Arizona

Civil Procedure

Civil Procedure

Rule 65 – Injunctions and Restraining Orders

(a) Preliminary Injunction or Temporary Restraining Order.

(1)Notice. Except as provided in Rule 65(b), the court may issue a preliminary injunction or a temporary restraining order only with notice to the adverse party.
(2)Consolidating the Hearing with the Trial on the Merits.

(A) Before or after beginning the hearing on a motion for a preliminary injunction, and with reasonable notice to the parties, the court may advance the trial on the merits and consolidate it with the hearing on the motion.
(B) If consolidation is ordered after the preliminary injunction hearing begins, the court may continue the matter if necessary to allow adequate time for the parties to complete discovery, and may make other appropriate orders.
(C) Even if consolidation is not ordered, and subject to any party’s right to a jury trial, evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial.
(3)Motion to Dissolve or Modify. After an answer is filed, a party may file a motion to dissolve or modify a preliminary injunction with notice to the opposing party. Unless the motion is unopposed, the court must hold a hearing and allow the parties to present evidence. If the court determines that there are insufficient grounds for the injunction, or that it is overbroad, the court may dissolve or modify the preliminary injunction.
(b) Temporary Restraining Order Without Notice.

(1)Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will likely result to the movant before the adverse party can be heard in opposition, or that prior notice will likely cause the adverse party to take action resulting in such injury, loss, or damage; and
(B) the movant’s attorney certifies in writing any efforts made to give notice or the reasons why it should not be required.
(2)Contents. Every temporary restraining order issued without notice must:

(A) state the date and hour it was issued;
(B) describe the injury and state why it is irreparable;
(C) state why the order was issued without notice; and
(D) be promptly filed in the clerk’s office and entered in the record.
(3)Expiration. A temporary restraining order issued without notice expires at the time after entry-not to exceed 10 days-that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for the extension must be entered in the record.
(4)Expediting the Preliminary Injunction Hearing. If an order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion. If the party does not, the court must dissolve the order.
(5)Motion to Dissolve. On two-days’ notice to the party obtaining an order without notice-or on shorter notice set by the court-the adverse party may move to dissolve or modify the order. The court must hear and decide any such motion as promptly as justice requires.
(c) Security.

(1)Generally; On Issuance. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in such amount as the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The State of Arizona and its agencies, counties, municipalities, and other governmental entities-and their respective officers-are not required to give security. The provisions of Rule 65.1 apply to a surety on a bond or undertaking under this rule.
(2)Injunction Restraining Collection of Money.

(A)On Dissolution Pending Trial. On dissolution of a preliminary injunction or temporary restraining order restraining the collection of money, if the action is continued over for trial, the court must require the defendant to give security payable to the plaintiff:

(i) in the amount previously enjoined and any additional amount ordered by the court; and
(ii) conditioned on refunding to the plaintiff the amount of money, interest and costs that the plaintiff may collect if a permanent injunction is ordered on final hearing.
(B)Injunction Made Permanent. If a permanent injunction is ordered on final hearing, on the plaintiff’s motion, the court must enter judgment against the principal and surety giving the security for the amount shown to have been collected and to which the plaintiff appears entitled.
(d) Contents and Scope of Injunction or Restraining Order.

(1)Contents. Every order granting an injunction and every restraining order must:

(A) state the reasons why it issued;
(B) state its terms specifically; and
(C) describe in reasonable detail-and not by referring to the complaint or other document-the act or acts restrained or required.
(2)Persons Bound. An order binds only the following who receive actual notice of it by personal service or otherwise:

(A) the parties;
(B) the parties’ officers, agents, servants, employees, and attorneys; and
(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).
(e) Venue of a Requested Injunction or Order to Stay an Action or Stay Execution of a Judgment. A motion or application seeking an injunction or order to stay an action, or to stay execution of judgment, must be filed in the court where the action is pending or the judgment was rendered.
(f) Procedure for Obtaining Sanctions; Order to Show Cause.

(1)Generally. The court may issue sanctions for civil contempt, or for criminal contempt as allowed by law, against a party or person who violates an injunction.
(2)Application; Affidavit. A party alleging that any party or person has violated an injunction may file an application for an order to show cause. A supporting affidavit describing the acts that violate the injunction must accompany the application.
(3)Order to Show Cause. The court may issue an order to show cause based on the application and supporting affidavit. The order to show cause:

(A) may set a date for any written response to the application; and
(B) before sanctions are ordered, must require the party or person alleged to have violated the injunction to appear and respond at the time and place ordered by the court.
(4)Service. No later than 10 days before any hearing, the party or person charged with contempt must be personally served with the order to show cause and a copy of the affidavit in the manner provided for service of a summons or pleading under Rule 4, 4.1, or 4.2, as applicable, or, if the party to whom the order is directed has entered an appearance in the action, in accordance with Rule 5(c).
(5)Hearing. At any order to show cause hearing, the court may consider affidavits and other evidence as allowed by Rule 43(f). The court need not hold an evidentiary hearing unless there is a genuine dispute of material fact, but a person or party charged with criminal contempt may be entitled to a jury trial as provided by law.
(6)Sanctions-Generally. If at the order to show cause hearing, the court finds that a party or person violated the injunction, the court may set a separate hearing to determine appropriate remedies and sanctions under the law of civil and criminal contempt. Sanctions may include imposing a fine or jail. If the court orders a party or person to be fined or jailed for civil contempt and if the contempt can be purged by complying with the court’s orders, the court must give that party or person the opportunity to purge the contempt by complying with the court’s order or as the court otherwise orders.
(7)Sanctions for Failing to Appear. The following additional sanctions may be ordered for a party or person failing to appear at the order to show cause hearing:

(A) the court may issue a civil arrest warrant and, if the party or person is arrested, the court must set a reasonable bail to secure the party’s or person’s appearance at any future hearing; and
(B) if the party or person charged with contempt is a corporation, the court may attach and sequester assets of the corporation pending further court order.

Ariz. R. Civ. P. 65

Amended effective January 1, 2017.

State Bar Committee Note

1966 Amendment

In view of the possibly drastic consequences of a temporary restraining order, the opposition should be heard, if feasible, before the order is granted. Many judges have properly insisted that, when time does not permit formal notice of the application to the adverse party, some expedient, such as telephonic notice to the attorney for the adverse party, be resorted to if this can reasonably be done. On occasion, however, temporary restraining orders have been issued without any notice when it was feasible for some fair, although informal, notice to be given.

Heretofore the first sentence of subdivision (b), in referring to a notice “served” on the “adverse party” on which a “hearing” could be held, perhaps invited the interpretation that the order might be granted without notice if the circumstances did not permit of a formal hearing on the basis of a formal notice. The subdivision is amended to make it plain that informal notice, which may be communicated to the attorney rather than the adverse party, is to be preferred to no notice at all.

Before notice can be dispensed with, the applicant’s counsel must give his certificate as to any efforts made to give notice and the reasons why notice should not be required. This certificate is in addition to the requirement of an affidavit or verified complaint setting forth the facts as to the irreparable injury which would result before the opposition could be heard.

The amended subdivision continues to recognize that a temporary restraining order may be issued without any notice. In domestic relations cases, there may be a reasonable fear of bodily harm, and this is expressly regarded as one kind of irreparable injury which, if supported by affidavit and certificate, justifies a temporary restraining order without notice.