Rhode Island restraining orders: refused once, and only a change of circumstances reopens it

Rule 65 in Rhode Island tracks the familiar text until three points, and each of the three answers a question the standard version leaves open: what happens after a refusal, what it takes to extend an order, and how the injunction application is proved.

A refusal follows the case

The provision sits in the middle of Rule 65(b):

If an application for a temporary restraining order without notice to the adverse party is made to and denied by one judicial officer of the court, such application shall not again be made to any other judicial officer unless there is a material change in circumstances. The judicial officer to whom such application was originally presented shall note the judicial officer's action in the case file containing such application.

Two halves, and both matter.

The bar. An ex parte application refused once cannot be presented to another judicial officer of the court. That is not a matter of etiquette; the rule says it shall not be made.

The exception. "Unless there is a material change in circumstances." So the door is not permanently closed — but the second application has to rest on something that has changed since the first, and the applicant should say plainly in the papers what that is.

And the record. The officer who refused it "shall note the judicial officer's action in the case file." The refusal is documented where the next judge will see it, which is what makes the bar enforceable without anyone having to raise it.

Compare Maine, which bars a second presentation unless the first justice consents, and Iowa, which makes the applicant disclose prior refusals in the petition. Rhode Island reaches the same place a third way — the file itself carries the history.

An extension takes argument

The ten-day life of an ex parte order is ordinary. How it is extended is not:

Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance and shall expire by its terms within such time after entry, not to exceed ten (10) days, as the court fixes, unless within the time so fixed the order, for good cause shown, and after hearing of argument by the parties or attorneys, is extended for like period or unless the party against whom the order is directed consents that it may be extended for a longer period.

Read the inserted clause: "and after hearing of argument by the parties or attorneys." Elsewhere an extension needs good cause and nothing more, and can be granted on the papers. In Rhode Island the court hears argument first.

Which means an extension is not a quiet administrative step. It brings the parties back in front of the judge — and gives the restrained party an occasion to be heard that the standard rule does not.

The alternative route is unchanged: the restrained party's consent, for a longer period. "The reasons for the extension shall be entered of record" either way.

Evidence, affidavits, or both — the court decides

Rule 65(a)(2) opens with a sentence most versions do not have:

An application for a preliminary injunction shall be heard on evidence or affidavits or both at the discretion of the court.

Three possibilities, and the choice belongs to the court rather than to the parties or to local custom. An applicant should therefore be prepared to prove the case both ways — affidavits filed, and witnesses available — because the mode is not settled until the court settles it.

The consolidation provision that follows is shorter than most states':

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.

Note what is absent. There is no sentence providing that admissible evidence received at the injunction hearing becomes part of the trial record automatically, and no jury savings clause. Rhode Island gives the court the power to consolidate and stops there — so a party who wants hearing evidence to count at trial should not assume it does.

Security is ordered on issuance, not required before it

Rule 65(c) begins differently from the federal version:

Upon the issuance of a restraining order or preliminary injunction the court may order the giving of security by the applicant, in such sum 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.

Two departures in one sentence. Security is discretionary — "may order" — where the federal rule permits an injunction "only if the movant gives security." And it is ordered "upon the issuance" of the order rather than as a precondition to it.

So in Rhode Island an injunction is not held up while a bond is arranged, and a respondent who wants security has to ask for it. There is no automatic figure to fall back on.

Where a bond is given, the surety is drawn into the case:

A surety upon a bond or undertaking under this rule submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as the surety's agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. The surety's liability may be enforced on motion without the necessity of an independent action.

The clerk then "shall forthwith send copies to the persons giving the security if their addresses are known" — which is a reason to keep the address on the bond current.

What the order must say

Rule 65(d):

Every order granting an injunction and every 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 things are missing compared with most states, and both are worth knowing. There is no requirement that the order "set forth the reasons for its issuance." And there is no prohibition on describing the restrained acts "by reference to the complaint or other document" — the requirement is reasonable detail, without that gloss.

On who is bound, the usual two conditions apply together: being within the listed categories, and receiving actual notice.

The ordinary machinery

A preliminary injunction issues only on notice. A restraining order issues without notice only on specific facts shown by affidavit or verified complaint showing immediate and irreparable injury before the adverse party can be heard, plus the applicant's attorney's written certificate of the efforts made to give notice and the reasons notice should not be required.

Once an ex parte order is in place, the injunction motion is set at the earliest possible time and takes precedence over all matters except older matters of the same character, and the applicant must press it — "if the party does not do so, the court shall dissolve the temporary restraining order." The restrained party may move for dissolution or modification on two days' notice, or shorter as the court prescribes.

Rule 65(e) preserves one body of statute: "These rules are subject to any statutory provisions relating to temporary restraining orders or injunctions in actions involving labor disputes."

A short checklist

If you are applying:

1. Treat the first application as your best shot. A refusal goes in the file and blocks a second.
2. If you do reapply, identify the material change in circumstances expressly.
3. Plan to argue any extension. The court hears argument before granting one.
4. Prepare both affidavits and witnesses — the mode of proof is the court's choice.
5. Do not wait on a bond. Security is discretionary and ordered upon issuance.
6. Press the injunction motion at the hearing or the order is dissolved.

If you are restrained:

1. Check the case file for a prior refusal. It should be noted there.
2. Appear on any extension request. The rule entitles you to be heard before an extension is granted.
3. Ask the court to order security. It will not be imposed automatically.
4. Move to dissolve on two days' notice; you need not wait for the injunction hearing.

Where these rules live

• R.I. Super. R. Civ. P. 65 — Injunctions
• Responding to a Rhode Island complaint
• Rhode Island motion to dismiss
• Rhode Island summary judgment
• Rhode Island depositions

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