2.3 Preliminary Injunctions, TROs & Pretrial Conferences

2.3 Preliminary Injunctions, TROs & Pretrial Conferences

Before a case reaches discovery, trial, or judgment, a party may need immediate court protection, and the court needs a plan for managing the case. Rule 65 governs the first problem through preliminary injunctions and temporary restraining orders (TROs). Rule 16 governs the second through scheduling orders, pretrial conferences, and pretrial orders. NCBE's outline lists both under pretrial procedures.

Preliminary Injunctions (Rule 65(a))

A preliminary injunction preserves the parties' positions until the court can decide the merits.

• Notice required: A court may issue a preliminary injunction only on notice to the adverse party (Rule 65(a)(1)).
• The four-factor test: Under Winter v. Natural Resources Defense Council, Inc. (2008), the movant must establish that it is:
  1. Likely to succeed on the merits;
  2. Likely to suffer irreparable harm in the absence of preliminary relief (a mere "possibility" of irreparable harm is not enough);
  3. Favored by the balance of equities; and
  4. Seeking an injunction that is in the public interest.
• Irreparable harm: Harm is irreparable when money damages awarded later cannot adequately fix it—for example, loss of unique real property, destruction of evidence, or continuing constitutional violations. Ordinary financial loss that can be calculated and paid later usually is not irreparable.
• Consolidation: Before or after the hearing begins, the court may advance the trial on the merits and consolidate it with the hearing (Rule 65(a)(2)).
• Not a merits ruling: Findings made at the preliminary-injunction stage are not binding at trial, because the parties proceed on a less complete record (University of Texas v. Camenisch, 1981).

Temporary Restraining Orders (Rule 65(b))

A TRO is short-term emergency relief, sometimes issued before the opposing party can be heard.

• Issuing without notice: The court may issue a TRO without written or oral notice only if:
  1. Specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury will result before the adverse party can be heard; and
  2. The movant's attorney certifies in writing any efforts made to give notice and why notice should not be required.
• Contents: A TRO issued without notice must state the date and hour it issued, describe the injury and why it is irreparable, state why it issued without notice, and be promptly filed.
• Duration: It expires at the time the court sets, not to exceed 14 days, unless the court extends it for good cause for a like period or the adverse party consents to a longer extension; the reasons for an extension must be entered in the record.
• Speedy hearing: If a TRO issues without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, and the adverse party may move to dissolve or modify the TRO on 2 days' notice (or shorter notice the court sets).

Security, Form, Scope, and Appeals

Pretrial Conferences, Scheduling Orders, and Pretrial Orders (Rule 16)

Purposes and Scheduling Orders

Rule 16(a) authorizes pretrial conferences to expedite disposition, establish early management, discourage wasteful pretrial activity, improve trial preparation, and facilitate settlement.

• Scheduling order (Rule 16(b)): Except in exempt categories of cases, the judge must issue a scheduling order after receiving the parties' Rule 26(f) report or consulting the parties. It must issue as soon as practicable and, unless the judge finds good cause for delay, within the earlier of 90 days after any defendant has been served or 60 days after any defendant has appeared.
• Required contents: The order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions. It may also address disclosure of electronically stored information, agreements under Federal Rule of Evidence 502, and—under amendments effective December 1, 2025—the timing and method for complying with Rule 26(b)(5)(A)'s privilege-log requirements.
• Modification: A schedule may be modified only for good cause and with the judge's consent (Rule 16(b)(4)). A party who seeks to amend a pleading after the scheduling-order deadline must usually show good cause under Rule 16(b)(4) before Rule 15's liberal standard applies.

Pretrial Conferences and Orders

• Attendance and authority: A represented party must authorize at least one attorney to make stipulations and admissions about matters reasonably anticipated for discussion, and the court may require a party or representative to be present or reasonably available to consider settlement (Rule 16(c)(1)).
• Topics (Rule 16(c)(2)): Simplifying issues and eliminating frivolous claims or defenses; amending pleadings; obtaining admissions and stipulations; avoiding unnecessary proof and cumulative evidence; limiting expert testimony; controlling discovery; identifying witnesses and documents; settlement and alternative dispute resolution; and the order of trial.
• Pretrial orders (Rule 16(d)): After any conference, the court should issue an order reciting the action taken, and that order controls the course of the action unless the court modifies it.
• Final pretrial conference and order (Rule 16(e)): Held as close to trial as reasonable and attended by at least one attorney who will conduct the trial. The resulting order may be modified only to prevent manifest injustice, so claims, defenses, witnesses, or exhibits omitted from it may be excluded at trial.
• Sanctions (Rule 16(f)): If a party or attorney fails to appear, is substantially unprepared, fails to participate in good faith, or disobeys a scheduling or pretrial order, the court may impose Rule 37(b)(2)(A)(ii)–(vii) sanctions and must order payment of reasonable expenses, including attorney's fees, unless the noncompliance was substantially justified or an award would be unjust.
• Multidistrict litigation: New Rule 16.1, effective December 1, 2025, encourages transferee courts in multidistrict litigation to hold an early management conference.