Chapter 65 Injunctions; Mandamus, Habeas Corpus, and Other Remedial Writs

(a) Temporary Injunction; Notice. No temporary injunction shall be issued without notice to the adverse party.

(b) Temporary Restraining Order; Notice; Hearing; Duration. No temporary restraining order shall be granted without notice of motion for the order to the adverse party unless it clearly appears from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall be served, together with a summons and complaint in the event no summons and complaint have previously been served in the action, upon the adverse party in accordance with the provisions of Rule 4; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a temporary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a temporary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

(c) Security. Except in divorce, child custody and non-support actions where the giving of security is discretionary, no restraining order or temporary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the State or of an officer or agency thereof. A surety upon a bond or undertaking under this rule submits himself to the jurisdiction of the court and irrevocably appoints the clerk of court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of court who shall forthwith mail copies to the persons giving the security if their addresses are known.

(d) Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

(e) Injunction to Suspend Business. No temporary restraining order shall be granted to suspend the general and ordinary business of an individual, partnership, association or corporation. Same may be suspended only by injunction after notice.

(f) (1) Remedial Writs. No writ of mandamus, habeas corpus, or other remedial writ shall be granted without notice of motion for the writ to the adverse party, which notice shall be served, together with the summons and complaint, in event no summons and complaint have previously been filed and served in the action, upon the adverse party in accordance with the provisions of Rules 4 and 5. Such notice and motion shall be supported by affidavit or verified complaint setting forth clearly the facts entitling the moving party to such writ. The motion shall be heard upon such notice as the court may prescribe, and the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. Unless a different time be prescribed by the court, the adverse party shall plead to the complaint and respond to such motion in the time prescribed by these rules for other civil actions.

(2) Damages; Costs; Fees. A claim for any other relief to which a party may be entitled in the action may be joined with a claim for writ of mandamus, habeas corpus, or other remedial writ, in accordance with these rules, including a claim for damages. The prevailing party upon the motion for such writ shall be entitled to recover costs in accordance with the practice as it heretofore existed in the courts of this State, including attorneys['] fees where proper.

This Rule 65, except for the additions concerning mandamus, habeas corpus and other remedial writs, is substantially the Federal Rule which, in turn, is very much the same as present State practice. To conform to the "one form of action" requirement of Rule 2, a summons and verified complaint must be filed and served with the notice and motion for temporary injunction, unless the action has already been commenced by filing and service of the summons and complaint. An action may no longer be commenced by the service of an order or "rule to show cause" only. This Rule 65 makes it clear that the various remedial writs are not causes of action but remedies or relief, the right to which must be supported by the law and the facts. Therefore, the injunction or other writ granted does not become permanent or final until final judgment in the action. Rule 65(f) is added to the Federal Rule to both preserve and modernize the procedure for obtaining other remedial writs in addition to injunction.

This amendment [to Rule 65(c)] makes clear that the court may, but need not, order the applicant seeking an injunction or restraining order in a Family Court case to give security.

A. Introduction

An injunction is an equitable remedy, not a matter of legal right,² and it is committed to the discretion of the court and granted when a review of all of the evidence establishes that it is necessary to prevent irreparable harm.³ The injunction is a drastic remedy and should be carefully considered and granted only when legal rights are invaded or legal duties wantonly neglected.⁴ Generally, an injunction prohibits a party from taking designated action,⁵ but in rare cases may be used to direct parties to take certain action.

Some matters are not subject to an injunction. The court will not enjoin legislative action, so the adoption of an ordinance will not be restrained.⁶ Nor will the court interfere with the discretionary power of an administrative agency to investigate matters within its jurisdiction, absent fraud or abuse of power.⁷ An injunction may not be the proper remedy to ensure that the plaintiff will be able to collect a judgment.⁸ Attachment is the appropriate remedy for that situation. Generally, courts will not enjoin the commission of a crime, but the fact that the wrongs complained of may also carry criminal penalties will not prevent an injunction when the other factors are present.⁹

Rule 65 describes three types of injunctions. The temporary restraining order (or TRO) preserves the status quo for a short period during which the parties may seek a temporary injunction. It may be issued ex parte in exigent circumstances. The preliminary injunction is issued after notice and hearing and is effective during the litigation. Finally, the permanent injunction is issued as part of the judgment. In all instances, there must be a pending case, commenced with a summons and complaint,¹⁰ stating a valid cause of action.¹¹

The grant or denial of injunctive relief is immediately appealable.¹²Violations of an injunction may be punished by contempt.¹³

B. Standards for Temporary Injunctive Relief

The purpose of a temporary restraining order or a preliminary injunction is to preserve the status quo and avoid an irreparable loss to the aggrieved party during the litigation.¹⁴ Assuming that the complaint states a cause of action, and it and the summons have been properly served, the requirements for a temporary restraining order or a temporary injunction are: (1) the movant will suffer irreparable harm if the injunction is not granted; (2) the movant has a likelihood of success on the merits; and (3) there is no adequate remedy at law.¹⁵ Balancing the interests of the parties is not an element because it is subsumed in the requirements for irreparable injury and lack of an adequate remedy at law.¹⁶ Presumably, the public interest, a consideration in the federal courts, also is subsumed in the three factors.¹⁷ These factors should appear in the pleadings¹⁸ or be established at a hearing.¹⁹

Irreparable injury means that the injunction is reasonably necessary to protect the rights of the plaintiff pending the litigation.²⁰ This notion implies that there is a lack of an adequate remedy at law. An adequate cause of action at law may make an injunction unnecessary.²¹

A temporary injunction will not be issued if the injury has already occurred although a permanent injunction may be granted after a trial.²²...