Civ Pro Rules

Rule 65(a) - Preliminary Injunctions

preliminary injunction : form of equitable relief that can be granted at the court's discretion in extraordinary cases

balance of equities test :

1. likelihood of success on merits

2. likelihood of irreparable harm without relief

3. balance of equities

4. injunction in the public interest — when gov is party balance of equities and public interest weigh heavier for govt

Winter v. NRDC change - possibility of harm is not enough, harm must be likely

procedure as power: parties can get tangible consequences without a verdict; parties can obtain meaningful relief during the injunction period even if eventually losing the appeal

Rule 65(b) - Temporary Restraining Order

Temporary Restraining Order : form of relief that can be granted by the court without a hearing - TROs last for 14 days and you must show likelihood of immediate irreparable harm without it

adverse party can move to dissolve TRO two days after notice or court’s deciion “as justice requires”

Due Process Clause

U.S. Const Amd 5 - no person shall be deprived of life, liberty, and property without due process of law

U.S. Const Amd 14 - no state shall deprive any persons of life, liberty, and property without process of law

FRCP 4 : Summons

notice must be reasonably calculated under all circumstances to apprise interested parties, including the requird information and allow them time to appear

reasonably calculate : balance of likelihood of success vs cost/difficult (burden) of feasible and customary alternatives — before service

all circumstances : given what the notifier actually knows ex ante; but includes new information received after notice is sent (do you know it was unsuccessful)

appraise: actual appraisal is not required — if notice meets other standard it is suffiicent

Notice - Important takeawys

• sufficient notice is fact specific : the more information the informer has, the higher the standard (ex/ less direct communication is appropriate if the informer has less information) + the informer must try something else if they learn notice was not received

Policy consideration : what stakes does each party have here

• for the notifier: this might create a perverse incentive to limit one’s knowledge of the circumstances and use a service method where it would be difficult to find out if it doesn’t work

• for the actual service provider: incentive to repoert a failed notice because then they can make more $$$

Opportunity to be Heard

due process requires the right to be heard at a meaningful time and in a meaningful manner — requires hearing before permanent or temporary deprivation of any significant property interest, except in exceptional circumstances (Fuentes)

• exceptional circumstances : may include when the government is taking property for national emergeny or someone is charged with tax evasion

• Fuentes suggests that government can take property without opportunity to be heard 1) it is in the public interest 2)there is a special need for prompt action 3) gov officials find it neccessary and justified (war efforts, tax collections, etc)

Connecticut v. Doehr : due process is still implicated in civil action between private parties

Doehr Balancing Test (private prty pre-hearing seizures)

• the private interests affected

• risk of erroneous deprivation

• probable value of additional safegaurds

• the interests of (and benefits to) the seizing party

policy consideration: it is important to protect people from government and private overreach so a hearing prior to repossession allows the court to determine interests —> decrease mistaken deprivation of property