March 10, 2025 • 21 mins
Welcome back to the Bar Exam Toolbox podcast! Today, as part of our "Listen and Learn" series, we're discussing the concept of injunctive relief (Federal Rules of Civil Procedure Rule 65). We introduce three types of injunctions – temporary restraining orders (TROs), preliminary injunctions, and permanent injunctions, and the elements necessary for obtaining each of them.
In this episode, we discuss:
- Overview of injunctive relief
- Temporary restraining orders (TROs)
- Preliminary injunctions and permanent injunctions
- Sample questions from previous California bar exams
Resources:
- "Listen and Learn" series (https://barexamtoolbox.com/bar-exam-toolbox-podcast-archive-by-topic/bar-exam-toolbox-podcast-explaining-individual-mee-and-california-bar-essay-questions/#listen-learn)
- California Bar Examination – Essay Questions and Selected Answers, July 2019 (https://www.calbar.ca.gov/Portals/0/documents/admissions/July-2019-Essay-Questions-and-Answers.pdf)
- California Bar Examination – Essay Questions and Selected Answers, July 2008 (https://nwculaw.edu/pdf/bar/July%202008%20Essays%20and%20Sample%20Answers.pdf)
Download the Transcript
(https://barexamtoolbox.com/episode-303-listen-and-learn-injunctions-and-restraining-orders-civ-pro/)
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Thanks for listening!
Alison & Lee
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Transcript
Episode Transcript
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(00:02):
Welcome to the Bar Exam Toolbox podcast.
Today we are talking aboutinjunctive relief, as part of
our "Listen and Learn" series.
Your Bar Exam Toolbox hosts are AlisonMonahan and Lee Burgess, that's me.
We're here to demystify the barexam experience, so you can study
effectively, stay sane, and hopefullypass a move on with your life.
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
career-related website CareerDicta.
(00:23):
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review on your favorite listening
app, and check out our sister podcast,the Law School Toolbox podcast.
If you have any questions, don'thesitate to reach out to us.
You can reach us via the contactform on BarExamToolbox.com,
and we'd love to hear from you.
And with that, let's get started.
(00:48):
Welcome back to our"Listen and Learn series"!
You may recall that there are twocategories of remedies - equitable
remedies and remedies at law.
Today we are going to be talkingabout injunctive relief, which
is an example of the former.
As a reminder, equitable damages arean extraordinary form of relief that
can only be granted where monetarydamages would be wholly inadequate
(01:10):
to repair the plaintiff's injury.
Essentially, you're looking for situationswhere money just isn't going to be enough.
Think, "Money can't buy happiness",except in this case, it's money
won't make the plaintiff whole.
FRCP 65 sets the rules for injunctions,which may only be granted in a
limited number of circumstances.
(01:31):
There are three types of injunctionsthat we're going to talk about today
- temporary restraining orders, preliminaryinjunctions, and permanent injunctions.
All three types of injunctions can beeither mandatory or prohibitory, depending
on the conduct at issue in the case.
Mandatory injunctions requirethat a party, typically the
defendant, perform a specific act.
(01:52):
In contrast, a prohibitory injunctionwould prohibit the defendant from
engaging in that specified act.
Okay, let's get started.
Our first major topic today istemporary restraining orders, or TROs.
A TRO is basically a stop-gap measure.
Its job is to preserve the statusquo until the court is able to hold a
hearing on a preliminary injunction.
(02:14):
Since a TRO is just keeping theparties in a temporary holding
pattern, it can only remain ineffect for a limited period of time.
This period cannot exceed 14days, unless the moving party can
establish good cause for it to remainin effect for a longer duration.
To obtain a TRO, a party mustestablish that they will suffer
(02:34):
immediate irreparable harmunless the order is issued.
Notice to the opposing party is generallyrequired; however, a court may grant a TRO
ex parte if the moving party shows thatthey meet the irreparable harm standard,
and their attorney certifies in writingany efforts made to give notice and the
reasons why notice wouldn't be required.
(02:57):
Because TROs are temporary measures, theyare generally not immediately appealable.
While the opposing party isunable to appeal, they may move
to dissolve or modify the orderif it was granted without notice.
So, how are we feeling so far?
Injunctions can feel very abstractat first, so let's look at an example
together to get a better sense of howthese concepts play out in the real world.
(03:20):
This hypothetical is pulled from Question2 on the July 2019 California bar exam:
"Clear City is home to 50 churches, oneof which burned down earlier this year.
Fire investigators suspected thatthe cause was a burning candle.
Clear City has enacted an ordinancethat prohibits burning candles in
any church and authorizes the firemarshal to close down any church
(03:43):
in which candle burning occurs.
The mayor told the press that ClearCity would vigorously enforce the
ordinance and that the fire marshalwould randomly visit churches during
Sunday services to close down violators.
The fire marshal visited six churcheslast Sunday, but did not visit the
Clear City Spiritual Church, SC.
