By Nicholas Ramacher
Seeking a preliminary injunction is a costly and difficult process, but it is often the best or only option to protect a client’s interests. The grant or denial of a motion for preliminary injunction can substantially impact the parties’ case, including potentially forcing the losing party to settle on unfavorable terms. Given the high stakes, it is important for lawyers to ensure that they follow the governing procedural rules and present their clients’ arguments in the best light despite often facing significant time constraints.
This article addresses four key considerations: (1) whether to seek a preliminary injunction; (2) where to file; (3) what to file; and (4) how to present your offer of proof.
Whether to Seek a Preliminary Injunction
Before drafting a motion for a preliminary injunction, consider, with your client, whether you have a good case to do so. You want to have evidence establishing all elements required for a preliminary injunction—not just your client’s likelihood of success on the merits, but also irreparable harm, the balance of harms, and any effects on the public interest. See Together Emps. v. Mass Gen. Brigham, Inc., 32 F.4th 82, 85 (1st Cir. 2022); Loyal Order of Moose, Inc., Yarmouth Lodge #2270 v. Bd. of Health of Yarmouth, 439 Mass. 597, 601 (2003). Your client also should know that filing a motion for a preliminary injunction starts a fast-paced process that could include expedited discovery and depositions of your client or your client’s employees. The court might decide to hold an evidentiary hearing with live testimony or to expedite trial.
Moving for a preliminary injunction also carries evidentiary and credibility risks. To support the motion, you will likely have to file detailed declarations or a verified complaint, often with limited information. Those sworn statements could later be used against your client and witnesses if discovery shows that they were incomplete or inaccurate. Similarly, the opposing party might later use claims of irreparable harm to undercut your client’s evidence of damages. And an unsuccessful preliminary injunction motion, depending on the grounds for denial, might reduce your client’s leverage in settlement negotiations. Filing a weak motion is a bad idea and may do more harm than good.
Discussion of these risks with your client should be continuous, from the beginning to the end of the preliminary injunction filing process.
Where to File
In Massachusetts, there are three likely venues for a business litigant seeking a preliminary injunction: federal district court, a general session of the Superior Court, and the Superior Court’s Business Litigation Session. The rules and standards governing preliminary injunctions are similar in state and federal courts. See Mass. R. Civ. P. 65; Fed. R. Civ. P. 65. But jurisdictional and venue issues, always considerations when filing a complaint, become even more important if a party is seeking a preliminary injunction. Speed and simplicity are typically paramount. A fight over jurisdiction or venue can be time-consuming and distracting. If your client is being harmed, even a successful battle to get into federal court may be a Pyrrhic victory if it causes extra weeks of delay.
If you do not have clear federal jurisdiction, state court may be your best option. Similarly, if venue is not proper in Suffolk County, you may want to avoid filing in the Business Litigation Session, where your complaint may be subject to a motion to dismiss or transfer for improper venue. See Superior Court Administrative Directive No. 24-1: Superior Court Business Litigation Sessions.
What to File
Once you and your client decide to file a motion for a preliminary injunction, you need to identify the proper documents for filing. For motions filed at the beginning of a case, it is generally best to file your preliminary injunction motion simultaneously with the complaint, unless there is an advantage in being the first party to file and drafting a motion and supporting papers would delay filing a complaint. Filing a complaint may put the defendant on notice that a preliminary injunction motion is likely. The defendant may also argue that any delay in filing is evidence that there is no emergency or irreparable harm.
You will need, of course, a motion and a supporting memorandum of law. Make sure your memorandum complies with page limit and formatting rules. See Mass. Super. Ct. Rule 9A(a)(5); Mass. L.R. 7.1(b)(4). You do not want to have an emergency filing rejected because it is non-compliant, and filing a motion requesting additional pages can be unnecessarily time-consuming in fast-moving motion practice.
Motions for a preliminary injunction must be supported by evidence—unsworn allegations in a complaint or memorandum of law will not suffice. Generally, your evidence will be in the form of documents and declarations or a verified complaint. Declarations under penalties of perjury can generally be used in place of notarized affidavits. See G.L. c. 268, § 1A; 28 U.S.C. § 1746.
In addition to these fundamental documents, there are related motions to consider. First, consider seeking a short order of notice, which allows for an expedited hearing. Second, you can move for expedited discovery, but beware that doing so may delay a hearing—and so delay an order—and discovery is usually reciprocal. If you can obtain the relief your client needs before any discovery, it often makes sense to do so. Regardless of whether you seek expedited discovery, however, your preliminary injunction motion should include a request for an order to preserve relevant evidence. Third, if you are initiating a case in Massachusetts state court, you should identify a professional process server and file a motion to appoint a special process server under Mass. R. Civ. P. 4(c). Otherwise, you may face delays while a sheriff effects service.
Your motion for a preliminary injunction, and any ancillary motions, should always be accompanied by a proposed order. Each order should: (i) be tailored to your case; (ii) specifically describe the acts to be restrained; and (iii) request relief supported by your memorandum or the corresponding motion. You should also consider ways to make your points and authorities easily digestible for a busy judge. If your brief is longer than ten pages, consider including a table of contents. If you cite more than a handful of cases or rely on cases from other jurisdictions or secondary authorities, use parentheticals to identify the most apposite cases and consider including an appendix of authorities. And if you have many exhibits, flag the most significant for the judge in your supporting memorandum and consider filing a separate appendix of exhibits.
To the extent possible, avoid the difficult process of impounding or sealing pleadings and exhibits. If it is impossible to make your case without filing confidential information—theft of trade secrets claims, for example, require evidence of the trade secrets—carefully follow the applicable impoundment rules, limit the exhibits you ask to seal, and be judicious about using confidential information in briefs and declarations. You should also be mindful that the opposing party either (i) will see sealed or impounded documents or (ii) will have a valid complaint that it lacks full notice. Therefore, consider seeking an attorneys-eyes-only protective order, preferably assented to, for the limited purpose of providing the full preliminary injunction briefing.
How to Present Your Offer of Proof
The most common ways to provide evidence are documents, declarations, and a verified complaint. Documents are often the most time-consuming form of evidence to identify and present, but they are also the most compelling. Attorneys typically draft sworn statements that are, at least to some extent, self-serving. Contemporaneous documents, especially if they include admissions from the defendant, are more likely to be seen as telling the true story—although usually only in snapshots. In addition, unlike sworn statements, documentary evidence does not create new material for cross-examination.
You should therefore use declarations and verified complaints primarily to authenticate and provide context for documentary evidence and to fill evidentiary gaps. For example, if a contract was orally modified, you would need the sworn statement of the person who agreed to the modification, but you could then try to show with documents that both parties acted consistently with the modification. Declarations should be preferred over a verified complaint. Complaints tell a story, usually with information that no single person could know firsthand. Although judges can consider hearsay in a preliminary injunction motion, use it sparingly and demonstrate why it is reliable. Firsthand knowledge is much stronger. For example, separate declarations from a company’s owner and three employees will be more persuasive than a single complaint verified only by the owner, who relays hearsay from the three employees.
Preliminary injunction motions are an essential tool where maintaining the status quo is a strategic goal for your client. Given the intense and expedited nature of such proceedings, early and careful planning leads to more compelling motions and eases the procedural burden on attorneys, the client, and the court.
Nicholas Ramacher is a partner at Donnelly, Conroy & Gelhaar, LLP. Nick has more than fifteen years of commercial litigation experience, including substantial experience prosecuting and defending preliminary injunctions and protecting companies’ trade secrets.
