Pg 20

Question 1

What is the only thing that would stop a TRO from expiring after 14 days?

Answer 1

• if the court for good cause extends it for another like period
• the adverse party consents to a longer extension

Question 2

What is the timeframe for setting a preliminary injunction hearing?

Answer 2

It must be set for the earliest possible time and it takes precedence over all matters except hearings on older things of the same character

Question 3

Can the adverse party move for dissolution of a TRO?

Answer 3

Yes, with two days’ notice he can appear and move to dissolve or modify the order. The court must hear this and decide whether to do it or not as promptly as justice requires

Question 4

What is required for security for a TRO or a preliminary injunction?

Answer 4

A bond in the amount the court considers proper to pay the cost and damages of any party if it is found that the defendant was wrongfully enjoined or restrained

Question 5

Who is bound by a TRO or a preliminary injunction?

Answer 5

Only the people that get actual notice by personal service or otherwise.

This includes: parties, parties’ officers/agents/servants/ employees/attorneys, others in active concert or participation with anyone already described

Question 6

What is a preliminary injunction?

Answer 6

These extend the TRO beyond the 10 to 15 days.

Question 7

What is a preliminary injunction hearing?

Answer 7

It is a mini-trial on the merits with the goal to maintain the status quo while a full trial on the merits is done

Question 8

How long does a preliminary injunction last?

Answer 8

Until the full trial

Question 9

Are preliminary injunction appealable?

Answer 9

Yes

Question 10

How does appealability work for preliminary junctions and TROs?

Answer 10

TROs are not appealable but preliminary injunctions are appealable

Question 11

Why is a preliminary injunction overused on an essay?

Answer 11

Because we should really only discuss them in limited situations when immediate action should be taken, but students often throw it in when it’s not needed

Question 12

What is the deal with notice for a preliminary injunction?

Answer 12

Notice must be given to the adverse party so they have an opportunity to be heard before the preliminary injunction is issued.

Question 13

Can a preliminary injunction be issued ex parte?

Answer 13

No, because there isn’t the same immediacy that there is for TROs. They are only issued after a preliminary hearing has occurred, so there’s time to serve the adverse party with notice and give them an opportunity to be heard in a hearing

Question 14

What is the bond that is often required for a preliminary injunction?

Answer 14

The moving party must post a bond before a preliminary junction is issued which gives a secure source of funds if the wrongfully enjoined defendant needs to collect damages, and it also caps the amount of damages that can be collected.

Question 15

How much is a bond for a preliminary injunction?

Answer 15

The court decides this, and they cannot do away with it, but they can sometimes set a nominal amount

Question 16

What is the injunction bond rule?

Answer 16

The adverse party’s damages are limited to the bond amount or the actual damages suffered, whichever is less.

Question 17

If a preliminary injunction is issued to stop a defendant from taking action with a bond of $5000, then at the full hearing the adverse party prevails, but he suffered $10,000 in damages, what can he recover?

Answer 17

He can only recover the $5000 in the bond according to the injunction bond rule

Question 18

Can an exception be made to posting bond for a preliminary injunction?

Answer 18

Yes, at the discretion of the court sometimes the plaintiff would have trouble posting bond and the defendant faces a low burden of harm if there is no bond, so if the bond would deprive someone of access to the court to litigate, then it might be in the interest of public policy to not require one

Question 19

If the plaintiff failed to post the required bond for a preliminary injunction, what can happen?

Answer 19

It can make the injunction void. Although some jurisdictions say that not posting the bond is just an irregularity that makes the injunction voidable

Question 20

Can a court retroactively increase the bond amount for a TRO or a preliminary injunction?

Answer 20

No

Question 21

What is the rule about the damages that come from a wrongfully issued a temporary injunction?

Answer 21

They have to be attributable to the issuance of the injunction

Question 22

How much should a bond amount for a TRO or a preliminary injunction be for?

Answer 22

It should be enough to cover damages that are likely to be incurred by a wrongfully enjoined defendant

Question 23

What would be required for a defendant to access the bond damages in a preliminary injunction or a TRO?

Answer 23

The defendant would have to show that he was wrongfully enjoined through either a final judgement or an order that the plaintiff was not entitled to temporary injunctive relief. If the dissolution of an injunction is for a reason that doesn’t go directly to the merits, then the defendant cannot recover against the bond

Question 24

What are the two major tests that are involved in a preliminary injunction?

Answer 24

– traditional majority test

– alternative sliding scale minority approach

Question 25

What is involved in the test for a preliminary injunction that is called a traditional majority test?

Answer 25

The plaintiff must establish these four things to get a preliminary injunction:
– likelihood of success on the merits
– irreparable injury if the injunction is not issued
– balancing of hardships must favor the plaintiff
– public interest favors a preliminary injunction

Question 26

Why does the plaintiff not have to show a liability theory before he can get a preliminary injunction?

Answer 26

Because this is not a permanent hearing on the merits, it is just a preliminary stage. The liability theory is decided at the full hearing

Question 27

What is involved in the traditional majority test for a preliminary injunction that requires the likelihood of success on the merits?

Answer 27

Plaintiff must show that at a full hearing there’s a good likelihood he will prevail. It doesn’t have to be certain, he just has to show a strong or substantial likelihood based on the introduction of evidence.

Question 28

What is required under the traditional majority test for a preliminary injunction that says that irreparable injury must be present if a preliminary injunction is not issued?

Answer 28

The plaintiff must show that if the preliminary injunction is not issued, the plaintiff will suffer irreparable injury. This considers what the parties and the court would know at the time that a permanent injection is sought, not what they know now.

Question 29

What is involved in the traditional majority test for a preliminary injunction that calls for a balancing of the hardships having to favor the plaintiff?

Answer 29

This weighs the harm to the plaintiff if a preliminary injunction is not issued versus the harm to the defendant if it is. The focus is on the period between the preliminary injunction and a full hearing on the merits, and it also focusses on actual harm, not speculative harm.

Question 30

What is involved in the traditional majority test for a preliminary injunction that requires that a public interest favors a preliminary injunction?

Answer 30

The plaintiff has to show the court that it is in the public interest to issue a preliminary injunction.