Pg 19

Question 1

What is a prophylactic injunction?

Answer 1

This tries to safeguard the plaintiff’s rights by directing the defendant’s behaviour to minimize the chance that the wrong will reoccur in the future. The court gives more injunctive relief than is necessary to make sure that the P gets the relief he’s entitled to.

Question 2

What is a restorative injunction?

Answer 2

This tries to correct the present by undoing the effects of a past wrong

Question 3

What is a structural injunction?

Answer 3

Courts get involved in the institutional policies and practices of the defendant’s entities, like a desegregation order

Question 4

What are interlocutory orders?

Answer 4

These cover a short span of time and they are designed for situations when waiting for trial on the merits could mean substantial harm to the plaintiff. In order to get this, the facts must show a need for the order to be issued.

Question 5

If a defendant built an addition that encroaches onto the plaintiff’s land and the plaintiff wants it removed, would a preliminary order be the right tact?

Answer 5

No, because the harm has already been done and it will not get any worse. There’s time to have a full hearing on the merits to see if a permanent injunction can be issued to remove the encroachment.

Question 6

If a defendant plans to build an addition that will encroach on the plaintiff’s land and the plaintiff doesn’t want that it to be built, and construction will start in two days, what should the plaintiff do?

Answer 6

Seek a temporary restraining order or a preliminary injunction. Because there’s no time to wait for a full hearing on the merits, since by the time that happens, the addition will already be built

Question 7

What is the only situation that interlocutory orders are considered?

Answer 7

In special situations or if the plaintiff will suffer harm in the near future. This means hours or days before the court can do a full hearing on the merits. If the harm won’t happen for weeks, just discuss preliminary injunction and not a temporary restraining order.

Question 8

What is the law that deals with interlocutory orders?

Answer 8

FRCP 65 for the federal government, and most states have regulations that are substantially the same

Question 9

What are the three types of interlocutory orders?

Answer 9

• temporary restraining order [TRO]
  – preliminary injunction [PI]
  – permanent injunction

Question 10

What is the only time that you should discuss a TRO or a preliminary injunction?

Answer 10

If the facts have information saying that an immediate action is needed.

Question 11

When it comes to interlocutory orders, when does permanent relief come and when does temporary relief come?

Answer 11

– permanent: at the end of a plenary trial on the merits

– temporary relief: from much less complete proceedings

Question 12

What is the consequence of a wrongful interlocutory order?

Answer 12

The plaintiff must be prepared to compensate a wrongfully enjoined defendant for losses that were caused by the order unless the plaintiff wins the underlying case. Just because the plaintiff had good faith when he was seeking this is not a defense. This is meant to deter plaintiffs that aren’t sure about the strength of their claim from asking for this type of relief before trial

Question 13

What are the two major forms of interlocutory orders?

Answer 13

• temporary restraining order

- preliminary injunction

Question 14

Is it possible to request a TRO and a preliminary injunction at the same time?

Answer 14

Yes, they can be sought as a complement to one another or independent of one another, but usually a preliminary injunction follows a TRO

Question 15

What is the major difference between a TRO and a preliminary injunction?

Answer 15

The speed of acquisition and the duration

Question 16

What is a temporary restraining order [TRO]?

Answer 16

This is used when the plaintiff is very likely to suffer substantial and irreparable harm in the immediate future [hours/days], and there’s no time for even a preliminary hearing [since that needs notice to the parties, introducing evidence, etc.]. These come first and the duration is short [usually 10 to 15 days, or just enough time for the court to do a preliminary hearing]. This is a stopgap that is used in urgent emergency situations and it is meant to maintain the status quo while the preliminary hearing is held.

Question 17

What happens at a preliminary hearing with regard to interlocutory orders?

Answer 17

This is where the court decides if a preliminary injunction will be issued

Question 18

How does a TRO differ from a preliminary injunction?

Answer 18

It is less rigid in its procedures and requires a lower level of proof

Question 19

Can you appeal a TRO?

Answer 19

No

Question 20

What are the elements for a TRO?