(04:05):
Two of the six churches visitedwere burning candles, but were only
issued warnings, not shut down.
Immediately after visiting the lastof the six churches, the fire marshal
publicly announced that it was likelyno further warnings would be issued to
churches caught violating the ordinance.
The fire marshal also announcedthat due to a lack of personnel,
(04:26):
these random visits would notresume for at least eight weeks.
The members of SC burn candlesduring Sunday services to signify
spiritual light in the world.
The day after the fire marshal'sannouncement, SC gave notice to Clear
City's attorney that it would immediatelysue Clear City and federal court
seeking a temporary restraining orderto enjoin Clear City from enforcing
(04:48):
the ordinance until a preliminaryinjunction hearing can be held.
What's the likelihood of SC's success?"
So, what do we think?
Well, let's start with what SC needsto establish to be granted a TRO.
They have to show that they willsuffer an imminent and irreparable
harm from the Clear City ordinanceif the TRO is not issued.
(05:10):
So, is SC's harm imminent or irreparable?
Likely not.
SC certainly has a case thattheir harm would be irreparable.
They are one of the churches thatburn candles as part of their Sunday
services, and the consequence ofcontinuing to do so is severe.
The fire marshal has the authorityto shut the church down if they
(05:30):
are found to be in violation.
They aren't just going to be fined,and the fire marshal said he was no
longer going to issue any warnings.
That's a pretty irreparable harm.
However, it is unlikely thatSC's harm would be considered
imminent, warranting a TRO.
The fire marshal announced publiclythat there would be no more random
inspections of churches for eight weeks,because they do not have the personnel.
(05:53):
That's a total of 56 days,while the TRO would only be in
effect for a maximum of 14 days.
As such, there is likely no pressingneed requiring a TRO to be granted
in order to prevent SC from beingshut down before a preliminary
injunction hearing can be held.
Hopefully this hypo helpedlend some context to TROs.
(06:14):
We're going to revisit this exampleshortly to see how the scenario
plays out when we apply it to thepreliminary injunction standard.
Do you think we'll reachthe same conclusion?
Well, let's talk about preliminaryinjunctions to find out.
A preliminary injunction is similarto a TRO, in that it is also meant to
maintain the status quo of the parties.
(06:35):
A preliminary injunction, however,is going to keep the parties in that
holding pattern for the durationof the trial, not just for 14 days.
Because this order will remain in effectuntil a final judgment is entered, the
moving party must meet a much higherstandard for the injunction to be issued.
A preliminary injunction may alsoonly be granted after notice is
(06:56):
given to the opposing party anda full hearing is conducted on
whether the order should be issued.
A party seeking a preliminaryinjunction must establish
four elements under Rule 65.
To provide some context, we're going toconsider a short example to help us as
we walk through each of these elements:
"Anna and Ben are neighbors, eachowning adjoining parcels of land.
(07:19):
Ben has a pond on his property.
Every spring, it plays host to avariety of ducks and other waterfowl
while they have their offspring.
Anna's deck overlooks Ben's pond,and she derives a lot of enjoyment
from watching the wildlife thatcomes to visit each spring.
While Ben likes his pond, he wantsto fill it in, so that he will have
enough space in his yard to constructa swing set for his children.
(07:43):
He obtains all the requiredapprovals from Town.
Anna files a complaint and a motionfor a preliminary injunction to
stop Ben from destroying the pond."
Okay, with those facts in mind,let's talk about each of the elements
a plaintiff must establish to begranted a preliminary injunction.
First, the plaintiff must show that theyare likely to succeed on the merits.
(08:05):
This means that they must showthat they have a reasonable
probability of succeeding at trial.
A likelihood of success is sufficient.
Actual proof is left for the trial itself.
So let's look at our feudingneighbors, Anna and Ben.
Can Anna show that she has alikelihood of success on the merits?
Hm, not likely, right?
Ben owns the property at issue, and Townapproved his proposal to fill in the pond.
(08:28):
So there doesn't appear to be any zoningor building regulation that would prohibit
Ben from proceeding with his plan.
Without any sort of propertyright, like an easement, Anna
isn't likely to win at trial.
Even though Anna failed our firstelement, we still need to learn the
other three, so let's keep going.
A party requesting a preliminaryinjunction must also show that they
(08:49):
are likely to suffer irreparableharm if the order is not granted.
The harm must be actual andimminent, not remote or speculative.
The plaintiff's injury is one for whichthe eventual chance of monetary damages
alone will not be adequate compensation.
Anna likely has a strong argument here.
Her harm isn't one that canreally be compensated by money.
(09:11):
She would be losing her enjoymentof the pond and the wildlife.
This is a classic caseof irreparable harm.
Once the pond is filled in, it's gone.
If Anna wins at trial, Ben can'teasily undo his actions and
convert his land back into a pond.
