and may

dispense with the requirement of briefs.105

If it chooses, theCourt of Appeals may act on the appeal within days byusing Rule 28.3.

The filing of a notice of appeal does not suspend atemporary injunction, but the injunction order can besuperseded by filing a bond at the discretion of the trialcourt.106A trial courts refusal to provide for a supersedeas

bond can be reviewed by the Court of Appeals, which canalso make other temporary orders to protect the parties

during the appeal.107Only the Court of Appeals can enforcethe underlying order during the appeal; however, the trialcourt retains jurisdiction of the rest of the case, which can

proceed subject to limits on the authority of the trial courtto make orders that might be inconsistent with the

proceedings on appeal.108

If the appeal is from denial of a temporary injunction theappellant may apply for injunctive relief to the Court ofAppeals on the basis that it is necessary to protect its

jurisdiction or keep the pending appeal from becomingmoot. The application for an injunction during an appeal isgoverned by Rule 52 of the Texas Rules of Civil procedure,which requires the filing of new original proceeding in theCourt of Appeals.

9. Enforcing Orders Granting Temporary Restraining

Orders, Temporary Injunctions and Permanent

Injunctions

Refusal to obey an injunction of any kind is punishable bycontempt.109The detailed procedures for filing or opposingmotions for contempt are beyond the scope of this paper,

but are outlined in Rule 692 itself.

III. Conclusion

To obtain the extraordinary remedy of injunction, the wisepractitioner will insure that the pleadings, proof and reliefrequested conform exactly to what the statutes, rules andcase law require. In few other areas is such careful

preparation and attention to detail met with a moreeffective reward than in the arena of injunctive relief.

1 Fed. R. Civ. P. 65. Numerous federal statutes, however,contain provisions authorizing injunctive relief in specificareas. See e.g. 15 U.S.C. 4 (1994) (Sherman Act); 15U.S.C. 25 (1994) (Clayton Act).2

For example, Rule 65 does not provide an independentbasis for federal jurisdiction. See White v. NationalFootball League, 41 F. 3d 402, 409 (8thCir. 1994).3

See generally, Granny Goose Foods, Inc. v. Brotherhood

of Teamsters, Local No. 70, 415 U.S. 423 (1976).4 Fed. R. Civ. P. 65(b).5Id.6Id.

7Allied Mktg Group, Inc. v. CDL Mktg., Inc., 878 F.2d 806,

809 (5thCir. 1989).8Mississippi Power &Light Co. v. United Gas Pipeline,

760 F. 2d 618, 625 (5thCir. 1985).9 Fed. R. Civ. P. 65(b).10Id.11Id.12Fed. R. Civ. P. 65(d).13Fed. R. Civ. P. 65(c).14SeeW. Carroll, The Local Rules and The Local, LocalRules, Federal Bar Association 19thAnnual Federal CivilPractice Seminar (Feb. 25, 2005) at Tab 3, App.1.15Fed. R. Civ. P 4(c)(2).16Fed. R. Civ. P. 4(1).17Fed. R. Civ. P. 65(d).18

Id.19Fed. R. Civ. P. 65(b).

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20Id.21See e.g.15 U.S.C. 1 (Sherman Act).22 28 U.S.C. 1331 et seq. There are innumerable otherfederal statutes which confer jurisdiction on the federalcourts in specific instances. 15 U.S.C.1 (Sherman Act); 15U.S.C. 78aa (Securities Exchange Act of 1934).23 28 U.S. 1391. Many federal statutes also contain their

own specialized venue provisions. See e.g.15 U.S.C. 22(Clayton Act).24Hollon v. Mathis Indep. Sch. Dist., 491 F.2d 92 (5thCir.1974).25Stemple v. Board of Educ. of Princes County, 523 F. 2d893, 898 (4thCir. 1980), cert denied450 U.S. 911 (1981).26

SeeFed. R. Civ. P. 7-11.27Fed. R. Civ. P. 65(a)(1).28See supraat notes 7-8 and accompanying text.29

Id.30Fed. R. Civ. P. 65(d).31Id.32

See C. Wright and A. Miller, Federal Practice andProcedure2941 at p. 31.33See supraat n. 11 and accompanying text.34

See supraat n. 13 and accompanying text.35See supraat notes 17-18 and accompanying text.36 Fed. R. Civ. P. 65(a)(1).37

See Campbell Soup Co. v. Giles, 47 F. 3d 467 (1st Cir.

1995); FSLIC v. Dixon, 835 F. 2d 554 (5thCir. 1987).38

Four Seasons Hotels &, Resorts, B.V. v. Consorico Bark,

S.A., 320 F. 3d 1205 (11thCir. 2003).

39 See, Stanley v. University of So. California, 13 F. 3d1313 (9thCir. 1994).40See, W. Carroll, supra, n. 14, at Tab 3, App. 1.41Fed. R. Civ. P. 56(f). FSLIC v. Dixon, 835 F. 2d 554 (5thCir. 1987); Welker v. Cicerone, 174 F. Supp, 2d 1055 (C.D.Cal. 2001).42Sierra Club v. FDIC, 992 F. 2d 545 (5 thCir. 1993).43Fed. R. Civ. P. 65(a)(2).44Id.45See generally, C. Wright and A. Miller, Federal Practiceand Procedure2946.46

Original Great Am. Chocolate Chip Cookie Co. v. River

Valley Cookies, Ltd., 970 F. 2d 273 (7thCir. 1992).47

Kentucky Fried Chicken Corp. v. Diversified Packaging

Comp., 549 F. 2d 368, 372 (5th Cir. 1977) (the bizarreelement is the facially implausible-some might sayunappetizing-contention that the man whose chicken isfinger-licking good has unclean hands).48 C. Wright and A. Miller, Federal Practice andProcedure2946 at 14.49Kay v. Austin, 621 F. 2d 809 (6thCir. 1980).50

Henry I. Siegel Co. v. Koratron Co., 311 F. Supp. 697(S.D.N.Y. 1970).5128 U.S.C. 2283.5228 U.S.C. 2361.5328 U.S.C. 2251.5428 U.S.C. 1446(d);Maseda v. Honda Motor Co., 861 F.2d 1248 (11thCir. 1988).55 11 U.S.C. 362.56Green v. Green, 259 F. 2d 229 (7thCir. 1958).57 Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 148(1998).58 28 U.S.C. 1341.

