An ex parte motion sample has four parts: the motion itself, a sworn declaration from someone with firsthand knowledge, a proposed order, and a certificate documenting notice efforts. Under Federal Rule of Civil Procedure 65(b), a court will only sign a temporary restraining order without notifying the other side when specific facts in a sworn affidavit or verified complaint clearly show that the moving party will suffer immediate and irreparable injury before the opposing party can be heard, and when the moving party’s attorney certifies in writing what was done to give notice and why notice should not be required.1LII / Legal Information Institute. Rule 65 Injunctions and Restraining Orders Each piece of the filing exists to satisfy one of those requirements.
The Four Documents in the Filing Package
A complete ex parte package needs all four documents below. Missing any one gives the court an easy reason to deny the request without reaching the merits.
The Motion or Application
The core document states exactly what relief you want and the legal basis for getting it on an emergency basis. Keep it focused. The judge reading this at short notice needs to understand within the first page why waiting for a normal hearing would cause irreversible damage. Rambling background sections and extensive case law discussion belong in regular briefing, not here.
Sworn Declaration or Affidavit
A declaration from someone with firsthand knowledge lays out the specific circumstances creating the emergency. It is signed under penalty of perjury and must explain both what harm is about to happen and why it cannot be undone later. Vague assertions about possible future problems are not enough. Include concrete details: dates, dollar amounts, and specific actions the opposing party has taken or credibly threatened to take.
Proposed Order
Draft the exact order you want the judge to sign. It should be specific enough that both parties, and any law enforcement agency asked to enforce it, can understand precisely what is required. A vague order creates confusion and invites a motion to dissolve. Include the date and time of issuance, define the conduct being restrained, and state the expiration date.
Certificate of Notice
Even in an ex parte filing, the rules require you to document your attempts to reach the other side. This certificate describes when and how you tried to notify the opposing party or their attorney. If you did not attempt notice at all, explain why any warning would have defeated the motion’s purpose. A common justification is that the opposing party would use the warning to complete the very act the court is being asked to prevent.
What the Sworn Facts Have to Show
The declaration is where the motion is won or lost, because it is the only evidence the judge has. Two things must come through clearly.
First, the harm has to be irreparable, meaning it cannot be fixed with money after the fact. A competitor soliciting every customer on a stolen client list before trial causes damage no dollar verdict fully undoes. A party liquidating the only assets available to satisfy a future judgment leaves nothing to collect. A garden-variety breach of contract where the only dispute is how much is owed rarely qualifies, because a money judgment can make the injured party whole later.2Legal Information Institute. Irreparable Harm
Second, the declaration should establish that no less drastic procedural alternative exists. If an expedited hearing on shortened notice could address the problem, the judge will order that instead. Ex parte relief is the last resort, not a shortcut for parties who simply want to move faster than normal litigation allows.
The Attorney’s Rule 65(b)(1) Certification
Rule 65(b)(1) requires the moving party’s attorney to certify in writing what efforts were made to give notice and the reasons why it should not be required.1LII / Legal Information Institute. Rule 65 Injunctions and Restraining Orders This certification is not a formality. It becomes part of the court record and gets scrutinized if the opposing party later challenges the process. Be specific about times, methods, and results. If notice was not attempted, tie the reason directly to the harm the motion seeks to prevent.
Security Bond You May Need to Post
Federal Rule 65(c) requires the moving party to post security before a temporary restraining order or preliminary injunction takes effect. The bond covers costs and damages the restrained party would suffer if the court later determines the order was wrongly issued.1LII / Legal Information Institute. Rule 65 Injunctions and Restraining Orders
The judge sets the amount based on the potential harm to the restrained party. In practice, this can range from a nominal sum to a substantial figure. If the order blocks a business transaction, the bond might need to cover the economic losses from the delay. Some states follow similar requirements, though the specifics vary by jurisdiction. Budget for this before filing, because a court can deny an otherwise meritorious motion if the moving party cannot post adequate security.
Filing the Package and Serving the Order
Submit the package to the court clerk or through the electronic filing system. Many courts set specific morning deadlines for ex parte filings so a judge can review them the same day. Most judges also expect courtesy copies of the entire package delivered directly to chambers. Failing to provide those copies can delay review by hours or days, which defeats the purpose of an emergency motion.
Service obligations attach even though the initial request was one-sided. If the court grants the order, the moving party must immediately serve the opposing party with the signed order and the full motion package. If the court instead schedules a short-notice hearing rather than ruling immediately, the opposing party must receive notice of that hearing in time to appear.
Duration Built Into the Proposed Order
A temporary restraining order issued without notice expires at the time the court sets, which cannot exceed 14 days from entry. The court can extend that period once for another 14 days if the moving party shows good cause before the original order expires, or for a longer period if the restrained party consents.1LII / Legal Information Institute. Rule 65 Injunctions and Restraining Orders The proposed order you file needs to reflect this limit on its face.
The clock matters more than most people realize. If the order expires and no preliminary injunction hearing has been held, the restraint simply vanishes and the opposing party is free to act. The reasons for any extension must be entered into the court record. Courts are not generous with extensions when the moving party has had two weeks to prepare for a full hearing and failed to do so.
What the Follow-Up Hearing Requires
An ex parte TRO is the beginning of a compressed litigation track, not the end of one. Once the order issues, the court schedules a preliminary injunction hearing at the earliest possible time, and that hearing takes priority over nearly everything else on the docket. The party who obtained the TRO must move forward with the request for a preliminary injunction at that hearing. If they fail to do so, the court dissolves the order.1LII / Legal Information Institute. Rule 65 Injunctions and Restraining Orders Plan the filing package with that follow-up in mind; the evidence supporting the TRO needs to hold up when the other side is finally in the room.
Candor Belongs in the Filing Itself
Because the opposing party is not present, the moving party’s attorney carries an unusually heavy ethical obligation. Under the Model Rules of Professional Conduct, a lawyer in an ex parte proceeding must tell the court about all material facts that would help the judge make an informed decision, including facts that hurt the client’s case.3American Bar Association. Rule 3.3 Candor Toward the Tribunal
This is where many ex parte motions go sideways. In a normal hearing, the other side highlights the weaknesses in your argument. In an ex parte proceeding, you have to do it yourself. An attorney who paints only a favorable picture and omits inconvenient facts risks having the order vacated once the full story comes out. Include adverse facts in the motion and declaration and explain why relief is still warranted despite them.
Sanctions Risk for a Misleading Filing
Filing a misleading ex parte motion carries consequences beyond having the order vacated. Under Federal Rule of Civil Procedure 11, every motion filed with a court carries an implicit certification that it is not being presented for an improper purpose, that the legal arguments have merit, and that the factual claims have evidentiary support. A court that finds a violation can impose sanctions on the attorney, the law firm, or in some cases the party responsible.4Legal Information Institute. Rule 11 Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
Available sanctions include non-monetary directives, penalties paid into court, and orders requiring payment of the other side’s reasonable attorney’s fees and expenses caused by the violation. A law firm is jointly responsible for violations committed by its attorneys absent exceptional circumstances.4Legal Information Institute. Rule 11 Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions In ex parte proceedings, where the court relied on one-sided representations to issue an order, judges tend to take bad faith especially seriously.