That's pretty irreparable and it mightwarrant needing to keep the status
quo of the pond until we have a trial.
(09:34):
Our third element is that thebalance of equities must tip
in the moving party's favor.
Anna has a good argument here too.
As we just discussed, she would sufferan irreparable injury for which money
isn't going to be an adequate remedy.
In contrast, if the court enjoinsBen from filling in his pond until a
decision is made on the merits at trial,Ben will only be harmed by a delay.
(09:56):
If he wins at trial, hecan still convert his pond.
There's no indication the pondis harming him or his property.
His delay in constructing a swingset for his children is unlikely to
outweigh the potential harm to Anna.
Lastly, the moving party mustshow the injunction is in the
best interest of the public.
This is likely to be a fairly neutralfactor in a situation like Anna and
(10:20):
Ben's, where we have a dispute betweentwo private parties over private land.
There are no major ramificationsfor non-parties either way.
There may be some community environmentalbenefit in maintaining the pond
for wildlife, weighing in Anna'sfavor, but there is also a benefit
in maintaining the right of propertyowners to manage their land without
interference, weighing in Ben's favor.
(10:43):
All four elements must be established fora court to grant a preliminary injunction.
So, even though Anna has a strong argumentfor two, and a third likely doesn't
weigh in either one of their favors,she still cannot prove a likelihood
of success on the merits at trial.
A court, therefore, is not going togrant her a preliminary injunction.
(11:03):
Still with me?
Great.
Remember our earlier hypo withClear City's ordinance prohibiting
burning candles in a church?
As promised, it's time to revisitthat and examine it through the
preliminary injunction lens.
As a quick reminder on our facts,Clear City has enacted an ordinance
prohibiting burning candles in a church,and the fire marshal has the authority
(11:25):
to close down any church in violation.
He's conducting random church visitsduring Sunday services to close down
violators, and a church called SCis looking to obtain a preliminary
injunction to enjoin enforcementuntil the pendency of their lawsuit.
Earlier, we determined that SCwas unlikely to be successful
(11:45):
in obtaining a TRO, but we wantto know if they will succeed in
obtaining a preliminary injunction.
To make this determination, we need toknow if SC can establish all four of
the preliminary injunction elements, solet's walk through each of them together.
First, SC needs to show that theywill have a likelihood of success
on the merits of their lawsuit.
(12:06):
SC is a church, and Clear City's ordinanceis going to inhibit their ability to
practice their religion, because theirchurch burns candles as part of their
service to signify spiritual light.
So SC is likely pursuing a FirstAmendment freedom of religion claim
and the ordinance is unconstitutional.
Clear City is a state actor andtherefore subject to the First Amendment.
(12:27):
The law discriminates againstreligion on its face, because it
specifically prohibits burningcandles only in churches.
It does not address candle burningin any other buildings in the city.
SC also has a good argument thatthe Clear City ordinance will not
hold up under strict scrutiny.
Clear City does have a compellinginterest in protecting the safety
of its citizens from fires; however,the ordinance is not narrowly
(12:49):
tailored to achieve that interest.
Clear City completely prohibitsthe use of candles in churches,
so it is a blanket prohibition.
There are likely less restrictive waysClear City could have regulated candle
burning, such as limiting where candlescan be placed in churches, restricting
the type of candles that can be used, or anumber of other possible safety measures.
So, we have established that SCsatisfies the first element of
(13:14):
likelihood of success on the merits.
Now let's revisit the second elementof irreparable harm that we discussed
earlier when we talked about TROs.
When we considered SC's motion fora TRO, we determined that their
harm was not imminent, becausethe fire marshal was not going to
resume inspections for eight weeks.
Does our opinion change now that SC isrequesting a preliminary injunction?
(13:38):
It likely does, right?
With inspections eight weeksaway, the threat to SC wasn't
imminent enough for a TRO.
But litigation is a lengthy process.
There is a strong likelihood thatpreparation for and the actual trial
will exceed that eight-week timeframe.
If the fire marshal resumes randominspections at the end of the eight
weeks, then the likelihood of SCsuffering the irreparable injury
(14:00):
of being shut down from enforcementof the ordinance is significant.
So far SC has a pretty good case.
So let's consider the third element.
Does the balance of equitiesweigh in SC's favor?
SC is at risk of potentially beingshut down as a result of burning
candles during their services.
As we talked about, this ispotentially an irreparable injury.
(14:23):
They will be shut down and couldlose congregation members to
other churches during that time.
Even if SC ultimately wins at trialand reopens, there's no guarantee
those members would return.
In contrast, Clear City wouldbe temporarily prohibited
from enforcing an ordinance.
The ordinance it is trying to enforce maybe unconstitutional, and even if it is
(14:46):
not, the harm to the city is likely small.
The fire marshal has explained thatthey're already having enforcement
difficulties due to a lack of personnel.
