9 Temporary Restraining Orders and Preliminary …

1 COPYRIGHT 2007 BY GREGORY J. SCANDAGLIA AND WILLIAM J. RYAN. 9 1 Temporary Restraining Orders and Preliminary Injunctions GREGORY J. SCANDAGLIA WILLIAM J. RYAN Scandaglia & Ryan Chicago The authors thank John B. Thornton and Bradley D. Hergott, associates at Scandaglia & Ryan, for their assistance in the preparation of this chapter. 9 BUSINESS AND COMMERCIAL LITIGATION 9 2 I. Introduction A. [ ] Scope of Chapter B. Background 1.

2 [ ] Temporary Restraining Orders and Preliminary Injunctions Defined 2. Statutory Authority a. [ ] Illinois b. [ ] Federal 3. Strategic Purpose of a Temporary Restraining order or Preliminary injunction a. [ ] In General b. [ ] Preservation of Status Quo c. [ ] Prevention of Occurrence of Wrong or Further Injury d. [ ] Prevention of Destruction or Dissipation of Property C.

3 [ ] Differences Between Temporary Restraining Orders and Preliminary Injunctions D. [ ] Bond Requirement E. Jurisdiction and Venue 1. [ ] Subject Matter Jurisdiction 2. [ ] Personal Jurisdiction 3. [ ] Venue II. Temporary Restraining Orders A. [ ] General Showing Needed To Obtain a Temporary Restraining order B. Provisions Regarding Notice and Lack Thereof 1. [ ] Temporary Restraining Orders Without Notice 2. Temporary Restraining Orders with Notice a.

4 [ ] Illinois b. [ ] Federal c. [ ] Sufficiency C. Elements or Factors To Be Established by the Verified Complaint 1. [ ] The Four Basic Factors 2. [ ] Ascertainable Claim for Relief 3. Likelihood of Success on the Merits a. [ ] Illinois b. [ ] Federal 4. [ ] Irreparable Harm 5. [ ] Inadequate Remedy at Law 6. Balancing of Hardships a.

5 [ ] Illinois b. [ ] Federal Temporary Restraining Orders AND Preliminary INJUNCTIONS ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 9 3 7. [ ] Impact on Public Interest 8. [ ] Pleading Requirements Relaxed When Statute Expressly Authorizes Injunctive Relief 9. [ ] Enforceability of Contractually Stipulated Injunctions D. When Temporary Restraining Orders Are Unavailable 1. [ ] Granting the Ultimate Relief 2. [ ] Other Contexts in Which Temporary Restraining Orders Are Unavailable E.

6 [ ] Affirmative Defenses F. [ ] Burden of Proof G. The Plaintiff s Pleadings 1. Verified Complaint a. [ ] All Facts Necessary To Support a Temporary Restraining order Must Be Clearly Pled (1) [ ] Ascertainable claim for relief (2) [ ] Likelihood of success on the merits (3) [ ] Irreparable harm (4) [ ] Inadequate remedy at law or in equity b. [ ] Prayer for Relief Must Be Specific c.

7 [ ] The Need for Verification 2. [ ] Motion for Temporary Restraining order and Summary of Plaintiff s Filings H. The Defendant s Pleadings 1. [ ] Answer 2. [ ] Summary of Defendant s Filings I. The Temporary Restraining order Hearing 1. [ ] Temporary Restraining order Without Notice 2. Temporary Restraining order with Notice a. [ ] Illinois b. [ ] Federal 3. [ ] Contested Facts and Merits of Case Not Decided at Hearing for Temporary Restraining order J.

8 Duration of the Temporary Restraining order 1. [ ] Temporary Restraining order Entered Without Notice to Opposing Party 2. Temporary Restraining order Entered with Notice to Opposing Party a. [ ] Illinois b. [ ] Federal K. The Bond Requirement 1. [ ] Illinois 2. [ ] Federal BUSINESS AND COMMERCIAL LITIGATION 9 4 L. Form of the Temporary Restraining order 1. [ ] Contents of the Temporary Restraining order 2.

9 [ ] Persons Affected by the order M. Motion To Dissolve Temporary Restraining order 1. [ ] Timing of Motion To Dissolve 2. [ ] Grounds for Motion To Dissolve 3. [ ] Effect on Temporary Restraining order of Removal to Federal Court N. Appeals of Temporary Restraining Orders 1. [ ] Illinois 2. [ ] Federal 3. [ ] Standard of Review O. Damages for Wrongfully Entered Temporary Restraining Orders 1. [ ] Illinois 2. [ ] Federal P.

10 Temporary Restraining order Summary Checklists of Practical Considerations 1. [ ] Checklist for Plaintiffs When Preparing the Pleadings 2. [ ] Checklist for Plaintiffs at the Temporary Restraining order Hearing and Beyond 3. [ ] Checklist for Defendants When Preparing the Pleadings 4. [ ] Checklist for Defendants at the Temporary Restraining order Hearing and Beyond 5. [ ] Checklist of General Temporary Restraining order Considerations for Both Parties III. Preliminary Injunctions A. [ ] General Showing Required To Obtain a Preliminary injunction B.