Rule 65. Injunctions and Restraining Orders
Arizona Revised Statutes AnnotatedRules of Civil Procedure for the Superior Courts of Arizona
16 A.R.S. Rules of Civil Procedure, Rule 65
Rule 65. Injunctions and Restraining Orders
(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.
(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
(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.
(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.
(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.
Added Sept. 2, 2016, effective Jan. 1, 2017.
STATE BAR COMMITTEE NOTE
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.
16 A. R. S. Rules Civ. Proc., Rule 65, AZ ST RCP Rule 65
Current with amendments received through 11/1/19
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