preliminary injunctions, temporary restraining orders ......if you cannot get timely notice to...

Preliminary Injunctions, Temporary Restraining Orders

and Declaratory Judgments

Jerry Brown

January 25, 2012

Preliminary Injunctions, TROs and Declaratory

Judgments

Requests for emergency or non-monetary

relief:

-Preliminary Injunctions

-Temporary Restraining Orders

-Declaratory Judgments

2

Preliminary Injunctions, TROs and Declaratory

Judgments

Often, a petitioner will request all of them.

-Why?

Differences between them, strategic

advantages of each.

3

Preliminary Injunctions and TROs under Illinois Law

4

735 ILCS 5/11-102 (Preliminary Injunctions)

735 ILCS 5/11-103 (TROs)

FRCP 65(a) – (Preliminary Injunctions)

FRCP 65(b) – (Temporary Restraining

Orders)

5

Preliminary Injunctions and TROs

Purpose of Preliminary Injunctions and TROs

Preserve the “Status Quo.”

The “Status Quo” is the “last actual,

peaceable, uncontested status preceding

the pending controversy.” (Black's Law

Dictionary 1410 (6th ed. 1990)).

6

Mandatory and Prohibitory Orders

Mandatory orders require that parties perform

certain specified acts.

Prohibitory order require that parties refrain from

performing certain specified acts.

Mandatory orders are automatically stayed when

an appeal is pending. Prohibitory orders are

not.

7

Mandatory and Prohibitory Orders, continued

In some cases it may be unclear whether

an order is mandatory or prohibitory.

8

Elements for Preliminary Injunctions and TROs

Clearly ascertainable right in need of protection

Irreparable harm

Lack of adequate remedy at law

Likelihood of success on the merits

Balancing of hardships

Courts will consider public policy if relevant.

9

Differences Between Preliminary Injunctions and TROs

TROs can be issued on an ex-parte basis; Preliminary

injunctions cannot.

TROs initial duration is limited (10 days in state court; 14

days in federal court) (TROs however can be extended

beyond initial term).

Preliminary injunctions not subject to preset limit in

duration.

TROs typically followed by preliminary injunction.

10

Reasons for Choosing Between Preliminary Injunctions

and TROs

If you cannot get timely notice to opposing party, TRO

may be best choice.

If you fear that if given notice, the opposing party may

accelerate course of conduct to moot controversy and

cause irreparable harm before being bound by court

order, TRO may be best choice.

If it is feasible to give notice, preliminary injunction may

be best choice.

11

Reasons for Choosing Between Preliminary Injunctions

and TROs

Preliminary injunction has no preset

duration.

No need to move for extension of order,

unlike TRO.

Courts disfavor ex-parte proceedings.

12

Preliminary Injunctions and TROs

A trial court has substantial discretion in deciding

whether to grant or deny a preliminary injunction or TRO

and that determination will not be disturbed on appeal

absent an abuse of discretion.

There is no right to a jury trial for an injunction or TRO.

13

Bond Requirement

Under Illinois law, the court, in its

discretion, may require the posting of a

bond before entering a preliminary

injunction or a TRO. 735 ILCS 5/11-103

Under federal law, bond is required for

preliminary injunctions and TROs. FRCP

65(c).

14

Bond requirement, continued

Claims on bond by a party wrongfully enjoined limited to

bond amount.

If a party disagrees with the bond amount, it can appeal.

The standard on review is abuse of discretion by the trial

court.

A party who fails to raise issue of bond during hearing

before trial court waives it.

15

Bond Requirement, continued

Clients may not wish to bear expense of

appealing trial court bond decision.

At hearing, be prepared to vigorously

argue issue of bond.

16

Appeal of Preliminary Injunctions and TROs

Adverse rulings on preliminary injunctions

or TROs are subject to interlocutory

appeal.

Illinois law – Illinois Supreme Court Rule

307(a), (d).

