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.
(1) Motion; Proposed Complaint; Filing. The party moving for a provisional injunction must submit a proposed complaint seeking injunctive relief with the motion. The moving party must file the motion, proposed complaint, and other supporting documents no later than the next court business day. Unless the moving party timely files these documents, an issued provisional injunction expires.
(2) Notice. The party moving for a provisional injunction 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.
(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
(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.
(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 issuance 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.
(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 received less than four days actual notice of the provisional-injunction motion before the provisional injunction was 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.
(B) Burden. The party that obtained the provisional injunction has the burden of justifying its continuation.
(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. Unless good cause is shown, 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.
(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 a passing injunction effective for 14 days. 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.
(e) Expediting the Merits Trial. If the court issues a preliminary injunction, the merits trial must be held within 180 days from the date an interim injunction was 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 60 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) Previous Denial. A party moving for a provisional or preliminary injunction must state in the motion whether any other judge has denied the motion or a similar motion based on the same transaction or occurrence or series of transactions or occurrences, and if so, the identity of the judge or judges who denied the motion.
(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.
(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 the court specifically finds the adverse party received four day's actual notice of the provisional-injunction motion before the provisional injunction was 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(g)(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, 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 the court ultimately decides the moving party was not entitled to the injunction.
(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 an 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 a negotiable bond.
(4) Additional Security. A party enjoined under an interim injunction 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. 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 established by the court.
(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 July 1, 1981;_____________.
This rule differs substantially
from Rule 65 FRCivP.
As amended, 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.
This amended rule introduces some new injunction terminology. Interim injunctions are those that are not permanent. These include provisional injunctions, preliminary injunctions and passing injunctions. A provisional injunction is similar to the temporary restraining order under federal practice.
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(h)(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 2-8; January 27-28, 2011, pages 2-29; 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.
Considered: N.D.C.C. chs. 12.1-31.2, 14-07.1, 32-05.