Petitioner employers brought suit in California state court
alleging that respondent Union was engaging in a strike in breach
of collective bargaining agreements. The court issued a temporary
restraining order on May 18, 1970. Two days later, the case was
removed to federal court, and on June 4, the District Court denied
the Union's motion to dissolve the restraining order. Strike
activity then stopped, and the labor dispute remained dormant until
the Union, after the petitioners had refused to bargain, resumed
its strike on November 30, 1970. Two days later, the District
Court, on petitioners' motion, held the Union in criminal contempt
for violating the restraining order. The Court of Appeals reversed
on the ground that the order had expired long before November 30,
1970, reasoning that, under both state law and Fed.Rule Civ.Proc.
65(b), the order expired no later than June 7, 1970, 20 days after
its issuance, and rejecting petitioners' contention that the life
of the order was indefinitely prolonged by 28 U.S.C. § 1450 "until
dissolved or modified by the district court."
Held:
1. Whether state law or Rule 65(b) is controlling, the
restraining order expired long before the date of the alleged
contempt, since, under the State Code of Civil Procedure, a
temporary restraining order is returnable no later than 15 days
from its date, 20 days if good cause is shown, and must be
dissolved unless the party obtaining it proceeds to submit its case
for a preliminary injunction, and similarly, under Rule 65(b), such
an order must expire by its own terms within 10 days after entry,
20 days if good cause is shown. Pp.
415 U. S.
431-433.
Page 415 U. S. 424
2. Section 1450 was not intended to give state court injunctions
greater effect after removal to federal court than they would have
had if the case had remained in state court, and it should be
construed in a manner consistent with the time limitations of Rule
65(b). Pp.
415 U. S.
434-440.
(a) Once a case has been removed to federal court, federal law,
including the Federal Rules of Civil Procedure, controls the future
course of proceedings, notwithstanding state court orders issued
prior to removal. The underlying purpose of § 1450 (to ensure that
no lapse in a state court temporary restraining order will occur
simply by removing the case to federal court) and the policies
reflected in the time limitations of Rule 65(b) (stringent
restrictions on the availability of
ex parte restraining
orders) can be accommodated by applying the rule that such a state
court pre-removal order remains in force after removal no longer
than it would have remained in effect under state law, but in no
event longer than the Rule 65(b) time limitations, measured from
the date of removal. Pp.
415 U. S.
435-440.
(b) Accordingly, the order expired, by its terms, on May 30,
1970, under the 10-day limitation of Rule 65(b) applied from the
date of removal; hence, no order was in effect on November 30,
1970, and the Union violated no order when it resumed its strike at
that time. P.
415 U. S.
440.
3. The District Court's denial of the Union's motion to dissolve
the restraining order did not effectively convert the order into a
preliminary injunction of unlimited duration. Pp.
415 U. S.
440-445.
(a) That the Union may have had the opportunity to be heard on
the merits of the preliminary injunction when it moved to dissolve
the restraining order is not the controlling factor, since, under
Rule 65(b), the burden was on petitioners to show that they were
entitled to a preliminary injunction, not on the Union to show that
they were not. Pp.
415 U. S.
142-443.
(b) Where a court intends to supplant a temporary restraining
order, which, under Rule 65(b), expires by its own terms within 10
days of issuance, with a preliminary injunction of unlimited
duration pending a final decision on the merits or further order of
the court, it should issue an order clearly saying so, and where it
has not done so, a party against whom a temporary restraining order
has issued may reasonably assume that the order has expired within
Rule 65(b)'s time limits. Here, since the only orders entered were
a temporary restraining order and an order denying a motion to
dissolve the temporary order, the Union had
Page 415 U. S. 425
no reason to believe that a preliminary injunction of unlimited
duration had been issued. Pp.
415 U. S.
443-445.
472 F.2d 764, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
DOUGLAS, BRENNAN, WHITE, and BLACKMUN, JJ., joined. REHNQUIST, J.,
filed an opinion concurring in the judgment, in which BURGER, C.J.,
and STEWART and POWELL, JJ., joined,
post, p.
415 U. S.
445.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
This case concerns the interpretation of 28 U.S.C. § 1450,
[
Footnote 1] which provides in
pertinent part:
"Whenever any action is removed from a State court to a district
court of the United States . . . [a]ll injunctions, orders, and
other proceedings had in such action prior to its removal shall
remain in full force and effect until dissolved or modified by the
district court."
The District Court held respondent Union in criminal contempt
for
Page 415 U. S. 426
violating a temporary restraining order issued by the California
Superior Court on May 18, 1970, prior to the removal of the case
from the Superior Court to the District Court. The Court of Appeals
reversed, one judge dissenting, on the ground that the temporary
restraining order had expired long before November 30, 1970, the
date of the alleged contempt. 472 F.2d 764 (CA9 1973). The court
reasoned that, under both § 527 of the California Code of Civil
Procedure and Fed.Rule Civ.Proc. 65(b), the temporary restraining
order must have expired no later than June 7, 1970, 20 days after
its issuance. The court rejected petitioners' contention that the
life of the order was indefinitely prolonged by § 1450 "until
dissolved or modified by the district court," holding that the
purpose of that statute "is to prevent a break in the force of an
injunction or a restraining order that could otherwise occur when
jurisdiction is being shifted," 472 F.2d at 767, not to
"create a special breed of temporary restraining orders that
survive beyond the lifespan imposed by the state law from which
they spring and beyond the life that the district court could have
granted them had the orders initiated from the federal court."
Id. at 766.
As this understanding of the statute was in conflict with
decisions of two other Circuits interpreting § 1450 to preclude the
automatic termination of state court temporary restraining orders,
[
Footnote 2] we granted
certiorari. 414 U.S. 816 (1973). Finding ourselves in substantial
agreement with the analysis of the Ninth Circuit in the present
case, we affirm.
