Massachusetts Civil Procedure Rule 65: Injunctions
(a) Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if 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 his attorney can be heard in opposition. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. In case a temporary restraining order is granted without notice, the application for a preliminary injunction shall be set down for hearing at the earliest possible time, and in any event within 10 days, and takes precedence of all matters except older matters of the same character; and when the matter comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On 2 days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
(1) Notice. No preliminary injunction shall be issued without notice to the adverse party.
(2) Consolidation of Hearing With Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. This subdivision (b)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.
(c) Security. Unless the court, for good cause shown, shall otherwise order, no restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States or of the Commonwealth or of a political subdivision of the Commonwealth or of any officer or agency of any of them.
The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule.
(d) Form and Scope of Injunction or Restraining Order. Unless the court, for good cause shown, otherwise orders, an injunction or restraining order shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
Effective July 1, 1974.
Reporter's Notes (1996) With the merger of the District Court Rules into the Mass.R.Civ.P., minor differences which had existed between Mass.R.Civ.P. 65 and Dist./Mun.Cts.R.Civ.P. 65 have been eliminated. These differences were found in Rule 65(b)(2) (reference to jury trial) and Rule 65(e) (labor disputes). The merger of the two sets of rules, of course, does not serve to enlarge District Court jurisdiction. See Rule 82.
(1973) Rule 65 is taken with little change from Federal Rule 65. The order of the first two sections has been reversed, to conform with the usual sequence of litigation. The requirement of Rule 65(a) of an affidavit or verified complaint showing immediate and irreparable harm before a court will issue a temporary restraining order does not alter former Massachusetts law. Rule 65(a) contains a provision for the extension of a temporary restraining order, which is familiar to Massachusetts practice. See Stathopoulos v. Reeksting, 252 Mass. 542, 544 (1925).
Rule 65(a), like former Massachusetts practice, gives a motion for a preliminary injunction precedence over all matters and allows an adverse party an opportunity to move to dissolve or modify a temporary restraining order.
Rule 65(b)(1) provides that no court shall issue an injunction unless proper notice is given to the adverse party; former Massachusetts practice also required notice, although the usual procedure had been an order to show cause. Under federal practice, although an order to show cause may itself constitute sufficient notice, a motion is the preferable procedure. Walling v. Moore Milling Co., 62 F.Supp. 378, 382 (W.D.Va.1945).
Rule 65(b)(2) provides for the consolidation of a hearing on an application for a preliminary injunction with a trial on the merits. This was not part of former Massachusetts practice. Under Rule 65(b)(2), the consolidation may be ordered before or after the commencement of the hearing of an application for a preliminary injunction. See Brotherhood of Railroad Carmen v. Chicago and N.W.Ry. Co., 354 F.2d 786, 787 (8th Cir.1965).
Former Massachusetts law contained no requirement that the plaintiff file a bond as a condition precedent to the issuance of either a temporary restraining order or preliminary injunction. See American Circular Loom v. Wilson, 198 Mass. 182, 211 (1908); Weinberg v. Goldstein, 241 Mass. 259, 261 (1922). The requirement of a bond was left to the courts discretion. Under Rule 65(c), a court also need not require a bond. Under the Federal Rules, courts have at times not required a bond. Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 782-783 (10th Cir.1964); Ferguson v. Tabah, 288 F.2d 665, 675 (2d Cir. 1961).
The language of Rule 65(d), emphasizing precision in the framing of injunctions and restraining orders, expresses former Massachusetts practice (see e.g., forms of decree set out in Reed, Equity §§ 981-1014 (1952)), although the Reporters have found no case saying so explicitly. "Specificity has long been a hallmark of the well-drafted injunctive decree. An injunction circumscribes the defendant's conduct with the threat of punishments similar to those of the criminal law, and the defendant is entitled to fair notice [of the bounds] . . . Some defendants may take advantage of a vague decree intentionally." Developments in the Law-Injunctions, 78 Harv.L.Rev. 994, 1065 (1965).
Rule 65(e), which is new, is designed to show unmistakably that such anti-injunction statutes as G.L. c. 214, § 9A are not affected by the rule.