Pretrial Injunctive Relief: Enforcing Pretrial Injunctions

Posted on 11-02-2018

By: Jim Wagstaffe and The Wagstaffe Group

This article discusses how to enforce a preliminary injunction or temporary restraining order (collectively, pretrial injunctive relief) in a federal case and covers topics such as the court's authority to enforce its orders; types of sanctions, including monetary, imprisonment, and fee-shifting; procedures to enforce contempt; distinguishing civil and criminal contempt; constitutional protections; and immediate and interlocutory appellate review of contempt rulings and sanctions.

Using Contempt

A court enforces its pretrial injunctive relief through the exercise of its contempt authority. “The Supreme Court has consistently stated that the power to punish contempt is part and parcel of the judicial power.”1 Note that:

  • Courts have both statutory and inherent authority to enforce their orders through contempt.2
  • A contempt award can result in monetary sanctions, shifting of fees, imprisonment, or a combination of all three.3
  • A contempt award can be civil, criminal, or both.4
  • A civil contempt award is imposed to compel compliance with the court order, to compensate the complainant for losses caused by contemptuous actions, or both.5
  • A criminal contempt award is imposed to punish failure to comply with the court order.6
  • Contempt can be either direct or indirect.7
  • Civil contempt proceedings are usually initiated by a party; a criminal contempt proceeding must be initiated by the court.8
  • Contempt proceedings can be initiated against a party or nonparty if he or she is obliged to comply with the court order.9
  • The level of process owed an alleged contemnor in a contempt proceeding depends largely on whether the contempt award at issue is civil or criminal.10
  • Generally, a finding of criminal contempt is immediately appealable, whereas a finding of civil contempt is appealable only after entry of the final judgment.11

“[I]t is firmly established that the power to punish for contempt is inherent in all courts.”12 Federal courts also have statutory authority to find a person in civil or criminal contempt for failing to comply with a court order.13

The remedy for violating an injunction is an order of contempt.14 In addition, “[t]he contempt power serves to ‘protect[ ] the due and orderly administration of justice and [to] maintain[ ] the authority and dignity of the court.’”15

“[A] district court should enforce an injunction until either the injunction expires by its terms or the court determines that the injunction should be modified or dissolved.”16 However, if an injunction expires or is mooted for reasons other than its merits, the court loses authority to issue coercive contempt but retains the authority to issue both criminal and compensatory civil contempt.17

Available Remedies

“Contempt is a weighty penalty and should not be casually imposed.”18

A court in exercising its contempt power “should never exercise more than ‘the least possible power adequate to the end proposed.’”19

For example, if the goal is coercion, the court must determine the least coercive sanction reasonably calculated to prompt compliance with its order.20

Only the court that issued the injunction allegedly disobeyed possesses the authority to impose a contempt award.21

Types of Contempt Sanctions

The courts have broad discretion in fashioning a remedy that will effectively address a party’s contempt. However, in virtually all cases, contempt awards for failure to comply with an injunctive order are limited to:

  • Monetary sanctions. A monetary fine is probably the most common form of sanction awarded in contempt proceedings.22Depending on the circumstances, the court may order that monetary sanctions be paid to one of the following:
    • A party to the lawsuit
    • To a nonparty
    • To the court
  • Imprisonment. Incarceration has long been established as an appropriate sanction for both civil and criminal contempt.23
  • Fee-shifting. Generally, the injured party’s attorney’s fees and costs associated with prosecuting a contempt proceeding may be recovered as part of a remedial civil contempt award.24

While relatively rare in practice, the court may impose alternative non-monetary remedies for violation of a pretrial injunction. This includes, for example, a dismissal, conditional or otherwise, of a counterclaim.25

It also includes the imposition of additional pretrial remedies, such as further restrictions on the actions of the defendant or appointing a receiver.26

If non-monetary sanctions alter the legal relationship of the parties, amounting effectively to a new or independent form of pretrial injunctive relief, they may be subject to an immediate interlocutory appeal, unlike most interlocutory civil contempt awards.27

Contempt Categories

In general, contempt can also be classified as direct or indirect:

  • Direct contempt is committed in the actual presence of the court and as such can be punished immediately and summarily. All other contempt is indirect contempt.28
  • Contempt in the context of violating pretrial injunctive relief in all but the rarest of cases will occur outside of the presence of the court and will be considered indirect contempt.

Contempt may also be civil, criminal, or both. The distinction is important.

To read the full practice note in Lexis Practice Advisor, follow this link.


James M. Wagstaffe is a renowned author, litigator, educator, and lecturer, and the premier industry authority on pretrial federal civil procedure. He is a partner and co-founder of Kerr & Wagstaffe LLP, where he heads the firm’s Federal Practice Group. See his full bio here: https://www.lexisnexis.com/en-us/practice-advisor-authors/profiles/james-wagstaffe.page.