Being delayed in enforcementof the ordinance does raise the
potential of the city having torespond to a fire in a church.
However, only one church out of the50 has ever burned down in Clear City
(15:07):
from burning candles, and the cityhas not shown that responding to a
church fire raises greater dangersthan any of the other fires that
the city will respond to that falloutside the reach of the ordinance.
As such, the balance of equitieslikely falls in favor of SC.
Okay, last element (15:24):
Is the injunction in the best interest of the public?
This likely weighs in SC's favortoo, as there is a public interest
in preserving the right to practiceone's religion without government
interference under the First Amendment.
In contrast, there is not a strong publicinterest in allowing the city to enforce
a potentially unconstitutional ordinance.
(15:46):
So, what's our final verdict?
With strong arguments for all fourelements, it is likely that SC will
be successful with their requestfor a preliminary injunction.
There is a strong risk of harmto SC that warrants an injunction
to preserve the status quo forthe duration of the lawsuit.
So, how do we feel about that hypo?
(16:06):
This is certainly complicated.
Let's look at another hypotheticaltogether to see if we can
really nail down these topics.
This hypothetical is pulled from Question4 on the July 2008 California bar exam,
but we've edited it a bit to focus ononly the issue of preliminary injunctions:
"Barry is a publisher of AutoDesigner's Digest, a magazine that
(16:30):
appeals to classic car enthusiasts.
For years, Barry has been tryingto win a first place award in an
annual Columbia Concours d'Elegance- the Concours - one of the most
prestigious auto shows in the country.
He was sure that winning such anaward would vastly increase the
circulation of his magazine andattract lucrative advertising revenues.
(16:50):
This year, Concours was scheduled tobegin on June 1st, with applications for
its entry to be submitted by May 1st.
Sally owned a 1932 Phaeton,one of the only two surviving
cars of that make and model.
The car was in such pristine conditionthat it stood a very good chance
of winning the first place prize.
(17:11):
On April 1st, Barry and Sally enteredinto a valid written contract by
which Barry agreed to buy, and Sallyagreed to sell, the Phaeton for
$200,000 for delivery on May 25th.
In anticipation of acquiringthe Phaeton, Barry completed the
application and paid the non-refundable$5,000 entry fee for the Concours.
(17:32):
On May 10th, Sally told Barry thatshe had just accepted $300,000 in
cash for the Phaeton from a wealthyItalian car collector, stating,
'That's what it's really worth', andadded that she would deliver the car
to a shipping company for transportto Italy within the next few weeks.
Barry has filed for a preliminaryinjunction to enjoin Sally from delivering
the Phaeton to the shipping companypending the resolution of their dispute.
(17:55):
Will he be successful?"
So, do we think Barry will be successfulat stopping Sally from delivering
the car to the shipping company?
Let's run through ourpreliminary injunction elements.
Is Barry likely to succeedon the merits of the lawsuit?
Well, Sally willfully breached hercontract with Barry, which the fact
pattern tells us was a valid contract.
(18:16):
Barry, therefore, has a strong likelihoodof success on the merits for damages.
He also has a likelihood of successfor specific performance, considering
the Phaeton is a unique good, withonly two cars left in existence.
Barry is also likely to sufferirreparable harm if the preliminary
injunction is not granted.
Sally has already made it clear to himthat she's delivering the Phaeton to
(18:36):
the shipping company in the next fewweeks for delivery to a different buyer.
As we mentioned, there are only twocars of this make and model left.
Sally's sale to the Italian collectorwould therefore deprive Barry of what may
be his only opportunity to own a Phaeton.
Now, does the balance ofequities tip in Barry's favor?
As we established, Barry is likelygoing to suffer an irreparable injury
(19:00):
by missing out on potentially his onlychance to buy this rare car, which
could help his business running amagazine for classic car enthusiasts.
In contrast, Sally would be delayedin selling the vehicle to the
Italian collector for $300,000if the injunction is granted.
This may cause her to lose out on thesale, given how long litigation can take.
(19:21):
However, if the car's true valueis $300,000, then she is likely
going to be able to sell it toanother purchaser for that amount.
Her harms are therefore slightin comparison to Barry's.
Lastly, we have to considerthe public interest.
This is a private contract betweentwo private parties, so there is
minimal impact on the public ifthe injunction goes into effect.
(19:44):
However, there is a public interestin the enforcement of contracts and
deterring parties from breachingthose contracts, so this factor likely
weighs in Barry's favor as well.
Since Barry has strong argumentson all four of the preliminary
injunction factors, it is likelyhe will be successful in obtaining
an injunction from the court.
Okay, our final topic todayis permanent injunctions.
(20:07):
A permanent injunction is adetermination on the merits, so it is
the judgment rendered at the end oftrial if the plaintiff is successful.
The standard for a permanent injunctionis essentially the same as a preliminary
injunction, except the plaintiff mustnow show actual success on the merits.
