Concept
Contrast With TROs
Preliminary injunction
Contrast With TROs
Rule 65 states the notice principle twice, and the two statements permit different things. A court may issue a preliminary injunction only on notice to the adverse party.1 A court may issue a temporary restraining order “without written or oral notice to the adverse party or its attorney only if” the movant meets the conditions the rule goes on to list.2 Both sentences use “only,” but in subsection (a) the word makes notice absolute, while in subsection (b) it makes the absence of notice depend on a showing.
The TRO exists because the plaintiff's injury may arrive before the preliminary injunction process can. A defendant may dispose of property or act in ways that make the requested relief ineffectual, which is why a plaintiff may invoke protective measures, called provisional remedies, while the merits are pending.3 Notice, a response, and a hearing all take time, and a plaintiff whose injury will land within hours cannot spend it. Provisional relief is not uniquely injunctive: courts give it at law through attachment, garnishment, and replevin, and a plaintiff can obtain some security ex parte with no judicial process at all by filing a lis pendens notice or a notice of a mechanics' lien.4 The TRO is the injunctive counterpart. It differs from the preliminary injunction in notice, duration, and appealability, and a fourth point, what happens when a TRO outlasts its limits, ties the three together.
Notice and Its Conditions
A court may enter a TRO without notice only when two conditions are met. First, specific facts in an affidavit or a verified complaint must clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition. Second, the movant's attorney must certify in writing any efforts made to give notice and the reasons why notice should not be required.5 The first condition ties the decision to skip notice to the only reason that can justify it: the harm will arrive before the defendant could be heard. A plaintiff whose injury can wait for a hearing has no ground to proceed alone. The second condition makes the lawyer account on the record for the missing notice, so the judge does not rely on a bare assertion that notice was impractical.
The order itself must carry its justification. Every TRO issued without notice must state the date and hour it was issued, describe the injury and state why it is irreparable, state why it issued without notice, and be promptly filed in the clerk's office and entered in the record.6
Because the defendant had no chance to be heard before the TRO issued, the rules supply prompt chances afterward. The defendant is not bound until notified of the order's terms.7 If the order issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, and the party who obtained the order must proceed with that motion or the court must dissolve the order.8 The restrained party may also appear on two days' notice, or shorter notice set by the court, and move to dissolve or modify the order, which the court must hear and decide as promptly as justice requires.9 An ex parte TRO is therefore a bridge back to the notice-and-hearing track. It holds matters in place until the hearing that the preliminary injunction rule demands can take place.
An exam stem that gives the plaintiff only a sense of urgency and no sworn showing tests the other side of the line. A request that rests on a lawyer's preference to avoid a fight, or on harm that will not arrive until after a hearing could easily be held, fails the first condition, because the only justification for acting alone is that the harm will arrive before the defendant can be heard.
Duration and Appeal
A TRO expires at the time the court sets after entry, and that time may not exceed 14 days. The court may extend it for a like period if it finds good cause before the deadline, or the restrained party may consent to a longer extension, and the reasons for any extension must be entered in the record.10 Without consent, the outer limit is therefore twenty-eight days, while a preliminary injunction lasts until trial or modification, which can mean years.11 The short life is the price of dispensing with notice. An order entered on one side's account is tolerable for a few days, but the defendant cannot be held under it for months. A preliminary injunction can last because the defendant had notice and a chance to respond before it issued.
Appealability follows the same logic. A TRO is not appealable because of its short duration, while a preliminary injunction is appealable.12 The reasoning is practical: an order that lasts days would be gone before an appellate court could act, whereas a preliminary injunction can last until trial or modification, long enough for review to matter. A party restrained by a five-day-old TRO therefore attacks it in the district court by moving to dissolve. A party bound by a preliminary injunction can take an appeal.
When a TRO Becomes an Injunction
A TRO that stays in force past the time limits of Rule 65(b) converts into a preliminary injunction for purposes of appeal.13 If the order runs beyond 28 days from its issuance, it is treated as a preliminary injunction.14 An order that holds a party in place for weeks without that party's consent does a preliminary injunction's work without a preliminary injunction's procedure. Conversion gives the restrained party the appeal that a true TRO would not offer, and it measures the order against a standard it never met. Sims v. Greene, 160 F.2d 512 (3d Cir. 1947), illustrates the point: an overextended TRO is reversed because it rests on a hearing too thin to support a preliminary injunction.15
An exam stem that calls an order a TRO does not end the analysis. The student should ask how long the order has lasted and whether the restrained party consented, because an order held past the Rule 65(b) limits is analyzed as a preliminary injunction, with the notice and hearing that label requires.