Rule 65.Injunctions and Restraining Orders

Rule 15-6-65 treats a preliminary injunction as something the adverse party always gets to contest first — no preliminary injunction can issue without notice. The court can go further and consolidate the preliminary injunction hearing with a trial on the merits, and even without formal consolidation, any evidence received at the preliminary injunction hearing that would be admissible at trial becomes part of the trial record without needing to be repeated, all while preserving any right the parties have to a jury trial.

A temporary restraining order without notice is the narrow exception, available only where no statute already addresses it, and only on a two-part showing: specific facts, by affidavit or verified complaint, showing that immediate and irreparable injury will occur before the adverse party can be heard, plus the applicant’s attorney certifying in writing what efforts were made to give notice, or the reasons notice should not be required. Every such order has to be endorsed with the date and hour of issuance, filed and entered of record right away, and has to define the injury and explain both why it is irreparable and why notice was skipped. Except in certain domestic actions, the order expires within a court-set period of no more than ten days unless extended for good cause or by the enjoined party’s consent. Once a no-notice order issues, the motion for a preliminary injunction has to be set for the earliest possible hearing, and the adverse party can move to dissolve or modify the order on two days’ notice. A temporary restraining order, by its nature, cannot be appealed.

Security is the default, too. Where no statute already addresses it, the court has to require a written undertaking from the applicant, with or without sureties, to cover the enjoined party’s costs and damages if the court ultimately decides the applicant was not entitled to the injunction or restraining order — with damages determined by reference or another method the court directs. The one exception is the State of South Dakota and its officers and agencies, who are not required to post that security.

Whatever form the injunction or restraining order takes, it has to explain itself. Rule 15-6-65(d) requires every order to state the reasons for issuing it, describe in reasonable detail the specific act or acts being restrained rather than just pointing back to the complaint, and it binds only the parties, their officers, agents, employees, and attorneys, and anyone else acting in concert with them who gets actual notice. And because a preliminary injunction is itself a substantive ruling, the court has to support it with findings of fact and conclusions of law under Rule 15-6-52(a).