Federal Rules of Civil Procedure - Notes to Rule 65 (LII 2007 ed.)

NOTES TO RULE 65

HISTORY: (Amended Mar. 19, 1948; Oct. 20, 1949; July 1, 1966; Aug. 1, 1987)

Notes of Advisory Committee on Rules.

Note to Subdivisions (a) and (b).

These are taken from USC, Title 28, former § 381 (Injunctions; preliminary injunctions and temporary restraining orders).

Note to Subdivision (c).

Except for the last sentence, this is substantially USC, Title 28, former § 382 (Injunctions; security on issuance of). The last sentence continues the following and similar statutes which expressly except the United States or an officer or agency thereof from such security requirements: USC, Title 15, §§ 77t(b), 78u(e), and 79r(f) (Securities and Exchange Commission). It also excepts the United States or an officer or agency thereof from such security requirements in any action in which a restraining order or interlocutory judgment of injunction issues in its favor whether there is an express statutory exception from such security requirements or not.

See USC, Title 6 (Official and Penal Bonds) for bonds by surety companies.

Note to Subdivision (d).

This is substantially USC, Title 28, former § 383 (Injunctions; requisites of order; binding effect).

Note to Subdivision (e).

The words "relating to temporary restraining orders and preliminary injunctions in actions affecting employer and employee" are words of description and not of limitation.

Compare former Equity Rule 73 (Preliminary Injunctions and Temporary Restraining Orders) which is substantially equivalent to the statutes.

For other statutes dealing with injunctions which are continued, see e.g.:

USC, Title 28, former:

§ 46 (Suits to enjoin orders of Interstate Commerce Commission to be against United States) § 47 (Injunctions as to orders of Interstate Commerce Commission; appeal to Supreme Court; time for taking) § 378 (Injunctions; when granted) § 379 (Injunctions; stay in State courts) § 380 (Injunctions; alleged unconstitutionality of State statutes; appeal to Supreme Court) § 380a (Injunctions; constitutionality of Federal statute; application for hearing; appeal to Supreme Court)

USC, Title 7:

§ 216 (Court proceedings to enforce orders; injunction) § 217 (Proceedings for suspension of orders)

USC, Title 15:

§ 4 (Jurisdiction of courts; duty of district attorney; procedure) § 25 (Restrainig violations; procedure) § 26 (Injunctive relief for private parties; exceptions) § 77t(b) (Injunctions and prosecutions of offenses)

Notes of Advisory Committee on 1946 Amendments to Rules.

It has been held that in actions on preliminary injunction bonds the district court has discretion to grant relief in the same proceeding or to require the institution of a new action on the bond. Russell v Farley, 1881, 105 US 433, 466, 26 L Ed 1060. It is believed, however, that in all cases the litigant should have a right to proceed on the bond in the same proceeding, in the manner provided in Rule 73(f) for a similar situation. The paragraph added to Rule 65(c) insures this result and is in the interest of efficiency. There is no reason why Rules 65(c) and 73(f) should operate differently. Compare § 50, sub n of the Bankruptcy Act, 11 USC § 78, sub n, under which actions on all bonds furnished pursuant to the Act may be proceeded upon summarily in the bankruptcy court. See 2 Collier on Bankruptcy, 14th ed by Moore and Oglebay, 1853--1854.

Notes of Advisory Committee on 1949 Amendments to Rules.

The amendment effective October 1949, changed subdivision (e) in the following respects: in the first clause the amendment substituted the words "any statute of the United States" for the words "the Act of October 15, 1914, ch 323, §§ 1 and 20 (38 Stat 730), USC, Title 29, §§ 52 and 53, or the Act of March 23, 1932, ch 90 (47 Stat 70), USC, Title 29, ch 6"; in the second clause of subdivision (e) the amendment substituted the reference to "Title 28, USC, § 2361" for the reference to "Section 24(26) of the Judicial Code as amended, USC, Title 28, § 41(26)"; and the third clause was amended to read "Title 28, USC, § 2284," etc., as at present, instead of "the Act of August 24, 1937, ch 754, § 3, relating to actions to enjoin the enforcement of acts of Congress."

Notes of Advisory Committee on 1961 Amendments to Rules.

These changes conform to the amendment of Rule 54(b).

