13.5 INJUNCTIONS
13.501 In General. An injunction is a court order requiring the defendant to perform or refrain from performing some specified action or actions under the threat of punishment by the court for contempt.
There are two broad classifications of injunctions. Mandatory injunctions require the defendant to take a specific action and are designed "'to undo an existing wrongful condition' that is likely to continue in the absence of an injunction." 243 Prohibitory injunctions are designed "not to repair or penalize
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a wrong previously consummated, but either to maintain the status quo, to restrain the continued commission of an ongoing wrong, or to prevent the future commission of an anticipated wrong." 244 As noted above, in the context of contract disputes, a plaintiff endeavoring to force a defendant to perform a contractual obligation would typically sue for specific performance rather than for a mandatory injunction. Contracts often include obligations on the part of one or more parties to refrain from specified actions, and in such cases, a prohibitory injunction would be appropriate to force compliance.
13.502 Statutory Authority to Award Injunctions. Section 8.01-620 of the Virginia Code gives every circuit court jurisdiction to award injunctions "whether the judgment or proceeding enjoined be in or out of the circuit, or the party against whose proceedings the injunction be asked resides in or out of the circuit." This language suggests that a circuit court can issue an injunction against any party subject to jurisdiction in Virginia. Section 8.01-627 confirms this reading by providing that injunction orders "shall be directed to the clerk of the court which has venue under § 8.01-261 and the proceedings thereupon shall be as if the order has been made by such court." Although the statutes have been amended over the years, the rule in Virginia still appears to be as set forth in County School Board v. Snead, 245 Morgan v. Pennsylvania Railroad Co., 246 and Randolph v. Tucker. 247 These cases hold that the circuit courts have statewide jurisdiction to hear and decide petitions for injunctions as long as the proper parties are before them, but the statutes only grant jurisdiction—not venue—and thus the case should normally be transferred to the appropriate venue for further proceedings and trial on the merits.
This statutory authority is granted only to the circuit courts; general district courts do not have these powers.
13.503 Temporary and Permanent Injunctions.
A. In General. A plaintiff seeking an injunction may seek temporary or permanent relief. The procedure and terminology for seeking temporary
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or permanent injunctive relief differ depending on whether the proceeding is in state court or federal court.
B. State Court. Section 8.01-624 of the Virginia Code specifically recognizes the authority to grant a temporary injunction. A temporary injunction may be issued with or without notice to the adverse party, but in issuing a temporary injunction, the court "shall prescribe in the injunction order the time during which such injunction shall be effective and at the expiration of that time such injunction shall stand dissolved unless, before the expiration thereof, it be enlarged." 248 The statute further provides that a temporary injunction may be enlarged "or a further injunction granted" only after reasonable notice to the adverse party. 249
A permanent injunction is granted after trial on the merits, in the court's discretion, and if the appropriate standard of proof is met. 250
C. Federal Court.
1. In General. Federal practice recognizes three distinct types of injunctive relief. Rule 65 of the Federal Rules of Civil Procedure permits a district court judge to enter an injunction that will remain in place pending the trial or other disposition of the case. The rule distinguishes between a "preliminary injunction" and a "temporary restraining order."
2. Temporary Restraining Order. A temporary restraining order (TRO) may be entered under Rule 65(b) of the Federal Rules of Civil Procedure. Issuance of a TRO is generally governed by the same standards that apply to preliminary injunctions (outlined below), 251 except that:
| | A TRO may be issued without notice to the adverse party or its attorney if immediate and irreparable harm will result before the adversary can be heard and the applicant's attorney certifies in writing either the efforts he or she |
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| | has made to provide notice or the reasons notice should not be required; | ||
| 2. | A TRO must define the nature of the injury, state why it is irreparable, and explain why the TRO was entered without notice; and | ||
| 3. | A TRO expires by its terms within the time stated therein, which cannot exceed 10 days. |
3. Preliminary Injunction. A district court judge may also enter a preliminary injunction that will remain in place pending the trial or other disposition of the case. Notice to the adverse party is required for issuance of a preliminary injunction. Rule 65(c) of the Federal Rules of Civil Procedure requires that the party obtaining a TRO or preliminary injunction must post security (typically a bond). The rules further require that a TRO or preliminary injunction (i) must set forth the reasons it is being issued; (ii) must be specific in its terms; (iii) must describe the conduct being enjoined "in reasonable detail—and not by referring to the complaint or other document"; and (iv) is binding only upon parties who receive actual notice of the order "by personal service or otherwise." 252
4. Permanent Injunction. As in state courts, permanent injunctive relief is granted after trial or other disposition of the case on the merits if the appropriate standard of proof is met.
