An ex parte injunction is an emergency court order issued without first notifying the party it restrains. In federal court, it goes by the name temporary restraining order, or TRO, and it expires within 14 days unless the court extends it.1Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders Judges grant this kind of relief sparingly, because acting on one side’s evidence alone is a serious departure from ordinary practice. It happens only when waiting for a regular hearing would allow the very harm the court is being asked to prevent.
When This Kind of Relief Fits
The common thread is a clock that is already running. A spouse is draining a joint account the night before a divorce hearing. A former employee walks out with a thumb drive of trade secrets and has interviews at a competitor. A stalker escalates and the target needs protection before the weekend. In each case, giving formal notice would tip off the person whose conduct is at issue and defeat the purpose of the order.
Most ex parte TROs cluster in a handful of areas: domestic violence and harassment, trade secret and confidential information disputes, situations where a party is about to destroy evidence or hide assets, and intellectual property cases where infringing goods are about to hit the market.
What You Have to Show
Because skipping notice is extraordinary, the threshold is high. Federal Rule of Civil Procedure 65(b)(1) requires specific facts, in an affidavit or verified complaint, showing that immediate and irreparable injury will result before the opposing party can be heard.1Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders “Irreparable” is the key word. It means an injury that money paid later cannot fix. Lost reputation, destroyed evidence, and ongoing physical danger qualify. A debt someone could repay after the fact usually does not.
Beyond Rule 65, courts apply the four-factor test from Winter v. Natural Resources Defense Council, Inc.: likelihood of success on the underlying claim, likelihood of irreparable harm without the order, a balance of hardships tipping toward the applicant, and consistency with the public interest.2Justia U.S. Supreme Court Center. Winter v. Natural Resources Defense Council, Inc. The Court in Winter made clear that the harm must be “likely,” not merely “possible,” and that a strong showing on the merits does not excuse a weak showing on harm.3Library of Congress. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) Vague assertions that something bad might happen will not carry the motion.
How to File
The application is a motion for a temporary restraining order, supported by an affidavit or a verified complaint (a complaint signed under penalty of perjury, which can substitute for a separate affidavit).1Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders Attach the evidence that backs up the factual claims: contracts, messages, photographs, expert reports.
Your attorney must also file a written certification explaining what efforts were made to notify the opposing party and, if none, why notice should not be required.1Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders This is not a formality. A certification that essentially says “we didn’t try” will sink the motion. Legitimate reasons include evidence that the opposing party would destroy property, move assets, or flee if warned.
Courts move quickly on these motions, sometimes hearing them the same day they are filed. Some districts want a call to the judge’s case manager as soon as the motion goes in.4United States District Court for the Eastern District of Michigan. Practice Guideline – Temporary Restraining Order and Injunctions
The Duty of Candor
Because the other side is not in the room, the applicant has a heightened obligation to be honest with the court. You must disclose material facts even when they cut against you. Judges hearing ex parte applications know they are getting one story, and they rely on the applicant’s candor. If the court later learns that significant facts were hidden, the standard response is immediate dissolution of the order, and your credibility suffers for the rest of the case.
What the Order Says
An order granting the TRO must state the reasons it was issued, spell out its terms specifically, and describe the acts being restrained or required without pointing back to the complaint.1Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders Orders that tell someone to “stop all harmful conduct” are not enforceable. The order has to say exactly what the restrained party can and cannot do.
Scope is deliberately narrow. In a trade secrets case, the order might prohibit a former employee from sharing specific technical files with a named competitor, but it would not prevent them from working in the industry at all. Courts confine the restraint to what is necessary to prevent the immediate harm.
How Long It Lasts
A TRO issued without notice expires no later than 14 days after entry, or earlier if the court sets a shorter period. The court can extend it once for another 14 days on a showing of good cause, or longer if the restrained party agrees. Any reasons for extension go into the record.1Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders Practically, you have two to four weeks before the order lapses on its own.
The Bond
Before the order takes effect, the applicant typically has to post security. The bond protects the restrained party: if the injunction turns out to have been granted in error, the bond covers costs and damages caused by it.1Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders The court sets the amount based on the circumstances. In serious commercial disputes it can reach hundreds of thousands of dollars. The federal government and its agencies do not have to post one.
Fighting Back Against the Order
Being on the receiving end of an ex parte TRO is not the end of the matter. Under Rule 65(b)(4), the restrained party can move to dissolve or modify the order on just two days’ notice to the party who obtained it, and the court can shorten even that.1Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders The court has to hear and decide the motion as promptly as justice requires.
At that hearing you can put on evidence and arguments the court never considered. Common grounds include showing that the urgency was overstated, that the harm is not truly irreparable, that the applicant withheld material facts, or that the balance of hardships actually favors you. Judges are generally receptive to reassessing an order that was entered on incomplete information.
From TRO to Preliminary Injunction
A TRO is a bridge, not a destination. The applicant has to follow up with a motion for a preliminary injunction, and that hearing takes precedence on the court’s calendar over everything except older cases of the same type. If the applicant does not pursue the preliminary injunction, the court must dissolve the TRO.1Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders That rule keeps parties from using an emergency order as a tactical strike with no intention of litigating.
The preliminary injunction hearing applies the same Winter factors, but this time both sides are present and both sides put on evidence.2Justia U.S. Supreme Court Center. Winter v. Natural Resources Defense Council, Inc. Unlike a TRO, a preliminary injunction has no automatic expiration date. It can remain in place through the entire lawsuit until final judgment or settlement.
Enforcement and Contempt
The order has to be served on the restrained party, usually through a process server or law enforcement, and it takes legal effect once that person has actual notice. Violating it is contempt of court. Federal courts can impose fines, imprisonment, or both for disobedience of a lawful court order.5Office of the Law Revision Counsel. 18 USC 401 – Power of Court When the violation is also a separate criminal offense, penalties can include a fine and up to six months of imprisonment.6Office of the Law Revision Counsel. 18 U.S. Code 402 – Contempts Constituting Crimes Civil contempt is also available, often as escalating daily fines that continue until the party complies.
Recovery When the Order Was Wrong
The bond exists precisely because emergency orders are sometimes mistaken. If the injunction is later dissolved as wrongly granted, the restrained party can recover provable damages against the bond. Several federal circuits apply a presumption in favor of recovery once the order is set aside. The party seeking damages has to show the losses came from the injunction itself, but that burden is manageable after a dissolution.
Recoverable damages can include lost business revenue during the period the order was in force and certain legal costs incurred specifically because of it. The size of the bond therefore matters on both sides: too low, and the restrained party goes uncompensated; too high, and the applicant cannot post it in the first place.