Oregon restraining orders: showing up does not turn one into an injunction

A temporary restraining order and a preliminary injunction are different things with different consequences — different durations, different appeal rights, different burdens. Oregon is the only state that writes down what does not turn the first into the second.

Two things that do not convert the order

ORCP 79 B(5) is headed "Temporary restraining orders not extended by implication":

If the adverse party actually appears at the time of the granting of the restraining order, but notice to the adverse party is not in accord with subsection C.(1), the restraining order is not thereby converted into a preliminary injunction. If a party moves to dissolve or modify the temporary restraining order as permitted by subsection (4) of this section, and such motion is denied, the temporary restraining order is not thereby converted into a preliminary injunction.

Two scenarios, both common, both answered.

Appearing at the ex parte hearing does not convert it. A defendant who gets wind of the application and turns up has not received the five days' notice that subsection C(1) requires for a preliminary injunction, so what issues is still a restraining order.

Losing a motion to dissolve does not convert it either. The order survives the challenge as the same order it was.

Why it matters: a restraining order expires in ten days. If appearing at the hearing upgraded it, it would not. A defendant who shows up to oppose is not, by doing so, exchanging a ten-day order for an indefinite one — and a plaintiff cannot manufacture a preliminary injunction by inviting the other side to the ex parte hearing.

Five days before the preliminary injunction hearing

ORCP 79 C(1):

No preliminary injunction shall be issued without notice to the adverse party at least five days before the time specified for the hearing, unless a different period is fixed by order of the court.

A fixed figure where most states say only "notice." Five days is also the benchmark subsection B(5) refers back to, which is what makes the anti-conversion rule work: notice that falls short of five days cannot produce a preliminary injunction.

The affidavit has to mention the telephone

ORCP 79 B(1) permits a restraining order without notice only on two showings. The first is the familiar one. The second is not:

The applicant or applicant's attorney submits an affidavit or a declaration setting forth the efforts, if any, which have been made to notify defendant or defendant's attorney of the application, including attempts to provide notice by telephone, and the reasons supporting the claim that notice should not be required.

Two points of drafting.

An affidavit or a declaration. Oregon accepts an unsworn declaration, so a notarized affidavit is not required.

"Including attempts to provide notice by telephone." The rule names the method it expects to see addressed. An affidavit that describes a mailed letter and says nothing about a phone call has not answered the question the rule asks.

That requirement is waived for orders granted under ORS 107.095(1)(c) to (g), which are the family-law status quo orders.

Ten days, with a family-law exception

Every restraining order granted without notice must be endorsed with the date and hour of issuance, filed forthwith, define the injury, state why it is irreparable, and state why it issued without notice. Then:

Every temporary restraining order shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period.

And the same ORS 107.095 orders are carved out of the ten days as well: "The 10-day limit of paragraph (a) of this subsection does not apply to orders granted by authority of ORS 107.095 (1)(c), (d), (e), (f) or (g)."

The route back into court is the standard one — "On two days' notice (or on shorter notice if the court so orders) to the party who obtained the temporary restraining order without notice, the adverse party may appear and move for dissolution or modification of such restraining order" — with the court to hear and determine it "as expeditiously as the ends of justice require."

Consolidation happens only if both sides agree

ORCP 79 C(2) departs from every other version of this provision:

Before or after the commencement of the hearing of an application for preliminary injunction, the parties may stipulate that the trial of the action on the merits shall be advanced and consolidated with the hearing of the application. The parties may also stipulate that any evidence received upon an application for a preliminary injunction, which would be admissible upon the trial on the merits, becomes part of the record on trial and need not be repeated upon the trial.

Elsewhere the court may order consolidation, and evidence carries into the trial record automatically whether or not it does. In Oregon both are stipulations. The court cannot advance and consolidate the trial over a party's objection, and evidence taken at the injunction hearing does not become trial evidence unless the parties agree it does.

That changes how the hearing should be run. In most states a preliminary injunction hearing is a partial trial whose transcript is permanent. In Oregon it is a hearing about the injunction, and what is said there stays there unless both sides say otherwise.

It also means a party who wants the evidence banked has to ask, and has to get agreement.

Security sits in a different rule

ORCP 79 A(1) makes the whole of the rule "Subject to the requirements of Rule 82A.(1)," which is where the undertaking for provisional process lives. So the security question is not answered inside the injunction rule at all — a practitioner reading only ORCP 79 will find no bond provision and should not conclude there is none.

What the rule does not reach

ORCP 79 E lists three exclusions, and they cover the orders most often sought in practice:

This rule does not apply to a temporary restraining order issued by authority of ORS 107.700 to 107.735 or 124.005 to 124.040 or 163.760 to 163.777.

Those are the abuse prevention, elderly and disabled persons abuse prevention, and stalking protective order statutes, each with its own procedure. The rule also does not apply to provisional relief under ORCP 83 "except for the application of section D. of this rule," and does not modify any statute or rule "relating to temporary restraining orders or preliminary injunctions in actions affecting employer and employee."

Section F disposes of one more piece of old equity practice in five words: "The writ of ne exeat is abolished."

A short checklist

If you are applying:

1. Address the telephone in your affidavit or declaration. The rule names it.
2. Use a declaration if that is easier — ORCP 79 accepts one.
3. Diary ten days, and seek any extension for good cause inside that period.
4. Give five days' notice before a preliminary injunction hearing, or get the court to fix another period.
5. Look to ORCP 82A(1) for the undertaking; it is not in this rule.
6. If you want the hearing evidence to count at trial, get a stipulation. The court cannot supply one.

If you are restrained:

1. Appear if you want to — doing so does not convert the order into a preliminary injunction.
2. Move to dissolve on two days' notice; losing that motion does not convert it either.
3. Diary the ten-day expiry unless the order is one of the family-law orders that is exempt.
4. Check which statute your order was issued under. Three whole schemes sit outside this rule.

Where these rules live

• ORCP 79 — Temporary restraining orders and preliminary injunctions
• Responding to an Oregon complaint
• Oregon motion to dismiss
• Oregon summary judgment
• Oregon depositions
• Oregon requests for admission

This page explains what the rules say. It isn't legal advice, and the abuse prevention and stalking protective order statutes referred to in section E are not carried on this site.