When moving for a preliminary injunction or temporary restraining order under ORCP 79 A(1), evidence that a party is likely to succeed on the merits should be irrelevant. Federal Rule of Civil Procedure 65’s requirement that the movant must make such a showing is not part of Oregon law.
Here is ORCP 79 A(1), which sets forth the standards a court must use to determine whether to issue a PI or a TRO:
Subject to the requirements of Rule 82 A(1), a temporary restraining order or preliminary injunction may be allowed under this rule:
(a) When it appears that a party is entitled to relief demanded in a pleading, and such relief, or any part thereof, consists of restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce injury to the party seeking the relief; or
(b) When it appears that the party against whom a judgment is sought is doing or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of a party seeking judgment concerning the subject matter of the action, and tending to render the judgment ineffectual. This paragraph shall not apply when the provisions of Rule 83 E, F(4) and H(2) are applicable, whether or not provisional relief is ordered under those provisions.
In contrast, FRCP 65(a) has no similar text and provides only that “[t]he court may issue a preliminary injunction only on notice to the adverse party.”
Although there are other parts of ORCP 79 and FRCP 65 that are parallel and substantively similar,[i] the Oregon Rule setting forth the criteria to decide whether to grant a PI or TRO has no parallel in that federal rule.
Instead, ORCP 79 A is substantively similar to pre-ORCP Oregon statutes stretching back to the Deady Code. Section 407 of Title III of the Organic and Other General Laws of Oregon (1874) is the progenitor of ORCP 79 A(1). Section 407 provides as follows:
When it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in retraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or when it appears by affidavit that the defendant is doing or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of plaintiff’s rights, concerning the subject of the suit, and tending to render the decree ineffectual[.]
The overlap between ORCP 79 A(1) and Section 407 is not a coincidence. The Council on Court Procedures commentary to ORCP 79 (1979-1981 biennium) states that “The grounds spelled out in subsection A.(1) are identical to [former] ORS 32.040” with one exception not relevant here.[ii] And former ORS 30.040 was nearly identical (with a comma or two omitted) to Section 407. To the extent that there are slight differences between ORCP 79 A(1) and former ORS 32.040, we should presume that those are not substantive, because the Commentary states that the “grounds * * * are identical[.]”
ORCP 79 A(1) has its own case law stretching back to the 19th century, decades before Federal Rule 65 was promulgated in the 1930s. And “those [Oregon] cases remain good law.” Or. Educ. Ass’n v. Or. Taxpayers United PAC, 227 Or App 37, 45-46 n4, 204 P3d 855 (2009); also Or. Civ. Pleading and Prac. § 34.6 (same, citing Or. Educ. Ass’n).
The case law for ORCP 79 A(1) differs substantially from the familiar four-part balancing test from federal case law. Most significantly, ORCP 79 A(1) does not require a mini-trial to determine who is most likely to succeed on the merits at a later trial. Compare with Winter v. NRDC, Inc., 555 US 7, 20 (2008) (under FRCP 65, the movant must establish that she “is likely to succeed on the merits”). A motion under ORCP 79 A(1) is not a mini-trial on the merits; instead, courts determine whether the complaint entitles the plaintiff to the relief sought.
The Oregon Supreme Court in an early case stated that when deciding whether to grant a preliminary injunction, the trial courts should do so without making any determination on the ultimate merits.
A preliminary injunction is only a provisional remedy, the sole object of which is to preserve the subject in controversy in its then condition, and, without determining any question of right, merely to prevent the further perpetration of wrong, or the doing of any act whereby the right in controversy may be materially injured or endangered. In granting or refusing temporary relief by preliminary injunction, courts of equity should in no manner anticipate the ultimate determination of the question of right involved.
Helms v. Gilroy, 20 Or 517, 520, 26 P 85 (1891) (citation omitted). Helms states explicitly that a preliminary injunction can issue before “a hearing upon the merits[.]” Id. Helms’s interpretation of Section 407 is supported by the text and the margin notes for the statute. Section 407 used the phrase “When it appears by the complaint that the plaintiff is entitled to the relief demanded[.]” (Emphasis added.) The margin notes cite Woodruff v. Fisher, 17 Barb. 224 (Sup. Ct. NY 1853). Woodruff states that to obtain an injunction the plaintiff needs only a verified complaint (one not on information and belief) and, if the plaintiff has that, it does need a separate affidavit before obtaining a preliminary injunction. Id. at 225.
A half-century after Helms, the rule had not changed: “Hearing had on motion to show why preliminary injunction should not issue was not one on the merits.” Fleming v. Woodward, 180 Or 486, 488, 177 P2d 428, 429 (1947) (citations omitted). “‘[T]he essential conditions for granting such temporary injunctive relief are that the complaint allege facts which appear to be sufficient to constitute a cause of action for injunction[.]’” State ex rel. Tidewater Shaver Barge Lines v. Dobson, 195 Or 533, 580, 245 P2d 903, 924 (1952) (quoting 28 Am. Jur. Injunctions, 207, § 14).