This is because a permanent injunction isa final judgment, and it will remain in
(20:34):
effect until it is dissolved by the court.
Any person affected by the injunction,however, has the right to move
to modify or dissolve the order.
And with that, we are out of time.
If you enjoyed this episode of theBar Exam Toolbox podcast, please
take a second to leave a review andrating on your favorite listening app.
We'd really appreciate it.
And be sure to subscribeso you don't miss anything.
If you have any questions or comments,please don't hesitate to reach out to
(20:55):
Lee or Alison at lee@barexamtoolbox.comor alison@barexamtoolbox.com.
Or you can always contactus via our website contact
form at BarExamToolbox.com.
Thanks for listening, and we'll talk soon!
Welcome to the Bar Exam Toolbox podcast.
Today we are talking aboutinjunctive relief, as part of
our "Listen and Learn" series.
Your Bar Exam Toolbox hosts are AlisonMonahan and Lee Burgess, that's me.
We're here to demystify the barexam experience, so you can study
effectively, stay sane, and hopefullypass a move on with your life.
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
career-related website CareerDicta.
(00:23):
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review on your favorite listening
app, and check out our sister podcast,the Law School Toolbox podcast.
If you have any questions, don'thesitate to reach out to us.
You can reach us via the contactform on BarExamToolbox.com,
and we'd love to hear from you.
And with that, let's get started.
(00:48):
Welcome back to our"Listen and Learn series"!
You may recall that there are twocategories of remedies - equitable
remedies and remedies at law.
Today we are going to be talkingabout injunctive relief, which
is an example of the former.
As a reminder, equitable damages arean extraordinary form of relief that
can only be granted where monetarydamages would be wholly inadequate
(01:10):
to repair the plaintiff's injury.
Essentially, you're looking for situationswhere money just isn't going to be enough.
Think, "Money can't buy happiness",except in this case, it's money
won't make the plaintiff whole.
FRCP 65 sets the rules for injunctions,which may only be granted in a
limited number of circumstances.
(01:31):
There are three types of injunctionsthat we're going to talk about today
- temporary restraining orders, preliminaryinjunctions, and permanent injunctions.
All three types of injunctions can beeither mandatory or prohibitory, depending
on the conduct at issue in the case.
Mandatory injunctions requirethat a party, typically the
defendant, perform a specific act.
(01:52):
In contrast, a prohibitory injunctionwould prohibit the defendant from
engaging in that specified act.
Okay, let's get started.
Our first major topic today istemporary restraining orders, or TROs.
A TRO is basically a stop-gap measure.
Its job is to preserve the statusquo until the court is able to hold a
hearing on a preliminary injunction.
(02:14):
Since a TRO is just keeping theparties in a temporary holding
pattern, it can only remain ineffect for a limited period of time.
This period cannot exceed 14days, unless the moving party can
establish good cause for it to remainin effect for a longer duration.
To obtain a TRO, a party mustestablish that they will suffer
(02:34):
immediate irreparable harmunless the order is issued.
Notice to the opposing party is generallyrequired; however, a court may grant a TRO
ex parte if the moving party shows thatthey meet the irreparable harm standard,
and their attorney certifies in writingany efforts made to give notice and the
reasons why notice wouldn't be required.
(02:57):
Because TROs are temporary measures, theyare generally not immediately appealable.
While the opposing party isunable to appeal, they may move
to dissolve or modify the orderif it was granted without notice.
So, how are we feeling so far?
Injunctions can feel very abstractat first, so let's look at an example
together to get a better sense of howthese concepts play out in the real world.
(03:20):
This hypothetical is pulled from Question2 on the July 2019 California bar exam:
"Clear City is home to 50 churches, oneof which burned down earlier this year.
Fire investigators suspected thatthe cause was a burning candle.
Clear City has enacted an ordinancethat prohibits burning candles in
any church and authorizes the firemarshal to close down any church
(03:43):
in which candle burning occurs.
The mayor told the press that ClearCity would vigorously enforce the
ordinance and that the fire marshalwould randomly visit churches during
Sunday services to close down violators.
The fire marshal visited six churcheslast Sunday, but did not visit the
Clear City Spiritual Church, SC.
(04:05):
Two of the six churches visitedwere burning candles, but were only
issued warnings, not shut down.
Immediately after visiting the lastof the six churches, the fire marshal
publicly announced that it was likelyno further warnings would be issued to
churches caught violating the ordinance.
The fire marshal also announcedthat due to a lack of personnel,
(04:26):
these random visits would notresume for at least eight weeks.
The members of SC burn candlesduring Sunday services to signify
spiritual light in the world.
The day after the fire marshal'sannouncement, SC gave notice to Clear
City's attorney that it would immediatelysue Clear City and federal court
seeking a temporary restraining orderto enjoin Clear City from enforcing
(04:48):
the ordinance until a preliminaryinjunction hearing can be held.
