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By: Jim Wagstaffe and The Wagstaffe Group
This article provides an overview of the factors the U.S. Court of Appeals for the Ninth Circuit evaluates in deciding an application for a preliminary injunction and/or a temporary restraining order (TRO). It also provides a chart listing these factors alongside language from representative cases explaining each factor.
IN DECIDING AN APPLICATION FOR A PRELIMINARY INJUNCTION under Rule 65 of the Federal Rules of Civil Procedure, courts in the Ninth Circuit look to the following factors:
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009)
To determine whether to issue a TRO, the courts in the Ninth Circuit apply the same analysis used to evaluate a motion for preliminary injunction. McCarthy v. Servis One, Inc., 2017 U.S. Dist. LEXIS 32622, at *9–10 (N.D. Cal. Mar. 7, 2017).
A party seeking a preliminary injunction in the Ninth Circuit must meet one of two variants of the same standard. First, a party can show that he or she is likely to succeed on the merits, that he or she is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his or her favor, and that an injunction is in the public interest. Alliance For The Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017). Alternatively, under the sliding scale variant of the standard, if a plaintiff can only show that there are serious questions going to the merits—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff’s favor, and the other two factors are satisfied. Alliance For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
These two alternatives represent extremes of a single continuum rather than two separate tests. Immigrant Assistant Project of Los Angeles County Fed’n of Labor v. INS, 306 F.3d 842, 873 (9th Cir. 2002).
The following chart lists the Ninth Circuit factors alongside language from representative cases explaining the factor.
To find this article in Lexis Practice Advisor, follow this research path:
RESEARCH PATH: Civil Litigation > Pretrial Injunctive and Other Provisional Relief > Checklists
For guidance on how to seek a preliminary injunction in federal court, see
> PRELIMINARY INJUNCTIONS: SEEKING A PRELIMINARY INJUNCTION (FEDERAL)
RESEARCH PATH: Civil Litigation > Pretrial Injunctive and Other Provisional Relief > Practice Notes
For assistance in opposing a motion for injunctive relief, see
> PRETRIAL INJUNCTIVE AND OTHER PROVISIONAL RELIEF : OPPOSING A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION (FEDERAL)
For a general discussion of motion practice in federal court, see
> MAKING AND OPPOSING A MOTION (FEDERAL)
RESEARCH PATH: Civil Litigation > Motions > Motion Practice Fundamentals > Practice Notes
For details on how to obtain a receivership in federal court, see
> MOTION FOR A RECEIVERSHIP: MAKING THE MOTION (FEDERAL)
For information on how to seize property before a judgment in a federal case, see
> MOTION TO SEIZE PROPERTY: MAKING THE MOTION (FEDERAL)
For practical advice on seeking and opposing preliminary injunctive relief, see
> PRETRIAL INJUNCTIVE AND OTHER PROVISIONAL RELIEF : SEEKING A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION CHECKLIST (FEDERAL) and PRETRIAL INJUNCTIVE RELIEF: OPPOSING A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION CHECKLIST (FEDERAL)