Answer 20

Must show that the plaintiff would face immediate irreparable injury if action is not taken to maintain the status quo

Question 21

What are the required contents of a TRO?

Answer 21

• must state the date and hour of issuance
  – describe the injury
  – explain why the injury would be considered irreparable
  – it must balance the hardships
  – P must be likely to prevail on the merits

Question 22

How does a court balance the hardships when it comes to deciding whether or not to issue a TRO?

Answer 22

The party seeking the TRO will be substantially harmed if the TRO is not granted

Question 23

What is the point of a TRO?

Answer 23

To maintain the status quo while a preliminary hearing is held to decide if a preliminary injunction will be issued

Question 24

If you notice that your neighbour is going to build an addition to his property that will start tomorrow and will encroach on your land, and in so doing he will have to remove some rare native plants on your land, can you get a TRO that would order construction not to start until the preliminary hearing had been held?

Answer 24

Yes, probably. That will keep the status quo and would ensure that nothing would be done that could cause substantial irreparable injury until a preliminary hearing was held.

Question 25

What is the notice that is required for a TRO?

Answer 25

It can be formal, informal [phone call saying the date and time of the hearing] or inquiry notice. It must be reasonably calculated to inform the party of the substance of the order and his obligations under it.

Question 26

Do courts look at the parties defences when they grant TROs?

Answer 26

No

Question 27

When does a TRO expire?

Answer 27

At the time stated in the order, which will not be more than 14 days federally, but some jurisdictions differ with shorter or longer maximum durations

Question 28

What does it mean if a TRO is ex parte?

Answer 28

The court can issue these without both parties being involved or even getting notice. Courts prefer that each party does have notice and a reasonable opportunity to be heard before they issue an order, but sometimes that is not possible.

Question 29

What is the situation when it would be necessary to have an ex parte TRO?

Answer 29

• there is not time or opportunity to notify the adverse party and give them an opportunity to be heard
  – if the other person is outside of the jurisdiction
  – if the identity of the adverse party is not readily known
  – if the moving party would face irreparable harm so immediate that there isn’t time to try to identify the party or track him down
  – if notice to the defendant would undermine the plaintiff’s action

Question 30

What must a plaintiff show in order to get an ex parte TRO?

Answer 30

Immediate irreparable injury if action is not taken to maintain the status quo. The plaintiff must also state why there’s not time or the ability to notify the adverse party and let them be hard

Question 31

If a plaintiff is seeking a TRO to freeze the defendant’s assets, but if the defendant knows about it ahead of time, the defendant will move or hide his assets, is it possible to get an ex parte TRO?

Answer 31

Yes, in situations like this, or counterfeit goods, or stalking, the legislature recognizes that the dangers of giving notice outweigh the benefits. The plaintiff then just has to present factual proof by declaration that a real palpable danger exists associated with giving notice to the defendant.

Question 32

If an ex parte TRO issues without giving notice to the defendant, what happens then?

Answer 32

After it has already been issued and the defendant has the opportunity to appear promptly before the court to seek a modification or dissolution

Question 33

What are the attorney rules for an ex parte TRO?

Answer 33

The attorney must tell the tribunal all material facts that are known to him so the court can make an informed decision. This is true whether the information is adverse or not to the attorney’s client because ex parte doesn’t allow an adversarial system and it prevents opposing arguments, so it is up to the plaintiff’s attorney to fill in the gaps for the D because he isn’t there do to speak for himself

Question 34

What is the wording to use on an essay if you think a TRO will be issued?

Answer 34

“It is likely that the court will grant the plaintiff a TRO to restrain…… until a hearing can be heard on the merits.”

Question 35

What is required before a court will issue a TRO without giving written or oral notice to an adverse party?

Answer 35

• specific facts that immediate and irreparable injury, loss, or damage will result to the movant before an adverse party can be heard in opposition, and
  – the movant’s attorney certified in writing all efforts made to give notice and the reasons why it shouldn’t be required
  – the TRO states the date and hour that it was issued, describes the injury, says why the injury is irreparable, says why the order was issued without notice, and is properly filed in the clerk’s office and entered in the record