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
(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. The moving party must file a complaint seeking injunctive relief before filing a motion for a provisional injunction.
(A) Moving Party Must Provide Evidence of Notice Efforts. 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 hearing's time and place 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.
(B) Reasonable Notice Not Given. If the moving party does not give reasonable notice, the court may still issue a provisional injunction, but only if it finds in addition to appropriate injunction grounds, a clear need for immediate relief and 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.
(A) The Hearing Must be Recorded. The provisional-injunction hearing must be recorded whether or not the adverse party appears.
(B) Parties May Appear by Telephone. On a party's request, the court must allow that party to participate in the provisional-injunction hearing by telephone.
(C) Court May Suspend Hearing. If the adverse party does not appear at the provisional-injunction hearing, and the court finds the moving party did not give reasonable notice of the hearing's time and place, the court may, if time allows, suspend the hearing and require the moving party to give reasonable notice.
(D) Court May Contact Adverse Party. If the adverse party does not appear at the provisional-injunction hearing, the court may attempt to contact the adverse party's attorney, if known, or if not known, the adverse party, by telephone to allow the adverse party an opportunity to be heard.
(3) General Business Operations. Unless the state is a party, the court may issue an interim injunction enjoining the general and ordinary business of an individual, partnership, association, corporation or other entity only after the notice of hearing required for a preliminary injunction.
(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.
(5) Provisional-Injunction Expiration. A provisional injunction expires 28 days after 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 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.
(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.
(7) Motion to Dissolve or Modify.
(A) Notice and Hearing. If the adverse party gave less than two days actual notice of the provisional-injunction hearing, the adverse party may move to dissolve or modify the injunction on two 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.
(8) Not Extended by Implication. A provisional injunction remains a provisional injunction even if the adverse party appears at the provisional-injunction hearing 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. The moving party must file the complaint and serve the summons and a copy of the complaint on the adverse party under Rule 4 before filing a motion for a preliminary injunction.
(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. 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 enter a passing injunction effective for 14 days to allow it time to decide the preliminary-injunction motion. The court may extend this interim 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) Affidavits. Unless the court directs otherwise, testimony by affidavit only is permitted on a motion for a provisional injunction, motion to dissolve or modify a provisional injunction, and a motion for a preliminary injunction. The affidavits 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-Injunction Affidavits. Affidavits supporting or opposing a preliminary injunction must be 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) No Presentation to Other Judge. After a judge denies an interim injunction, the moving party must not present an interim-injunction motion based on the same transaction or occurrence, or series of transactions or occurrences, to any other judge for ruling. An interim-injunction issued by another judge after a judge denies an injunction based on the same transaction or occurrence, or series of transactions or occurrences, is void.
(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, or modification of an injunction. If the court issues a provisional injunction without reasonable notice to the adverse party of the hearing's time and place, the court must state why it issued the injunction without that notice.
(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. If the court issues a provisional injunction with less than 2-day's actual notice to the adverse party, the injunction must state that the adverse party may, under Rule 65(a)(7), apply to dissolve or modify the injunction on 2-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.
(1) Generally. Except for good cause shown and recited in the record, the court may not issue an interim injunction unless the moving party gives security in a form and amount that the court considers sufficient to pay the enjoined party's costs and damages if found wrongfully enjoined.
(2) No Security Required. The United States, the State of North Dakota, or an agency or 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. 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 Fed.R.Civ.P 65,
FRCivP. 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 January 27-28, 2010, pages ____; April 29-30, 2010, pages 27-28; January 28-29, 2010, page 14; January 17-18, 1980, pages 5-6.
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.