Provisional Remedies

The provisional remedies are remedies meant to maintain the status quo while the parties are litigating the merits of the plaintiff's claim. They are:

  1. an order of attachment, which prevents a defendant from disposing of an asset during the pendency of the action;
  2. an injunction, which requires the defendant to engage in conduct or to refrain from engaging in the conduct during the pendency of the action;
  3. receivership, which puts the defendant's business in the control of a person appointed by the court; and
  4. a notice of pendency, also called a lis pendens, which encumbers a piece of real property with a lien, effectively preventing its transfer during the pendency of the action.

The remedies are set forth in state law, but if the remedy is available in a state court, a federal court will grant the same remedy.

The concept of a provisional remedy is quite remarkable. The plaintiff's complaint is just a set of allegations. It may be that the allegations, even if true, don't entitle the plaintiff to relief. And of course, it may be that the allegations are false. So it's remarkable that even before the sufficiency of the complaint has been challenged, and long before the allegations are proven, the court can issue an order that, in many instances, may cripple the defendant.

For that reason, in most cases, the plaintiff must make very difficult showings, discussed in the sub-practice pages, in order to obtain relief. If it turns out that the provisional relief should not have been granted, the plaintiff may be required to compensate the damage done to the defendant.

And in order to make sure that the plaintiff has the funds for compensating the defendant the court will typically require that the plaintiff post a bond. In the event that the court orders the plaintiff to compensate the defendant, the issuer of the bond will pay the defendant. And needless to say, unless the plaintiff has a high net worth, the bondsman will want collateral from the plaintiff so that, if the bondsman may pay the defendant, the bondsman can reimburse himself from the collateral. So the plaintiff may be required to give a mortgage on real estate or place funds in an escrow account for the purpose of reimbursing the bondsman.

In some cases, the plaintiff may be able to get the provisional remedy without informing the defendant. For example, if the defendant is about to transfer his funds to a remote bank account, informing him about an application for an order of attachment will provoke the transfer. Thus, there are situations where the relief can be obtained without tipping the defendant off.

Of course, this raises significant constitutional problems, since the due process clauses of the U.S. and state constitutions guaranty everyone notice and an opportunity to be heard before being deprived of property. Thus, each of the provisional remedies has been the subject of constitutional challenge. And the burdensome showings required of the plaintiff are to large extent required to satisfy the due process clause.

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