June 04, 2018 Practice Points

Preparing for and Obtaining Preliminary Injunctive Relief

By Anna Majestro

Injunctive relief is an important remedy sought in many types of cases, including employment, trade secret, and breach of fiduciary duty cases. Courts issue injunctive relief in order to require or prevent a party from taking certain actions in instances where monetary damages are not adequate to compensate a plaintiff for his or her injuries. Injunctive relief can be issued by a court before the case is decided on the merits in the form of a temporary restraining order (TRO) or preliminary injunction (PI). Preparing for a hearing to obtain preliminary injunctive relief can be challenging because of the generally short timeframe from the time the motion is filed to the hearing. This article focuses on tips to prepare for and obtain preliminary injunctive relief.

Comparing TROs and PIs
A TRO is issued by a court on an expedited basis to preserve the status quo in order to prevent immediate irreparable harm to the moving party prior to a decision on the merits of the case. A TRO can be issued by a court ex parte in the absence of the opposing party, but only for a limited period of time. For example, in federal court, a TRO can only be issued for up to 14 days, which can be extended only once by the court for good cause shown. On the other hand, the timeline for the issuance of a PI is ordinarily not so expedited, so that the parties typically have more time to prepare for the hearing. Once issued a PI remains in effect throughout the pendency of the litigation, unless later modified by the court.

The test used by the court for evaluating a motion for a TRO and PI is generally the same. Although the test for obtaining a TRO or PI may vary slightly across jurisdictions, generally a plaintiff seeking preliminary injunctive relief must satisfy a four-factor test: (1) that he or she is likely to succeed on the merits of his claims; (2) that he or she is likely to suffer irreparable harm without preliminary relief; (3) the balance of equities between the parties support an injunction; and (4) the injunction is in the public interest. The court is likely to more heavily scrutinize the factors when considering a PI than a TRO.

Tip 1: Select Your Court Wisely.
Choosing the court to file your case in is vitally important when seeking preliminary injunctive relief. Consider the different courts available to you to file your case and research and evaluate whether the judges who may hear your motion (and the remainder of your case) in each court are likely to grant the relief you seek. If your case is based on a federal question or diversity jurisdiction is present, considering filing your case in federal court. If your jurisdiction has a business court, filing the case there may also be a good option. Both federal district courts and business courts likely have more expertise with injunctions and may better understand the issues present in your case.

Tip 2: Use the Complaint as the Starting Point.
While any preliminary relief must be requested in a motion and is typically supported by a brief, it is beneficial to utilize the complaint as a starting point to begin to argue for the relief you are requesting. Because it is likely the first pleading that the judge deciding your motion will read, it can be valuable to use the complaint to make a strong case for why your client is entitled to preliminary injunctive relief. The complaint should clearly lay out how the case satisfies all of the necessary elements for a preliminary injunction in your jurisdiction. If you are seeking a TRO, consider having someone with knowledge of the facts alleged in the complaint verify the complaint. This eliminates the need to draft affidavits, which saved time can be used to prepare for the hearing. Although a verified complaint alone is also adequate at the preliminary injunction stage, if time allows, consider using multiple affidavits to build credibility on the facts contained in the verified complaint.   

Tip 3: Consider Seeking Expedited Discovery.
Rule 26(d) of the Federal Rules of Civil Procedure (and comparable state court rules) allow courts to adjust the timing and sequence for conducting discovery. This gives courts the discretion to order discovery on an expedited basis, so that it can be conducted prior to a preliminary injunction hearing. Courts generally grant a motion for expedited discovery for good cause shown, or through an evaluation of the abovementioned preliminary injunctive relief elements. Expedited discovery can be sought on discrete issues that will bolter your case for injunctive relief. While this process adds to the amount of work that must be completed in an already short timeframe, it can uncover invaluable evidence to support your motion.

Tip 4: Know All the Facts.
In the rush to prepare a brief, supporting affidavits, and potentially conducting expedited discovery, it is easy to lose sight of preparing to argue your motion before the court. Make sure that this task does not fall to the wayside. While completing these other necessary tasks will jump start your hearing preparation, it is critical to spend time getting to know all the facts that support your arguments and to anticipate and prepare counterarguments to the points likely to be raised by defense counsel and the court. Even in an ex parte TRO hearing, expect the judge to heavily scrutinize the evidence you present. By knowing the facts and your supporting evidence, you can confidently present your case to the court, which will bolster your claim for relief.

Conclusion
Seeking preliminary injunctive relief can be a challenge given the lack of time to prepare for and argue your case to the court. You can prepare for some of these difficulties early on by seeking out a court more likely to grant your motion and by tailoring the complaint to the elements you will need to establish to obtain preliminary injunctive relief. Consider requesting expedited discovery to gain critically important evidence to support your claims. Finally, by making yourself an expert on the facts and evidence to support your motion at the hearing on your motion, you can better position yourself for a successful outcome.

Anna Majestro is with Nelson Mullins Riley & Scarborough LLP, Charlotte, North Carolina.


Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).