59 28 U.S.C. 1342.6028 U.S.C. 1292(a)(1).61Sherri A.D. v. Kirby, 975 F. 2d 193, 202 (5 thCir. 1992).62

Compare28 U.S.C. 1292(b).63In Re Champion, 895 P. 2d 490, 492 (5thCir. 1990);Belo

Broadcasting Corp. v. Clark, 654 F. 2d 423, 426 (5th Cir.1981).64

Sampson v. Murray, 415 U.S. 61, 86-87 (1994); UnitedStates v. Bayshore Assoc., Inc., 934 F. 2d 1391 .(6th Cir.1991).65Carson v. American Brands, 450 U.S. 79 (1981).66Rolo v. General Dev. Corp., 949 F. 2d 695, 703 (3 rdCir.1991).67No more than 20 days in federal court (FRCP 65(b)) and28 days in Texas state courts (TRCP 680).68

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002).69

State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528(Tex. 1975).70

Butnaru, supra n. 68.71

Infra ns.92 - 94.72See e.g., Tri-Star Petroleum Co. v. Tipperary Corp., 101

S.W.3d 583 (Tex.App. - El Paso 2003, no writ). In that casethe trial courts issuance of a temporary injunction wasaffirmed because the trial court could have rationallydetermined that the evidence supported the movantsclaims, and the court of appeals was obligated to Mew theevidence in light most favorable to the trial courts order,indulging every reasonable inference in its favor. Id. at587, 590. InAssociated General Contractors of Texas, Inc.v. City of El Paso, 932 SW.2d 124, 126 (Tex.App. - El Paso1996, no writ) the denial of a writ was affirmed because theevidence was conflicting, and If conflicting evidence is

presented, the appellate court must conclude that the trialcourt did not abuse its discretion in entering its order.73 TEX. R. CIV. P. 680.74

Id.75 TEX. R. CIV. P. 22.76 TEX. R. CIV. P. 682.77TEX. R. CIV. P. 680.78

See, e.g., Dallas County District Courts Local Rule 2.02.79 See, e.g., Harris County District Courts Local Rule 3.5and Bexar County District Courts Local Rule (C).80 See, e.g., Tarrant County Local Rule 3.30(b).81 Compare TEX. R. CIV.P. 103 and 107 to 689.82 TEX. R. CIV. P. 683.83Id.84Id.85TEX. R. CIV. P. 684.86 TEX. R. CIV. P. 680.87

See, TEX. R. CIV. P. 687.88 TEX. R. CIV. P. 684.89 TEX. R. CIV. P. 684.90

Crystalix Group Intern. Inc. v. Vitro Laser Group USA,

Inc., 127 S.W.3d 425 (Tex.App. - Dallas 2004, no writ),Redwood Group, LLC v. Louiseau, 113 S.W.3d 866(Tex.App. - Austin 2003, no writ), Turner v. Turner, 1999WL 33659 (Tex.App. - Houston [14 th Dist.] 1999).91Redwood Group, supra n. 90.92TEX. R. CIV. P. 680.93When the TRO acts as a temporary injunction that is, itdoes not set its own expiration date or provide for a later

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hearing, it will be treated as an appealable temporaryinjunction. In re Texas Natural Resource ConservationCommn, 85 S.W.3d 201 (Tex. 2002).94

Id. The procedures for mandamus relief are beyond thescope of this article.95TEX. R. CIV. P. 680.96 See Camp v. Shannon, 348 S.W.2d 517 (Tex. 1961);

Diesel Injection Sales & Serv., Inc. v. Renfro, 619 S.W.2d20 (Tex. Civ. App.Corpus Christi 1981, writ refd n.r.e.).97The Texas Supreme Court has stated: We have also saidthat to warrant issuance of a temporary injunction, theapplicant need only show a probable right and probableinjury; that the applicant is not required to establish that hewill finally prevail in the litigation. Sun Oil Co. v.Whitaker, 424 S.W.2d 216 (Tex. 1968).98

See Deer Valley Ranch, Inc. v. Adair, 574 S.W.2d 592(Tex. Civ. App.San Antonio 1978, no writ).99Seecases cited infraat n. 100.100Michelle Corp. v. El Paso Retailers Assn, Inc., 626S.W.2d 615 (Tex.App. El Paso 1981, no writ), Lund v.

Leibl, 1999 WL 546996 (Tex.App. - Austin 1999, no writ)(unpublished opinion).101

TEX. R. APP. P. P. 28.1.102TEX. R. APP. P. 26.1(b).103TEX. R. APP. P. 35.1(b).104TEX. R. APP. P. 38.6(a).105TEX. R. APP. P. 28.3.106 TEX. R. APP. P. 29.1.107TEX. R. APP. P 29.2, 29.3.l08 TEX. R. APP. P. 29.4, 29.5.109TEX. R. APP. P. 69.2.

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07-28 Primer on Fed Injunction

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