By Robert Nislick
You are a Massachusetts resident or businessperson. Someone has just filed a lawsuit against you. A sheriff or constable comes to your home or place of business and serves you with a large stack of documents. The papers may include a civil action cover sheet, a summons, an order of notice, a complaint, a motion for temporary restraining order, an application for preliminary injunction, a memorandum of law in support of application for preliminary injunction, and an affidavit, and a proposed order.
If you have received these documents, you should call an experienced Massachusetts lawyer immediately to discuss how best to defend against the claims.
The plaintiff may be asking the court to issue a preliminary injunction against you. This means that the person who has just sued you wants the judge to order you to do something, or not do something, right now. You will want to oppose the plaintiff’s motion, and ask that the court deny the injunction.
It is extremely important to develop your best arguments and present them to the court as early as possible in the case. As the defendant, the injunction hearing will most likely be your first opportunity to argue why you should win and the plaintiff should lose.
You may not have much time to prepare an opposition. Quite often, the plaintiff will file a motion for short order of notice. This means that the plaintiff is asking for a hearing on less than seven days notice.
How the judge rules will likely have a significant impact on the case going forward. If the judge allows the motion, the plaintiff may feel confident about his chances for winning the case, and this could impact the settlement negotiations in the case. On the other hand, if the judge denies the motion, the defendant can feel more confident about his prospects for victory. Moreover, the plaintiff may be less inclined to continue investing in a case in which the court has already denied relief.
What does the plaintiff have to demonstrate in order to obtain a preliminary injunction?
“To succeed in an action for a preliminary injunction, a plaintiff must show (1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction; and (3) that, in light of the plaintiff’s likelihood of success on the merits, the risk of irreparable harm to the plaintiff outweighs the potential harm to the defendant in granting the injunction.” Tri-Nel Mgt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219 (2001), citing Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980). A court must also “examine whether the public interest would support entering an injunction or, in the alternative, whether an injunction would adversely affect the public.” Le Clair v. Norwell, 430 Mass. 328, 337 (1999).
I will explain each of these elements in plain language.
First, when the plaintiff argues that he has a likelihood of success on the merits, he is telling the court that the law and the facts are on his side, and he is ultimately going to win the case.
Second, irreparable harm essentially means the situation right now is harmful to the plaintiff,
and even if the plaintiff wins the case down the road, the harm he is suffering right now cannot be remedied by a final judgment. Take for example a dispute over money. Even if the plaintiff has been harmed by the defendant’s breach, the plaintiff may be able to win the case and recover a money judgment. Therefore, the plaintiff’s harm may not be irreparable. By contrast, in a real estate dispute, where one neighbor is blocking another’s driveway, or in a commercial landlord-tenant dispute, where the landlord has locked the tenant out of his premises and is denying him access to his equipment, the plaintiff’s harm may be irreparable.
Third, is the balance of harms test. The court looks at the harm the defendant might suffer if the court grants the injunction, and compares it to the harm that the plaintiff is suffering and may continue to suffer without the injunction.
Fourth, is the public interest test. This element may not play a big part in every case. In any event, and if applicable, the plaintiff may consider arguing that an injunction that preserves the status quo and applies the law promotes the public interest.
How can the defendant attack the plaintiff’s motion?
In arguing against a preliminary injunction, first, the defendant will want to argue that the plaintiff does not have a likelihood of success. The defendant may want to demonstrate that the facts alleged by the plaintiff are incomplete or not credible. The defendant can do this, in part, by filing affidavits which include additional and helpful facts which help tell the story of this dispute from the defendant’s side. Additionally, the defendant will want to show that the controlling legal principles favor him, and not the plaintiff. The defendant may do this by showing that the plaintiff has relied on law that simply does not apply under the circumstances.
Concerning irreparable harm, the defendant may want to show that there is nothing the plaintiff cannot now do that he could not always do. Similarly, the defendant may want to show that even if the plaintiff is suffering harm, the defendant is not the cause, and therefore the defendant should not be enjoined. Alternatively, the defendant may want to argue that the plaintiff’s alleged harm is purely economic, and therefore, injunctive relief is not available. Alternatively, the defendant may argue that the plaintiff is only speculating about harm the plaintiff may suffer, but would never actually suffer.
With respect to the balance of harms, the defendant may want to show how the plaintiff will really suffer no harm if no injunction issues, whereas the defendant will suffer harm if the injunction issues. The defendant may want to show how the plaintiff’s conduct is actually the source of harm to the defendant, and how this will get worse if the court grants the plaintiff’s requested injunction. The defendant may wish to make an argument that an injunction will unreasonably prevent him from doing something that he has every legal right to do. Alternatively, the defendant may want argue that the costs of complying with an injunction will be excessively costly as compared against the degree of harm the plaintiff claims to suffer.
There are several arguments the defendant can make, in addition to countering the plaintiff’s arguments on likelihood of success on the merits, irreparable harm, and balance of harms, which may help defeat the injunction.
Counsel for the defendant can show how his client has always acted with restraint and will continue to do so, even in the absence of an injunction. Here, counsel is advocating for the defendant by showing the court that he is an upstanding citizen who follows the rules.
The defendant may also want to show that the plaintiff’s resort to litigation was too quick, not necessary, and extreme. Essentially, the defendant can argue that the plaintiff should have communicated with him before filing a lawsuit, and that he did not have to come running into court when this dispute could have been resolved without litigation. Similarly, the defendant may seek to assure the court that he will work with the plaintiff in good faith to resolve the controversy, and therefore no injunction is necessary.
Another tactic is to argue that the injunction should not issue because it would change the status quo, rather than preserve the status quo. “The purpose of a preliminary injunction is to maintain the situation in status quo until the merits can be determined.” The Thayer Co. v. Binnall, 326 Mass. 467, 479 (1950). “A preliminary injunction is, by definition, an interlocutory order entered to preserve temporarily the status quo pending a full trial on the merits.” In re McKnight, 406 Mass. 787, 792 n.4 (1990).
Alternatively, assume it is clear that the defendant has some obligation to perform for the benefit of the plaintiff. For whatever reason, the defendant has not fulfilled his obligation. This may occur if the defendant is breaching some kind of a real estate contract. The plaintiff files an action for specific performance of a purchase and sale agreement, or to enforce a valid option to purchase real estate. The plaintiff wants a preliminary injunction.
Here, the defendant may be able to defeat the injunction by demonstrating to the court that he will fulfill his obligations, and will do so in good faith, but he needs a bit more time. Upon the defendant’s representation, the judge may be willing to decline to enter the injunction now, give the defendant some more time, and encourage the parties to settle the case.
Another possible argument against an injunction could be that the plaintiff is asking for too much relief, and that it is way more than is necessary to prevent the plaintiff from suffering additional harm. Similarly, the defendant may argue that the plaintiff has not been specific enough in terms of the conduct he is asking to be enjoined. “[A]n injunction . . . shall be specific in terms; shall describe in reasonable detail . . . the act or acts sought to be restrained . . . .” See Mass. R. Civ. P. 65 (d).
Another option for the defendant is to ask the court to require the plaintiff to give security, which will protect the defendant against costs and damages incurred by him in the event he is later found to have been wrongfully enjoined or restrained. See Mass. R. Civ. P. 65 (c).
As you can see, there are many ways in which a defendant can successfully oppose an application for preliminary injunction.
Robert Nislick is a Massachusetts business and real estate lawyer. Contact him today to discuss a litigation issue relating to your corporation, limited liability company, trust, or real estate.