Temporary Restraining Orders: Procedure, Bond, and Ex Parte Relief

A temporary restraining order is an emergency court order that freezes a situation in place while a lawsuit begins, and the temporary restraining order procedure is built for speed: a judge can issue one through an ex parte process, without the other side present, if you prove waiting would cause harm that money cannot later fix. Under Federal Rule of Civil Procedure 65(b), the order lasts no more than 14 days and triggers an immediate push toward a preliminary injunction hearing where both sides finally meet.¹

What You Have to Prove

Rule 65(b) sets the floor: specific facts, in a sworn affidavit or verified complaint, showing that immediate and irreparable injury will happen before the other side can be heard.¹ On top of that, federal courts apply the four-factor test from Winter v. Natural Resources Defense Council:

Irreparable harm. The threatened injury cannot be adequately fixed by a later payment of money. Destruction of a one-of-a-kind property, disclosure of trade secrets, or loss of custody rights are classic examples. Lost profits that can be calculated and repaid generally do not qualify.
Likelihood of success on the merits of the underlying lawsuit, not just a plausible argument.
Balance of equities, meaning the hardship you face without the order outweighs what the defendant faces with it.
Public interest, meaning the order does not harm the broader community or conflict with important policy goals.

All four matter, and weakness on one can sink the request.² Irreparable harm carries the most weight in the ex parte context, because the whole justification for cutting the defendant out of the room is urgency. If you can wait, the court expects you to.

What You File

The core document is a verified complaint or a sworn affidavit laying out the facts of the emergency. A verified complaint means you sign under penalty of perjury, confirming every allegation is true. Either way, the filing must pin down specifics: dates, locations, and the exact conduct causing the harm. Vague descriptions of danger are the fastest way to get a request denied.

Alongside the complaint, you file a motion for the TRO that spells out precisely what the defendant must stop doing. “Stay away from my property” is too broad. “Remain at least 500 feet from the building at 123 Main Street” or “immediately cease selling inventory from the jointly owned warehouse” gives the judge something enforceable. The motion must also include a proposed order, a draft version ready for the judge’s signature with blank lines for dates and hearing times.³

The Attorney’s Certification About Notice

Because ex parte orders skip the normal adversarial process, Rule 65(b)(1)(B) adds a safeguard: your attorney must file a written certification describing any efforts made to notify the opposing party, or explaining why notice should not be required.¹ This is where many rushed applications fail. Inconvenience is not enough. The certification must show either genuine attempts at contact or concrete reasons why tipping off the defendant would itself cause harm, such as the defendant destroying evidence or fleeing with disputed assets. A judge who sees no real effort and no convincing reason often insists on at least an expedited hearing with both sides present rather than issuing the order blind.

Filing Fees and the Ex Parte Hearing

Once the paperwork is assembled, you file everything with the clerk and pay the filing fee. In federal court, the statutory fee for initiating a civil action is $350,⁴ plus a $55 administrative fee set by the Judicial Conference, bringing the total to $405.⁵ State court fees vary widely, often from under $100 to over $400 depending on the jurisdiction and the type of case. If you cannot afford the fee, you can request a waiver by filing a financial affidavit.

The clerk routes the file to an available judge for immediate review. The ex parte hearing is usually brief and informal. The judge may meet with your attorney in chambers, ask questions about the sworn statements, and probe whether the urgency is genuine. The defendant is absent, so the quality of the written evidence matters enormously. Judges are naturally skeptical of one-sided presentations, and a filing that reads as vague or exaggerated often dies right here.

The Security Bond

Rule 65(c) requires you to post a security bond before the TRO takes effect. The bond protects the defendant: if the court later determines the order was wrongfully issued, the defendant can recover actual damages and costs from the bond.¹ The amount sits entirely in the judge’s discretion, set at whatever the court “considers proper” based on the potential financial risk. In a dispute over a small piece of property, the bond might be modest. In a case freezing millions in corporate assets, it can be substantial.

Some federal circuits allow judges to set a nominal bond or waive the requirement in appropriate circumstances, though this varies by jurisdiction. The defendant’s recovery is capped at the bond amount, so a low bond limits your exposure but can draw judicial pushback if it seems unreasonably small relative to the restraint being imposed. Failure to post the required bond promptly can result in the judge refusing to sign the order.

