Motion for Temporary Restraining Order and Preliminary Injunction Standards Chart (9th Cir.)

November 03, 2018 (8 min read)

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:

The movant has shown a likelihood of success on the merits
There is a likelihood that the movant will suffer irreparable harm in absence of a preliminary injunction.
The balance of equities tips in the movant’s favor.
The injunction is in the public interest.

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.

FACTOR	SUMMARIES FROM REPRESENTATIVE CASES
Likelihood of success on the merits	In order to succeed on its request for a preliminary injunction, movant must make a clear showing that it is likely to succeed on the merits. Nanoexa Corp. v. Univ. of Chi., 2010 U.S. Dist. LEXIS 95688, at 8 (N.D. Cal. Aug. 27, 2010). In a typical case, the court would require a movant to show that he is more likely than not to succeed on the merits. SEC v. Banc de Binary, Ltd., 964 F. Supp. 2d 1229, 1232 (D. Nev. 2013). Whether a claim on the merits is strong enough depends on the balance of harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief. Colo. River Indian Tribes v. DOI, 2015 U.S. Dist. LEXIS 182548, at 99 (C.D. Cal. June 11, 2015). At an irreducible minimum, the moving party must demonstrate a fair chance of success on the merits or questions serious enough to require litigation. Guzman v. Shewry, 552 F.3d 941, 948 (9th Cir. 2009). Serious questions refers to questions that cannot be resolved one way or the other at the hearing on the injunction and as to which the court perceives a need to preserve the status quo lest one side prevent resolution of the questions or execution of any judgment by altering the status quo. EEOC v. Evans Fruit Co., 2010 U.S. Dist. LEXIS 146991, at 21–22 (E.D. Wash. Oct. 26, 2010). Serious questions are substantial, difficult, and doubtful, so as to make them a fair ground for litigation and thus for more deliberative investigation. Serious questions need not promise a certainty of success, nor even present a probability of success, but must involve a fair chance of success on the merits. EEOC v. Evans Fruit Co., 2010 U.S. Dist. LEXIS 146991, at 22 (E.D. Wash. Oct. 26, 2010).
Likelihood that movant will suffer irreparable harm in absence of a preliminary injunction	A district court cannot grant an injunction unless the movant has shown that irreparable harm is likely; the possibility of harm is insufficient to meet the movant’s burden. Small v. Avanti Health Sys., LLC, 661 F.3d 1180, 1191 (9th Cir. 2011). Irreparable harm is traditionally defined as harm for which there is no adequate legal remedy, such as an award of damages. Because intangible injuries generally lack an adequate legal remedy, intangible injuries may qualify as irreparable harm. Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014). Speculative injury does not constitute irreparable injury that is sufficient to warrant granting a preliminary injunction. Disney Enters. v. VidAngel, Inc., 224 F. Supp. 3d 957, 975 (C.D. Cal. 2016). To support injunctive relief, harm must not only be irreparable, it must be imminent; establishing a threat of irreparable harm in the indefinite future is not enough. Rather, a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief. Amylin Pharm., Inc. v. Eli Lilly & Co., 456 F. App’x 676, 679 (9th Cir. 2011). To demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief, a plaintiff must proffer probative evidence that the threatened injury is imminent and irreparable. Conclusory affidavits are insufficient to demonstrate irreparable harm. Rubin ex rel. NLRB v. Vista Del Sol Health Servs., Inc., 80 F. Supp. 3d 1058, 1100-01 (C.D. Cal. 2015).
The balance of equities tips in the movant’s favor	In assessing whether the plaintiffs have met this burden, the district court has a duty to balance the interests of all parties and weigh the damage to each. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009). The relative size and strength of each enterprise may be pertinent to this inquiry. Gold Club-SF, LLC v. Platinum SJ Enter., 2013 U.S. Dist. LEXIS 134379, at 37 (N.D. Cal. Sep. 18, 2013). The court must evaluate the interim harm the defendants are likely to sustain if the injunction is granted and compare it with the harm the plaintiff is likely to suffer if an injunction does not enter. De Vico v. United States Bank, 2012 U.S. Dist. LEXIS 155622, at 22 (C.D. Cal. Oct. 29, 2012). The real issue is the degree of harm that will be suffered by the plaintiff or the defendant if the injunction is improperly granted or denied. Scotts Co. v. United Indus. Corp., 315 F.3d 264, 284 (4th Cir. 2002). If the balance of hardships tips strongly in a defendant’s favor, a plaintiff is required to demonstrate a stronger likeliness of success on the merits. Mitchell v. Cate, 2014 U.S. Dist. LEXIS 87274, at 28 (E.D. Cal. June 25, 2014). 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 Winter* factors are satisfied. Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (emphasis in original).
The injunction is in the public interest	The public interest inquiry primarily addresses the impact on nonparties rather than on the parties. It embodies the U.S. Supreme Court’s direction that, in exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. CTIA - Wireless Ass’n v. City of Berkeley, 854 F.3d 1105, 1124 (9th Cir. 2017). The public interest analysis for the issuance of a preliminary injunction requires us to consider whether there exists some critical public interest that would be injured by the grant of preliminary relief. Collins v. Brewer, 727 F. Supp. 2d 797, 814 (D. Ariz. 2010). The plaintiffs bear the initial burden of showing that the injunction is in the public interest. However, the district court need not consider public consequences that are highly speculative. In other words, the court should weigh the public interest in light of the likely consequences of the injunction. Such consequences must not be too remote, insubstantial, or speculative and must be supported by evidence. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009). When the reach of an injunction is narrow, limited only to the parties, and has no impact on non-parties, the public interest will be at most a neutral factor in the analysis rather than one that favors granting or denying the preliminary injunction. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138–39 (9th Cir. 2009).

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