Provisional Remedies

Provisional remedies are pre-judgment or pre-trial court orders intended to preserve the status quo until the court issues a final judgment. Provisional remedies include attachment, garnishment, replevin, receivership, notice of pendency, and temporary injunctions such as temporary restraining orders or preliminary injunctions.

The Due Process clauses of the Constitution apply to provisional remedies, because they cause deprivation of liberty or property. However, provisional remedies must have fewer procedural safeguards that final judgments do. Otherwise, they would be pointless.

In light of these characteristics, courts use a variety of safeguards before ordering provisional remedies. First, before ordering a provisional remedy, courts almost always hold a hearing. Temporary restraining orders are a notable exception to this general rule. Courts also usually require the party requesting a provisional remedy to post a bond sufficiently large to cover any damage that the other parties would suffer if the remedy was wrongly ordered. When administering this bond requirement, courts usually make an exception for poor but deserving movants. Other safeguards or procedures may apply as well, depending on the jurisdiction, remedy, and situation. See, e.g., Mitchell v. W. T. Grant Co., 416 U.S. 600. See also State Civil Procedure Rules.

The Federal Rules of Civil Procedure authorize federal courts to issue temporary restraining orders and preliminary injunctions. Rule 65. In addition, the Rules authorize federal courts to use any provisional remedy available to state courts in the state the federal court sits in. Rule 64.

See Civil Procedure.

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