Persons Bound by the Order

Persons Bound by the Order

Rule 65(d)(2) says who must obey an injunction, and it works as a limit as well as a grant. The order binds only the persons the rule lists, and only those who receive actual notice of it by personal service or otherwise.¹ Three groups make up the list: the parties; the parties' officers, agents, servants, employees, and attorneys; and other persons in active concert or participation with anyone in the first two groups.² The earlier sections of this chapter asked whether the judge wrote an order clear enough to support contempt. This section asks whether the person the movant wants to punish is someone the order can reach at all. Every contempt problem therefore has two parts: whether the person belongs to a listed group, and whether the person has received actual notice.

The list extends the order outward and then stops it. It extends the order because a defendant barred from shipping a product could simply tell an employee, an agent, or a cooperating business to ship it, and an order that bound only the defendant's name would be nullified through intermediaries. It stops where it does because courts may not punish “persons who act independently and whose rights have not been adjudged according to law.”³ A party has been before the court, and a person who serves a party or acts alongside one is the party acting through someone else. A stranger acting independently is neither. The subsections below take the groups in turn, then the notice condition, then the outer limit on the order's reach.

Parties to the Action

Rule 65(d)(2)(A) lists the parties first, and the other groups are defined by their connection to them.⁴ Subdivision (B) covers the parties' officers, agents, servants, employees, and attorneys, and subdivision (C) reaches persons in active concert or participation with anyone described in (A) or (B).⁵ A party to the lawsuit in which the order issues must obey it, with no further showing about the party's relationship to anyone else.⁶ The party is the easy case. The court has brought the party before it, the party could contest the claim, and the order restrains the party's own conduct. A contempt motion against a party therefore asks a fair question, whether this person disobeyed a command the court addressed to it, and the party cannot answer that it was a stranger to the proceeding that produced the command.

Party status alone does not make the order enforceable. A named defendant who has not yet learned that the court entered an order is not yet bound by it, because Rule 65(d)(2) binds the listed persons only after they receive actual notice.⁷ A defendant who took part in the litigation usually learns of the order quickly, which is why notice seldom troubles this group; the notice subsection below takes up what counts. For a party, then, the analysis has two steps: is the person a party, and has the person received actual notice of the order?

Party status also marks the edge of the court's power over people. In Regal Knitwear Co. v. NLRB, a case about a Labor Board order running to the employer's “successors and assigns,”⁸ the Supreme Court said that courts “may not grant an enforcement order or injunction so broad as to make punishable the conduct of persons who act independently and whose rights have not been adjudged according to law.”⁹ The sentence explains the party rule from the other side. A party is bound because its rights were put before the court. A stranger with no tie to any party, who does the forbidden act for reasons of its own, falls outside subdivision (A) and, having no relationship to a party, outside (B) and (C) as well. The wording of the order cannot change that.

Officers, Agents, and Attorneys

Rule 65(d)(2)(B) extends the order to the people through whom a party acts: “the parties' officers, agents, servants, employees, and attorneys.”¹¹ A corporation cannot ship a product, file a lien, or sign a contract except through human beings, and an individual party relies on lawyers and hired help. An order addressed only to the party's name would accomplish little unless it also governed those who carry out the party's business. They are bound as an extension of the party they serve, which is why the rule can reach them without a separate trial of any claim against them.

Real orders repeat the formula almost word for word. In Pennzoil Co. v. Texaco, Inc., a district court restrained Pennzoil from enforcing a Texas state-court judgment. The operative paragraph ran against Pennzoil Company, “its employees, agents, attorneys and servants,” and “all persons in active concert or participation with them who receive actual notice of this Order by personal service or otherwise.”¹² The order names the party, then the people who work for it, then outsiders who act alongside them, which is the sequence the rule uses. What it forbade shows why the middle group matters. It barred “any action of any kind whatsoever” to enforce the judgment, including obtaining or filing a judgment lien or abstract of judgment and beginning steps to execute on the judgment.¹³ A lawyer, a clerk, or an officer would take each of those steps for the company, so an order that stopped at the company's name would have left untouched the people who do the work.

The Supreme Court traced this reach in Regal Knitwear Co. v. NLRB to the common-law doctrine that a decree binds not only the defendants but also those identified with them in interest, in “privity” with them, represented by them, or subject to their control. Defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, even though the helpers were not parties to the original proceeding.¹⁴ Officers, employees, and agents are the clearest examples of people subject to a party's control, and an attorney acts on the party's behalf. What brings a person within subdivision (B) is the person's role in serving the party. A job title or a past association does not.

