Interlocutory Injunction Basics

Preliminary Injunctions

Interlocutory Injunction Basics

A plaintiff who stands to lose something irreplaceable before trial can ask the court to act first and decide the merits later. That request is a motion for a preliminary injunction, and Rule 65(a)(1) attaches a condition to it: "The court may issue a preliminary injunction only on notice to the adverse party."¹ The condition makes sense only once you see what kind of order it governs.

An injunction is a court order commanding or preventing an action. The most common type is the prohibitory injunction, which forbids or restrains an act.² To obtain any injunction, the complainant must show that no plain, adequate, and complete remedy at law exists and that an irreparable injury will result unless the relief is granted.³ This unit concerns the kind that issues before the case is over.

A preliminary injunction is a temporary injunction issued before or during trial to prevent an irreparable injury from occurring before the court has a chance to decide the case.⁴ It issues only after the defendant receives notice and an opportunity to be heard.⁵ The same order carries several names: interlocutory injunction (an order issued while the case is still pending), temporary injunction, provisional injunction, and injunction pendente lite.⁶

The federal rules use two of those names, and the difference matters. Rule 65(a)(1) speaks of a "preliminary" injunction. Rule 52(a)(2) provides: "In granting or refusing an interlocutory injunction, the court must similarly state the findings and conclusions that support its action."⁷ Because the two labels name one order, a judge who grants a preliminary injunction owes both the notice that Rule 65(a)(1) demands and the findings and conclusions that Rule 52(a)(2) demands.

Injunctions are not the only way a court gives relief before trial. Provisional relief is not uniquely injunctive or equitable: courts give it "at law" through attachment, garnishment, and replevin, and a plaintiff can obtain some security ex parte, without any judicial process, by filing a lis pendens notice or a notice of a mechanics' lien.⁸ The preliminary injunction belongs to that larger family and shares its caution. Courts generally deny a provisional remedy unless the judge believes, or at least assumes, that it can be given back if a trial shows it was not warranted, and unless a pressing reason supports granting it. As courts often say, such remedies aim only at preserving the status quo.⁹

That caution fits the two safeguards attached to a preliminary injunction. An order entered before the merits are decided may later prove unwarranted, so the defendant must receive notice and a chance to be heard first, and the judge must state the findings and conclusions behind the decision.¹⁰ The next sections take up each safeguard in turn.

Suppose a city enacts an ordinance that, once enforced, would put a plaintiff out of business or keep the plaintiff from exercising an important right such as free speech. If the city is about to enforce it immediately, the plaintiff may be ruined or may irreparably lose important rights, yet a full trial cannot be scheduled for months at best. The plaintiff therefore moves for a preliminary injunction forbidding enforcement until a trial can be held and a final decision made.¹¹ The city, served with the motion, is heard before the court rules. If the court grants the motion, the order is prohibitory and provisional: it holds both sides in place without deciding whether the ordinance is valid.

A third order lies close by. The temporary restraining order, or TRO, is an even more stringent form of pretrial injunctive relief. Unlike the preliminary injunction, a TRO issues without any notice to the defendant, who has no opportunity to appear and offer a defense. The defendant is not bound until notified of its terms, and in federal practice it terminates in a matter of days, though the defendant may ask the court to dissolve it sooner.¹² A later section develops the contrast. For now, notice is the line between the two orders.