Purpose of a TRO

Temporary Restraining Orders

Purpose of a TRO

A plaintiff who asks a court to stop something often faces a timing problem: the harm will arrive before the court can hear from both sides. The temporary restraining order, or TRO, answers that problem. It is a stop-gap for a truly urgent situation, designed to preserve the status quo long enough for a hearing on a preliminary injunction. At that hearing the court dissolves the TRO if it is not justified or replaces it with a preliminary injunction that holds the status quo until trial.¹

The TRO belongs to a larger set of protections the law offers a plaintiff while a case is pending. A defendant may dispose of property or act in ways that render the requested relief ineffectual, so a plaintiff may invoke protective measures, typically called provisional remedies, until the merits are finally resolved.² In the injunction setting, courts grant interlocutory injunctions to maintain the status quo until a trial on the merits can be completed. TROs and preliminary injunctions are the two main types, and they differ in duration and evidentiary requirements.³

The preliminary injunction is the benchmark. Under Rule 65(a), it issues only after notice to the adverse party,⁴ so that the defendant has an opportunity to be heard first. The hearing is usually attenuated, and evidence may come in by affidavit, but it takes place. The injunction then remains in effect until it is dissolved, until the permanent injunction is in place, or until the case is dismissed.⁵ Measured against that benchmark, a TRO departs on three points:

• A TRO may issue without notice to the party restrained, while a preliminary injunction requires formal notice and an adversary hearing.⁶
• Enjoining a defendant when the court has had very little opportunity to receive evidence is an extraordinary remedy, and a TRO issued without notice does exactly that.⁷
• Under Rule 65(b)(2), a TRO issued without notice expires at the time the court sets, not to exceed 14 days after entry, unless the court extends it for good cause for a like period or the adverse party consents to a longer extension.⁸ A preliminary injunction, by contrast, lasts until trial or modification, which may mean years.⁹

The reason for this stripped-down order lies in the calendar. A noticed hearing takes time to arrange, and some harm will not wait: property is sold or destroyed, a secret is disclosed, a right is lost for good. The movant must therefore show that the harm will occur before the court can hold a hearing on a preliminary injunction.¹⁰ Rule 65(b)(2) reinforces the point, because an order issued without notice must describe the injury and state why it is irreparable.¹¹

Timing is therefore the working test. If the harm will arrive before a noticed hearing can be held, a TRO fits. If a hearing can be held first, the harm is not immediate in the sense the TRO requires, and the motion belongs under Rule 65(a).¹² A TRO is not a cheaper preliminary injunction; it is a different tool for a different clock.

The speed that makes a TRO useful also makes it dangerous. A party restrained by an order issued without notice learns that the order exists, but he is put under its constraints without an initial opportunity to present facts or argue his side.¹³ For that reason the court must set a time for a preliminary injunction hearing as soon as possible, to minimize the time of restraint without at least such a hearing.¹⁴ The moving party must also provide security, in an amount the court sets, to pay the costs and damages of an adverse party who was wrongfully enjoined or restrained.¹⁵ The sections that follow take up these safeguards in turn: when a court may issue an order without notice, what the order must contain, how it expires or is extended, and how the restrained party can challenge it.