What's the likelihood of SC's success?"
So, what do we think?
Well, let's start with what SC needsto establish to be granted a TRO.
They have to show that they willsuffer an imminent and irreparable
harm from the Clear City ordinanceif the TRO is not issued.
(05:10):
So, is SC's harm imminent or irreparable?
Likely not.
SC certainly has a case thattheir harm would be irreparable.
They are one of the churches thatburn candles as part of their Sunday
services, and the consequence ofcontinuing to do so is severe.
The fire marshal has the authorityto shut the church down if they
(05:30):
are found to be in violation.
They aren't just going to be fined,and the fire marshal said he was no
longer going to issue any warnings.
That's a pretty irreparable harm.
However, it is unlikely thatSC's harm would be considered
imminent, warranting a TRO.
The fire marshal announced publiclythat there would be no more random
inspections of churches for eight weeks,because they do not have the personnel.
(05:53):
That's a total of 56 days,while the TRO would only be in
effect for a maximum of 14 days.
As such, there is likely no pressingneed requiring a TRO to be granted
in order to prevent SC from beingshut down before a preliminary
injunction hearing can be held.
Hopefully this hypo helpedlend some context to TROs.
(06:14):
We're going to revisit this exampleshortly to see how the scenario
plays out when we apply it to thepreliminary injunction standard.
Do you think we'll reachthe same conclusion?
Well, let's talk about preliminaryinjunctions to find out.
A preliminary injunction is similarto a TRO, in that it is also meant to
maintain the status quo of the parties.
(06:35):
A preliminary injunction, however,is going to keep the parties in that
holding pattern for the durationof the trial, not just for 14 days.
Because this order will remain in effectuntil a final judgment is entered, the
moving party must meet a much higherstandard for the injunction to be issued.
A preliminary injunction may alsoonly be granted after notice is
(06:56):
given to the opposing party anda full hearing is conducted on
whether the order should be issued.
A party seeking a preliminaryinjunction must establish
four elements under Rule 65.
To provide some context, we're going toconsider a short example to help us as
we walk through each of these elements:
"Anna and Ben are neighbors, eachowning adjoining parcels of land.
(07:19):
Ben has a pond on his property.
Every spring, it plays host to avariety of ducks and other waterfowl
while they have their offspring.
Anna's deck overlooks Ben's pond,and she derives a lot of enjoyment
from watching the wildlife thatcomes to visit each spring.
While Ben likes his pond, he wantsto fill it in, so that he will have
enough space in his yard to constructa swing set for his children.
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He obtains all the requiredapprovals from Town.
Anna files a complaint and a motionfor a preliminary injunction to
stop Ben from destroying the pond."
Okay, with those facts in mind,let's talk about each of the elements
a plaintiff must establish to begranted a preliminary injunction.
First, the plaintiff must show that theyare likely to succeed on the merits.
(08:05):
This means that they must showthat they have a reasonable
probability of succeeding at trial.
A likelihood of success is sufficient.
Actual proof is left for the trial itself.
So let's look at our feudingneighbors, Anna and Ben.
Can Anna show that she has alikelihood of success on the merits?
Hm, not likely, right?
Ben owns the property at issue, and Townapproved his proposal to fill in the pond.
(08:28):
So there doesn't appear to be any zoningor building regulation that would prohibit
Ben from proceeding with his plan.
Without any sort of propertyright, like an easement, Anna
isn't likely to win at trial.
Even though Anna failed our firstelement, we still need to learn the
other three, so let's keep going.
A party requesting a preliminaryinjunction must also show that they
(08:49):
are likely to suffer irreparableharm if the order is not granted.
The harm must be actual andimminent, not remote or speculative.
The plaintiff's injury is one for whichthe eventual chance of monetary damages
alone will not be adequate compensation.
Anna likely has a strong argument here.
Her harm isn't one that canreally be compensated by money.
(09:11):
She would be losing her enjoymentof the pond and the wildlife.
This is a classic caseof irreparable harm.
Once the pond is filled in, it's gone.
If Anna wins at trial, Ben can'teasily undo his actions and
convert his land back into a pond.
That's pretty irreparable and it mightwarrant needing to keep the status
quo of the pond until we have a trial.
(09:34):
Our third element is that thebalance of equities must tip
in the moving party's favor.
Anna has a good argument here too.
As we just discussed, she would sufferan irreparable injury for which money
isn't going to be an adequate remedy.
In contrast, if the court enjoinsBen from filling in his pond until a
decision is made on the merits at trial,Ben will only be harmed by a delay.
(09:56):
If he wins at trial, hecan still convert his pond.
There's no indication the pondis harming him or his property.
His delay in constructing a swingset for his children is unlikely to
outweigh the potential harm to Anna.
Lastly, the moving party mustshow the injunction is in the
best interest of the public.
