Rule 65 – Injunctions and restraining orders
(a) Preliminary Injunction. (1) Notice. The court may issue a preliminary injunction only on notice to the adverse party. (2) Consolidating the Hearing with the Trial on the Merits. Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing. Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial. But the court must preserve any party’s right to a jury trial.
(b) Temporary Restraining Order. (1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. (2) Contents; Expiration. Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk’s office and entered in the record. The order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record. (3) Expediting the Preliminary-Injunction Hearing. If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order. (4) Motion to Dissolve. On 2 days’ notice to the party who obtained the order without notice—or on shorter notice set by the court—the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.
(c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.
(d) Contents and Scope of Every Injunction and Restraining Order. (1) Contents. Every order granting an injunction and every restraining order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required. (2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise: (A) the parties; (B) the parties’ officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).
(e) Other Laws Not Modified. These rules do not modify the following: (1) any federal statute relating to temporary restraining orders or preliminary injunctions in actions affecting employer and employee; (2) 28 U.S.C. §2361, which relates to preliminary injunctions in actions of interpleader or in the nature of interpleader; or (3) 28 U.S.C. §2284, which relates to actions that must be heard and decided by a three-judge district court.
(f) Copyright Impoundment. This rule applies to copyright-impoundment proceedings.
Selected Committee Notes
New subdivision (f) is added in conjunction with abrogation of the antiquated Copyright Rules of Practice adopted for proceedings under the 1909 Copyright Act. Courts have naturally turned to Rule 65 in response to the apparent inconsistency of the former Copyright Rules with the discretionary impoundment procedure adopted in 1976, 17 U.S.C. §503(a). Rule 65 procedures also have assuaged well-founded doubts whether the Copyright Rules satisfy more contemporary requirements of due process. See, e.g., Religious Technology Center v. Netcom On-Line Communications Servs., Inc., 923 F.Supp. 1231, 1260–1265 (N.D.Cal.1995); Paramount Pictures Corp. v. Doe, 821 F.Supp. 82 (E.D.N.Y.1993); WPOW, Inc. v. MRLJ Enterprises, 584 F.Supp. 132 (D.D.C.1984).
A common question has arisen from the experience that notice of a proposed impoundment may enable an infringer to defeat the court’s capacity to grant effective relief. Impoundment may be ordered on an ex parte basis under subdivision (b) if the applicant makes a strong showing of the reasons why notice is likely to defeat effective relief. Such no-notice procedures are authorized in trademark infringement proceedings, see 15 U.S.C. §1116(d), and courts have provided clear illustrations of the kinds of showings that support ex parte relief. See Matter of Vuitton et Fils S.A., 606 F.2d 1 (2d Cir.1979); Vuitton v. White, 945 F.2d 569 (3d Cir.1991). In applying the tests for no-notice relief, the court should ask whether impoundment is necessary, or whether adequate protection can be had by a less intrusive form of no-notice relief shaped as a temporary restraining order.
This new subdivision (f) does not limit use of trademark procedures in cases that combine trademark and copyright claims. Some observers believe that trademark procedures should be adopted for all copyright cases, a proposal better considered by Congressional processes than by rulemaking processes.
Key Civ Pro Laws (MBE/MEE)
- Section 1291 – Final decisions of district courts
- Section 1292 – Interlocutory decisions
- Section 1331 – Federal question
- Section 1332 – Diversity
- Section 1335 – Interpleader
- Section 1359 – Parties collusively joined or made
- Section 1367 – Supplemental jurisdiction
- Section 1391 – Venue generally
- Section 1397 – Interpleader
- Section 1404 – Change of venue
- Section 1406 – Cure or waiver of defects
- Section 1407 – Multidistrict litigation
- Section 1441 – Removal generally
- Section 1446 – Removal procedure
- Section 1447 – Post-removal procedure
- Section 1870 – Challenges
- Section 2072 – Rules of procedure and evidence; power to subscribe
- Section 2361 – Process and procedure
- Rule 3 – Commencing an action
- Rule 4 – Summons
- Rule 6 – Computing and extending time
- Rule 7 – Pleadings allowed
- Rule 8 – General pleading rules
- Rule 9 – Pleading special matters
- Rule 11 – Signing pleadings, motions, and other papers
- Rule 12 – Defenses and objections
- Rule 13 – Counterclaim and crossclaim
- Rule 14 – Third-party practice
- Rule 15 – Amended and supplemental pleadings
- Rule 16 – Pretrial conferences, scheduling, management
- Rule 19 – Required joinder of parties
- Rule 20 – Permissive joinder of parties
- Rule 22 – Interpleader
- Rule 23 – Class actions
- Rule 24 – Intervention
- Rule 26 – Duty to disclose
- Rule 30 – Depositions by oral examination
- Rule 31 – Depositions by written questions
- Rule 33 – Interrogatories
- Rule 34 – Producing documents, electronically stored information, and tangible things
- Rule 35 – Physical and mental examinations
- Rule 36 – Requests for admission
- Rule 37 – Failure to make disclosures or to cooperate in discovery
- Rule 38 – Right to a jury trial
- Rule 41 – Dismissal of actions
- Rule 42 – Consolidation; separate trials
- Rule 45 – Subpoena
- Rule 47 – Selecting jurors
- Rule 48 – Number of jurors; verdict; polling
- Rule 49 – Special verdict; general verdict and questions
- Rule 50 – Judgment as a matter of law in a jury trial
- Rule 51 – Instructions to the jury; objections; preserving a claim of error
- Rule 52 – Findings and conclusions by the court; judgment on partial findings
- Rule 55 – Default; default judgment
- Rule 56 – Summary judgment
- Rule 59 – New trial; altering or amending a judgment
- Rule 60 – Relief from a judgment or order
- Rule 65 – Injunctions and restraining orders
- Rule 4 – Appeal as of right