Temporary Restraining Order

TEMPORARY RESTRAINING ORDER

A court order that lasts only until the court can hear further evidence.

A temporary restraining order (TRO) is a court order of limited duration. A TRO commands the parties in the case to maintain a certain status until the court can hear further evidence and decide whether to issue a preliminary injunction.

Under federal and state rules of civil procedure, a person may obtain a TRO by visiting a judge or magistrate without notice to, or the presence of, the adverse party. A TRO may be issued by a court only if (1) it appears from specific facts shown in a signed, sworn affidavit or complaint that immediate irreparable injury, loss, or damage will result to the applicant before the adverse party or the adverse party's attorney can be heard in opposition; and (2) the applicant's attorney describes to the court in writing the efforts, if any, that have been made to give notice to the adverse party and gives reasons to support the claim that notice should not be required.

Temporary restraining orders are extraordinary measures because they are court orders issued against a party without notice to that party and without giving the party an opportunity to argue against the order. A TRO usually lasts only two or three days, until the court can hear both sides of the issue and decide whether to issue a preliminary injunction. A court generally hears arguments on the preliminary injunction as soon as possible after the TRO is issued. On the federal level, rule 65 of the Federal Rules of Civil Procedure mandates that a TRO should not last longer than ten days, and that a TRO may be renewed only for an additional ten days. State courts have similar provisions in their rules of civil procedure.

The immediate potential for irreparable harm is the gravamen of the TRO. If an applicant is unable to prove that the harm suffered will be irreparable or that the irreparable harm is imminent, a court will not approve a TRO. Assume that a person purchases a car with financing from the dealership. The buyer then becomes embroiled in a dispute with the dealership over the car and stops making payments; the dealership responds by threatening to repossess the car. If the buyer applies for a TRO preventing the dealership from taking the car, a court would likely refuse the request, because the loss of the car is not imminent. Moreover, the loss of a car is not an irreparable injury; a court would likely expect the buyer to carry on with other modes of transportation.

Now assume that the purchased vehicle is a large utility van that the buyer has customized to use in her catering business. The loss of the van for a few days would be disastrous to the business and could eventually lead to bankruptcy, so the buyer would likely be able to obtain a TRO, provided the harm was sufficiently imminent.

The adverse party cannot appeal the issuance of a TRO to a higher court. The best remedy for an adverse party is to obtain a court hearing as soon as possible on the issuance of a preliminary injunction. preliminary injunctions may be appealed to higher courts.

TROs are commonly issued in situations involving stalking and harassment or damage to property. Other common TRO situations include unfair competition and trademark, copyright, or patent infringement, all of which involve potentially irreparable damage to a party's economic livelihood.

further readings

Buzawa, Eve S., and Carl G. Buzawa, eds. 1996. Do Arrests and Restraining Orders Work? Thousand Oaks, Calif.: Sage.

Shoben, Elaine W., and William Murray Tabb. 1989. Remedies: Cases and Problems. Westbury, N.Y.: Foundation Press.