Preliminary Injunction

A preliminary injunction is an injunction entered by the court prior to a final determination of the merits, in order to restrain a party from continuing certain conduct or to stop a party from taking certain actions that would cause damage to another party. A preliminary injunction is often referred to as an extraordinary and drastic remedy that should apply only in those situations where an extreme emergency exists and where, in the absence of an injunction, serious and irreparable harm would result to the party seeking the injunction. An injury is considered irreparable when it cannot be adequately compensated by an award of damages.

A TRO (temporary restraining order) is usually the first step. Once a TRO is obtained, a party can move for a preliminary injunction. A preliminary injunction is provisional in nature, though it is more permanent in nature than a TRO. The party against whom a preliminary injunction is sought must receive notice and an opportunity to appear at a hearing to argue that the emergency relief should not be granted.  In order to obtain a TRO and/or a preliminary injunction, a lawsuit must be filed in order to get the facts of the case in front of the court.

A party may seek a preliminary injunction in order to prevent a threatened wrong or continuing injury or to preserve the subject or object of the controversy in its then-existing condition until: (1) a hearing is had; (2) further order of the court; or (3) resolution of the merits of the case. A party may not, however, by way of preliminary injunction, compel the defendant to undo what the defendant has already done, take property out of the possession of one party and put it into the possession of another, alter or destroy the status quo, or obtain relief that could be obtained by a final judgment. If a party has shown only a limited probability of success, but has raised substantial and difficult questions worthy of additional inquiry, a court will grant a preliminary injunction only if the harm to him or her outweighs the injury to others if the injunction is denied.

A preliminary injunction, rather than determining any controverted rights, deciding any controverted facts, or determining the merits of a case, only indicates that sufficient cause has been shown for the court to preserve the property or rights in issue until the parties have a full opportunity present their case to the court and after a final hearing “on the merits.”  Accordingly, a preliminary injunction hearing is not a hearing on the merits, and any findings of the court in conjunction with a preliminary injunction are provisional in nature and are not final.