Summary. An emergency motion is drafted in days and decided on an incomplete record, and the papers that succeed look like they were prepared months in advance. This checklist covers the whole package: confirming the standard in your circuit, assembling declarations, drafting relief that is prohibitory and specific enough to be enforced by contempt, satisfying Rule 65(b) if proceeding without notice, proposing a bond, and preparing the proposed order. A separate phase covers defending on short notice.

What this checklist is for. Assembling an emergency application that a judge can grant, or defeating one. For the doctrine, see Preliminary Injunctions and Temporary Restraining Orders.

Phase 1 — Threshold decisions, in the first hour

Why this matters. Courts assess urgency partly by the movant's own conduct. A party that waited three months will be asked why, and the answer needs to be in the opening brief rather than the reply.

Phase 2 — Likelihood of success

  • Choose one claim, the cleanest, and build the motion on it.
  • Enumerate the elements and map evidence to each.
  • Address the obvious defense affirmatively.
  • Confirm jurisdiction, venue, and standing are secure enough to survive a quick attack.
  • For trademark claims, note the Trademark Modernization Act amendment to 15 U.S.C. § 1116(a), which restores a rebuttable presumption of irreparable harm on a showing of likelihood of success for preliminary relief.

Phase 3 — Irreparable harm

  • Articulate harm that money cannot repair: loss of goodwill, loss of control over a mark or confidential information, customer defections that cannot be traced, disclosure that cannot be undone, destruction of a business, constitutional injury.
  • Support it with a declaration from someone with knowledge, not attorney argument.
  • Explain why damages are inadequate rather than asserting it.
  • Address delay head-on, with the timeline.
  • Confirm whether a statutory presumption applies, and whether the relevant circuit's post-eBay case law (e.g., Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010)) forecloses one.

Why this matters. This is where most emergency motions fail. Sampson v. Murray, 415 U.S. 61 (1974): "The key word in this consideration is irreparable."

Phase 4 — Equities, public interest, and scope

  • Quantify your harm if relief is denied.
  • Characterize the defendant's harm, noting where it is self-inflicted because the defendant proceeded after notice.
  • Address the public interest substantively, not in one sentence.
  • Draft relief in the negative wherever possible — prohibitory relief avoids the heightened standard applied to mandatory injunctions in most circuits.
  • Define the status quo as "the last uncontested status which preceded the pending controversy," which often converts apparently mandatory relief into prohibitory relief.
  • Offer a narrower alternative in the motion. Judges grant narrow relief far more readily, and offering it demonstrates good faith.

Phase 5 — If proceeding without notice

  • Specific facts in an affidavit or verified complaint clearly showing that immediate and irreparable injury will result before the adverse party can be heard, Rule 65(b)(1)(A).
  • Counsel's written certificate of efforts made to give notice and the reasons notice should not be required, Rule 65(b)(1)(B).
  • Facts supporting the risk of evidence destruction, asset dissipation, or flight — contemporaneous facts, not generalized worry.
  • Confirm the order will state the date and hour of issuance, describe the injury, state why it is irreparable, and state why the order issued without notice, Rule 65(b)(2).
  • Note the 14-day expiration and the single like-period extension for good cause or with consent.
  • Set the hearing on the preliminary injunction at the earliest possible time.
  • Understand the adverse party may move to dissolve on two days' notice, Rule 65(b)(4).

Phase 6 — Bond, and the proposed order

  • Propose a specific bond amount with supporting reasoning, Rule 65(c). Silence invites the court to adopt the opponent's number.
  • Remember that in most circuits the bond caps recovery for a wrongful injunction — which is why the opposing party will fight for a large one.
  • Draft a self-contained proposed order: state the reasons it issued; state its terms specifically; describe in reasonable detail the acts restrained without referring to the complaint or another document, Rule 65(d)(1). Schmidt v. Lessard, 414 U.S. 473 (1974).
  • Define accused products or conduct by model number or specific description, and attach and physically incorporate exhibits.
  • Avoid legal conclusions as operative terms — "shall not infringe" is unenforceable; "shall not manufacture, sell, or offer for sale the products in Exhibit A" is enforceable.
  • Identify who is bound: parties, officers, agents, servants, employees, attorneys, and persons in active concert or participation who receive actual notice, Rule 65(d)(2).

Phase 7 — The papers, and expedited discovery

  • Complaint (verified if needed for a TRO affidavit).
  • Motion and memorandum organized by the four factors, in the circuit's formulation.
  • Declarations from percipient witnesses; every fact tied to a person with knowledge.
  • Exhibits, authenticated and indexed.
  • Proposed order.
  • Rule 65(b) certificate if ex parte.
  • Proposed bond with support.
  • Motion to seal with a redacted public version, if needed.
  • Motion for expedited discovery, narrowly tailored: documents on the accused conduct and its timeline, the defendant's sales figures (relevant to bond and hardship), a short deposition of the opposing declarant, and a forensic imaging protocol in trade secret cases.

Phase 8 — Defending an application on short notice

  • Ask for time, specifically and reasonably. Two business days changes the record materially.
  • Offer a standstill — a voluntary agreement to preserve the status quo for a week, without admission, often moots the emergency.
  • File one clean declaration from the person who knows the facts, with the two or three documents that show the movant's account is incomplete. Not five declarations.
  • Attack irreparable harm and delay — the arguments available without a record.
  • Contest the status quo characterization and invoke the heightened standard if relief is mandatory.
  • Fight on scope: which conduct, which products, which geography, how long, what carve-outs.
  • Demand a real bond, with a declaration quantifying your losses and methodology.
  • Preserve the record: object to the evidentiary process and identify which factual disputes required a hearing.
  • Calendar the 28 U.S.C. § 1292(a)(1) appeal right if an injunction issues.

Common mistakes

  • Asserting irreparable harm without explaining why money is inadequate.
  • Filing weeks after learning of the conduct and not addressing it.
  • Asking to enjoin "infringement" rather than specified conduct — an unenforceable order.
  • Incorporating the complaint into the order, contrary to Rule 65(d)(1).
  • Leaving the bond to the judge.
  • Proceeding ex parte when notice was feasible.
  • Covering six claims because counsel could not choose one.
  • Ignoring the standing order on emergency procedure.
  • Forgetting that a TRO extended beyond Rule 65(b)'s limits over objection may be treated as an appealable preliminary injunction. Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423 (1974).

Primary authority

Related

This checklist is educational and not legal advice. Emergency practice varies substantially among circuits, districts, and individual judges. Consult qualified litigation counsel and the applicable standing orders before filing.