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Litigation: Reconsidering the preliminary injunction

When to appeal or move for dissolution of preliminary injunctions and TROs

Normally, only final judgments can be appealed. In the case of preliminary injunctions, however, because they are granted at the outset of litigation and can remain in effect for months or even years even if granted in error, a litigant is allowed to file an interlocutory appeal of a preliminary injunction. The exact procedure of filing such an appeal will vary from jurisdiction to jurisdiction, and failure to file a timely appeal may cause that appeal’s failure. Even in cases where an appeal is not possible, it still may be possible to modify or dissolve the injunction.

When appealing temporary restraining orders (TRO), however, the situation is more complex. While all states and the federal court system allow preliminary injunctions to be appealed before final judgment, the same is not true of TROs. While some states do allow for an appeal of the granting or denial of either the TRO itself, or the modification/dissolution of that order, some states do not, and federal courts will likely hear this type of appeal at their discretion. One situation where an appeal of a TRO will likely be heard is when the TRO has extended past statutory limits. In those cases, it is not uncommon for courts to consider the extended TRO to be a preliminary injunction for the purposes of the appeal. Exactly how long a TRO must last before a higher court would hear the appeal will depend on the specific jurisdiction, however.

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Thomas Patterson

Thomas E. Patterson started the Patterson Law Firm in 2000. He has 32 years of experience preparing and trying lawsuits for businesses, professionals and entrepreneurs—often...

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