N.D.R.Civ.P.
RULE 65. INJUNCTIONS
The procedure for granting restraining orders and
temporary and permanent injunctions
shall be as provided by statute. To the extent that the statute is silent on procedure, these
rules apply.
(a) Provisional Injunction. A provisional injunction is a short-lived interim injunction that the court may issue with less notice than required for a preliminary injunction. It prevents irreparable injury until the court decides whether to issue a preliminary injunction.
(1) Motion; Proposed Complaint; Filing. The
provisional-injunction moving party must
submit a proposed complaint seeking injunctive relief with the motion. A motion
seeking
a provisional injunction must be accompanied by a proposed complaint seeking injunctive
relief. The moving party must file the motion,
and proposed complaint, and other supporting
documents must be filed no later than the next day after the granting
or denial of the motion
that the courthouse is open normal working hours. is not a Saturday,
Sunday or legal holiday.
Unless the moving party timely files these documents, an issued provisional injunction
expires.
(1) (2) Notice. The
provisional-injunction moving party must submit an affidavit reciting
the efforts made to give the adverse party's attorney, if known, or if not known, the adverse
party, reasonable notice of the motion or the reasons why notice should not be required.
Reasonable notice means any form of notice reasonably calculated to give actual notice and
afford the adverse party an opportunity to be heard.
(2) (3) Basis for Relief. The court
may issue a provisional injunction only if it finds:
(A) appropriate injunction grounds;
(B) a clear need for immediate relief; and
(C) either:
(i) the moving party made reasonable efforts to give reasonable notice to the adverse party's attorney, if known, or if not known, to the adverse party; or
(ii) a substantial reason exists for not giving notice.
(3) (4) Preliminary-Injunction
Hearing Date. Unless for good cause the court directs
otherwise, a party that obtains a provisional injunction must obtain a preliminary-injunction
hearing time no less than 21 days, and no more than 28 days, from the provisional-injunction
date.
(4) (5) Provisional-Injunction
Expiration. A provisional injunction expires 28 days after
issuance entry unless the court for good cause directs a shorter
time or the adverse party
consents to a longer time. If the party that obtained the provisional injunction cannot obtain
a preliminary-injunction hearing within 21 to 28 days of the provisional-injunction date, the
court may extend the provisional injunction until the earliest possible time the motion may
be heard. At or after the preliminary-injunction hearing, the court may extend the
provisional injunction for another 14 days if necessary for deciding the preliminary-injunction
motion, unless for good cause a longer time is necessary. The court must enter
the reasons for any extension in the record.
(5) (6) Provisional-Injunction
Service. A party that obtains a provisional injunction must
serve the injunction and the notice for the preliminary-injunction hearing on the adverse
party as follows:
(A) Summons and Complaint Not Served. If the summons and complaint have not yet been served under Rule 4, then with the summons and complaint under Rule 4.
(B) Summons and Complaint Served. If the summons and complaint have been served under Rule 4, then under Rule 5.
(6) (7) Motion to Dissolve or
Modify.
(A) Notice and Hearing. If the adverse party
actually received less than four days actual
notice of the provisional-injunction motion before prior to issuance
of the provisional
injunction issued, the adverse party may move to dissolve or modify the injunction on
four
days actual notice, or on shorter notice the court for good cause sets, to the party that
obtained the injunction. The court must hear and decide the motion as promptly as
justice
requires.
(B) Burden. The party that obtained the provisional injunction has the burden of justifying its continuation.
(C) Conversion to Preliminary-Injunction Hearing. If the
parties stipulate, the court may
convert the motion-to-dissolve or -modify hearing into the preliminary-injunction hearing.
(7) (8) Not Extended by Implication.
A provisional injunction remains a provisional
injunction even if the adverse party appears in opposition to the provisional-injunction
motion or the court denies a motion to dissolve or modify the provisional injunction.
(b) Preliminary Injunction. A preliminary injunction is an interim injunction that the court may issue only after the Rule 65(b)(1)-required notice of hearing. It prevents irreparable injury until the court decides whether to issue a permanent injunction at the merits trial. On or before the service and filing of the motion for a preliminary injunction, the moving party must file the complaint and serve the summons and a copy of the complaint on the adverse party under Rule 4.