Page 415 U. S. 427
I
On May 15, 1970, petitioners Granny Goose Foods, Inc., and
Sunshine Biscuits, Inc., filed a complaint in the Superior Court of
California for the county of Alameda alleging that respondent, a
local Teamsters Union, and its officers and agents, were engaging
in strike activity in breach of national and local collective
bargaining agreements recently negotiated by
multiunion-multiemployer bargaining teams. Although the exact
nature of the underlying labor dispute is unclear, its basic
contours are as follows: the Union was unwilling to comply with
certain changes introduced in the new contracts; it believed it was
not legally bound by the new agreements because it had not been a
part of the multiunion bargaining units that negotiated the
contracts; [
Footnote 3] and
it
Page 415 U. S. 428
wanted to negotiate separate contracts with petitioner
employers. The same day the complaint was filed, the Superior Court
issued a temporary restraining order enjoining all existing strike
activity and ordering the defendants to show cause on May 26, 1970,
why a preliminary injunction should not issue during the pendency
of the suit. An amended complaint adding petitioner Standard
Brands, Inc., was filed on May 18, and a modified temporary
restraining order was issued that same day adding a prohibition
against strike activities directed toward that employer. On May 19,
1970, after having been served with the May 15 restraining order
but before the scheduled hearing on the order to show cause, the
Union and the individual defendants removed the proceeding to the
District Court on the ground that the action arose under § 301 of
the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. §
185. [
Footnote 4] On May 20,
1970, an amended removal petition was filed to take into account
the modified temporary restraining order of May 18. Simultaneously
with the filing of the removal petition, the defendants filed a
motion in the District Court to dissolve the temporary restraining
order. The sole ground alleged in support of the motion was that
the District Court lacked jurisdiction to maintain the restraining
order under this Court's decision in
Sinclair Refining Co. v.
Atkinson, 370 U. S. 195
(1962), where
Page 415 U. S. 429
the Court held that, notwithstanding § 301's grant of
jurisdiction to federal courts over suits between employers and
unions for breach of collective bargaining agreements, § 4 of the
Norris-La Guardia Act, 47 Stat. 70, 29 U.S.C. § 104, barred federal
courts from issuing an injunction against a strike allegedly in
violation of a collective bargaining agreement containing a
no-strike clause.
The employers then filed a motion to remand the case to the
Superior Court, alleging that the defendants had waived their right
to removal by submitting to the jurisdiction of the state court.
The Union's motion to dissolve and the employers' motion to remand
came on for a hearing on May 27, 1970. The motion to remand was
denied from the bench. With respect to the motion to dissolve, the
employers brought to the attention of the District Court our grant
of certiorari in
Boys Markets v. Retail Clerks Union, 396
U.S. 1000 (1970), which was interpreted as an indication that the
Court would reexamine its holding in
Sinclair. As
Boys
Markets had been argued here in April, 1970, the District
Court refrained from taking any action on the motion to dissolve
until it received further guidance from this Court.
On June 1, 1970, we handed down our decision in
Boys Markets
v. Retail Clerks Union, 398 U. S. 235,
overruling
Sinclair and holding that a district court
could enjoin a strike in breach of a no-strike clause in a
collective bargaining agreement and order arbitration under the
agreement. Three days later, on June 4, 1970, the District Court
entered a brief order denying the motion to dissolve the state
court temporary restraining order, citing
Boys
Markets.
Evidently picketing and strike activity stopped, and the labor
dispute remained dormant after June 4. The flame was rekindled,
however, when, on November 9,
Page 415 U. S. 430
1970, the Union sent the employers telegrams requesting
bargaining to arrive at a collective bargaining agreement and
expressing the Union's continued belief that it was not bound by
the national and local agreements negotiated by the
multiunion-multiemployer groups. The employers answered that there
was no need to bargain, because, in their view, the Union was bound
by the national and local agreements. The conflict remained
unresolved, and on November 30, 1970, the Union commenced its
strike activity once again.
The next day, the employers moved the District Court to hold the
Union, its agents, and officers in contempt of the modified
temporary restraining order issued by the Superior Court on May 18.
A hearing was held on the motion the following day. The Union's
argument that the temporary restraining order had long since
expired was rejected by the District Court on two grounds. First,
the court concluded that its earlier action denying the motion to
dissolve the temporary restraining order gave the order continuing
force and effect. Second, the court found that § 1450 itself served
to continue the restraining order in effect until affirmatively
dissolved or modified by the court. Concluding after the hearing
that the Union had willfully violated the restraining order, the
District Court held it in criminal contempt and imposed a fine of
$200,000. [
Footnote 5]
Page 415 U. S. 431
II
Leaving aside for the moment the question whether the order
denying the motion to dissolve the temporary restraining order was
effectively the grant of a preliminary injunction, it is clear that
whether California law or Rule 65(b) is controlling, the temporary
restraining order issued by the Superior Court expired long before
the date of the alleged contempt. Section 527 of the California
Code of Civil Procedure, [
Footnote
6] under which the
Page 415 U. S. 432
order was issued, provides that temporary restraining orders
must be returnable no later than 15 days from the date of the
order, 20 days if good cause is shown, and unless the party
obtaining the order then proceeds to submit its case for a
preliminary injunction, the temporary restraining order must be
dissolved. [
Footnote 7]
Similarly,
Page 415 U. S. 433
under Rule 65(b), [
Footnote
8] temporary restraining orders must expire by their own terms
within 10 days after entry, 20 days if good cause is shown.