Notes of Advisory Committee on 1966 Amendments to Rules.

Subdivision (a)(2).

This new subdivision provides express authority for consolidating the hearing of an application for a preliminary injunction with the trial on the merits. The authority can be exercised with particular profit when it appears that a substantial part of the evidence offered on the application will be relevant to the merits and will be presented in such form as to qualify for admission on the trial proper. Repetition of evidence is thereby avoided. The fact that the proceedings have been consolidated should cause no delay in the disposition of the application for the preliminary injunction, for the evidence will be directed in the first instance to that relief, and the preliminary injunction, if justified by the proof, may be issued in the course of the consolidated proceedings. Furthermore, to consolidate the proceedings will tend to expedite the final disposition of the action. It is believed that consolidation can be usefully availed of in many cases.

The subdivision further provides that even when consolidation is not ordered, evidence received in connection with an application for a preliminary injunction which would be admissible on the trial on the merits forms part of the trial record. This evidence need not be repeated on the trial. On the other hand, repetition is not altogether prohibited. That would be impractical and unwise. For example, a witness testifying comprehensively on the trial who has previously testified upon the application for a preliminary injunction might sometimes be hamstrung in telling his story if he could not go over some part of his prior testimony to connect it with his present testimony. So also, some repetition of testimony may be called for where the trial is conducted by a judge who did not hear the application for the preliminary injunction. In general, however, repetition can be avoided with an increase of efficiency in the conduct of the case and without any distortion of the presentation of evidence by the parties. Since an application for a preliminary injunction may be made in an action in which, with respect to all or part of the merits, there is a right to trial by jury, it is appropriate to add the caution appearing in the last sentence of the subdivision. In such a case the jury will have to hear all the evidence bearing on its verdict, even if some part of the evidence has already been heard by the judge alone on the application for the preliminary injunction.

The subdivision is believed to reflect the substance of the best current practice and introduces no novel conception.

Subdivision (b).

In view of the possibly drastic consequences of a temporary restraining order, the opposition should be heard, if feasible, before the order is granted. Many judges have properly insisted that, when time does not permit of formal notice of the application to the adverse party, some expedient, such as telephonic notice to the attorney for the adverse party, be resorted to if this can reasonably be done. On occasion, however, temporary restraining orders have been issued without any notice when it was feasible for some fair, although informal notice to be given. See the emphatic criticisms in Pennsylvania Rd. Co. v Transport Workers Union, 278 F2d 693, 694 (3d Cir 1960); Arvida Corp. v Sugarman, 259 F2d 428, 429 (2d Cir 1958); Lummus Co. v Commonwealth Oil Ref. Co., Inc. 297 F2d 80, 83 (2d Cir 1961), cert den 368 US 986, 7 L Ed 2d 524, 82 S Ct 601 (1962).

Heretofore the first sentence of subdivision (b), in referring to a notice "served" on the "adverse party" on which a "hearing" could be held, perhaps invited the interpretation that the order might be granted without notice if the circumstances did not permit of a formal hearing on the basis of a formal notice. The subdivision is amended to make it plain that informal notice, which may be communicated to the attorney rather than the adverse party, is to be preferred to no notice at all.

Before notice can be dispensed with, the applicant's counsel must give his certificate as to any efforts made to give notice and the reasons why notice should not be required. This certificate is in addition to the requirement of an affidavit or verified complaint setting forth the facts as to the irreparable injury which would result before the opposition could be heard.

The amended subdivision continues to recognize that a temporary restraining order may be issued without any notice when the circumstances warrant.

Subdivision (c).

Original Rules 65 and 73 contained substantially identical provisions for summary proceedings against sureties on bonds required or permitted by the rules. There was fragmentary coverage of the same subject in the Admiralty Rules. Clearly, a single comprehensive rule is required, and is incorporated as Rule 65.1.

Notes of Advisory Committee on 1987 amendments to Rules.

The amendments are technical. No substantive change is intended.

Notes of Advisory Committee on 2001 amendments to Rules.

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 apply 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.

Notes of Advisory Committee on 2001 amendments to Rules.

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 reasons why notice is likely defeat Such no-notice procedures are authorized in trademark infringement proceedings, see 15 U.S.C. � 1116(d), and courts have provided clear illustrations kinds showings that support 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 apply 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.