(1) Notice and Hearing. Unless for good cause the court directs otherwise, the court may issue a preliminary injunction only when the moving party serves the preliminary-injunction motion, supporting brief, and supporting materials on the adverse party under Rule 4 or 5, as appropriate, at least 14 days before the hearing date.
(2) Briefing Schedule. Unless for good cause the court directs otherwise, the briefing schedule for a preliminary-injunction motion is as follows:
(A) Provisional Injunction in Place. When the moving party moves for a preliminary injunction with a provisional injunction in place, the moving party must serve the preliminary-injunction motion, supporting brief, and supporting materials under Rule 4 or 5, as appropriate, within seven days after the provisional-injunction date. The adverse party must serve the response brief and supporting materials within seven days after service of the moving party's brief. Only on order of the court, for good cause shown, may the moving party serve a reply brief. The court must dissolve the provisional injunction if the party that obtained it does not timely serve the preliminary-injunction motion, supporting brief, and supporting materials, unless good cause is shown.
(B) Provisional Injunction Not in Place. When the moving party moves for a preliminary injunction without a provisional injunction in place, the moving party must serve the preliminary-injunction motion, supporting brief, and supporting materials on the adverse party under Rule 4 or 5, as appropriate. The adverse party must serve the response brief and supporting materials within seven days after service of the moving party's brief. The moving party must serve any reply brief within five days after service of the adverse party's response brief.
(3) Passing Injunction. A passing injunction is an interim
injunction that the court may
enter to allow it time to decide a preliminary-injunction motion when no provisional
injunction is in place. If at the hearing on a preliminary-injunction motion brought without
a provisional injunction in place, the moving party shows appropriate injunction grounds and
the clear need for immediate relief, the court may issue enter a
passing injunction effective
for 14 days to allow it time to decide the preliminary-injunction motion.
The court may
extend this passing injunction for good cause, but must enter the reasons for any extension
in the record.
(c) Unnamed Parties. Any unnamed party that an interim injunction would or does directly affect may be heard at an interim-injunction hearing.
(d) Interim-Injunction Evidence.
(1) Provisional-Injunction Evidence. Unless the court directs otherwise, evidence on a motion for a provisional injunction, or a motion-to-dissolve or -modify a provisional injunction, must be by affidavit. The affidavits supporting or opposing a motion for a provisional injunction or a motion to dissolve or modify a provisional injunction may be based on information and belief. The affiant must identify those parts of the affidavit based on personal knowledge and those based on information and belief.
(2) Preliminary and Passing-Injunction Evidence. Unless the court directs otherwise, evidence on a motion for a preliminary or passing injunction may be by oral testimony. Affidavits supporting or opposing a preliminary or passing injunction must be based on personal knowledge and served with the parties' briefs. The court may permit additional affidavits to be filed at or after the hearing.
(3) Consolidating the Preliminary-Injunction Hearing with
the Merits Trial. If the court
allows oral testimony at the preliminary-injunction hearing, the parties may stipulate that the
merits trial be advanced and consolidated with the preliminary-injunction hearing. Even
when the merits trial is not advanced and consolidated with the preliminary-injunction
hearing, evidence that is received at the preliminary-injunction hearing that would be
admissible at trial becomes part of the trial record and need not be repeated at trial. The
court must, however, preserve any party's right to a jury trial.
(e) Expediting the Merits Trial. If the court issues a preliminary injunction, the merits trial must be held within 182 days from the date an interim injunction first issued unless the court for good cause extends the time or the adverse party consents to a longer time. The court must issue its decision on the merits within 56 days after the trial, unless for good cause a longer time is necessary. The court must enter the reasons for any extension in the record.
(f) Statement of the Case. A motion for an interim injunction must include a statement of the case briefly explaining the nature of the case, the course of any prior proceedings, and the disposition of any previous motion for an interim injunction in the matter.
(g) Findings; Contents and Scope of Injunction.
(1) Findings. The court must state its findings of fact and conclusions of law under Rule 52 supporting the denial, issuance, dissolution or modification of an injunction. If the court issues a provisional injunction without reasonable notice to the adverse party's attorney or the adverse party, the court must state why it issued the injunction without that notice.
(2) Contents.
(A) All Injunctions. An injunction must:
(i) state its terms specifically.
(ii) describe in reasonable detail, and not by referring to the complaint or other document, the acts restrained or required.
