Preliminary Injunctions

Preliminary injunctions are a remedy that can be obtained by either the plaintiff or the defendant at the beginning of litigation rather than as a form of final relief on the merits after the case has been litigated. A preliminary injunction can be obtained traditionally by the moving party (the party making for motion for the preliminary injunction) showing (1) a likelihood of success on the merits, (2) the possibility of irreparable injury if preliminary relief is not granted, (3) the balance of hardships favoring the party requesting the relief and (4) in appropriate cases, the advancement of the public interest.

Many jurisdictions, like the Ninth Circuit, have modified the traditional requirements and require either (1) likelihood of success on the merits, (2) irreparable injury if preliminary relief is not granted and (3) a slight tip of the balance of hardships in favor of the party requesting the preliminary injunction or (1) the case raises serious questions on the merits, (2) irreparable injury and (3) the balance of hardships tips strongly in favor of the party requesting the preliminary injunction.

The balance of hardships focuses on the harm to the moving party during the pendency of the litigation if the preliminary injunction is not granted and the moving party eventually wins the lawsuit versus the harm to the non-moving party (the party against whom the preliminary injunction would issue) during the pendency of the litigation if the preliminary injunction is granted and the non-moving party eventually wins the lawsuit.   

Typically, preliminary injunctions are granted to preserve the status quo during the pendency of the litigation although disagreements can arise as to what the status quo is or was when the litigation was filed.  It is usually defined as the last peaceable, uncontested status quo. For example, if the plaintiff is challenging the defendant's right to sell a piece of property by claiming that the plaintiff is the true owner, the plaintiff will ask for a preliminary injunction ordering the defendant not to sell the property while the plaintiff's claim is being litigated. This preserves the plaintiff's ability to get an effective remedy if the plaintiff eventually wins the lawsuit. If the defendant were to go ahead with the sale of the property while the case was being litigated, even if the plaintiff eventually wins the lawsuit, it will probably not be possible to undo the sale of the property if it was a legitimate sale and the buyer paid the fair market value for the property. The preliminary injunction prevents the sale so that the plaintiff can get the remedy the plaintiff wants and is entitled to, return of the property, if the plaintiff eventually wins the case on the merits.