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1. United States v. Griffin, 84 F.3d 820, 828 (7th Cir. 1996). 2. 28 U.S.C.S. §§ 401–402; Fed. R. Crim. P. 42; Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 774 F.3d 935, 944 (9th Cir. 2014). Also see Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(B). 3. 18 U.S.C.S. § 401; In re Bradley, 588 F.3d 254, 265 (5th Cir. 2009). Also see Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(H)(1). 4. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(J). 5. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(J)(2). 6. Id. 7. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(I). 8. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(N). 9. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(O). 10. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(Q); see Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(R). 11. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(T). 12. Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (alteration and internal quotation marks omitted); Shillitani v. United States, 384 U.S. 364, 370 (1966); Cetacean Research, 774 F.3d at 944. 13. See, e.g., 18 U.S.C.S. §§ 401–402; Fed. R. Crim. P. 42; Cetacean Research, 774 F.3d at 944 (“[w]e also have statutory authority to punish both civil and criminal contempt pursuant to 18 U.S.C. § 401”); Ingalls, 588 F.3d at 265 (same). 14. Barrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186, 1190 (9th Cir. 2011); Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1134 n.23 (11th Cir. 2005) (“injunctions are enforced through the district court’s civil contempt power”). 15. CBS Broad. Inc. v. FilmOn.com, Inc., 814 F.3d 91, 98 (2d Cir. 2016), quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). 16. Fla. Ass’n for Retarded Citizens, Inc. v. Bush, 246 F.3d 1296, 1298 (11th Cir. 2001). 17. Shell Offshore Inc. v. Greenpeace, Inc., 815 F.3d 623, 630 (9th Cir. 2016) (coercive and compensatory contempt); Klett v. Pim, 965 F.2d 587, 590 (8th Cir. 1992) (same); see United States v. United Mine Workers, 330 U.S. 258, 294 (1947) (criminal contempt). 18. Cook Grp. Inc. v. Wilson (In re Wilson), 199 F.3d 1329 (4th Cir. 1999); see Cetacean Research, 774 F.3d at 951 (contempt power “must be exercised with restraint and discretion”) (internal quotation marks and citation omitted); TiVo Inc. v. EchoStar Corp., 646 F.3d 869, 881–82 (Fed. Cir. 2011) (contempt “is a severe remedy, and should not be resorted to where there is a fair ground of doubt as to the wrongfulness of the defendant’s conduct.”) (internal quotation marks and citation omitted). 19. United Mine Workers, 330 U.S. at 332 (internal citation omitted); F.T.C. v. Trudeau, 606 F.3d 382, 386 (7th Cir. 2010); Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir. 1991) (civil contempt). 20. United States v. Flores, 628 F.2d 521, 527 (9th Cir. 1980); In re Grand Jury Impaneled January 21, 1975, 529 F.2d 543, 551 (3d Cir. 1976). 21. Green Point Credit, LLC v. McLean (In re McLean), 794 F.3d 1313, 1318–19 (11th Cir. 2015) (power to sanction by contempt is jurisdictional); United States v. Reed, 773 F.2d 477, 481 (2d Cir. 1985); Waffenschmidt v. MacKay, 763 F.2d 711, 716 (5th Cir. 1985). 22. AngioDynamics, Inc. v. Biolitec AG, 780 F.3d 420, 427–28 (1st Cir. 2015); Marshak v. Treadwell, 595 F.3d 478, 494 (3d Cir. 2009). 23. United States v. Bayshore Assocs., Inc., 934 F.2d 1391, 1400 (6th Cir. 1991); see Hicks v. Feiock, 485 U.S. 624, 632 (1988); John Roe, Inc. v. United States (In re Grand Jury Proceedings), 142 F.3d 1416, 1424 (11th Cir. 1998) ; United States v. Rauch, 717 F.2d 448, 451 (8th Cir. 1983) (imprisonment). 24. Cetacean Research, 774 F.3d at 958; Tranzact Techs., Inc. v. 1Source Worldsite, 406 F.3d 851, 855 (7th Cir. 2005); New York State NOW v. Terry, 159 F.3d 86, 96 (2d Cir. 1998) (willful violation supports award of fees). 25. See, e.g., Enovative Techs., LLC v. Leor, 110 F. Supp. 3d 633, 638 (D. Md. 2015) (“exceptional circumstances” support dismissal of defendant’s counterclaim as “added sanction” for defendant’s continuing violation of preliminary injunction). 26. Omaha Indem. Co. v. Wining, 949 F.2d 235, 238 (8th Cir. 1991); see Liberte Capital Grp., LLC v. Capwill, 462 F.3d 543, 557 (6th Cir. 2006) (violation of injunction against “satellite litigation” in connection with appointment of receiver). 27. See, e.g., Omaha Indem. Co., 949 F.2d at 238 (contempt sanctions restraining defendant’s expenditures and imposing receivership for first time). 28. In re Troutt, 460 F.3d 887, 893 (7th Cir. 2006).