Because these people are bound by an order they did not write and often did not litigate, the order must also be clear to them. One court made the point with a nonparty officer in view: because of the risks of contempt proceedings, liberty and due process make it indispensable that the judge speak “clearly, explicitly, and specifically” if a violation is to expose a litigant, “not to mention . . . a third person who is not a party of record but merely an officer of a party,” to coercive or penal measures. Rule 65(d), the court added, “is a page from the book of liberty.”¹⁵ The contents requirements therefore protect the persons listed in (B) as much as the named defendant. An officer, employee, or attorney can be held in contempt only for violating an order that states its reasons, states its terms specifically, and describes the restrained acts in reasonable detail in its own text rather than by referring to the complaint or another document.¹⁶

The manager falls within subdivision (B) because she is the company's instrument, carrying out its business in violation of the order, so contempt is available against her as well as the company. The former driver acts on his own account, and nothing ties his trip to the company's conduct, so (B) does not reach him. That result does not mean former employees are never bound. Had the company asked him to make the crossing, or had he helped the company evade the order, he would be reachable as a person in active concert or participation, the category taken up next.¹⁷ Exam stems err in two directions. One assumes that every person with a title at the party is bound whatever the person is doing. The other assumes that a person who is not a named defendant cannot be held in contempt. The test is whether the person is serving the party, so role and conduct decide the question, and the caption does not.

Active Concert or Participation

Rule 65(d)(2)(C) reaches “other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B),” which means with a party or with a party's officers, agents, servants, employees, or attorneys.¹⁹ The first two groups are bound because of what the persons are: a party, or someone who serves one. This group is bound because of what the persons do. The reason is practical. An injunction commands particular people, and a defendant who finds the command inconvenient can look outside the order for someone to carry out the forbidden act, such as a friend, a business associate, or a buyer. An order that stopped at the first two groups would fail whenever the defendant delegated the act to an outsider.

The Supreme Court traced the clause to the doctrine already described: defendants “may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding.”²⁰ Courts sometimes say the same thing by saying that those who aid and abet the defendant are covered.²¹ The doctrine carries its own limit, since a nonparty can be punished only for taking part in the party's violation. re Rothko, a New York decision, quoted Judge Learned Hand to that effect: “the only occasion when a person not a party may be punished, is when he has helped to bring about, not merely what the decree has forbidden, because it may have gone too far, but what it has power to forbid, an act of a party.”²²

Because the clause tests helping, the inquiry looks at the nonparty's relations and behavior. In Hassell v. Bird, a California Supreme Court opinion quoted Regal Knitwear for the point that whether an injunction may be enforced against a nonparty “depends on an appraisal of his relations and behavior and not upon mere construction of terms of the order.”²³ The same opinion adds that notice is not enough. A nonparty “must not only have notice of it, but must have aided, abetted, acted in collusion with or in assertion of the enjoined defendant's rights, or otherwise acted in concert with or support of the enjoined defendant to violate the injunction.”²⁴ Notice and concert are separate findings, and both are required. The opinion applies California law alongside federal law, so it illustrates the doctrine without controlling a federal case.

The standard examples show the inquiry on facts that satisfy it. If Mr. Weiss is enjoined from using premises for illegal liquor sales or prostitution, he is liable for contempt if he continues, and so is Fifi Belondon if she makes the forbidden sale or provides the forbidden service on his behalf. If the order requires a defendant to sell Blackacre to the plaintiff, or not to sell it to anyone else, the defendant is bound, and so is the purchaser who knowingly aids the violation by buying the property.²⁵ In Rothko, the nonparty was Lloyd, who acknowledged that he controlled the entire Marlborough complex and who, knowing of a temporary restraining order, acted in collusion with the restrained Marlborough parties in selling and disposing of many paintings. The court held him in contempt although he was not a party to the main proceeding and no one had served him with a certified copy of the order.²⁶

An exam stem that describes a nonparty who knew of the order and then did the forbidden thing invites two opposite mistakes. One treats nonparty status as a defense, which these examples reject. The other treats knowledge of the order as enough, which overlooks that the clause also demands participation with the party. One pair of facts separates a bound nonparty from a free one.

