Regarding Ex Parte Applications for Temporary Restraining Orders

By Michael C. Schmidt
Approved by the Committee 4/23/99
 
 

This report is submitted in support of a recommendation of the NYSBA Committee on Civil Practice Law and Rules that the Uniform Rules be amended to require that a party seeking a temporary restraining order provide notification to the party sought to be restrained except where it can be shown that such notification is not practicable or that such notification would defeat the purpose of the restraint.

II. Policy Considerations and Current Practice

Under CPLR 6312, a party may in virtually all cases obtain a temporary restraining order without giving any notice to the other side whatsoever. CPLR 6313 permits a court to issue a temporary restraining order without notice if "on a motion for a preliminary injunction, the plaintiff shall show that immediate and irreparable injury, loss or damages will result unless the defendant is restrained before a hearing can be had[.]" This provision has historically been liberally construed sot that in many New York State Courts, a litigant can obtain a restraint against another litigant without any notice of any kind being given to that party. Except for a small number of justices in the New York State Supreme Courts, current state court practice follows the liberal approach of CPLR 6313. temporary restraining are routinely issued, either to the extent sought or in some modified form,without any notice, even on an informal basis, to the party being restrained, even though such notice, in many instances, would not work any real prejudice to party seeking the restraint. Often, the ex parte restraining order works great, and sometimes irreparable, prejudice to the party being restrained.

The Federal Rules of Civil Procedure, in contrast to CPLR 6313, permit a temporary restraining order to be entered "it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition,"and "the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required." Fed. R. Civ. P. 65(b)(1) and (2). Under Fed. R. Civ. P. 65(b)(2), the Court issuing a restraint without notice "shall define the injury and state why it is irreparable and why the order was granted without notice." The order cannot extend for more than ten days without being extended by the Court for good cause shown or by the consent of the party restrained. Almost universally, federal courts refuse to enter temporary restraining orders without notice unless there is a real and compelling reason to dispense with notice.

Repeated efforts have been made by the OCA Advisory Committee on Civil Practice Law and Rules to amend CPLR 6313 to explicitly require notification of the adverse party (not formal notice) except where the applicant shows that the giving of notification is impractical or would defeat the purpose of the temporary restraint. See A. 6313 of 1995.⁽¹⁾ Similar bills were introduced in prior legislative sessions. These efforts have been strongly supported by the NYSBA Committee on Civil Practice Law and Rules. See Report No. 272 (June 10, 1996)⁽²⁾ As the Committee pointed out in support of A 6313 "The opportunity for notice and to be heard before being subject to the command of a court is an essential underpinning of due process. The requirement for notice where feasible, present in Fed. R. Civ. P. 65, but absent in CPLR 6313, reflects "the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute." Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 438 (1974). The Committee also pointed out that "The opportunity to gain a TRO ex parte and thus gain a tactical advantage in the litigation leads many litigants to seek the TRO were they otherwise would not. It also encourages litigants to make such applications in New York state courts rather than in other forums or federal courts where the availability of ex parte relief is far more curtailed. New York's reputation for granting ex parte TROs, unfortunately, well established. Moreover, where notice is afforded to the other side, the Court can hear both sides at the outset and may be able to resolve the matter without the need for further motion. Under the proposed amendment, in many cases the follow-up court appearance now required under current practice after a TRO is served might be eliminated, thereby tending to preserve judicial resources."

Notwithstanding the support of this Committee and OCA and other interested groups, efforts to amend CPLR 6313 have not been successful and do not appear to be a reasonable possibility due to the opposition of certain members of the Senate. This Committee has urged passage of the TRO bill, and has been unable to learn of the basis for any objection to its passage.

In the meantime, and increasing number of New York State Justices require parties seeking a temporary restraining order to provide notification to the other side and an opportunity for the adversary to be heard. For example, Justice John DiBlasi of the Commercial Division of the Westchester County Supreme Court requires counsel for parties seeking a TRO to advise the adversary that such an application will be made "unless the party demonstrates to the Court that the conducting of such a conference will clearly cause the moving party irreparable injury." Similar requirements are contained in the individual rules of Justices Gammerman, Freedman and Ramos of the New York County Supreme Court.

The Appellate Divsions, despite authority to enter ex parte orders under CPLR 5704, routinely require that counsel provide notification to the counsel for other parties before entertaining such an application.

The practice of many judges and the Appellate Divisions has worked well. No serious challenge has been mounted to these rules and practices, which have, in large part, eliminated the unfairness and prejudice from restraints entered without appropriate notification. These practices have also eliminated many injunction applicants because the adverse party, given an early opportunity be heard, demonstrates that there is no basis whatsoever for the applicant. The practice also curtails attorneys from seeking an unfair advantage from a restraint entered without any notification whatsoever.

III. Proposed Rule

Given the extremely important policies considerations against entering temporary restaining orders without any form of notification whatsoever except where such notification would defeat the purpose of the restraint, and the seeming inability of the Legislature to resolve the issue, the Committee recommends that the Uniform Rules be amended to deal with the problem. The following proposed rule should be adopted as part of the OCA's existing motion procedure (section 202.8) to require that parties provide notice before the submission of a TRO application, except in certain circumstances.

§ 202.8 Motion Procedure

(h)(1) Temporary Restraining Orders. Notification. On an application for a temporary restraining order, notification shall be given to the party sought to be restrained sufficient to permit such party to be heard in opposition to the application unless the applicant shows, by affidavit or affirmation, that the giving of notification is impractical or would defeat the purpose of the order.

(h)(2) If the Court grants the temporary restraining order without notification, the Court shall state in the order the reasons for dispensing with notification.

(h)(3) Notification under this rule shall consists of either a telephonic, facsimile or verbal communication with or to the party sought to be restrained, or counsel for such party, advising that an application will be made to restrain actual or impending conduct a the case may be or a good faith attempt to so communication. The only evidence to be required regarding the giving of such notification or the attempt to do so shall be the sworn testimony of the person acting on behalf of the applicant.

1. Available on the internet at http://www.nysba.org/committees/cplr/library/a6316txt

2. Available on the internet at http://www.nysba.org/committees/cplr/library/R272.html