First time drafting a TRO/OSC

I've read through most of the Rutter guide to know the proceseattle2cali10/17/13
I only ever filed for TROs in domestic matters and civil harguyingorillasuit10/17/13
Ok, so after combing through Rutter and Matthew Bender practseattle2cali10/18/13
In New York at least, you do the OSC and include the TRO witmyfianceleftme10/18/13
Yea, it appears to be the same in CA. So my question is:seattle2cali10/18/13
Usually what happens is that you call the opposing counsel tmyfianceleftme10/18/13
cool, yea that's what I thought. When do you submit a prseattle2cali10/18/13
With the OSC.myfianceleftme10/18/13
We call them "Temporary Injunctions" here in Texas. In jeffm10/18/13
I've done five or six or them. Cross your "t's" and dot youmunicipald110/18/13
Thanks for the information. RE: the "reasonable probabilseattle2cali10/20/13
In depth, which is why many injunctions are preceded by expemunicipald110/21/13
seattle2cali (Oct 17, 2013 - 5:30 pm)

I've read through most of the Rutter guide to know the procedure. But one thing I'm still unsure on is whether you need to file a separate motion for a PI, or does your TRO application serve as that whenever the hearing for the PI is set?

If the PI is a completely separate application, is it any different from the TRO papers? Substance wise I mean.

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guyingorillasuit (Oct 17, 2013 - 6:22 pm)

I only ever filed for TROs in domestic matters and civil harassment. Is your case one of those?

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seattle2cali (Oct 18, 2013 - 12:20 pm)

Ok, so after combing through Rutter and Matthew Bender practice guides, I've reached this conclusion:

If you file your complaint and TRO concurrently (TRO ex parte), the OSC that is a part of the TRO application essentially becomes the motion for a PI. So no need to have a separate motion for a PI.

Is this correct? And do you submit a proposed PI after the TRO is granted?

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myfianceleftme (Oct 18, 2013 - 12:52 pm)

In New York at least, you do the OSC and include the TRO within the OSC. Then you make the argument for the OSC in the affirmation along with the argument for the TRO. All in one. Then you let the clerk in ex parte know that there's a TRO and they will get you a judge that day or early the next day. Judge rules on the TRO and you go back for the OSC argument a week or two later.

But it's all done in one set of papers.

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seattle2cali (Oct 18, 2013 - 1:05 pm)

Yea, it appears to be the same in CA.

So my question is: when the judge sets a PI hearing after the TRO ex parte application (within 15 days in CA), do you submit anything else for that later hearing?

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myfianceleftme (Oct 18, 2013 - 1:23 pm)

Usually what happens is that you call the opposing counsel to let them know you're filing the OSC w/TRO because you want them to be available that day so you can have the TRO hearing. They will usually show up with a shit thrown together reply directed solely at the TRO.

Then at the TRO hearing, the judge will say "OK, respondents must file their answer by 10/23 and movant's reply must be served by 10/24."

So the movant won't submit anything else except for a reply, if permitted, because everything will be in your moving papers. But respondents will then serve you with their answer.

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seattle2cali (Oct 18, 2013 - 1:47 pm)

cool, yea that's what I thought.

When do you submit a proposed PI?

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myfianceleftme (Oct 18, 2013 - 1:48 pm)

With the OSC.

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jeffm (Oct 18, 2013 - 4:10 pm)

We call them "Temporary Injunctions" here in Texas.

In your original petition (complaint), you set up grounds for a TRO (e.g., irreparable harm, no adequate remedy at law, etc.). Then, in your prayer for relief, you request that a TRO issue "restraining the defendant from...." Then, you add a prayer that a hearing on the TRO be held to determine whether it should be made a Temporary Injunction. Then, you request that at that hearing, the court issue a temporary injunction prohibiting the same conduct. All this is done in your complaint.

The TRO is typically ex parte, and the only evidence is typically one or more affidavits. However, at the TI (PI) hearing, you will put on all evidence (documents and witnesses). It's basically a trial.

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municipald1 (Oct 18, 2013 - 5:12 pm)

I've done five or six or them. Cross your "t's" and dot your "i's".

The difference between a TRO and a preliminary injunction are (i) time and (ii) notice. TRO's will be heard on an emergency basis (meaning a couple days) and can be granted ex parte (although courts prefer notice to everyone possible). TRO's are supposed to be limited in time (like 15 days or so). A preliminary injunction requires service of process and notice of the hearing.

A TRO can be converted into a preliminary injunction once the opposing party has appeared and an evidentiary hearing has been held. Basically, most Courts won't extend TRO's for that long-- they'll want a preliminary hearing pdq. Here's the sequence of documents (generally) needed:

[1.] Complaint
[2.] Summons and notice of hearing, unless you have a real emergency that justifies an ex parte hearing.
[3.] Application (or motion) for temporary restraining order with supporting evidence, which will have to be supported by at least one affidavit.
[4.] Motion for expedited discovery to be taken for use in the preliminary injunction hearing.

In at least three cases, the preliminary injunction hearing went forward based on the TRO papers. These were in Fed. Ct. (ND Ill., natch).

The best (worst) example I have of a TRO is a (well known, nationally recognized) firm that applied for a TRO in one state, gave our clients e-mail notice, withdrew the application when we flew someone out there, and then applied for another TRO in another state the next day while giving our client another vague notice of the TRO hearing, which we missed by a couple hours. At the hearing, opposing counsel said "Oh, they know about this" omitting that our client had retained counsel, and omitting that they did not inform our client of the time the hearing was set.

Your TRO should be accompanied with notice to the opposing party (it doesn't HAVE to be, but an ex parte motion will make it more likely that your TRO is limited to 5 to 15 days).

Strap in and tell your significant other that you won't be home for more than a couple hours for the next couple of weeks.

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seattle2cali (Oct 20, 2013 - 8:47 pm)

Thanks for the information.

RE: the "reasonable probability of prevailing on the merits" consideration, how in depth do you have to get into this? Am I basically submitting a trial brief with everything I have available to me at the time (obviously discovery hasn't commenced yet so I don't know some things)? Or is it just based on the pleadings and declarations and the judge's call to see if he/she thinks your case has merit?

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municipald1 (Oct 21, 2013 - 4:33 pm)

In depth, which is why many injunctions are preceded by expedited discovery (at least under the FRCPs).

In the injunctions that have gone forward to the preliminary injunction hearing, the judge usually wants a brief on all the information identified in expedited discovery, as well as hearing testimony.

It's not just based on pleadings and declarations-- that's what the TRO is based on. A preliminary injunction will require evidence showing a likelihood of success.

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