New Hampshire injunctions: the ex parte hearing goes on the record

Rule 48 follows the familiar shape, then adds three things that are hard to find elsewhere: the ex parte hearing is recorded, the injunction hearing has an outside date rather than a priority, and several of the rule's own requirements can be waived for good cause.

What is said in your absence is preserved

Rule 48(a):

Any hearing held without the presence of the adverse party or his or her attorney shall be recorded, unless directed otherwise by the court.

"Shall be recorded." The default runs toward a record, and it takes a direction from the court to depart from it.

That is worth knowing on both sides of the application. Counsel appearing ex parte is speaking on the record about an absent party, and the characterization of the dispute offered there will be available afterwards. For the party who was not present, the recording is the first thing to ask for when preparing a motion to dissolve — it is the only account of what the court was told.

The certification requirement is also drawn more broadly than most states':

the applicant or the applicant's representative certifies to the court in writing the efforts which have been made to give the notice and/or the specific facts supporting the claim why the notice should not be required.

Note "the applicant or the applicant's representative" — the rule does not confine the certificate to an attorney, which matters for a self-represented applicant. Note also "and/or": the rule contemplates a certificate that describes efforts, one that explains why notice should not be required, or both.

Ten days, and the hearing inside ten days

A restraining order granted without notice must be endorsed with the date and hour, define the injury, state why it is irreparable and why it issued without notice, and expire within a period the court fixes "not to exceed 10 days," extendable once for a like period on good cause or longer by consent.

Then Rule 48(a) does something most versions of this rule do not:

the application for a preliminary injunction shall be set down for hearing at the earliest possible time, and in any event within 10 days, and, when the matter comes on for hearing, the party, who obtained the temporary restraining order, shall proceed with the application for a preliminary injunction, and if he or she does not do so, the court shall dissolve the Temporary Restraining Order.

Elsewhere the injunction hearing is given priority over other matters and nothing more. New Hampshire adds "and in any event within 10 days" — an outside date, matching the life of the restraining order itself, so the hearing cannot fall after the order it is meant to replace has expired.

The adverse party need not wait: on two days' notice, or shorter as the court prescribes, it may appear and move for dissolution or modification, and the court hears the motion "as expeditiously as the ends of justice require."

Only the court issues a preliminary injunction

Rule 48(b)(1) is short and carries a jurisdictional point in its second clause:

No preliminary injunction shall be issued without notice to the adverse party and it shall only be issued by the court.

Notice, and the court itself. A preliminary injunction is not available from anyone acting for the court in a lesser capacity.

Consolidation is handled in Rule 48(b)(2), and New Hampshire's version is shorter than most:

Before, or after, the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. This subsection (b)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.

Read what is missing. Most states add a sentence providing that admissible evidence received at the injunction hearing becomes part of the trial record automatically. Rule 48(b)(2) has no such sentence — it addresses consolidation and the jury right, and stops. A party who wants hearing evidence to count at trial should not assume it does.

Good cause can excuse the bond — and the form of the order

Two of the rule's requirements are unusual in being expressly waivable.

On security, Rule 48(c):

Unless the court, for good cause shown, shall otherwise order, no Restraining Order or Preliminary Injunction shall issue except upon the giving of an injunction bond by the applicant, in such sums as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such bond shall ordinarily be required of the United States or of the State of New Hampshire.

The bond is the default and good cause displaces it. Note also "ordinarily" in the sovereign exemption — even that is not absolute.

Rule 48(f) then treats the ex parte case separately, and with a curious pair of verbs:

Whenever an injunction is issued without notice to, or appearance by, the adverse party, the party at whose request it is issued, ordinarily shall, and in any case may, be required to give bond with sufficient sureties, conditioned to pay and satisfy all such damages as may be occasioned to the adverse party by reason of the injunction, in case it shall appear that the injunction was improper.

"Ordinarily shall, and in any case may." So for an order obtained without notice or appearance, a bond is the strong expectation and always available to the court.

On the form of the order, Rule 48(d) carries the same escape:

Unless the court, for good cause shown, otherwise orders, an injunction or restraining order shall be specific in terms; shall describe in reasonable detail the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

Two observations. New Hampshire does not include the usual prohibition on describing the restrained acts "by reference to the complaint or other document" — the requirement is reasonable detail, without that gloss. And the whole of the subsection, including who the order binds, yields to an order made for good cause.

The surety is in the case

Rule 48(g) applies wherever security is given under the rules:

each surety submits himself or herself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his or her agent upon whom any papers affecting his or her liability on the bond or undertaking may be served. His or her liability may be enforced on motion without the necessity of an independent action.

No separate suit against the surety, and the clerk is its agent for service — with the clerk to "forthwith mail copies to the sureties if their addresses are known."

Rule 48(e) preserves two bodies of statute: "These rules are subject to any statutory provisions relating to restraining orders and injunctions in actions involving or growing out of labor disputes and liens."

A short checklist

If you are applying:

1. Assume the ex parte hearing is recorded. Say only what you would say with the other side present.
2. File the certificate — efforts made, or why notice should not be required, or both.
3. Diary the hearing within 10 days, not merely "at the earliest possible time."
4. Arrange a bond unless you can show good cause why none should be required.
5. Do not assume hearing evidence carries into the trial record. This rule does not say it does.
6. Press the injunction application at the hearing or the restraining order is dissolved.

If you are restrained:

1. Ask for the recording of any hearing held in your absence.
2. Move on two days' notice; you need not wait for the injunction hearing.
3. Check the ten-day outside date for the hearing, and the ten-day life of the order.
4. Ask for a bond if the order was obtained without notice or appearance — Rule 48(f) says one ordinarily shall be required.

Where these rules live

• N.H. Super. Ct. R. 48 — Injunctions
• Responding to a New Hampshire complaint
• New Hampshire motion to dismiss
• New Hampshire summary judgment
• Setting aside a New Hampshire default

This page explains what the rules say. It isn't legal advice, and the statutes governing injunctions in labor disputes and lien matters are not carried on this site.