North Dakota TROs: file by the next business day or the order dies on its own

North Dakota has written the most complete temporary restraining order procedure of any state on this site. It sets out what you submit, when you file it, how long the order lives, when the hearing has to happen, and who carries the burden if the other side was ambushed. Every one of those is a specific number or rule, not a matter of practice.

Submit, then file by the next business day

Rule 65(a)(1) requires the complaint to travel with the motion:

The party moving for a temporary restraining order must submit a proposed complaint seeking injunctive relief with the motion.

And then the filing deadline that gives this rule its teeth:

The moving party must file the motion, proposed complaint, and other supporting documents no later than the next court business day after submission. If the moving party does not timely file these documents, an issued temporary restraining order terminates at the end of that next business day.

An order obtained on Friday afternoon and not filed by the end of Monday is gone — not voidable, not vulnerable to a motion. It terminates. Nobody has to ask.

That structure exists because an emergency application is often submitted before a case is properly on foot. The rule lets you move first and regularise immediately after, but the "immediately after" is a hard deadline.

The three findings

Rule 65(a)(3) tells the court what it must find:

The court may issue a temporary restraining order only if it finds: (A) appropriate injunction grounds; (B) a clear need for immediate relief; and (C) either: (i) the moving party gave reasonable notice or made reasonable efforts to give reasonable notice to the opposing party's attorney, if known, or if not known, to the opposing party; or (ii) a substantial reason exists for not giving notice.

Limb (C) is where most applications are won or lost, and the rule defines the standard: "Reasonable notice means any form of notice reasonably calculated to give actual notice of the date and time of submission of the motion to the court" and an opportunity to respond.

The supporting document is prescribed. Rule 65(a)(2) requires the moving party to "submit a declaration reciting the efforts made to give the opposing party's attorney, if known, or if not known, the opposing party, reasonable notice of the motion." A declaration that says notice was impracticable, without reciting what was actually attempted, does not meet it.

Twenty-eight days, and a hearing in twenty-one to twenty-eight

Rule 65(a)(5):

A temporary restraining order expires at the end of the 28th day after issuance unless the court for good cause directs a shorter time or the opposing party consents to a longer time. If the party that obtained the temporary restraining order cannot obtain a preliminary-injunction hearing within 21 to 28 days of the temporary restraining order date, the court may extend the temporary restraining order until the earliest possible time the motion may be heard.

Rule 65(a)(4) puts the obligation to secure that hearing date on the party who obtained the order, "[u]nless for good cause the court directs otherwise." And any extension has to be explained: "The court must enter the reasons for any extension in the record."

Serving it

Rule 65(a)(6) splits by whether the case has been served:

If the summons and complaint have not yet been served under Rule 4, the order and the hearing notice go out with them under Rule 4. If they have been served, the order goes out under Rule 5. Straightforward, but worth getting right — an order served the wrong way is an order whose service can be attacked at the hearing you are about to have.

Less than four days' notice, and the burden flips

Rule 65(a)(7) is the provision that most rewards reading:

If the opposing party received less than four days actual notice of the temporary restraining order motion before the temporary restraining order was issued, the opposing party may move to dissolve or modify the order on four days actual notice, or on shorter notice the court for good cause sets, to the party that obtained the order.

The party that obtained the temporary restraining order has the burden of justifying its continuation.

Two things follow. A party surprised by a TRO has an accelerated route back to court — four days' notice, or less on good cause. And once there, the burden is not theirs. The party who obtained the order must justify keeping it.

For a moving party, that is the strongest argument for giving real notice in the first place: four days' actual notice keeps the motion where you want it.

The order does not upgrade itself

Rule 65(a)(8):

A temporary restraining order remains a temporary restraining order even if the opposing party appears in opposition to the temporary restraining order motion.

An appearance by the other side does not convert a TRO into a preliminary injunction, and does not extend its life. The 28 days keep running.

The preliminary injunction

Rule 65(b) treats the preliminary injunction as the considered decision the TRO was holding the line for: it "prevents irreparable injury until the court decides whether to issue a permanent injunction at trial," and "[a] court may issue a preliminary injunction only after the Rule 65(b)(1) required notice of hearing."

The case has to be properly commenced by then. The moving party "must file and serve the summons and complaint under Rule 4 no later than the time the party serves and files the notice of motion and motion" for the preliminary injunction.

A short checklist

Applying for a TRO:

1. Draft the complaint first. It is submitted with the motion.
2. File everything by the next court business day, or the order terminates on its own.
3. Give real notice, and recite the attempts in a declaration — the rule requires the declaration, not just the effort.
4. Aim for four days' actual notice. Below that, the other side gets an accelerated motion and you carry the burden.
5. Book the preliminary injunction hearing for 21 to 28 days out; it is your obligation.
6. Serve the order the right way — with the summons under Rule 4 if the case has not been served, otherwise under Rule 5.

If a TRO has been issued against you:

1. Count the notice you actually received. Under four days opens the accelerated route.
2. Move to dissolve or modify on four days' notice, or ask for shorter on good cause.
3. Make them justify it. The burden of continuation is on the party who obtained the order.
4. Watch the 28 days. Your consent is the only ordinary way it gets longer.

Where these rules live

• N.D. R. Civ. P. 4 — Persons Subject to Jurisdiction; Process; Service
• N.D. R. Civ. P. 5 — Serving and Filing Pleadings and Other Papers
• N.D. R. Civ. P. 65 — Injunctions
• Responding to a North Dakota complaint
• North Dakota motion to dismiss
• North Dakota subpoenas

This page explains what the rules say. It isn't legal advice, and what amounts to appropriate injunction grounds or a clear need for immediate relief is developed in case law this site doesn't cover.