Federal Rule of Civil Procedure 65
Rule 65. Injunctions and Restraining Orders
(1) Notice. The court may issue a preliminary injunction only on notice to the adverse party.
(2) Consolidating the Hearing with the Trial on the Merits. Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing. Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial. But the court must preserve any party’s right to a jury trial.
(b) TEMPORARY RESTRAINING ORDER.
(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
(2) Contents; Expiration. Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk’s office and entered in the record. The order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.
(3) Expediting the Preliminary-Injunction Hearing. If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order.
(4) Motion to Dissolve. On 2 days’ notice to the party who obtained the order without notice—or on shorter notice set by the court—the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.
(c) SECURITY. The court may issue a preliminary injunction or a temporary restraining order only 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. The United States, its officers, and its agencies are not required to give security.
(d) CONTENTS AND SCOPE OF EVERY INJUNCTION AND RESTRAINING ORDER.
(1) Contents. Every order granting an injunction and every restraining order must:
(A) state the reasons why it issued;
(B) state its terms specifically; and
(C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.
(2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise:
(A) the parties;
(B) the parties’ officers, agents, servants, employees, and attorneys; and
(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).
(e) OTHER LAWS NOT MODIFIED. These rules do not modify the following:
(1) any federal statute relating to temporary restraining orders or preliminary injunctions in actions affecting employer and employee;
(2) 28 U.S.C. §2361, which relates to preliminary injunctions in actions of interpleader or in the nature of interpleader; or
(3) 28 U.S.C. §2284, which relates to actions that must be heard and decided by a three-judge district court.
(f) COPYRIGHT IMPOUNDMENT. This rule applies to copyright-impoundment proceedings.
What is a TRO?
- Injunctions and Restraining Orders are court orders that prohibit or require a party to do something. Preliminary injunctions and restraining orders are measures to protect a party before trial. For example, let’s say a plaintiff company sues a defendant for allegedly posting trade secrets on the defendant’s website. The plaintiff might argue that even before trial the court should issue an order requiring the defendant to remove the material. The plaintiff can ask for a preliminary injunction pursuant to Rule 65 but to prevail, the plaintiff will have to demonstrate that:
- plaintiff has a substantial likelihood of success on the merits (the plaintiff has a good chance of ultimately winning the lawsuit).
- plaintiff will suffer irreparable harm if the injunction is denied (e.g., defendant will devastate plaintiff’s business unless plaintiff’s trade secrets are removed from defendant’s website).
- plaintiff will suffer an injury that outweighs the harm that the injunction may cause the opposing party.
- the injunction, if issued, will not adversely affect the public interest.
- In extremely urgent circumstances parties will seek a TRO – – temporary restraining order before a preliminary injunction. The TRO can be requested without notice to the other party. The idea is that the circumstances are so urgent the court should immediately issue a restraining order to protect the moving party before deciding whether to issue a preliminary injunction.