Concept
Issuing Without Notice
Temporary restraining order
Issuing Without Notice
A court ordinarily hears both sides before it restrains anyone, and Rule 65(b)(1) treats an order entered without notice as the exception. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if the Rule's conditions are met.1 Those two words turn the conditions from factors a court may weigh into requirements it must find satisfied. An order entered this way is called ex parte: it issues on one side's application while the other side is absent.
The Rule sets two conditions, one in each subparagraph.2 Subparagraph (A) concerns evidence. Specific facts, set out in an affidavit or a verified complaint (a complaint the plaintiff has sworn to be true), must clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.3 Subparagraph (B) concerns notice itself. The movant's attorney must certify in writing any efforts made to give notice and the reasons why notice should not be required.4 The Rule joins the two with and, so the movant must satisfy both, and meeting one does not excuse failing the other.
The conditions work together because each closes a gap the other leaves open. Urgent harm alone does not excuse a movant whose lawyer could simply have telephoned the other side; the injury may be real, yet nothing in it explains why notice should be skipped. A good-faith but failed attempt at notice does not justify restraining someone unheard unless the harm is truly immediate, because otherwise the court can wait and hold a noticed hearing. Only when the harm will arrive before the other side can be heard, and counsel can account for the missing notice, do both gaps close.
The strictness follows from what an ex parte order gives up. Such an order falls outside the usual mode of adjudication, so it requires a very strong showing of necessity, and the plaintiff must demonstrate extreme necessity.5 With no adversary present to test the movant's account, subparagraph (A) gives the court sworn, specific facts to rely on, and subparagraph (B) puts the movant's lawyer on record about why the other side was not told. The sections below take up the injury showing first and then the attorney's certification. A third section addresses a separate question: when an order, once issued, begins to bind the defendant.
Showing Immediate Irreparable Injury
Rule 65(b)(1)(A) packs four demands into one sentence. The movant's papers must be sworn, must state specific facts, and must clearly show injury that is both irreparable and immediate, meaning harm that will result before the adverse party can be heard in opposition.6 All four demands exist because the other side is absent. No defendant stands by to cross-examine the movant's witnesses, to point out that money would repair the harm, or to show that the harm is weeks away, so the movant's papers must answer those objections in advance. The word clearly raises the stakes, since an order without notice departs from the usual mode of adjudication and calls for a showing of extreme necessity.7
The first demand concerns form. An affidavit is a written statement sworn before an officer authorized to administer oaths, and a verified complaint is a complaint whose factual allegations the plaintiff has sworn to be true. The Rule accepts either, because either puts the movant's account under oath, which gives the court a footing that an unsworn allegation lacks. A complaint signed only by counsel, or a lawyer's report of what the client said, does not qualify. The complaint before the Supreme Court in Sampson v. Murray was unverified, and the Court quoted a version of Rule 65(b) that capped an order issued without notice at 10 days, where the current Rule allows 14. The showing that quoted text requires is the one the current Rule still demands: specific facts shown by affidavit or verified complaint that immediate and irreparable injury will result before the adverse party can be heard.8
The second demand is specificity. An assertion that the defendant is about to do something ruinous is a conclusion the court cannot test, while a statement of what the defendant said and did, and when, is evidence from which the court can find the emergency for itself. With no adversary present, the court must locate the emergency in the record, and a movant's label for the situation is not part of the record.
The third demand asks whether money paid after the case ends could undo the harm. Provisional remedies exist because a defendant may put property beyond the court's reach or act in ways that render the requested relief ineffectual, and a protective measure guards against that risk until the merits are resolved.9 When a later judgment would make the movant whole, that risk is absent, and no emergency order, least of all one entered without hearing the other side, is called for.
The employee in Sampson alleged that she might be deprived of her income for an indefinite period, that spurious and unrebutted charges might remain on her record, and that she would suffer the embarrassment of being wrongfully discharged in front of coworkers. The court of appeals had suggested that lost earnings or damage to reputation might support a finding of irreparable injury. The Supreme Court disagreed. Even under the traditional standards, it observed, a temporary loss of income that will ultimately be recovered does not usually constitute irreparable injury.10 The opposite pole is threatened destruction of the plaintiff's property: where there is reason to believe that notice of the suit would hasten the destruction, the plaintiff may successfully ask for a restraining order without notice.11
The fourth demand concerns timing, and it separates a TRO from a preliminary injunction. The movant must show that the harm will occur before the court can hold a hearing on a preliminary injunction, because the TRO holds the line only until that hearing.12 Notice itself can trigger the harm: prior notice to a counterfeiter will usually result in immediate flight and the disappearance or destruction of the goods.13 Measured this way, immediacy and irreparability vary independently. Harm can be immediate yet compensable, like a paycheck lost next week that a judgment would repay, and harm can be irreparable yet distant, like a loss that will not occur for weeks. Only harm that is both qualifies.
On an exam, run the movant's papers through all four demands. A failure on any one defeats the request for relief without notice, however strong the underlying claim looks. Papers that pass all four have satisfied only subparagraph (A); the attorney's written certification remains a separate requirement.