The painter helped bring about the very act the order forbids the bakery to commit, so the painter acts in concert with a party and, having notice, is subject to contempt. The distant bakery knows of the order, yet its use of the name is its own act, taken without any connection to the enjoined bakery. It falls outside the clause, and whether it infringes anything is a separate question that would need its own lawsuit. Knowledge supplies one half of the rule and the painter's participation supplies the other, which is why the painter is bound and the distant bakery is not. The distant bakery's position matches the limit stated earlier: courts may not make punishable the conduct of persons who act independently and whose rights have not been adjudged.²⁷

The next question is when concert gets decided. An order cannot list the people who will someday help a party violate it, because nobody knows who they will be when the order is entered, so it names the parties and refers to those who act with them. Hassell explains that findings on a nonparty's notice and participation may be made at a contempt hearing, when the plaintiff seeks to enforce the injunction against that nonparty.²⁸ The nonparty can contest concert there. The opinion describes California decisions that went each way: contempt was upheld where nonparties conceded notice and knowingly voted to defy the order, and it was vacated where the record held neither a charge nor findings that the petitioner disobeyed the injunction.²⁹ Rothko followed the same sequence. The court found that Lloyd had actual knowledge of the restraining order and had acted in collusion with the restrained parties, and his attorneys appeared for him when contempt was alleged.³⁰

A clause that reaches people acting together might seem to threaten association, but it is aimed at joint action to violate the order. In Madsen v. Women's Health Center, Inc., the Supreme Court rejected a freedom-of-association objection to an injunction, observing that the petitioners were not enjoined from associating with others or from joining them to express a particular viewpoint. The freedom of association, the Court said, “does not extend to joining with others for the purpose of depriving third parties of their lawful rights.”³¹ How the clause applies to a party's successors and transferees has its own rules, taken up next.

Successors and Transferees

No entry in Rule 65(d)(2) is labeled successor or assign.³³ Orders nonetheless often run to the defendant's “successors and assigns,” and a plaintiff who fears that the defendant will sell the business after the order issues is tempted to treat those words as a separate source of reach. Two concerns pull against each other. A later buyer is usually a stranger to the lawsuit, so the order should not follow the business automatically. Yet a defendant who could shed a decree by selling the enterprise to someone who will carry on the same conduct would hold the power to cancel the court's order. The decisions resolve the tension by examining the successor's own relationship to the defendant, and the label does no independent work.

Regal Knitwear supplies the first half of the answer. The Court explained that successors and assigns may be “instrumentalities through which defendant seeks to evade an order” or may come within the description of persons in active concert or participation with the defendant in the violation, and that if they do, “by that fact they are brought within scope of contempt proceedings by the rules of civil procedure.”³⁴ The Court read the decisions it relied on as turning on “not merely . . . succession, but . . . a relation between the defendant and the successor which might of itself establish liability within the terms of Rule 65.”³⁵ The Court refused to strike the phrase from the order,³⁶ but it did not treat the phrase as a source of reach. It describes, at most, successors the rule already covers.

The new company is the old business operating under another name, an instrument of evasion, so it is within the contempt power however the sale is described. Had the order omitted the words “successors and assigns,” the result would be the same, because the reach depends on the new company's relationship to Dunmore.

A buyer whose only tie to the defendant is the word “successor” in the order stands differently, because the plaintiff must show a relationship that the words do not supply. A sham transfer is the easy case. The hard case is a genuine buyer that deals at arm's length, and Golden State Bottling Co. v. NLRB addressed that buyer. The petitioners argued that Regal Knitwear made Rule 65(d) a bar to enforcing Board orders against bona fide successors, and the Supreme Court rejected the argument. It read Regal Knitwear as recognizing that the rule is not a bar to enforcing every Board order that runs to successors or assigns who were not themselves offending employers, and as leaving open whether the rule precludes enforcement against a bona fide purchaser. It answered the open question by holding that the rule does not bar enforcing the Board order against the bona fide successor in that case.³⁷

The Court's route ran through privity, the relationship of shared interest that lets a decree reach someone identified with a party. It held that “a bona fide purchaser, acquiring, with knowledge that the wrong remains unremedied, the employing enterprise which was the locus of the unfair labor practice, may be considered in privity with its predecessor for purposes of Rule 65 (d).”³⁸ The Court has read the rule to include persons in privity with the parties as well as those who aid and abet them, and Golden State is the standard example.³⁹ Each part of the holding's wording does work. The words bona fide mark a genuine sale, so this route reaches buyers who are not instruments of evasion. The requirement that the buyer acquire the enterprise where the wrong occurred ties the order to the business in which the wrong was done. The knowledge requirement means the buyer takes over with the unremedied wrong in view. The practical stake is plain: without a rule of this kind, a party could escape a decree by selling the business to someone who will carry on the same conduct.