Page 415 U. S. 434
Petitioners argue, however, that notwithstanding the time
limitations of state law, § 1450 keeps all state court injunctions,
including
ex parte temporary restraining
Page 415 U. S. 435
orders, in full force and effect after removal until
affirmatively dissolved or modified by the district court. To the
extent this reading of § 1450 is inconsistent with the time
limitations of Rule 65(b), petitioners contend the statute must
control.
In our view, however, § 1450 can and should be interpreted in a
manner which fully serves its underlying purposes, yet at the same
time places it in harmony with the important congressional policies
reflected in the time limitations in Rule 65(b).
At the outset, we can find no basis for petitioners' argument
that § 1450 was intended to turn
ex parte state court
temporary restraining orders of limited duration into federal court
injunctions of unlimited duration. Section 1450 was simply designed
to deal with the unique problem of a shift in jurisdiction in the
middle of a case which arises whenever cases are removed from state
to federal court. In this respect, two basic purposes are served.
Judicial economy is promoted by providing that proceedings had in
state court shall have force and effect in federal court, so that
pleadings filed
Page 415 U. S. 436
in state court, for example, need not be duplicated in federal
court. [
Footnote 9] In
addition, the statute ensures that interlocutory orders entered by
the state court to protect various rights of the parties will not
lapse upon removal. Thus, attachments, sequestrations, bonds,
undertakings, securities, injunctions, and other orders obtained in
state court all remain effective after the case is removed to
federal court.
But while Congress clearly intended to preserve the
effectiveness of state court orders after removal, there is no
basis for believing that § 1450 was designed to give injunctions or
other orders
greater effect after removal to federal court
than they would have had if the case had remained in state court.
After removal, the federal court "takes the case up where the State
court left it off."
Duncan v. Gegan, 101 U.
S. 810,
101 U. S. 812
(1880). The "full force and effect" provided state court orders
after removal of the case to federal court was not intended to be
more than the force and effect the orders would have had in state
court. [
Footnote 10]
Page 415 U. S. 437
More importantly, once a case has been removed to federal court,
it is settled that federal, rather than state, law governs the
future course of proceedings, notwithstanding state court orders
issued prior to removal. Section 1450 implies as much by
recognizing the district court's authority to dissolve or modify
injunctions, orders, and all other proceedings had in state court
prior to removal. This Court resolved this issue long ago in
Ex
parte Fisk, 113 U. S. 713
(1885). There it was argued that an order to take the deposition of
a witness issued by the state court prior to removal was binding in
federal court, and could not be reconsidered by the federal court
notwithstanding its inconsistency with certain federal statutes
governing procedure in federal courts. The Court rejected this
contention, and said that the predecessor of § 1450
"declares orders of the State court, in a case afterwards
removed, to be in force until dissolved or modified by the Circuit
Court. This fully recognizes the power of the latter court over
such orders. And it was not intended to enact that an order
made
Page 415 U. S. 438
in the State court, which affected or might affect the mode of
trial yet to be had, could change or modify the express directions
of an act of Congress on that subject."
"
* * * *"
"The petitioner, having removed his case into the Circuit Court,
has a right to have its further progress governed by the law of the
latter court, and not by that of the court from which it was
removed; and if one of the advantages of this removal was an escape
from this examination, he has a right to that benefit if his case
was rightfully removed."
Id. at
113 U. S.
725-726.
See also King v. Worthington,
104 U. S. 44
(1881);
Freeman v. Bee Machine Co., 319 U.
S. 448 (1943).
By the same token, respondent Union had a right to the
protections of the time limitation in Rule 65(b) once the case was
removed to the District Court. The Federal Rules of Civil
Procedure, like other provisions of federal law, govern the mode of
proceedings in federal court after removal.
See Fed.Rule
Civ.Proc. 81(c). [
Footnote
11] In addition, we may note that, although the durational
limitations imposed on
ex parte restraining orders are now
codified in a federal rule, they had their origin in § 17 of the
Clayton Act of 1914, 38 Stat. 737. As the House Report recommending
its enactment emphasized, the durational and other limitations
imposed on temporary restraining orders were thought necessary to
cure a serious problem of "ill-considered injunctions without
notice." [
Footnote 12] The
stringent restrictions imposed by § 17,
Page 415 U. S. 439
and now by Rule 65, [
Footnote
13] on the availability of
ex parte temporary
restraining orders reflect the fact that our entire jurisprudence
runs counter to the notion of court action taken before reasonable
notice and an opportunity to be heard has been granted both sides
of a dispute.
Ex parte temporary restraining orders are no
doubt necessary in certain circumstances,
cf. Carroll v.
President and Comm'rs of Princess Anne, 393 U.
S. 175,
393 U. S. 180
(1968), but, under federal law, they should be restricted to
serving their underlying purpose of preserving the
status
quo and preventing irreparable harm just so long as is
necessary to hold a hearing, and no longer. [
Footnote 14]
We can find no indication that Congress intended § 1450 as an
exception to its broader, longstanding policy of restricting the
duration of
ex parte restraining orders. The underlying
purpose of § 1450 -- ensuring that no lapse in a state court
temporary restraining order will occur simply by removing the case
to federal court -- and the policies reflected in Rule 65(b) can
easily be accommodated by applying the following rule: an
ex
parte temporary restraining order issued by a state court
prior to removal remains in force after removal no longer than it
would have remained in effect under state law, but in no event does
the order remain in force
Page 415 U. S. 440
longer than the time limitations imposed by Rule 65(b), measured
from the date of removal. [
Footnote 15]
Applying our holding to the present case is simple. The
temporary restraining order was issued by the Superior Court on May
18, 1970, and would have remained in effect in the state court no
longer than 15 days, or until June 2. The case was removed to
federal court on May 20, 1970. The temporary restraining order
therefore expired on May 30, 1970, applying the 10-day limitation
of Rule 65(b) from the date of removal. Accordingly, no order was
in effect on November 30, 1970, and the Union violated no order
when it resumed its strike at that time.
