In the federal courts, preliminary injunctions are governed by Rule 65(a) of the Federal Rules of Civil Procedure. Federal Rules of Civil Procedure simply state that “[n]o preliminary injunction shall be issued without notice to the adverse party”, and it is silent on the procedures for obtaining a preliminary injunction. It outlines the general standards for obtaining injunctive relief.
Therefore, to understand the procedural and substantive law applicable to injunctive relief one should refer to the other federal rules, local court rules, and case laws. Preliminary injunction is obtained by filing a motion pursuant to Rule 7(b), and it is often through the process of an order to show cause or some other form of accelerated motion practice.
Motions seeking preliminary injunctions may be filed at the time that the summons and complaint are filed. The only timing requirements needed are the requirements of Rule 6(d) and those of a particular district’s local rules. Generally, the usual requirements on the timeliness of motions may be circumvented when there are grounds for utilizing orders to show cause. Orders to show cause essentially shorten the period in which a motion may be brought, and can also be used to accelerate the service of process.
Although motions for preliminary injunctions may be made at any time, they are usually filed at the commencement of a proceeding. The complaint typically is filed at the same time that the motion papers are filed. Commonly the following documents are attached in the motion to the court for a preliminary injunction:
- Notice of Motion or Order to Show Cause bringing on a motion for Preliminary Injunction
- Where an application is sought by a motion, a formal motion in districts requiring such a document;
- Summons and complaint if not filed previously;
- Supporting affidavits and exhibits;
- Memorandum of law;
- Proposed findings of fact and conclusion of law; and
- Proposed order granting injunctive relief.
Standards to be established:
The plaintiff must establish that: (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. A preliminary injunction is an extraordinary remedy rarely awarded as of right. In each case, courts “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” As a preliminary injunction is issued before liability is determined, it is regarded as one of the most powerful tools in the arsenal of judicial remedies.
Hearing & Order
Preliminary injunctions may only be issued after a hearing. Federal rules allow consolidation of any hearing of a motion for a preliminary injunction with any other hearing required for trial. However, the ability to advance or consolidate hearings and trials rests in the sound discretion of the trial court.
When determining whether to grant preliminary injunctions, judges consider the extent of the irreparable harm, each party’s likelihood of prevailing at trial, and any other public or private interests implicated by the injunction. Parties have the right to appeal judge’s decisions on whether to award or dismiss a preliminary injunction.
– See more at: http://legaleasesolutions.com/lawstoreblog/preliminary-injunction/#sthash.69q2bTmG.dpuf