Two cautions keep the holding from being overread. The case involved a Board order and a purchaser that had knowledge, so it does not decide what happens to a purchaser that lacked knowledge. An answer should not assert that such a buyer is necessarily free or that it is necessarily bound. The two decisions also ask different questions. Regal Knitwear asks whether the successor is a vehicle for the defendant's evasion or acts together with the defendant. Golden State asks whether a genuine buyer of the enterprise stands in the seller's shoes because it bought with knowledge that the wrong remained unremedied. A student who runs only the first question will miss the genuine buyer, and one who runs only the second will miss the sham.

Steps three and four do the work, and they are alternatives: either can bring a successor within the order. The usual errors run in opposite directions. One treats the label as binding every buyer, and the other treats any sale as ending the order's reach.

Actual Notice Requirement

Rule 65(d)(2) attaches one condition to every listed group. The order binds the parties, their officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them, but only if they receive actual notice of it by personal service or otherwise.⁴¹ The categories settle who can be reached by an injunction, and the notice condition settles when the duty to obey begins. Both must be met. A named defendant who has not yet heard that an order was entered belongs to a listed category and still lacks notice, so the order does not yet bind that defendant. A stranger who knows every detail of the order has notice and still lacks a place on the list, so knowledge alone never makes a person subject to contempt.

The rule insists on notice because of what contempt punishes. Contempt sanctions disobedience of a command, and a person cannot disobey a command it has no way of knowing exists. If an order bound its addressees from the moment the judge signed it, a defendant could be punished for conduct that looked lawful when done. The risk is greatest when relief is entered before the defendant has been heard. Provisional relief is not unique to injunctions, and some of it can be had ex parte, even without any judicial process, as when a plaintiff files a lis pendens notice or a notice of a mechanics' lien.⁴² Suppose a court enters an order on the plaintiff's application alone. The defendant has had no chance to be heard before the command issues, and the notice condition keeps the duty to obey from starting until the defendant learns of it. Notice also serves due process for nonparties. Hassell treats proper notice as the means by which an injunction vindicates the due process rights of the nonparties to whom it may run.⁴³

Two different notices are easy to confuse. Notice of the application is what a defendant receives before the court rules, a chance to appear and oppose. Notice of the order is what a person receives after the court rules, knowledge that a command now exists. Rule 65(d)(2) speaks only to the second: the order binds those who receive actual notice “of it.”⁴⁴ Hassell, drawing on the Supreme Court's decision in In re Lennon, made the point for a nonparty. It is immaterial whether the person had notice of the application or was actually served with a copy, so long as the person had actual notice that the court had issued the injunction.⁴⁵ A defendant who knew of the hearing but has not learned the ruling is therefore not yet bound, and a listed person who knew nothing of the application is bound once the person learns that the order issued.

The words “or otherwise” make the test turn on whether the person actually learned of the order.⁴⁶ Personal service is the surest proof, but the rule accepts any means by which the person comes to know the order exists. Rothko applied the same idea to Lloyd. The court found that he had actual knowledge of the temporary restraining order as of the day it issued, and that his acknowledgment that he controlled the entire Marlborough complex imputed that knowledge to him in any event. That no one had served him with a certified copy was no defense to contempt.⁴⁷ Rothko arose under New York procedure and not under Rule 65(d)(2), so it illustrates the principle without controlling a federal case. It also shows how the two conditions divide the work. Lloyd's collusion with the restrained parties supplied his connection to a party, and his knowledge of the order fixed when his duty began.

The Friday shipment violates no obligation, because the distributor had not yet received actual notice of the order, however clearly the order was worded. The Monday shipment follows actual notice by a means other than personal service, so it can support contempt, and no process server was needed. The only fact that moved between the two shipments was what the distributor knew. A stem that stresses that the defendant never heard about the hearing invites the conclusion that the order cannot bind, and that conclusion fails once the defendant learns the order issued. A stem that stresses how precise the order was invites the opposite error, since clear drafting cannot create a duty in someone who does not yet know the order exists.

Notice is a necessary condition and never a sufficient one. The injunction binds persons who have notice of the order and who also act in active concert or participation with a party, so knowledge is half of the showing.⁴⁸ Hassell makes the same point for nonparties, who must have aided, abetted, or colluded with the enjoined party to violate the order.⁴⁹ A nonparty who merely reads about the order in the news has the first half and lacks the second.

