RULE 65. INJUNCTIONS

Effective Date: 7/1/2012

Obsolete Date: 3/1/2014

(a) Temporary restraining order. A temporary restraining order is short-lived injunctive relief 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 temporary restraining order 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 after submission. If the moving party does not timely file these documents, an issued temporary restraining order terminates at the end of that next business day.
(2) Notice. The party moving for a temporary restraining order must submit an affidavit reciting the efforts made to give the opposing party's attorney, if known, or if not known, the opposing 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 of the date and time of submission of the motion to the court, affording the opposing party an opportunity to be heard.
(3) Basis for Relief. The court may issue a temporary restraining order only if it finds:
(A) appropriate injunction grounds;
(B) a clear need for immediate relief; and
(C) either:
(i) the moving party gave reasonable notice or made reasonable efforts to give reasonable notice to the opposing party's attorney, if known, or if not known, to the opposing 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 temporary restraining order must obtain a preliminary injunction hearing time no less than 21 days, and no more than 28 days, from the temporary restraining order date.
(5) Temporary Restraining Order Expiration. A temporary restraining order expires at the end of the 28th day after issuance unless the court for good cause directs a shorter time or the opposing party consents to a longer time. If the party that obtained the temporary restraining order cannot obtain a preliminary-injunction hearing within 21 to 28 days of the temporary restraining order date, the court may extend the temporary restraining order until the earliest possible time the motion may be heard. At or after the preliminary injunction hearing, the court may extend the temporary restraining order for no more than 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) Temporary Restraining Order Service. A party that obtains a temporary restraining order must serve the order and the notice for the preliminary injunction hearing on the opposing 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 opposing party received less than four days actual notice of the temporary restraining order motion before the temporary restraining order was issued, the opposing party may move to dissolve or modify the order on four days actual notice, or on shorter notice the court for good cause sets, to the party that obtained the order.
(B) Burden. The party that obtained the temporary restraining order has the burden of justifying its continuation.
(8) Not Extended by Implication. A temporary restraining order remains a temporary restraining order even if the opposing party appears in opposition to the temporary restraining order motion or the court denies a motion to dissolve or modify the temporary restraining order.

(b) Preliminary Injunction. A preliminary injunction prevents irreparable injury until the court decides whether to issue a permanent injunction at trial. A court may issue a preliminary injunction only after the Rule 65(b)(1) required notice of hearing. The moving party must file and serve the summons and complaint under Rule 4 no later than the time the party serves and files the notice of motion and 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 opposing party 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) Temporary Restraining Order in Place. When the moving party moves for a preliminary injunction with a temporary restraining order in place, the moving party must serve the preliminary injunction motion, supporting brief, and supporting materials within seven days after the temporary restraining order date. The opposing 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 temporary restraining order if the party that obtained it does not timely serve the preliminary injunction motion, supporting brief, and supporting materials.
(B) Temporary Restraining Order Not in Place. When the moving party moves for a preliminary injunction without a temporary restraining order in place, the moving party must serve the preliminary-injunction motion, supporting brief, and supporting materials on the opposing party. The opposing 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 opposing party's response brief.
(3) Interim Relief. If at the hearing on a preliminary injunction motion brought without a temporary restraining order in place, the moving party shows appropriate injunction grounds and the clear need for immediate relief, the court may on its own motion issue a temporary restraining order effective for no more than 14 days. The court may extend this order for good cause, but must enter the reasons for any extension in the record.

(c) Unnamed Parties. Any unnamed party that a temporary restraining order or preliminary injunction would or does directly affect may be heard at an injunction hearing.

(d) Evidence.

(1) Temporary Restraining Order Evidence. Unless the court directs otherwise, evidence on a motion for a temporary restraining order, or a motion to dissolve or modify a temporary restraining order, must be by affidavit. An affidavit supporting or opposing a motion for a temporary restraining order or a motion to dissolve or modify a temporary restraining order 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 Evidence. Unless the court directs otherwise, evidence on a motion for a preliminary injunction may be by oral testimony. An affidavit supporting or opposing a preliminary 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) Trial on Permanent Injunction. If the court issues a preliminary injunction, the trial must be held within 180 days from the date a temporary restraining order or preliminary injunction was first issued unless the court for good cause extends the time or the opposing party consents to a longer time. The court should issue its decision 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 temporary restraining order or preliminary injunction must state in the motion whether a judge previously 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 temporary restraining order without reasonable notice to the opposing party's attorney or the opposing party, the court must state why it issued the order without that notice.
(2) Contents.
(A) In General. A temporary restraining order or preliminary 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) Temporary Restraining Order. Unless the court specifically finds the opposing party received four day's actual notice of the temporary restraining order motion before the temporary restraining order was issued, the temporary restraining order must state that the opposing party may move to dissolve or modify the order under Rule 65(a)(7) on four day's actual notice, or on shorter notice the court for good cause sets, to the party that obtained the order.
(3) Persons Bound. A temporary restraining order or preliminary 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, a temporary restraining order or preliminary injunction may move the court to clarify whether the order or injunction would apply to specified conduct.

(h) Security.

(1) In General. Except for good cause shown and recited in the record, a temporary restraining order or preliminary 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 order or 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 opposing 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 a temporary restraining order or preliminary 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 motion that security, or different or additional security, is required, it must vacate the order or 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 temporary restraining order or preliminary injunction.

(i) Contempt. The court may punish disobedience of a temporary restraining order, preliminary injunction, or permanent injunction as a contempt.

(j) Other Laws Not Modified. This rule does 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.

Rule 65 was amended, effective July 1, 1981; July 1, 2012; March 1, 2014.

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.

Grounds for granting a permanent injunction are listed in N.D.C.C. § 32-05-04. Grounds for granting a temporary restraining order or preliminary injunction are listed in N.D.C.C. § 32-06-02.

The court should promptly hear and decide a motion to dissolve or modify a temporary restraining order. If the parties stipulate, the court may convert the hearing on the motion to dissolve or modify into the preliminary injunction hearing.

If the parties stipulate, the court may advance the trial and consolidate it with the preliminary injunction hearing. The parties and the court should take care, however, to preserve the right a party may have to a jury trial on issues separate from the issue of injunctive relief.

An opposing 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 temporary restraining order.

Subdivision (g) was amended, effective March 1, 2014, to include references to permanent injunctions.

SOURCES: Joint Procedure Committee Minutes of January 31-February 1, 2013, pages 25-26; 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.

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; §§ 32-06-01, 32-06-02.

Effective Date Obsolete Date
03/01/2014 View
07/01/2012 03/01/2014 View
01/17/1980 07/01/2012 View