Serving the Defendant

A signed TRO does not bind the defendant until they actually receive it. Federal rules require that someone other than a party, and at least 18 years old, handle delivery. That typically means hiring a professional process server or requesting a local sheriff or U.S. Marshal. The server must hand over copies of the signed order, the motion, and the underlying complaint.

Fees for professional service vary by location and the difficulty of tracking down the defendant. Once delivery is complete, the server files a proof of service with the clerk, creating an official record that the defendant has been notified and is legally bound to comply. Without that filing, enforcement problems can arise if the defendant later claims ignorance of the order.

If the defendant is evading service or cannot be found through conventional means, courts have discretion to authorize alternatives. Federal courts have permitted service by email or social media when traditional methods have been exhausted and the alternative is reasonably likely to reach the defendant. Judges typically want an affidavit detailing the failed search efforts and evidence that the defendant actively uses the proposed electronic account. Serving through both email and social media simultaneously stands a better chance of approval than relying on a single method.

How Long the Order Lasts

An ex parte TRO expires at the time the court sets, which cannot exceed 14 days from entry. The court may grant one extension of up to another 14 days if you show good cause, or if the defendant agrees to a longer extension. The reasons for any extension must be entered into the court record.¹ State courts follow their own timelines, which often differ from the federal 14-day rule.

The short lifespan is intentional. One-sided relief is a bridge, not a destination. Rule 65(b)(3) requires the court to schedule the preliminary injunction hearing at the earliest possible time, and it takes priority over almost everything else on the docket. If you obtain the TRO but then fail to pursue the preliminary injunction motion, the court must dissolve the order.

If You Are the One Being Restrained

A defendant hit with an ex parte TRO does not have to wait until the scheduled hearing to push back. Under Rule 65(b)(4), the defendant can file a motion to dissolve or modify the order on two days’ notice to the applicant, or shorter notice if the court allows. The court must hear and decide that motion “as promptly as justice requires.”¹ Common arguments: the applicant exaggerated the emergency, the alleged harm is not actually irreparable, or the restrictions sweep broader than necessary. If the underlying evidence is thin, the TRO can vanish well before the 14-day clock runs out.

The Preliminary Injunction Hearing

Before the TRO expires, the case moves to a preliminary injunction hearing. This is the first time both sides present evidence and arguments. The defendant can challenge the original factual claims, introduce witnesses and documents, and argue the restrictions should be lifted. The same four-factor Winter test applies, now evaluated with adversarial presentation rather than a one-sided filing.²

If the judge grants the preliminary injunction, the restrictions remain in place until trial resolves the lawsuit, which could be months or years away. If the judge denies it, the TRO dissolves immediately. The court can also modify the restrictions, narrowing or broadening them based on what both sides presented. A preliminary injunction, unlike a TRO, is generally appealable under 28 U.S.C. § 1292(a)(1), which allows immediate appeals from orders granting or refusing injunctions.⁶ A TRO itself typically is not, though courts have recognized narrow exceptions when denial would make later review meaningless.

What Happens If the Order Is Violated

Once the defendant has been served and the order is in effect, disobeying it is contempt of court. Federal courts have broad authority under 18 U.S.C. § 401 to punish contempt by fine, imprisonment, or both when someone disobeys a lawful court order.⁷ The penalty depends on whether the court treats the violation as civil contempt, aimed at compelling compliance, or criminal contempt, aimed at punishing defiance. Civil contempt can mean escalating fines for each day of noncompliance, or jail until the defendant agrees to follow the order. Criminal contempt carries fixed penalties determined after a hearing.

One detail many people miss: a TRO is enforceable only against someone who has received actual notice of it. If the defendant was never properly served, contempt sanctions are off the table regardless of how flagrantly the terms were violated. That is why the proof of service filing matters so much.

1
Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders
2
Justia Law. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)
3
United States District Court Middle District of Florida. Local Rule 6.01 – Temporary Restraining Order
4
Office of the Law Revision Counsel. 28 USC 1914 – District Court Filing and Miscellaneous Fees
5
United States Courts. District Court Miscellaneous Fee Schedule
6
Office of the Law Revision Counsel. 28 USC 1292 – Interlocutory Decisions
7
Office of the Law Revision Counsel. 18 USC 401 – Power of Court