III
We now turn to petitioners' argument that, apart from the
operation of § 1450, the District Court's denial of the Union's
motion to dissolve the temporary restraining order effectively
converted the order into a preliminary injunction of unlimited
duration. The Court of Appeals rejected this argument out of hand,
stating that
"[t]he Union's unsuccessful effort to dissolve the order before
it died a natural death did not convert the temporary restraining
order into a preliminary injunction or estop it from relying on the
death certificate."
472 F.2d at 767. We reach essentially the same conclusion.
Page 415 U. S. 441
As indicated earlier, once a case has been removed to federal
court, its course is to be governed by federal law, including the
Federal Rules of Civil Procedure. Rule 65(b) establishes a
procedure whereby the party against whom a temporary restraining
order has issued can move to dissolve or modify the injunction,
upon short notice to the party who obtained the order. Situations
may arise where the parties, at the time of the hearing on the
motion to dissolve the restraining order, find themselves in a
position to present their evidence and legal arguments for or
against a preliminary injunction. In such circumstances, of course,
the court can proceed with the hearing as if it were a hearing on
an application for a preliminary injunction. At such hearing, as in
any other hearing in which a preliminary injunction is sought, the
party seeking the injunction would bear the burden of demonstrating
the various factors justifying preliminary injunctive relief, such
as the likelihood of irreparable injury to it if an injunction is
denied and its likelihood of success on the merits. [
Footnote 16]
On the other hand, situations might arise where the parties are
not prepared and do not intend at the hearing on the motion to
dissolve or modify the temporary restraining order to present their
cases for or against a preliminary injunction. In such
circumstances, the appropriate procedure would be for the district
court to deal with the issues raised in the motion to dissolve or
modify the restraining order, but to postpone for a later hearing,
still within the time limitations of Rule 65(b), the application
for a preliminary injunction.
See generally C. Wright
& A. Miller, Federal Practice & Procedure: Civil § 2954, p.
523 (1973 ed.).
Page 415 U. S. 442
In the present case, we think it plain that the hearing on the
Union's motion to dissolve the restraining order cannot be
considered to be a hearing on a preliminary injunction, and that
the District Court's order denying the motion to dissolve cannot
reasonably be construed as the grant of a preliminary injunction.
There is no indication in the record that either party or the
District Court itself treated the May 27 hearing as a hearing on an
application for a preliminary injunction. The employers made no
attempt at that time to present their case for a preliminary
injunction. Likewise, the Union made no attempt at that time to
present its defense that it was not bound by the new national and
local agreements because it had made a timely withdrawal from the
multiunion bargaining unit negotiating said contracts.
See
n 3,
supra. The court
itself did not indicate that it was undertaking a hearing on a
preliminary injunction. As far as we can tell, it never addressed
itself at the hearing to the various equitable factors involved in
considering a preliminary injunction, but only considered the
employers' argument that the case should be remanded to the state
court because the right to remove had been waived by the Union's
appearing in the state proceeding, and the Union's argument that
the temporary restraining order should be dissolved for want of
jurisdiction under the
Sinclair holding.
We cannot accept petitioners' argument that the controlling
factor is that the Union had the opportunity to be heard on the
merits of the preliminary injunction when it moved in the District
Court to dissolve the temporary restraining order. Rule 65(b) does
not place upon the party against whom a temporary restraining order
has issued the burden of coming forward and presenting its case
against a preliminary injunction. To the contrary, the Rule
provides that,
"[i]n case a temporary
Page 415 U. S. 443
restraining order is granted without notice, the motion for a
preliminary injunction shall be set down for hearing at the
earliest possible time . . . and when the motion comes on for
hearing the party who obtained the temporary restraining order
shall proceed with the application for a preliminary injunction
and, if he does not do so, the court shall dissolve the temporary
restraining order."
The burden was on the employers to show that they were entitled
to a preliminary injunction, not on the Union to show that they
were not.
Even were we to assume that the District Court had intended by
its June 4 order to grant a preliminary injunction, its intention
was not manifested in an appropriate form. Where a hearing on a
preliminary injunction has been held after issuance of a temporary
restraining order, and where the District Court decides to grant
the preliminary injunction, the appropriate procedure is not simply
to continue in effect the temporary restraining order, but rather
to issue a preliminary injunction, accompanied by the necessary
findings of fact and conclusions of law. [
Footnote 17] As stated by the Second Circuit:
"The fact that notice is given and a hearing held cannot serve
to extend indefinitely beyond the period limited by [Rule 65(b)]
the time during which a temporary restraining order remains
effective. The [Rule] contemplates that notice and hearing shall
result in an appropriate adjudication,
Page 415 U. S. 444
i.e., the issuance or denial of a preliminary
injunction, not in extension of the temporary stay."
Pan American World Airways v. Flight Engineers' Assn.,
306 F.2d 840, 842 (1962) (footnotes omitted).
See also Sims v.
Greene, 160 F.2d 512 (CA3 1947).
As the fine imposed in this case exemplifies, serious penalties
can befall those who are found to be in contempt of court
injunctions. Accordingly, one basic principle built into Rule 65 is
that those against whom an injunction is issued should receive fair
and precisely drawn notice of what the injunction actually
prohibits. [
Footnote 18]
"The judicial contempt power is a potent weapon. When it is
founded upon a decree too vague to be understood, it can be a
deadly one. Congress responded to that danger by requiring that a
federal court frame its orders so that those who must obey them
will know what the court intends to require and what it means to
forbid. . . . The most fundamental postulates of our legal order
forbid the imposition of a penalty for disobeying a command that
defies comprehension."