Federal law – 28 USC § 1292

17

Notice Requirements for Preliminary Injunctions and

TROs

Illinois Supreme Court Rule 11

Hand delivery

U.S. Mail

Commercial courier

Facsimile

E-mail not explicitly authorized

18


TROs

Federal law

FRCP 5

Hand delivery

U.S. Mail

Electronic means, if other party has consented in writing

Any other means to which the other party has consented

in writing

19


TROs

Federal TROs anticipate oral notice (FRCP 65(b)(1))

Other methods of notice may run risk of technical non-

compliance, but may more effectively achieve purpose of

notice provision.

Consider party receiving notice of preliminary injunction

by e-mail without consent. Is the party likely to disregard

the notice in hope of arguing later that notice was

defective?

Check local rules.

20

What is an Irreparable Harm?

Party cannot be adequately compensated

in damages or when damages cannot be

measured with any certainty.

Violations of constitutional rights, however

brief, usually qualify as irreparable harm.

21

Lack of Adequate Remedy at Law

Money damages

Other legal remedies

Ejectment

Replevin

Mandamus

Prohibition

Habeas corpus

22

Balance of Hardships

A court will compare the hardship to the

petitioner if injunctive relief is denied to the

hardship to be suffered by the respondent

if injunctive relief is granted.

23

Public Policy

The court will examine whether relevant

public policies are implicated in the

granting or denial of injunctive relief.

24

Likelihood of Success on the Merits

To show a likelihood of success on the merits, so as to

support a request for a preliminary injunction or a TRO, a

party does not have to meet the same burden of proof

that is required at the final hearing.

Rather, a plaintiff need only raise a fair question as to

the existence of the right which he or she claims and

lead the court to believe that he or she will probably be

entitled to the relief requested if the proof sustains his or

her allegations.

25

Assuming Relief is Granted

Pay close attention to the language of the order – make

sure that the order is clear, specific and capable of

enforcement.

Ambiguity, over breadth and impossibility of performance

or compliance can be fatal to efforts to enforce injunctive

orders.

People ex rel. City of Chicago v. Le Mirage, Inc.

2011 WL 5600509 (1st Dist. 2011).

26

Enforcement of Order

Contempt

Rule to show cause

Civil contempt/criminal contempt

Contempt sanctions

Collateral Bar Rule

27

Declaratory Judgments

Illinois law (735 ILCS 5/2-701)

Federal law (FRCP 57)

Purpose of declaratory judgment

To allow the court to address a controversy a step earlier

than normal once a dispute has developed, but before

the parties take steps that would expose them to claims

for damages or other relief.

28


A declaratory judgment action considered

neither a legal action nor an equitable

action.

29


Elements to be pleaded:

(1) tangible legal interest;

(2) facts indicating that the defendant's

conduct is opposed to those interests; and

(3) an ongoing actual controversy between

the parties which is likely to be prevented

or redressed by court action.

30


The decision to grant or deny declaratory

relief is within the sound discretion of the

trial court, and the trial court's

determination will not be reversed absent

proof of an abuse of discretion.

31


The Federal Declaratory Judgment Act was enacted to

provide an alternative to the remedy of injunctive relief,

to be used to challenge the constitutionality of state

criminal statutes in cases where injunctive relief would

be unavailable. Under the Declaratory Judgment Act,

declaratory relief may be available even if an injunction

is not allowed.

32


Why would a party seek a declaratory judgment instead

of a preliminary injunction or a TRO?

In some cases, it may be easier to establish jurisdiction

(for preliminary injunctions and TROs challenging

statutes, a court may conclude that there is no standing

until the statute has already been violated).

No need to show “irreparable harm.”

No bond requirement.

No balancing of hardships.

33


Declaratory judgments not enforceable by

contempt power;

Declaratory judgment does not, by its

language, directly prohibit or compel

conduct, and may therefore fail to

preserve status quo.

34

preliminary injunctions, temporary restraining orders ......if you cannot get timely notice to...

Documents