October 22, 2013 § 1 Comment
“No one should be condemned without a legal chance to be heard.”
This concept is so fundamental to our notions of due process that it almost goes without saying. Judge griffith expounded on it this way:
This maxim is so clearly founded in natural justice that even savages would understand it, and every decent modern government observes it as an indispensible principle of constitutional right. A decree rendered in its absence is utterly void, as it ought to be. A decree in personam cannot be rendered without a personal appearance or without personal notice sereved within the territorial limits of the state, and a decree bearing upon personal property situated within the state but owned by a non-resident is not valid unless by some reasonable method to be prescribed by law the defendant is given notice by constructive process, such as notice by publication. Griffith, § 48, p. 50.
The MRCP modified process to allow personal service outside the boundaries of the state.
The principle is found consistently in our jurisprudence. If there is no personal jurisdiction, if there is no notice, the court may not act.
The one exception is MRCP 65 pertaining to temporary restraining orders (TRO) without notice. These are not favored, however, unless the circumstances are of such an emergency and exigent nature that relief must be granted immediately. Even in such cases, however, the TRO may be dissolved upon motion of the enjoined party on only two days’ notice, and in no event may extend by the initial order for more than ten days.
September 22, 2010 § 1 Comment
There are two types of temporary restraining orders (TRO’s): The ones that work and the ones that fail. Since your client is paying you to get a TRO that works, you might want to read on about how to be successful in getting this relief.
A TRO usually arises where the plaintiff claims he is entitled to more extensive injunctive relief, but needs immediate intervention of the court to prevent irreparable injury until the full claim for injunction can be heard. A TRO is, simply put, a temporary injunction issued in exceptional circumstances without notice to the opposing party or his attorney, to expire no later than ten days after its entry by the court. It is intended to be an action to hold the parties in place until the court can have a full hearing on more comprehensive, extended injunctive relief.
The procedure to obtain a TRO is set out in Rule 65, MRCP. Everything you need to know about a successful TRO is there. So pause a moment here and Read Rule 65 all the way through. It’s not long and will take you no more than four and one-quarter minutes. I’ll wait. <humming to myself; checking my e-mail>
Okay, now that you’ve read the rule do you see now why you were turned down the last time you tried to get a TRO? Yep, I thought so.
The rule is clear that if you want an injunction issued without notice, you must present a pleading to the court that meets the following requirements:
It must recite specific facts by affidavit or verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the opposing party or his attorney may be heard in opposition; and
The applicant’s attorney certfies in writing what efforts, if any, have been made to give notice, and reasons why notice should not be required.
Some scenarios that will fail:
You file the complaint on behalf of your client. The rule requires a verified complaint or affidavit, either of which would be required to be on personal knowledge of the underlying facts by the person seeking the relief.
The complaint includes only conclusory statements and no facts. The rule requires “specific facts” that support the relief sought.
The harm that plaintiff seeks to avoid will likely occur in 30 days, and there is no explanation why notice for a hearing can not be given within that time.
Some judges require the personal appearance of the plaintiff or affiant to testify as to the facts set out in the complaint or affidavit. I take the position that, since the application is required to be verified or supported by affidavit, testimony in person is not required at this stage; the only inquiry by the court is whether the application meets the requirements of the rule.
When the TRO is entered, it is endorsed with the date and hour of issuance and is entered of record “forthwith.” The order must define the injury and why it is adjudged to be irreparable, and state why it was granted without notice. The order includes on its face the expiration date.
A TRO is effective for not longer than ten days, except in domestic relations cases to which the ten-day limitation does not apply. The court may “for good cause” extend the effective date of the TRO “for a like period.” That means that if the original TRO were effective for 5 days, the court may extend it another five, and a TRO originally effective for 10 days could be extended for 10 more days. The court may also extend the TRO if the party against whom the order is entered consents to the extension. In any extension, the reasons for the extension must be stated in the order.
The TRO must state in reasonable detail, and not by mere reference to the pleadings, the act or acts sought to be restrained. It is binding only upon the parties to the action and their officers, agents, servants, employees and attorneys, “and upon those persons acting in concert or participation with them who receive actual notice of the order by personal service or otherwise.”
When the TRO is entered, a hearing date and time is set for a hearing on the preliminary injunction. Scheduling of the hearing takes precedence over all other matters except “older matters of the same character.”
At hearing, the party who obtained the order proceeds first, and if the proponent fails to appear, the court shall dissolve the TRO.
The party against whom the order is issued may appear and request dissolution of the TRO or modification on two days’ notice to the obtaining party, or on such shorter notice as the court may prescribe. In such event, the court will hear the motion “as expeditiously as the ends of justice require.”
Except in domestice relations cases, a TRO or preliminary injunction may issue only on giving of security by the applicant in the amount that the court may direct, for the payment of costs, damages and reasonable attorney’s fees that may be suffered by any party later deemed to have been wrongfully restrained. No security is required of the State of Mississippi or its officers or agencies, and the court may waive security in a domestic relations case. In all cases where security is required, the provisions of Rule 65.1, MRCP, apply.
The order issuing the injunction must set forth the reasons for its issuance and describe in detail the act or actions sought to be restrained. It is binding only upon the parties to the action and their officers, agents, servants, employees and attorneys, “and upon those persons acting in concert or participation with them who receive actual notice of the order by personal service or otherwise.”
In the case of both a TRO and an injunction, if a reasonable person can not ascertain from the four corners of the document exactly what conduct is enjoined, the order should be set aside on appeal.
Practice Tip: Before you file an application for a TRO, read Rule 65 carefully. The requirements are technical and precise, and you will not succeed in having your TRO issued if you do not comply with the express requirements of the rule. Include in your pleading for a TRO a request for a preliminary injunction; otherwise, the other party may simply let your 10-day relief expire, and you will be back at the starting line.