(B) Provisional Injunction. Unless If
the court specifically finds that the adverse party did
not received four day's actual notice of the provisional-injunction
motion before for the
provisional injunction issued, the provisional injunction must state that the
adverse party
may, under Rule 65(a)(7), move to dissolve or modify the injunction on four day's actual
notice, or on shorter notice the court for good cause sets, to the party that obtained the
injunction.
(3) Persons Bound. An injunction binds only the following that receive actual notice of it by personal service or otherwise:
(A) the parties;
(B) the parties' officers, agents, servants, employees, and attorneys; and
(C) other parties that are in active concert or participation with anyone described in Rule 65(f)(3)(A) or (B).
(4) Clarification. Any party subject to, or potentially subject to, an injunction may move the court to clarify whether the injunction would apply to specified conduct.
(h) Security.
(1) Generally. Except for good cause shown and recited in the record, an interim injunction does not become effective for enforcement until the moving party posts security in a form and amount that the court considers sufficient to pay the enjoined party's costs and damages if found wrongfully enjoined.
[Alternative: (1) Generally. Except for good cause shown and recited in the record, the moving party must post security for an interim injunction in a form and amount that the court considers sufficient to pay the enjoined party's costs and damages if found wrongfully enjoined. The court must vacate the injunction unless the party that obtained it provides the security within a reasonable time that the court sets.]
(2) No Security Required. The United States, the State of North Dakota, or an agency or political subdivision of either, or an officer of any of these acting in official capacity, need not provide security.
(3) Form of Security. The moving party may give the security in any form the court considers sufficient to secure the adverse party. Security may include a surety on a bond or other undertaking, a cashier's check, a certified check, a letter of credit, or negotiable bonds.
(4) Additional Security. A party enjoined under an interim
injunction An enjoined party
may move the court for security if the court did not initially require it, or additional or
different security if the court did require it. The adverse party may combine this
motion with
a Rule 65(a)(7) motion to dissolve or modify a provisional injunction. If the court
decides
on this motion that security, or different or additional security, is required, it must vacate the
injunction unless the party that obtained it provides the form and amount of security that the
court requires within a reasonable time that the court sets.
(5) Not a Cap. The amount of security does not limit the costs and damages a wrongfully-enjoined party may recover from the party that obtained the injunction.
(i) Contempt. The court may punish disobedience of an injunction as a contempt.
(j) Other Laws Not Modified. These rules do not modify statutes or rules that prescribe specific procedures for obtaining injunctive relief in any of the following actions:
(1) actions affecting employer and employee;
(2) actions for divorce, child or spousal support, parental rights and responsibilities, or domestic violence; or
(3) actions involving disorderly conduct.EXPLANATORY NOTE
Rule 65 was amended, effective_____________.
This rule differs substantially from Rule 65
FRCivP.
Rule 65 is designed to provide a framework for injunction procedure in North Dakota. It integrates elements of the state's injunction procedure statutes, now superseded, with the federal rule on injunctions, Fed.R.Civ.P. 65, and concepts from injunction rules from other states.
The court should promptly hear and decide a motion to dissolve or modify a provisional injunction. If the parties stipulate, the court may convert the motion-to-dissolve or -modify hearing into the preliminary-injunction hearing.
If the parties stipulate, the court may advance the trial on the merits and consolidate it with the preliminary-injunction hearing. The parties and the court should take care, however, to preserve any party's right to a jury trial.
An adverse party may combine a Rule 65(g)(4) motion for security, or additional or different security, with a Rule 65(a)(7) motion to dissolve or modify a provisional injunction.
N.D.C.C. chs. 32-05 and 32-06 generally govern the
procedure for the issuance of
injunctions and restraining orders.
Sources: Joint Procedure Committee Minutes of April 28-29, 2011, pages_____; January 27-28, 2011, pages ____; April 29-30, 2010, pages 27-28; January 28-29, 2010, page 14; January 17-18, 1980, pages 5-6.
Statutes Affected:
Superseded: N.D.C.C. §§ 32-06-03, 32-06-04, 32-06-05, 32-06-06, 32-06-07, 32-06-08, 32-06-09, 32-06-10, 32-06-11.
Considered: N.D.C.C. chs. 12.1-31.2, 14-07.1, 32-05.