Do you need a preliminary injunction? Can you get one?

Do you need a preliminary injunction? Can you get one?  

Suppose it has come to your attention that someone who works for you is stealing from you.  The person has access to your business accounts, and you worry that if you sue her to recover what she has taken, she will immediately remove your funds from the accounts.

Or suppose an executive is taking too much control over the organization.  He has taken out loans for the organization and opened new accounts without board authorization. When confronted, he becomes angry.  You no longer trust him, so you remove him from his position, but he immediately freezes the accounts at the bank leaving you without a way to carry on business.

In each of these cases and cases like them, you can ask a judge to consider granting a preliminary injunction to protect you during litigation.  A preliminary injunction is a part of a lawsuit that prevents a party from taking certain actions.  It is meant to preserve the status quo until the rights of the parties can be determined.  It can be sought at the beginning of, or during, a lawsuit.   When a party is under an injunction, they are “enjoined.”

Preliminary injunctions are only granted when a money judgment would not make a plaintiff whole.  They are an extraordinary remedy and require that you show a danger that you will suffer irreparable harm if an injunction is not granted.

Idaho Rule of Civil Procedure 65(e) governs preliminary injunctions:

(e) Grounds for Preliminary Injunction. A preliminary injunction may be granted in the following cases:

(1) when it appears by the complaint that the plaintiff is entitled to the relief demanded, and that relief, or any part of it, consists of restraining the commission or continuance of the acts complained of, either for a limited period or perpetually;

(2) when it appears by the complaint or affidavit that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury to the plaintiff;

(3) when it appears during the litigation that the defendant is doing, threatening, procuring or allowing to be done, or is about to do, some act in violation of the plaintiffs rights, respecting the subject of the action, and the action may make the requested judgment ineffectual;

(4) when it appears, by affidavit, that the defendant is about to remove or to dispose of the defendant’s property with intent to defraud the plaintiff . . .

I.R.C.P. 65(e). A preliminary injunction may also be granted to a defendant on a counterclaim.  I.R.C.P. 65(e)(5).

In Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), the United States Supreme Court held that, to secure a preliminary injunction, you must prove the following:

1. That you are substantially likely to “win” your case on the merits;
2. That you face a substantial threat of irreparable harm or injury if the injunction is not granted;
3. That the threat of harm is immediate;
4. That the balance of harms weighs in your favor (you would be more hurt without an injunction than the other party would be hurt by being enjoined);
5. There is “no adequate remedy at law” (that is, a money judgment would not be sufficient); and
6. The injunction would serve the public interest.

The harm you will suffer must be more than a possibility; it must be substantially likely.  And the threat must be imminent; a court will not enjoin an act that might occur sometime in the future.  But if you prove the above and prevail in your case, the preliminary injunction may become permanent.

Please call our office if you have questions about injunctions.  Contact a Civil Litigation Attorney at Brian Webb Legal by Calling (208) 331-9393.