What Are Restraining Orders?

What are restraining orders?

Do you need to immediately stop someone from doing something?  Or do you need to make someone else act? An injunction, protection order, or restraining order may be your answer.  

An example of what an injunction may be used would be to prevent an employee from using a customer list to compete against your business.  Another example would be to prevent another from diminishing an asset like a bank account either in a employee context or if you have given a power of attorney to someone.  On the other hand, a protection order may help with domestic violence abuse, while a restraining order may help with disorderly conduct.

 

What are Injunctions?

Injunctions prevent or mandate someone from doing something illegal or legal until further order from the court.  They include temporary restraining orders (TRO), preliminary injunctions, and permanent injunctions. See N.D. R. Civ. P. 65. The trial court may grant or deny injunctions. Nodak Mut. Ins. Co. v. Ward Cty. Farm Bureau, 676 N.W.2d 752, 761 (N.D. 2004). The court may enforce injunction disobedience with contempt. N.D. R. Civ. P. 65(i). TROs or preliminary injunctions may be granted for: (1) acts producing injury during litigation; (2) the defendant is acting or threatening to violate the plaintiff’s rights; or (3) the defendant is about to remove property with intent to defraud creditors. N.D. Cent. Code § 32-06-02.

 

What is a Temporary Restraining Order?

A TRO is a short-lived injunction the court may issue to prevent irreparable injury until issuing a preliminary injunction with less notice. N.D. R. Civ. P. 65(a). After a TRO has been issued, a preliminary injunction hearing generally occurs between 21 and 28 days. Id.

 

What is a Preliminary Injunction?

A preliminary injunction is used to prevent irreparable injury until the court determines whether to issue a permanent injunction at trial and after 14 days’ notice to the opposing party. N.D. R. Civ. P. 65(b). Someone may seek a preliminary injunction after or without a TRO. Id.

 

Factors for TROs and Preliminary Injunctions

The court consideres factors such as: (1) substantial probability of success on the merits; (2) irreparable injury; (3) harm to other interested parties; and (4) effect on the public interest. Nodak Mut. Ins. Co., 676 N.W.2d at 761. First, substantial probability is flexible. Whether the equity balance favors the movant requiring court intervention  to preserve the status quo until a trial on the merits is up to the court. Dataphase Sys., Inc. v. C L Sys. Inc., 640 F.2d 109, 113 (9th Cir. 1981). Second, irreparable injury cannot be compensated by money damages.  Voracheck v. Citizens State Bank of Lankin, 461 N.W.2d 580, 585 (N.D. 1990).  Third, the balancing of hardship must weigh in favor of the moving party’s harm without the injunction against the other interested parties’ harm with the injunction. Nokota Horse Conservancy, Inc. v. Bernhardt, 666 F.Supp.2d 1073, 1081 (D. N.D. 2009). Fourth, the court may observe conduct generally recognized costly or injurious on the public. Terra Int’l, Inc. v. Mississippi Chem. Corp., 896 F. Supp. 1468, 1479 (N.D. Iowa 1995).

 

What is a Permanent Injunction?

A court may grant a permanent injunction when: (1) the pecuniary compensation is inadequate; (2) the amount of compensation is difficult to determine; (3) restraint prevents multiple judicial proceedings; or (4) for obligations arising from trust. N.D. Cent. Code § 32-05-04. For a permanent injunction, the court holds a trial on the merits within 180 days from the TRO or preliminary injunction unless good cause exists or opposing counsel consents to extend. N.D. R. Civ. P. 65(e).

 

Temporary Domestic Violence Protection and Disorderly Conduct Restraining Orders

Temporary domestic violence protection and disorderly conduct restraining orders may be issued without notice to the respondent and last until a hearing on the order, generally fourteen days. N.D. Cent. Code § 14-07.1-03; N.D. Cent. Code § 12.1-31.2-01. Emergency ex parte domestic protection orders last up to seventy-two hours. N.D. Cent. Code § 14-07.1-08.

 

What is a Domestic Violence Protection Order?

A domestic violence protection order may prevent physical harm, bodily injury, assault, or threats from the alleged household abuser. N.D. Cent. Code § 14-07.1-01; Minn. Stat. § 518B.01. The court may issue this after five days’ prior hearing notice, a full hearing, and actual or imminent domestic violence. § 14-07.1-01. Anyone violating an order may be held in contempt and subject to criminal charges. N.D. Cent. Code § 14-07.1-06.

 

What is a Disorderly Conduct Restraining Order?

A disorderly conduct restraining order may prevent unwanted acts, words, or gestures intended to adversely affect another’s safety, security, or privacy. N.D. Cent. Code § 12.1-31.2-01. Restraining orders are for the person named in the petition and last up to two years. Id. The court may issue a restraining order with notice of the hearing, after a petition filing, and reasonable grounds that the disorderly conduct occurred. Id. Anyone violating an order is subject to a class A misdemeanor. Id.

 

What is Ex Parte?

Ex parte is communication made to the judge outside the opposing party’s presence about the matter. N.D. Code Jud. Conduct 2.9A. The court may issue a TRO with notice or ex parte after reasonable notice efforts or with a substantial reason for not giving notice. N.D. R. Civ. P. 65(a). Also, the court may issue ex parte a temporary domestic protection order or a temporary disorderly conduct restraining order. § 14-07.1-03; § 12.1-31.2-01; Minn. Stat. § 518B.01 Sub. 7.

 

What is Security?

Security is collateral held to cover the other party’s costs if the court finds the order was unnecessary. N.D. R. Civ. P. 65(h). Security may include a bond, cashier’s check, certified check, a letter of credit, or negotiable bond. Id. A TRO or preliminary injunction requires security, except for good cause. Id. Domestic violence protection order security is not required, except for exceptional cases. N.D. Cent. Code § 14-07.1-05; Minn. Stat. § 518B.01 Sub. 10(b).

 

The faster you appear before the court to obtain an injunction or order, the greater your relief will be. Don’t wait to contact us!

 

Joseph Wetch is a Fargo, ND lawyer practicing in all North Dakota, Minnesota and South Dakota courts.  Contact him at 701-232-8957 or jwetch@serklandlaw.com.