The most recent appellate case to look at the question does not differ. In Oregon Education Ass’n v. Oregon Taxpayers United PAC, 227 Or App 37, 45, 204 P3d 855, 860 (2009) (Landau, J), the court stated in dicta, citing Fleming, that “a hearing on whether a preliminary injunction should issue is not a hearing on the merits, but is merely to determine whether the party seeking the injunction has made a sufficient showing to warrant the preservation of the status quo until the later hearing on the merits.” (citations omitted). The moving party has to make a “sufficient showing” that without the PI or TRO the status quo is in jeopardy and that the status quo is worth preserving. “The office of a preliminary injunction is to preserve the status quo so that, upon the final hearing, full relief may be granted.” Id. (internal quotation marks, alterations, and citation omitted).
Lawyers should not rely on federal precedent to contend that TRO and PI motions under ORCP 79 A(1) require a movant to show that it is likely to succeed on the merits. Practitioners may cite Von Ohlen v. German Shorthaired Pointer Club of America, Inc., 179 Or App 703, 710–711 & n13, 41 P3d 449 (2002), for the proposition that federal decisions interpreting FRCP 65 are persuasive authority when interpreting ORCP 79 A.[iii] See State ex rel Eltrym Historic Theater LLC v. The City of Baker City, 2006 WL 6204550, Baker Cty. Cir. Ct. (Aug. 15, 2006) (citing both federal and state precedent to decide a TRO, and citing to Von Ohlen v. German Shorthaired Pointer Club for basis to rely on federal cases); see also Or. Civ. Pleading and Prac. (2012 rev.), Chap. 34, Permanent Injunctions, Temporary Restraining Orders, and Preliminary Injunctions, §34.6-2 (stating parties may rely on federal precedent when arguing TRO and PI motions based on citation to Von Ohlen).
But Von Ohlen is irrelevant to ORCP 79 A(1). That case interpreted the provisions in ORCP 79 D, which addresses whether a non-party is bound by an injunction. In Von Ohlen, reliance on federal precedent was appropriate to interpret ORCP 79 D because it is substantively similar to FRCP 65(d)(2). In contrast to ORCP 79 D, ORCP 79 A(1), quoted above, does not have a counterpart in the federal rule.
Although courts should not look at evidence of the merits of the claim, courts must consider other factors in addition to the allegations in the complaint. “’[T]he essential conditions for granting such temporary injunctive relief” include “that on the entire showing from both sides it appear[s], in view of all the circumstances, that the injunction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation * * *.’” Tidewater Shaver Barge Lines, 195 Or at 580-81 (quoting 28 Am. Jur. Injunctions, 207, § 14). Courts, in deciding whether to grant a preliminary injunction or a temporary restraining order, “exercise * * * discretion in balancing conveniences, in affording protection against needless injury, in preserving the subject matter of the suit, and not infrequently in preserving the status quo.” State ex rel. Pac. Tel. & Tel. Co. v. Duncan, 191 Or 475, 500, 230 P2d 773, 784 (1951).
The precedent interpreting ORCP 79 A(1) does not include the “likely to succeed on the merits” prong from the four-part balancing test that federal courts must use when considering motions for a TRO or PI. That changes what should be argued in TRO and PI hearings. Evidence supporting which party is likely to succeed on the merits should be irrelevant and inadmissible at the PI and TRO hearings. All the plaintiff needs (in addition to showing irreparable harm or the need to preserve the status quo) is a pleading that can survive a motion to dismiss. That may make ORCP 79 A more plaintiff-friendly than FRCP 65, and the bench and bar should open a conversation about the costs and benefits of the Oregon standard and whether ORCP 79 A should be changed to expressly include the “likely to succeed on the merits” part of the federal balancing test.
Originally published in the Spring 2017 edition of the Oregon State Bar's Bar Bulletin.
[i] ORCP 79 B, concerning when to grant a TRO without notice to the adverse party, is substantively similar to FRCP 65(b). ORCP 79 D, concerning the form of the TRO and the PI and the parties bound by them, is similar to FRCP 65(d).
[ii] The commentary to ORCP 79 from the 1979-1981 biennium is available at http://www.counciloncourtprocedures.org/Content/1979-1981%20Biennium/ORCP%20Rules%201981/Rule%2079.pdf .
[iii] This article is not implying that all lawyers and judges are using federal precedent when considering ORCP 79 A(1) motions. Given the limited number of trial court decisions and briefs readily accessible, it is hard to determine the proportion of such motions where the parties contend that federal precedent applies.