Certifying the Efforts Made to Give Notice

Rule 65(b)(1)(B) asks for one page and gets, in most filings, one sentence. That imbalance explains a great many refusals. The certification is where counsel tells the court what was actually done to reach the person about to be restrained, and why the court should act without hearing from them. Judges treat it as evidence of good faith, and they read it before they read the merits.

What the rule asks for

The text has two halves. Counsel must certify in writing any efforts made to give notice, and must certify the reasons why notice should not be required. The first half is factual and retrospective. The second is a judgment about the case. Both belong in a signed document filed with the application, and separating them makes each easier for the court to assess.

Nothing in the rule requires that notice succeed, or even that it be attempted. A certification stating truthfully that no attempt was made can satisfy the rule if the accompanying reasons are strong. What the rule does not tolerate is a certification that describes nothing. The word "any" in the text captures attempts that failed and attempts that were considered and abandoned, and a court reading the document should be able to reconstruct the hours before filing from it.

Describing the attempts

The useful form is a chronology of concrete acts. Which number was called, whether anyone answered, whether a message was left and what it said. Which address received electronic mail, whether it bounced, whether a read receipt returned. Whether counsel who appeared in a related matter was contacted. Whether a registered agent was looked up and reached. Each entry is checkable, and checkability is the point.

Timing within the day matters as much as the fact of contact. An emergency filed in the afternoon after a single unanswered call placed minutes earlier reads differently from one filed after a morning of attempts across several channels. Counsel who intends to seek relief without notice should therefore generate the record deliberately, keeping a contemporaneous note of each step, because the certification will be written from memory otherwise and memory produces exactly the vague sentences that fail.

Attempts that were considered and rejected belong in the document too. If counsel decided not to telephone because the client believed the call would prompt an immediate transfer, that decision is a fact about the application and the court should hear it from the movant rather than from the defendant a week later. Disclosure costs little at the outset and is very difficult to repair once the omission has been pointed out on a motion to dissolve.

The reasons half of the document

Reasons fall into recognizable families. The strongest is that notice would itself cause the harm: the funds would move, the records would be deleted, the goods would leave the jurisdiction. Next is that the adverse party is deliberately evading contact, supported by the failed attempts already described. Weakest, and usually fatal, is that notice was impracticable in the time available where the movant controlled that time.

Courts pay attention to who created the urgency. An application filed on the eve of a closing that has been scheduled for months invites the observation that notice was practicable for most of that period. Delay is already relevant to whether the harm is genuinely irreparable, and it does double duty here, because a movant who waited cannot easily say that waiting a further day for notice was impossible.

Local rules and the rest of the file

Districts add requirements under Rule 83, and they vary. Some prescribe a separate certificate with a fixed caption. Some require the papers to be transmitted to the adverse party at the moment of filing regardless of whether notice is claimed. Some require disclosure of any prior application for the same relief before another judge. Because these appear in local rules and standing orders rather than in Rule 65, they are easy to miss and expensive to miss.

The certification also has to sit consistently with everything else in the file. If the supporting declaration describes a conversation with the defendant's general counsel, a certification saying no contact was possible contradicts it. Contradictions of that kind are noticed at the hearing rather than at signing, and they undermine the application at exactly the point when the move to a preliminary injunction is being argued.

What a defective certificate costs

The immediate consequence is refusal. A judge who is otherwise willing to grant relief will often deny the request to proceed without notice, direct that the papers be served, and set a hearing within days. That is not a disaster, but it converts a one-sided application into a contested one and gives the adverse party time the movant wanted to deny it.

The later consequence is dissolution. On a motion to dissolve, a defective certification is an independent ground, separate from the merits, and it does not require the restrained party to contest the underlying facts. An order dissolved on that basis leaves the movant exposed on the security posted, because the question of who was wrongfully enjoined is affected by a claim against the bond after a wrongful injunction.

A refusal can also travel. Where a movant approaches a second judge after the first declines to act without notice, the second judge will want to know about the first application, and several districts require that disclosure by local rule. A certification that omits it converts a procedural setback into a credibility problem that follows the case through the preliminary injunction stage and beyond.

There is also personal exposure. The certification is a paper signed by counsel and therefore carries the representations Rule 11 attaches to every filing, and a court has statutory authority to shift costs against an attorney who multiplies proceedings unreasonably. Sanctions in this area are uncommon, but the ones that occur tend to involve certifications describing attempts that never happened.