Attorney's Notice Certification
Rule 65(b)(1)(B) adds a second condition: the movant's attorney must certify in writing any efforts made to give notice and the reasons why notice should not be required.15 The Rule joins this to the evidentiary showing of subparagraph (A) with and, so the certification stands on its own footing. A movant whose sworn facts establish immediate and irreparable injury has met only half the Rule, and the court still needs the lawyer's account of notice before it may proceed.
The Rule gives this task to counsel, and the assignment fits the information involved. The affidavit or verified complaint carries the facts about the harm, which come from the client or from witnesses. Whether notice was attempted, and why it should be dispensed with, are matters of counsel's own conduct and judgment: the lawyer decides whom to call and what a call would risk. Requiring certification puts an officer of the court on record about those choices. Requiring a writing gives the judge a document to test, which an oral assurance at the bench does not.
The certification has two parts that track the Rule's words. The first reports what counsel did to give notice, such as calls, emails, or a message left with the defendant's lawyer, and when each occurred. The second states why notice should not be required, for example that the defendant has a history of moving assets within hours of learning of a claim. The Rule asks for any efforts made, a phrase that allows for none, and the requirement has also been described as covering the efforts, if any, which have been made to give the notice.16 A movant who made no effort can therefore still comply by explaining why advance notice would defeat the relief. A certification that reports no effort and offers no reason says nothing the court can act on, so it fails.
A complete certification does not by itself entitle the movant to skip notice. It gives the court a basis for its judgment, which the court weighs together with the injury showing, and the court may conclude that notice must still be given. The federal scheme reflects that: in some cases the plaintiff must give notice that it will apply for a TRO, so the defendant may appear and oppose it, while in others the court may dispense with notice.17 Practicability draws the line. If notice could have been given but was not, the restraining order is improper.18 A certification that announces urgency without explaining why a telephone call would not have sufficed therefore gives the court little to rely on. The absent defendant cannot test the lawyer's account, so the judge must.
The same concern has a constitutional edge. States are generally free to adopt procedures that differ from Rule 65(b), yet the Supreme Court has recognized constitutional limits on ex parte TROs under state law, at least where First Amendment rights are at stake.19 In Carroll v. President and Commissioners of Princess Anne, speakers belonging to an extremist organization held a rally that included racially provocative remarks, and town officials, fearing an explosive confrontation, obtained an ex parte TRO to prohibit a second rally.20 The Court found the order procedurally defective because the officials had made no attempt to give the defendants notice of the proceedings.21 Its reasoning rested on the speech interest: when First Amendment rights are at stake, having all parties present helps ensure that the order is fashioned as narrowly as possible to protect every interest affected.22
Carroll arose under state procedure, so it does not apply Rule 65(b)(1)(B) itself. Set beside the lender's certification above, though, the contrast is plain: a reported attempt at notice together with a reason tied to the relief, against no attempt at all. Even when an ex parte order is permitted, the Court has described it as suited to orders of brief duration and narrow scope that protect the status quo, as in Granny Goose Foods, Inc. v. Teamsters.23
Notice of Order Before Contempt
Rule 65(b)(1) governs whether a court may issue a TRO without telling the other side that the movant is asking for one, and the attorney's certification reports efforts to give that notice of the application.25 Rule 65(d)(2) governs a different event. An injunctive order binds only the persons the Rule lists who receive actual notice of it by personal service or otherwise.26 What matters here is the notice condition attached to that list. Students blur the two notices because both arise around ex parte orders, yet they answer different questions. Notice of the application decides whether the court may issue the order without hearing the defendant. Notice of the order decides when the defendant becomes answerable for violating it.
The reason for the second requirement lies in what contempt is. Contempt is the court's power to punish disobedience, and punishment presupposes that the person could have obeyed. A defendant cannot comply with an order whose existence is unknown, so due process requires that a person receive actual notice of a TRO, through service of process or otherwise, before being held in contempt for violating it.27 The structure of an ex parte TRO sharpens the point. The order restrains the defendant without any initial chance to present facts or argue the question, but the defendant is not bound until notice that the order has issued arrives.28 The missing notice of the application, which the Rule tolerates in a genuine emergency, therefore does not expose the defendant to punishment for acting before the order could have come to attention. The Rule names personal service as one route to actual notice and leaves room for others, so in each case the question is whether the person actually received notice of the order.
An exam stem usually asks whether a defendant who acted in the window between entry of the order and discovery of it is in contempt. The answer turns on the clock time at which actual notice arrived.
In the first scene the order was valid from the moment of entry, and it reached the distributor only when the distributor learned of it, which came after the shipment. The 14-day limit still runs from entry rather than from the day notice arrives, because the Rule measures expiration from the time after entry.29 A defendant notified late therefore has less time under the order, and no extra time. Answers tend to go wrong in two opposite directions. One treats the lack of notice of the application as a defense to contempt, when an order validly issued ex parte binds a person once actual notice arrives. The other assumes that a lawyer's certification about efforts to notify the defendant of the application has itself given the defendant notice of the order, when the certification is a writing addressed to the court.