When and Why Courts Grant Temporary Restraining Orders
Recently, the news seems full of examples of parties racing to court to get immediate relief, typically in the form of a temporary restraining order (TRO). Unlike a full court case, which often take months and even years to wind its way through the legal system, a TRO is often granted or denied within hours or days of being sought. When can a party ask for this type of relief, what do they need to do, and when will a court grant it?
When Is a TRO Possible?
The standard for a TRO requires the plaintiff to show they are going to be immediately and irreparably harmed by the defendant’s conduct unless the court steps in. For example, if a party is going to bulldoze a building that the plaintiff contends is a protected landmark, the plaintiff cannot get adequate relief by filing a regular lawsuit and seeking damages after the harm is done, because the protected landmark will have been destroyed. Instead, the plaintiff asks for urgent relief from the court to freeze the status quo.
A TRO is the most urgent form of emergency relief and can be granted before a hearing occurs or, sometimes, before the defendant is even given notice. Courts are understandably hesitant to grant any party relief without giving the other party an adequate opportunity to present their side of the story, so TROs are reserved for only those cases where it is essential to act immediately. If a TRO is issued before giving notice to the defendant, the defendant must be notified as soon as possible, and the TRO will expire after a short period of time (no more than 14 days in federal court). The defendant can seek to dissolve the TRO before it expires by asking for a hearing to argue the TRO is not necessary.
What Does a Plaintiff Need to Do to Get a TRO?
To get a TRO a plaintiff must file a request demonstrating that he will suffer irreparable harm without the TRO (meaning no less drastic relief will protect the plaintiff). This is only step one. The plaintiff must also typically show the following: that he is likely to succeed on the merits of his case; that issuing the TRO will cause the defendant less harm than failing to issue the TRO will cause the plaintiff (typically referred to as the “balance of harms”); and that the public interest in the case, if any, weighs in favor of the plaintiff. The more severe the harm the plaintiff is likely to suffer, the lower the threshold for showing a likelihood of success on the merits. That means that if the harm to the plaintiff without the TRO would truly be severe, the plaintiff can prevail by showing that his case raises serious and substantial questions that need to be further litigated.
If it is possible for the plaintiff to give notice to the defendant before seeking the TRO, she is expected to do so. If she cannot give notice before seeking the TRO (for example, because giving notice is likely to cause the defendant to take the very action the plaintiff is seeking to stop, or because plaintiff’s attorney cannot find the defendant in time to serve the application), counsel will be required to make a sworn declaration to the court explaining why notice should be excused.
Granting a TRO
A court may grant a TRO without a hearing or receiving any response from the defendant. Often, the court will grant a TRO that will only last until the court can schedule a hearing on the merits of request, where both parties can be heard. The defendant will have an opportunity to make a filing before the hearing. At the end of the hearing, the court will either dissolve the TRO if it determines it is not necessary, or it can extend the TRO (a TRO in federal court can last no more than 14 days, with one 14-day extension). If continuing relief for the plaintiff is necessary, the plaintiff can seek a preliminary injunction to continue preserving the status quo while the lawsuit proceeds. A court may require the plaintiff to put up a surety bond if the TRO or injunction could financially harm the defendant. The bond will be payable to the defendant if the defendant ends up winning the case.
Conclusion
A TRO is, by its very terms, a temporary form of relief. But TRO litigation is often very high stakes. For the plaintiff seeking a TRO, it might be the only thing standing between him and harm that no lawsuit can repair. For a defendant, a TRO may imperil a business deal, particularly when time is of the essence. When you need relief on hours’ notice, there is no room for error. Whether you are seeking or opposing a TRO, you need experienced counsel who can marshal your best evidence and arguments in the most compelling way.
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