This is likely to be a fairly neutralfactor in a situation like Anna and
(10:20):
Ben's, where we have a dispute betweentwo private parties over private land.
There are no major ramificationsfor non-parties either way.
There may be some community environmentalbenefit in maintaining the pond
for wildlife, weighing in Anna'sfavor, but there is also a benefit
in maintaining the right of propertyowners to manage their land without
interference, weighing in Ben's favor.
(10:43):
All four elements must be established fora court to grant a preliminary injunction.
So, even though Anna has a strong argumentfor two, and a third likely doesn't
weigh in either one of their favors,she still cannot prove a likelihood
of success on the merits at trial.
A court, therefore, is not going togrant her a preliminary injunction.
(11:03):
Still with me?
Great.
Remember our earlier hypo withClear City's ordinance prohibiting
burning candles in a church?
As promised, it's time to revisitthat and examine it through the
preliminary injunction lens.
As a quick reminder on our facts,Clear City has enacted an ordinance
prohibiting burning candles in a church,and the fire marshal has the authority
(11:25):
to close down any church in violation.
He's conducting random church visitsduring Sunday services to close down
violators, and a church called SCis looking to obtain a preliminary
injunction to enjoin enforcementuntil the pendency of their lawsuit.
Earlier, we determined that SCwas unlikely to be successful
(11:45):
in obtaining a TRO, but we wantto know if they will succeed in
obtaining a preliminary injunction.
To make this determination, we need toknow if SC can establish all four of
the preliminary injunction elements, solet's walk through each of them together.
First, SC needs to show that theywill have a likelihood of success
on the merits of their lawsuit.
(12:06):
SC is a church, and Clear City's ordinanceis going to inhibit their ability to
practice their religion, because theirchurch burns candles as part of their
service to signify spiritual light.
So SC is likely pursuing a FirstAmendment freedom of religion claim
and the ordinance is unconstitutional.
Clear City is a state actor andtherefore subject to the First Amendment.
(12:27):
The law discriminates againstreligion on its face, because it
specifically prohibits burningcandles only in churches.
It does not address candle burningin any other buildings in the city.
SC also has a good argument thatthe Clear City ordinance will not
hold up under strict scrutiny.
Clear City does have a compellinginterest in protecting the safety
of its citizens from fires; however,the ordinance is not narrowly
(12:49):
tailored to achieve that interest.
Clear City completely prohibitsthe use of candles in churches,
so it is a blanket prohibition.
There are likely less restrictive waysClear City could have regulated candle
burning, such as limiting where candlescan be placed in churches, restricting
the type of candles that can be used, or anumber of other possible safety measures.
So, we have established that SCsatisfies the first element of
(13:14):
likelihood of success on the merits.
Now let's revisit the second elementof irreparable harm that we discussed
earlier when we talked about TROs.
When we considered SC's motion fora TRO, we determined that their
harm was not imminent, becausethe fire marshal was not going to
resume inspections for eight weeks.
Does our opinion change now that SC isrequesting a preliminary injunction?
(13:38):
It likely does, right?
With inspections eight weeksaway, the threat to SC wasn't
imminent enough for a TRO.
But litigation is a lengthy process.
There is a strong likelihood thatpreparation for and the actual trial
will exceed that eight-week timeframe.
If the fire marshal resumes randominspections at the end of the eight
weeks, then the likelihood of SCsuffering the irreparable injury
(14:00):
of being shut down from enforcementof the ordinance is significant.
So far SC has a pretty good case.
So let's consider the third element.
Does the balance of equitiesweigh in SC's favor?
SC is at risk of potentially beingshut down as a result of burning
candles during their services.
As we talked about, this ispotentially an irreparable injury.
(14:23):
They will be shut down and couldlose congregation members to
other churches during that time.
Even if SC ultimately wins at trialand reopens, there's no guarantee
those members would return.
In contrast, Clear City wouldbe temporarily prohibited
from enforcing an ordinance.
The ordinance it is trying to enforce maybe unconstitutional, and even if it is
(14:46):
not, the harm to the city is likely small.
The fire marshal has explained thatthey're already having enforcement
difficulties due to a lack of personnel.
Being delayed in enforcementof the ordinance does raise the
potential of the city having torespond to a fire in a church.
However, only one church out of the50 has ever burned down in Clear City
(15:07):
from burning candles, and the cityhas not shown that responding to a
church fire raises greater dangersthan any of the other fires that
the city will respond to that falloutside the reach of the ordinance.
As such, the balance of equitieslikely falls in favor of SC.
Okay, last element (15:24):
Is the injunction in the best interest of the public?
This likely weighs in SC's favortoo, as there is a public interest
in preserving the right to practiceone's religion without government
interference under the First Amendment.
In contrast, there is not a strong publicinterest in allowing the city to enforce
a potentially unconstitutional ordinance.
(15:46):
So, what's our final verdict?