International Longshoremen's Assn. v. Philadelphia Marine
Trade Assn., 389 U. S. 64,
389 U. S. 76
(1967).
It would be inconsistent with this basic principle to
countenance procedures whereby parties against whom an injunction
is directed are left to guess about its intended duration. Rule
65(b) provides that temporary restraining orders expire by their
own terms within 10 days of their issuance. Where a court intends
to supplant such an order with a preliminary
Page 415 U. S. 445
injunction of unlimited duration pending a final decision on the
merits or further order of the court, it should issue an order
clearly saying so. And where it has not done so, a party against
whom a temporary restraining order has issued may reasonably assume
that the order has expired within the time limits imposed by Rule
65(b). Here, since the only orders entered were a temporary
restraining order of limited duration and an order denying a motion
to dissolve the temporary order, the Union had no reason to believe
that a preliminary injunction of unlimited duration had been
issued.
Since neither § 1450 nor the District Court's denial of the
Union's motion to dissolve the temporary restraining order
effectively converted that order into a preliminary injunction, no
order was in effect on November 30, 1970, over six months after the
temporary restraining order was issued. [
Footnote 19] There being no order to violate, the
District Court erred in holding the Union in contempt, and the
judgment of the Court of Appeals reversing the District Court's
adjudication of contempt must be
Affirmed.
[
Footnote 1]
Title 28 U.S.C. § 1450:
"Whenever any action is removed from a State court to a district
court of the United States, any attachment or sequestration of the
goods or estate of the defendant in such action in the State court
shall hold the goods or estate to answer the final judgment or
decree in the same manner as they would have been held to answer
final judgment or decree had it been rendered by the State
court."
"All bonds, undertakings, or security given by either party in
such action prior to its removal shall remain valid and effectual
notwithstanding such removal."
"All injunctions, orders, and other proceedings had in such
action prior to its removal shall remain in full force and effect
until dissolved or modified by the district court."
[
Footnote 2]
See Appalachian Volunteers, Inc. v. Clark, 432 F.2d 530
(CA6 1970),
cert. denied, 401 U.S. 939 (1971);
Morning
Telegraph v. Powers, 450 F.2d 97 (CA2 1971),
cert.
denied, 405 U.S. 954 (1972).
See also The Herald Co. v.
Hopkins, 325 F. Supp. 1232 (NDNY 1971);
Peabody Coal Co.
v. Barnes, 308 F. Supp. 902 (ED Mo.1969).
[
Footnote 3]
This dispute was also the subject of a proceeding before the
National Labor Relations Board.
See Airco Industrial
cases, 195 N.L.R.B. 676 (1972). From the findings of fact in
that proceeding, it appears that, since 1964, it has been the
practice in the trucking industry for representatives of a group of
the various Teamsters locals and a group of various trucking
employers to negotiate national agreements and supplemental
agreements covering local areas. Agreements covering the 1967-1970
period had expired on March 31, 1970. Negotiations between the
negotiating committees of the multiunion and multiemployer groups
toward a contract for the 1970-1973 period began in January, 1970,
and continued in February and April. On April 29, the Teamsters
negotiating committee approved the national and various
supplemental agreements, and on April 30, two representatives from
each of the Teamsters locals in the multiunion group approved the
agreements. Some time thereafter, a nationwide referendum vote of
all Teamsters members was conducted and it was determined that the
employees had ratified the agreements.
The Union claimed it was not bound by the new agreements because
it had made a timely withdrawal from the multiunion-multiemployer
bargaining unit in a letter of January 28, 1970, to various
employers, informing them of the Union's intention to negotiate a
separate agreement from the national and supplemental agreement.
The Board ultimately determined that the Union's withdrawal was not
timely because negotiations had begun on January 7, 1970, prior to
the attempted withdrawal. We, of course, express no view on this
issue.
[
Footnote 4]
In
Avco Corp. v. Aero Lodge No. 7, 390 U.
S. 557 (1968), we held that § 301(a) suits initially
brought in state courts may be removed to the designated federal
forum under the federal question removal jurisdiction delineated in
28 U.S.C. § 1441.
[
Footnote 5]
Three-fourths of the fine was conditioned on the Union's failure
to end the strike within 24 hours of the court's order, one-half on
failure to end the strike within 48 hours, and one-fourth on
failure to end the strike within 72 hours.
Although we do not rest our decision on this point, there seems
to be much evidence in the record suggesting that, even if the
restraining order remained in effect and had been violated, the
violation was not willful. A finding that the violation was willful
obviously presupposes knowledge on the part of the Union that the
order was still in effect. Whether or not the order in fact
remained in effect on November 30, the Union evidently believed it
had expired. Prior to commencing its strike in November, the Union
informed the employers through its attorney that it did
"not understand from the file that there is presently in effect
any order which forbids Local 70 from bargaining with the employer,
or from pressing its position that it has a right to bargain for a
separate contract. A motion to dissolve a temporary restraining
order against economic action was denied by the federal court, but
that temporary restraining order has long since become ineffective
by virtue of the statutory limitation on its duration, and there
has been no application for a preliminary injunction."
"Accordingly, the federal court case is pending, but there are
no outstanding orders which affect the assertion by Local 70 of
rights which it claims. . . ."
App. 67.
[
Footnote 6]
Section 527 (Supp. 1974) provides:
"An injunction may be granted at any time before judgment upon a
verified complaint, or upon affidavits if the complaint in the one
case, or the affidavits in the other, show satisfactorily that
sufficient grounds exist therefor. A copy of the complaint or of
the affidavits, upon which the injunction was granted, must, if not
previously served, be served therewith."