No Binding the World

Because Rule 65(d)(2) says the order binds only the listed groups, a federal court cannot issue an injunction that purports to bind the world at large.⁵¹ In Kean v. Hurley, 179 F.2d 888 (8th Cir. 1950), the court held that a federal injunction against trespass that purported to bind the world at large exceeded the scope of Rule 65(d).⁵² Other federal opinions likewise treat the rule as a limit. The earlier subsections asked who falls inside the list. This one asks what happens to an order that reaches past it.

The line holds because each listed group has a connection to the lawsuit that makes obedience fair to demand, and a stranger has none. A party is before the court. An officer, employee, or other helper stands in the party's place or acts alongside it, and the rule reaches those people so that a defendant cannot nullify a decree by carrying out prohibited acts through them.⁵³ A person who acts independently, and whose rights no court has adjudged, shares neither connection. There is also a structural objection. An injunction that bound everyone would act like a statute, and a court that issued one would be doing a legislature's work.⁵⁴

The guide acts with the enjoined parties, so the first version binds the guide and contempt is available. The traveler knew of the order but acts independently, so the first version does not reach the traveler. The second version's broader wording cannot make the traveler punishable for contempt either, because a federal order cannot extend past the persons the rule lists. The rancher's remedy against the traveler is a separate suit, in which the traveler can contest the claim. Both the guide and the traveler knew of the order, so knowledge cannot be what separates them. The difference is connection to a party, which is the thing the list in Rule 65(d)(2) measures and the broader wording tried to dispense with.

State courts have not always drawn the line where the federal rule does. They derive contempt power from statutes similar to 18 U.S.C. § 401, from constitutional grants, or from inherent power, and some read it more broadly than federal courts; some have treated an outburst just outside the courtroom door as within the court's “presence” for summary contempt.⁵⁵ Orders drafted for such courts can reach further than the federal categories. The injunction in Walker v. City of Birmingham ran to the named respondents and others identified in the bill of complaint, their agents, members, employees, servants, followers, attorneys, successors, and all other persons in active concert or participation with the respondents, and then added “all persons having notice of said order.”⁵⁶ The first part of that list tracks the federal categories. The last clause reaches anyone who has heard of the order, whether or not the person has any tie to a respondent. A few state courts have gone further still and taken the position that once a court acquires jurisdiction over a thing, its order can protect the thing against everyone, as with an injunction against trespass on a parcel of land. Silvers v. Traverse, an 1891 Iowa decision, applied an injunction against selling liquor on certain property to all the world, so that a nonparty unrelated to the defendant was held in contempt, and State v. Porter (Kan. 1907) and State v. Terry (Wash. 1917) are cited for the same position. Those courts relied on their inherent power to preserve their orders.⁵⁷ These are state-law positions. They show how far an order can reach when no rule like Rule 65(d)(2) confines it, and they do not describe what a federal court may do.

The one well-known federal departure is United States v. Hall, a Fifth Circuit decision from 1972, decided in the years of school-desegregation litigation that followed Brown v. Board of Education.⁵⁸ Hall was not a party, but he was served with a noninterference order that purported to bind anyone with notice, and he blocked a school entrance. The court upheld his criminal contempt conviction under its inherent power to preserve its judgment, calling Rule 65(d) a “codification rather than a limitation of courts' common-law powers.”⁵⁹ That reading conflicts with other federal opinions, which treat the rule as a limit. The opinion arose in a time of great stress on the federal courts, has been widely criticized by commentators, and has generally been limited to its facts.⁶⁰ On an exam, Hall is an exception to name and confine. It is not a general license for a federal court to bind everyone who has notice.

The boundary matters most because of the Walker principle, which does not permit collateral attack on a court order.⁶¹ In Walker, city officials obtained an ex parte order from a state court judge prohibiting demonstration organizers from violating a parade-permit ordinance. After being served, the organizers announced that they would not be intimidated by the “raw tyranny” of the court and held the demonstration anyway, and the trial court held them in criminal contempt.⁶² A bound person who disobeys therefore cannot defend the contempt charge by attacking the order's validity. A person who is not bound has a different and complete answer: no command ever reached that person. An order drafted to bind the world would expose strangers to punishment without any trial of a claim against them and without a chance to contest the order in the contempt hearing, which is why the limit on who is bound carries so much weight.