With strong arguments for all fourelements, it is likely that SC will
be successful with their requestfor a preliminary injunction.
There is a strong risk of harmto SC that warrants an injunction
to preserve the status quo forthe duration of the lawsuit.
So, how do we feel about that hypo?
(16:06):
This is certainly complicated.
Let's look at another hypotheticaltogether to see if we can
really nail down these topics.
This hypothetical is pulled from Question4 on the July 2008 California bar exam,
but we've edited it a bit to focus ononly the issue of preliminary injunctions:
"Barry is a publisher of AutoDesigner's Digest, a magazine that
(16:30):
appeals to classic car enthusiasts.
For years, Barry has been tryingto win a first place award in an
annual Columbia Concours d'Elegance- the Concours - one of the most
prestigious auto shows in the country.
He was sure that winning such anaward would vastly increase the
circulation of his magazine andattract lucrative advertising revenues.
(16:50):
This year, Concours was scheduled tobegin on June 1st, with applications for
its entry to be submitted by May 1st.
Sally owned a 1932 Phaeton,one of the only two surviving
cars of that make and model.
The car was in such pristine conditionthat it stood a very good chance
of winning the first place prize.
(17:11):
On April 1st, Barry and Sally enteredinto a valid written contract by
which Barry agreed to buy, and Sallyagreed to sell, the Phaeton for
$200,000 for delivery on May 25th.
In anticipation of acquiringthe Phaeton, Barry completed the
application and paid the non-refundable$5,000 entry fee for the Concours.
(17:32):
On May 10th, Sally told Barry thatshe had just accepted $300,000 in
cash for the Phaeton from a wealthyItalian car collector, stating,
'That's what it's really worth', andadded that she would deliver the car
to a shipping company for transportto Italy within the next few weeks.
Barry has filed for a preliminaryinjunction to enjoin Sally from delivering
the Phaeton to the shipping companypending the resolution of their dispute.
(17:55):
Will he be successful?"
So, do we think Barry will be successfulat stopping Sally from delivering
the car to the shipping company?
Let's run through ourpreliminary injunction elements.
Is Barry likely to succeedon the merits of the lawsuit?
Well, Sally willfully breached hercontract with Barry, which the fact
pattern tells us was a valid contract.
(18:16):
Barry, therefore, has a strong likelihoodof success on the merits for damages.
He also has a likelihood of successfor specific performance, considering
the Phaeton is a unique good, withonly two cars left in existence.
Barry is also likely to sufferirreparable harm if the preliminary
injunction is not granted.
Sally has already made it clear to himthat she's delivering the Phaeton to
(18:36):
the shipping company in the next fewweeks for delivery to a different buyer.
As we mentioned, there are only twocars of this make and model left.
Sally's sale to the Italian collectorwould therefore deprive Barry of what may
be his only opportunity to own a Phaeton.
Now, does the balance ofequities tip in Barry's favor?
As we established, Barry is likelygoing to suffer an irreparable injury
(19:00):
by missing out on potentially his onlychance to buy this rare car, which
could help his business running amagazine for classic car enthusiasts.
In contrast, Sally would be delayedin selling the vehicle to the
Italian collector for $300,000if the injunction is granted.
This may cause her to lose out on thesale, given how long litigation can take.
(19:21):
However, if the car's true valueis $300,000, then she is likely
going to be able to sell it toanother purchaser for that amount.
Her harms are therefore slightin comparison to Barry's.
Lastly, we have to considerthe public interest.
This is a private contract betweentwo private parties, so there is
minimal impact on the public ifthe injunction goes into effect.
(19:44):
However, there is a public interestin the enforcement of contracts and
deterring parties from breachingthose contracts, so this factor likely
weighs in Barry's favor as well.
Since Barry has strong argumentson all four of the preliminary
injunction factors, it is likelyhe will be successful in obtaining
an injunction from the court.
Okay, our final topic todayis permanent injunctions.
(20:07):
A permanent injunction is adetermination on the merits, so it is
the judgment rendered at the end oftrial if the plaintiff is successful.
The standard for a permanent injunctionis essentially the same as a preliminary
injunction, except the plaintiff mustnow show actual success on the merits.
This is because a permanent injunction isa final judgment, and it will remain in
(20:34):
effect until it is dissolved by the court.
Any person affected by the injunction,however, has the right to move
to modify or dissolve the order.
And with that, we are out of time.
If you enjoyed this episode of theBar Exam Toolbox podcast, please
take a second to leave a review andrating on your favorite listening app.
We'd really appreciate it.
And be sure to subscribeso you don't miss anything.
If you have any questions or comments,please don't hesitate to reach out to
(20:55):
Lee or Alison at lee@barexamtoolbox.comor alison@barexamtoolbox.com.
Or you can always contactus via our website contact
form at BarExamToolbox.com.
Thanks for listening, and we'll talk soon!
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