13.504 Standards for Granting Injunctive Relief. The United States Supreme Court's decision in Winter v. Natural Resources Defense Council 253 dramatically altered the test for obtaining preliminary injunctive relief in the federal courts. In Winter, the Court held that a party seeking a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure is required to make a clear showing that (i) he is likely to succeed on the merits; (ii) he is likely to suffer irreparable harm in the absence of preliminary relief ; (iii) the balance of equities tips in his favor; and (iv) an injunction would be in the public interest. 254 All four requirements must be
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satisfied. 255 Pre-Winter case law relying on the "balance of hardships" test articulated in Blackwelder Furniture Co. v. Seilig Manufacturing Co. 256 is no longer controlling. 257
The Virginia Supreme Court directly addressed the standard for a grant of preliminary (temporary) injunctive relief in Levisa Coal Co. v. Consolidation Coal Co. 258 As the court explained, "We have also observed that unless a party is entitled to an injunction pursuant to a statute, a party must establish the 'traditional prerequisites, i.e., irreparable harm and lack of an adequate remedy at law' before a request for injunctive relief will be sustained." 259 The court then explained in more detail how the standard operates in certain contract cases:
When an injunction is sought to enforce a contract right concerning personal property, the plaintiff has a high burden of showing that the failure to enjoin the alleged improper action will result in irreparable harm for which the law will afford him no adequate remedy. Unless the plaintiff can demonstrate that the property it seeks to protect has some personal value of sentiment or other intangible quality that cannot be restored to him at law, or that monetary damages would otherwise not make him whole, the court will deny the injunction because the legal remedy is sufficient. Accordingly, in such cases, the court will give due
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weight to the adverse effect of the injunction being granted on the defendant. 260
Several court decisions suggest that "irreparable injury" means the same thing as "no adequate remedy at law." As stated in Woods v. Early, 261 "[b]y the term irreparable injury it is not meant that there must be no physical possibility of repairing the injury; all that is meant is, that the injury would be a grievous one, or at least a material one, and not adequately reparable in damages." 262 Moreover, the "irreparable injury" element of the test looks to the future to determine whether there is a significant threat that the wrongful conduct will continue. 263
Into this mix must be placed the traditional "balancing of the equities" that the court must undertake in deciding whether to grant injunctive relief on the facts of the particular case. 264 This balancing test includes consideration of the interests of the parties and of the public as well as the harm that the injunction would cause to the defendant in proportion to the injury to the plaintiff. 265
The standard for permanent injunctive relief is the same in federal and state court. A permanent injunction should issue "where (i) there is no adequate remedy at law, (ii) the balance of the equities favors the moving party, and (iii) the public interest is served." 266 Nevertheless, injunctive relief, like specific performance, is not a matter of right but lies within the discretion of the court. 267
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13.505 Procedural Issues in Obtaining Injunctive Relief.
A. Initial Pleadings. An action for injunctive relief is begun in a state court by filing a complaint. In light of section 8.01-628 of the Virginia Code, 268 it is advisable for counsel to support the request with an affidavit or by filing a verified complaint. 269 While the affidavit may, in some cases, be sufficient to obtain a temporary injunction, the court will typically require the presentation of some evidence at a hearing unless there is a compelling reason to proceed on affidavits alone.
If temporary injunctive relief is being sought, the...