"No preliminary injunction shall be granted without notice to
the opposite party; nor shall any temporary restraining order be
granted without notice to the opposite party, unless it shall
appear from facts shown by affidavit or by the verified complaint
that great or irreparable injury would result to the applicant
before the matter can be heard on notice. In case a temporary
restraining order shall be granted without notice, in the
contingency above specified, the matter shall be made returnable on
an order requiring cause to be shown why the injunction should not
be granted, on the earliest day that the business of the court will
admit of, but not later than 15 days or, if good cause appears to
the court, 20 days from the date of such order. When the matter
first comes up for hearing the party who obtained the temporary
restraining order must be ready to proceed and must have served
upon the opposite party at least two days prior to such hearing, a
copy of the complaint and of all affidavits to be used in such
application and a copy of his points and authorities in support of
such application; if he be not ready, or if he shall fail to serve
a copy of his complaint, affidavits and points and authorities, as
herein required, the court shall dissolve the temporary restraining
order. The defendant, however, shall be entitled, as of course, to
one continuance for a reasonable period, if he desire it, to enable
him to meet the application for the preliminary injunction. The
defendant may, in response to such order to show cause, present
affidavits relating to the granting of the preliminary injunction,
and if such affidavits are served on the applicant at least two
days prior to the hearing, the applicant shall not be entitled to
any continuance on account thereof. On the day upon which such
order is made returnable, such hearing shall take precedence of all
other matters on the calendar of said day, except older matters of
the same character, and matters to which special precedence may be
given by law. When the cause is at issue it shall be set for trial
at the earliest possible date and shall take precedence of all
other cases, except older matters of the same character, and
matters to which special precedence may be given by law."
[
Footnote 7]
The time limitation of § 527 has been strictly construed by the
California courts.
See, e.g., Smith v. Superior Court, 64
Cal. App. 722, 222 P. 857 (1923);
Sharpe v.
Brotzman, 145 Cal. App.
2d 354, 302 P.2d 668 (1956);
Oksner v. Superior
Court, 229 Cal. App.
2d 672, 40 Cal. Rptr. 61 (1964);
Agricultural Prorate
Comm'n v.Superior Court, 30 Cal. App. 2d
154, 85 P.2d 898 (1938). Petitioners argue that the time
limitation of § 527 is not applicable here, because it is operative
only with respect to orders granted without notice to the adverse
party. In the present case, petitioners indicate, telephonic notice
was given to the Union's counsel on May 15, the day the employers
first sought the restraining order, counsel was served with all
documents prior to a hearing arranged that day, and counsel was
present in the courtroom and presented argument on behalf of the
Union at that hearing.
We think it clear from § 527, however, that this kind of
informal notice and hearing does not convert the temporary
restraining order into a preliminary injunction of unlimited
duration under state law. Section 527 provides that, when a case
comes up for a hearing on a preliminary injunction, the party
seeking the injunction
"must have served upon the opposite party
at least two days
prior to such hearing, a copy of the complaint and of all
affidavits to be used in such application and a copy of his points
and authorities in support of such application. . . ."
(Emphasis added.) In providing that no preliminary injunction
shall be granted without notice to the opposite party, we think the
statute thus contemplates notice of at least two days, with a
meaningful opportunity to prepare for the hearing, rather than the
kind of informal, same-day notice that was given in this case.
This interpretation of state law is supported on the facts of
this case. Even though the Superior Court held some sort of
hearing, with Union counsel attending, before granting the
temporary restraining order, the court obviously felt that the
hearing was not a sufficient basis for ruling on the preliminary
injunction. Accordingly, in the same order granting the temporary
restraining order, the court set the case for a hearing on the
application for a preliminary injunction within the 15-day limit
imposed by § 527.
In any event, we need not rest our holding on this
interpretation of state law, for even if this restraining order
could have had unlimited duration under California law, it was
subject to the time limitations of Rule 65(b) after the case was
removed to federal court.
See infra at
415 U. S.
437-440. Although, by its terms, Rule 65(b), like § 527,
only limits the duration of restraining orders issued without
notice, we think it applicable to the order in this case even
though informal notice was given. The 1966 Amendments to Rule
65(b), requiring the party seeking a temporary restraining order to
certify to the court in writing the efforts, if any, which have
been made to give either written or oral notice to the adverse
party or his attorney, were adopted in recognition of the fact that
informal notice and a hastily arranged hearing are to be preferred
to no notice or hearing at all.
See Advisory Committee's
Note, 28 U.S.C.App. 7831. But this informal, same-day notice,
desirable though it may be before a restraining order is issued, is
no substitute for the more thorough notice requirements which must
be satisfied to obtain a preliminary injunction of potentially
unlimited duration. The notice required by Rule 65(a) before a
preliminary injunction can issue implies a hearing in which the
defendant is given a fair opportunity to oppose the application and
to prepare for such opposition.
Sims v. Greene, 161 F.2d
87 (CA3 1947). The same-day notice provided in this case before the
temporary restraining order was issued does not suffice.
See
Bailey v. Transportation-Communication Employees Union, 45
F.R.D. 444 (ND Miss.1968).
See also C. Wright & A.
Miller, Federal Practice & Procedure: Civil § 2949, p. 468
(1973 ed.), reading into Rule 65(a) a five-day-notice requirement
based on Fed.Rule Civ.Proc. 6(d).
[
Footnote 8]
Rule 65(b) provides:
"(b) Temporary Restraining Order; Notice; Hearing;
Duration."
