Notice Requirement

Notice Requirement

A court may not issue a preliminary injunction until the defendant has been told the plaintiff is asking for one. Rule 65(a)(1) says so in a single sentence: "The court may issue a preliminary injunction only on notice to the adverse party."¹ The adverse party is the person the order would restrain, and the notice must reach that person before the court acts on the application. Because the sentence limits what the court may do, notice is a precondition to issuance. However persuasive the plaintiff's papers, the court has no power to enter the order on an application the defendant has not been notified of.

The rule therefore forbids the ex parte preliminary injunction, an order entered on one side's application with the other side absent and uninformed.² The temporary restraining order differs. Rule 65(b) permits a TRO to be entered ex parte, but only on a specific showing that immediate and irreparable harm will result before the opposing party could be notified and heard.³ The word "only" in Rule 65(a)(1) draws a bright line. A judge cannot weigh the plaintiff's urgency against the defendant's interest in being told and decide to skip notice just this once.

The line is categorical because of what a preliminary injunction does. It is a provisional remedy, a protective measure that operates while the merits remain undecided so that the defendant's conduct does not make the plaintiff's eventual relief ineffectual.⁴ The order therefore binds the defendant before any court has decided who is right, and a defendant who is in the right can be hurt by it. Notice lets that defendant appear, dispute the plaintiff's account of the facts, and point to the harm the order would cause. That harm bears on the outcome, because, as the later sections show, the court weighs the hardship to each side before it grants relief.

A second reason is constitutional. A preliminary injunction motion requires notice to the defendant and an opportunity to be heard, and so it clearly meets the constitutional requirement of notice and hearing.⁵

The rule can afford to be rigid because the law supplies another route when harm cannot wait. A plaintiff who needs protection before notice can be given asks for a TRO, which carries its own conditions, and the next section takes them up. An urgent case therefore gives a court no reason to bend Rule 65(a)(1). The court applies it as written, and the plaintiff moves under Rule 65(b) instead.⁶

Exam questions on this rule usually attach the words "preliminary injunction" to a procedure that skipped the defendant. Ask one question: was the adverse party told of the application before the order issued? The answer controls, whatever the order is called.

The caption did no work there, and the missing notice decided everything. A second dispute shows the rule satisfied.

Notice leads directly to the hearing. The text of Rule 65(a)(1) mentions notice and says nothing of a hearing, but notice means little unless the defendant can appear and respond. The motion calls for notice and an opportunity to be heard,⁷ so the plaintiff's case for relief is tested with the defendant present. The sections on the injunction hearing explain what that hearing requires.

Notice opens the door and does not win the injunction. The plaintiff must still meet the substantive standard, which the sections below set out. Courts differ at the margins. The Second, Seventh, and Ninth Circuits have concluded that a court may still grant relief on a serious question going to the merits when the movant also shows grave irreparable harm and a balance of equities that tips heavily in its favor.⁸