The provisions of Ruleapply to a surety upon a bond or undertaking under this rule.
Mass. R. Civ. P. 65
Effective July 1, 1974.
Reporter's Notes: (1996): With the merger of the District Court Rules into the Mass. R. Civ. P., minor differences which had existed between Mass. R. Civ. P. 65 and Dist./Mun. Cts. R. Civ. P. 65 have been eliminated. These differences were found in Rule 65(b)(2) (reference to jury trial) and Rule 65(e) (labor disputes). The merger of the two sets of rules, of course, does not serve to enlarge District Court jurisdiction. See Rule 82. (1973): Rule 65 is taken with little change from Federal Rule 65. The order of the first two sections has been reversed, to conform with the usual sequence of litigation. The requirement of Rule 65(a) of an affidavit or verified complaint showing immediate and irreparable harm before a court will issue a temporary restraining order does not alter former Massachusetts law. Rule 65(a) contains a provision for the extension of a temporary restraining order, which is familiar to Massachusetts practice. See Stathopoulos v. Reeksting, 252 Mass. 542, 544 (1925). Rule 65(a), like former Massachusetts practice, gives a motion for a preliminary injunction precedence over all matters and allows an adverse party an opportunity to move to dissolve or modify a temporary restraining order. Rule 65(b)(1) provides that no court shall issue an injunction unless proper notice is given to the adverse party; former Massachusetts practice also required notice, although the usual procedure had been an order to show cause. Under federal practice, although an order to show cause may itself constitute sufficient notice, a motion is the preferable procedure. Walling v. Moore Milling Co., 62 F.Supp. 378, 382 (W.D.Va. 1945 ). Rule 65(b)(2) provides for the consolidation of a hearing on an application for a preliminary injunction with a trial on the merits. This was not part of former Massachusetts practice. Under Rule 65(b)(2), the consolidation may be ordered before or after the commencement of the hearing of an application for a preliminary injunction. See Brotherhood of Railroad Carmen v. Chicago and N.W.Ry. Co., 354 F.2d 786, 787 (8th Cir.1965). Former Massachusetts law contained no requirement that the plaintiff file a bond as a condition precedent to the issuance of either a temporary restraining order or preliminary injunction. See American Circular Loom v. Wilson, 198 Mass. 182, 211 (1908); Weinberg v. Goldstein, 241 Mass. 259, 261 (1922). The requirement of a bond was left to the courts discretion. Under Rule 65(c), a court also need not require a bond. Under the Federal Rules, courts have at times not required a bond. Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 782-783 (10th Cir.1964); Ferguson v. Tabah, 288 F.2d 665, 675 (2d Cir. 1961). The language of Rule 65(d), emphasizing precision in the framing of injunctions and restraining orders, expresses former Massachusetts practice (see e.g., forms of decree set out in Reed, Equity §§ 981-1014 (1952)), although the Reporters have found no case saying so explicitly. "Specificity has long been a hallmark of the well-drafted injunctive decree. An injunction circumscribes the defendant's conduct with the threat of punishments similar to those of the criminal law, and the defendant is entitled to fair notice [of the bounds] . . . Some defendants may take advantage of a vague decree intentionally." Developments in the Law-Injunctions, 78 Harv.L.Rev. 994, 1065 (1965). Rule 65(e), which is new, is designed to show unmistakably that such anti-injunction statutes as G.L. c. 214, § 9A are not affected by the rule.