Motions for Temporary Restraining Order (TRO) are governed by Rule 65(b) of the Federal Rule of Civil Procedure. Per Rule 65(b), the court may grant an ex-parte TRO or TRO without giving notice to the opposing party, only if (i) specific facts shown by affidavit or by a verified complaint “clearly” show that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition and (ii) the movant’s attorney certifies to the court in writing the efforts, if any, that have been made to give the notice and the reasons supporting his claim that notice should not be required.
Commonly, trial courts have broad discretion over granting or denying preliminary relief because of the varying and complex situations that arise. All orders are however reviewed to ensure that there is no abuse of discretion. The statutes also ensure that this discretion is not abused.
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. A TRO usually expires at a time that the court fixes, not to exceed fourteen days. The court can extend the order for another period of fourteen or fewer days for good cause shown or for a longer period if the adverse party consents. The reasons for an extension must be entered into the record. Once an ex parte TRO is granted, the motion for a preliminary injunction is set for hearing at the earliest possible time and this takes precedence over all other matters except older matters of the same character.
The opposite party can move for modification or dissolution of the TRO on two days’ notice to the party that obtained the ex parte TRO, or shorter notice if the court so prescribes. Rule 65(c) further requires an applicant for a TRO or preliminary injunction to post security for the issuance of preliminary relief in the event that the court later finds that the opposing party was wrongfully enjoined. The United States, its officers, and its agencies are not required to post security. You can also seek a waiver of this requirement should your client be unable to post security. The court may forego the security when it is convinced that the applicant does not have the resources to post a bond.
Normally, the Federal Rules do not favor ex parte TROs because they are against the adversarial system of justice. Therefore unless you have a bonafide belief that notifying the adverse party will cause irreparable harm to your client, try first to negotiate a settlement with the other party. Rule 65(b)(1)(B) mandates an attempt to give notice and, therefore while exercising its authority, the court will inquire on the attempts made on your part to resolve the matter. Therefore, you should make sure to preserve a record of all communications with the opposing party or counsel and document them as early as possible. However never let these negotiations to prolong as the delay in seeking remedy can go against your case as it may be perceived as lack of irreparable injury.
Most if not all TRO hearings are held in chambers and without evidence. Irreparable harm is considered the sine qua non of TROs and therefore you should be prepared to present a compelling case that your client has been or will be imminently and irreparably harmed by the defendant’s unlawful conduct if preliminary relief is not granted, and will likely prevail on the merits. Also, Rule 65(a)(2) allows for the consolidation of the preliminary injunction hearing with the trial on the merits. In cases where discovery is not essential, this may be to your client’s advantage.