"A temporary restraining order may be granted without written or
oral notice to the adverse party or his attorney only if (1) it
clearly appears from specific facts shown by affidavit or by the
verified complaint that immediate and irreparable injury, loss, or
damage will result to the applicant before the adverse party or his
attorney can be heard in opposition, and (2) the applicant's
attorney certifies to the court in writing the efforts, if any,
which have been made to give the notice and the reasons supporting
his claim that notice should not be required. Every temporary
restraining order granted without notice shall be indorsed with the
date and hour of issuance; shall be filed forthwith in the clerk's
office and entered of record; shall define the injury and state why
it is irreparable and why the order was granted without notice; and
shall expire, by its terms, within such time after entry, not to
exceed 10 days, as the court fixes, unless within the time so fixed
the order, for good cause shown, is extended for a like period or
unless the party against whom the order is directed consents that
it may be extended for a longer period. The reasons for the
extension shall be entered of record. In case a. temporary
restraining order is granted without notice, the motion for a
preliminary injunction shall be set down for hearing at the
earliest possible time and takes precedence of all matters except
older matters of the same character; and when the motion comes on
for hearing the party who obtained the temporary restraining order
shall proceed with the application for a preliminary injunction
and, if he does not do so, the court shall dissolve the temporary
restraining order. On 2 days' notice to the party who obtained the
temporary restraining order without notice or on such shorter
notice to that party as the court may prescribe, the adverse party
may appear and move its dissolution or modification and in that
event the court shall proceed to hear and determine such motion as
expeditiously as the ends of justice require."
[
Footnote 9]
See, e.g., Madron v. Thomas, 38 F.R.D. 177 (ED
Tenn.1965);
Murphy v. E. I . du Pont de Nemours & Co.,
26 F. Supp. 999 (WD Pa.1939);
Borton v. Connecticut Gen. Life
Ins. Co., 25 F. Supp.
579 (Neb.1938). Of course, repleading may be required by the
district court in appropriate cases.
See, e.g., Foust v.
Baltimore & O. R. Co., 91 F. Supp. 817 (SD Ohio 1950);
Shell Petroleum Corp. v. Stueve, 25 F. Supp.
879 (Minn.1938).
[
Footnote 10]
We note that § 1450 expressly provides that attachments or
sequestrations effected by the state court prior to removal
"shall hold the goods or estate to answer the final judgment or
decree in the same manner as they would have been held to answer
final judgment or decree had it been rendered by the State
court."
Petitioners argue that, since post-removal treatment of an
attachment effected in the state court was expressly made dependent
on the provisions of state law, while no such express provision was
made with respect to injunctions issued by the state court prior to
removal, Congress must have intended that injunction orders not be
controlled after removal by the durational limitations of state
law.
As we view the matter, the express provision in § 1450 that
state law governs attachments after removal is simply an additional
statement of long-settled federal law providing that, in all cases
in federal court, whether or not removed from state court, state
law is incorporated to determine the availability of prejudgment
remedies for the seizure of person or property to secure
satisfaction of the judgment ultimately entered.
See
Fed.Rule Civ.Proc. 64. Section 1450 makes it clear that this
settled rule of federal law applies to removed cases as well. If
anything, therefore, it supports our conclusion that the other
procedural requirements of federal law, including the time
limitations of Rule 65(b), must be applied to state court temporary
restraining orders after the case has been removed to federal
court.
See infra at
415 U. S.
437-440.
[
Footnote 11]
See generally Wright Miller,
supra, n 7, § 1024, at 108-110, and cases
there cited.
[
Footnote 12]
See H.R.Rep. No. 627, 63d Cong., 2d Sess., 25
(1914).
[
Footnote 13]
Section 17 of the Clayton Act was codified as 28 U.S.C. § 381
(1940 ed.), and was repealed by the Judicial Code Revision Act of
1948, 62 Stat. 997, for the stated reason that it was covered by
Rule 65.
See H.R.Rep. No. 308, 80th Cong. 1st Sess., A236
(1947).
[
Footnote 14]
See, e.g., Pan American World Airways v. Flight Engineers'
Assn., 306 F.2d 840 (CA2 1962);
Smotherman v. United
States, 186 F.2d 676 (CA10 1950);
Sims v. Greene, 161
F.2d 87 (CA3 1947). This basic purpose is implicit in Rule 65(b)'s
requirement that, after a temporary restraining order is granted
without notice,
"the motion for a preliminary injunction shall be set down for
hearing at the earliest possible time and takes precedence of all
matters except older matters of the same character. . . ."
[
Footnote 15]
The following two illustrations should suffice to clarify this
holding. Where the state court issues a temporary restraining order
of 15 days' duration on Day 1 and the case is removed to federal
court on Day 13, the order will expire on Day 15 in federal court
just as it would have expired on Day 15 in state court. Where,
however, a state court issues a temporary restraining order of 15
days' duration on Day 1 and the case is removed to the federal
court on Day 2, the restraining order will expire on Day 12,
applying the 10-day time limitation of Rule 65(b) measured from the
date of removal. Of course, in either case, the district court
could extend the restraining order for up to an additional 10 days,
for good cause shown, under Rule 65(b).
[
Footnote 16]
See e.g., Robert W. Stark, Jr., Inc. v. New York Stock
Exchange, 466 F.2d 743 (CA2 1972);
Crowther v.
Seaborg, 415 F.2d 437 (CA10 1969);
Garlock, Inc. v. United
Seal, Inc., 404 F.2d 256 (CA6 1968).
[
Footnote 17]
Fed.Rule Civ.Proc. 52(a) provides that:
"in granting or refusing interlocutory injunctions the court
shall . . . set forth the findings of fact and conclusions of law
which constitute the grounds of its action."
Where a temporary restraining order has been continued beyond
the time limits permitted under Rule 65(b), and where the required
findings of fact and conclusions of law have not been set forth,
the order is invalid.
See, e.g., National Mediation Bd. v. Air
Line Pilots Assn., 116 U.S.App.D.C. 300, 323 F.2d 305 (1963);
Sims v. Greene, 160 F.2d 512 (CA3 1947).
[
Footnote 18]
Rule 65(d) provides:
"Every order granting an injunction and every restraining order
. . . shall be specific in terms; shall describe in reasonable
detail, and not by reference to the complaint or other document,
the act or acts sought to be restrained. . . ."
[
Footnote 19]
In view of our disposition of the case, we need not and do not
reach respondent's argument that, notwithstanding
Boys Markets
v. Retail Clerks Union, 398 U. S. 235
(1970), the temporary restraining order issued in this case should
be governed by the 5-day limit of § 7 of the Norris-La Guardia Act,
29 U.S.C. § 107.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, MR. JUSTICE
STEWART, and MR. JUSTICE POWELL join, concurring in the
judgment.
I agree with the Court that the judgment of the Court of Appeals
for the Ninth Circuit in this case should be affirmed, since there
was no injunctive order in effect at the time that respondent's
allegedly contemptuous conduct occurred. But I do not join that
portion of the Court's opinion which lays down a "rule" for all
cases
Page 415 U. S. 446
involving 28 U.S.C. § 1450, [
Footnote 2/1] the statute which all parties agree is
controlling in the case before us. In my view, the announcement of
this "rule" is neither necessary to the decision of this case nor
consistent with the provisions of the statute itself
The Court persuasively demonstrates in its opinion that the
temporary restraining order issued by the California Superior Court
had expired by its own terms long before the alleged contempt
occurred. And I see nothing in the language or legislative history
of 28 U.S.C. § 1450, providing that
"[all] injunctions, orders, and other proceedings had in such
action prior to its removal shall remain in full force and effect
until dissolved or modified by the district court,"
which would indefinitely extend the Superior Court's restraining
order beyond the time of its normal expiration under state law.
Since the temporary restraining order, had the case remained in
state court, concededly would have expired in early June,
respondent's actions in November and December could not have
constituted a contempt of that order.
The Court also persuasively demonstrates that none of the
proceedings occurring after removal of the case to the United
States District Court had the effect of converting the subsisting
state court temporary restraining order into a preliminary
injunction of indefinite duration. Those proceedings addressed
markedly different issues, and certainly did not give the state
court order a new, independent federal existence.
Having said this much, the Court has disposed of the case before
it. The opinion then goes on, however, to devise a "rule" that
"[a]n
ex parte temporary restraining order issued
by
Page 415 U. S. 447
a state court prior to removal remains in force after removal no
longer than it would have remained in effect under state law, but
in no event does the order remain in force longer than the time
limitations imposed by Rule 65(b), measured from the date of
removal."
Ante at
415 U. S.
439-440. (Footnote omitted.) But the determination that
mere removal of a case to a federal district court does not extend
the duration of a previously issued state court order past its
original termination date makes quite unnecessary to this case any
further discussion about time limitations contained in Fed.Rule
Civ.Proc. 65(b). More importantly, the second clause of the "rule"
devised by the Court seems quite contrary to the specific language
of 28 U.S.C. § 1450.
The Court apparently bases this latter clause of the "rule" upon
the observation that "respondent Union had a right to the
protections of the time limitation in Rule 65(b) once the case was
removed to the District Court." While this premise probably has a
good deal to recommend it as a matter of practicality or of common
sense, the language of the statute gives no hint that rules of
practice governing issuance of federal injunctions in the first
instance were automatically to be incorporated in applying its
terms. The statute says that the state court's temporary
restraining order "shall remain in full force and effect until
dissolved or modified by the district court." This Court's "rule,"
however, says that it shall not remain in full force and effect,
even though not dissolved or modified by the District Court, if it
would have a life beyond the time limitations imposed by Rule
65(b).
I think it likely that the interest in limiting the duration of
temporary restraining orders which is exemplified in Rule 65(b) can
be fully protected in cases removed
Page 415 U. S. 448
to the district court by an application to modify or dissolve a
state court restraining order which is incompatible with those
terms. [
Footnote 2/2] Such a
procedure would be quite consistent with § 1450, which specifically
contemplates dissolution or modification by the district court upon
an appropriate showing, in a way that the "rule" devised by the
Court in this case is not. It is unlikely that many orders issued
under rules of state procedure, primarily designed, after all, to
provide suitable procedures for state courts, rather than to
frustrate federal procedural rules in removed actions, would by
their terms remain in effect for a period of time far longer than
that contemplated by the comparable Federal Rule of Civil
Procedure. But in the rare case where such a condition obtains, it
is surely not asking too much of a litigant in a removed case to
comply with § 1450 and affirmatively move for appropriate
modification of the state order.
Therefore, although I cannot subscribe to the rule which the
Court fashions to govern cases of this type, I concur in its
conclusion that respondent's activity in November and December,
1970, did not violate any injunctive order which was in force at
that time. [
Footnote 2/3]
[
Footnote 2/1]
The relevant provision of 28 U.S.C. § 1450 reads:
"All injunctions, orders, and other proceedings had in such
action prior to its removal shall remain in full force and effect
until dissolved or modified b the district court."
[
Footnote 2/2]
Indeed, respondent's motion to dissolve the state court order
because of the prohibitions contained in the Norris-LaGuardia Act,
29 U.S.C. § 104, was just such a motion. That motion was denied by
the District Court, however, and respondent made no further effort
to obtain a modification or dissolution of the state restraining
order prior to its expiration.
[
Footnote 2/3]
I see no occasion for the Court's rather casual speculation,
contained in
n 5 of its
opinion, that the respondent's violation of the order, even were it
effective at the time of its later conduct, may not have been
"willful." The Court has concluded that the order was not effective
at that later time, and it can serve no useful purpose to speculate
about the sufficiency of the evidence with respect to violation of
a defunct order.