Common Misconceptions in Civil Injunction Cases
September 17, 2021 | Daniel J. Donnellon
“Injunction” is a form of equitable remedy, and should not be pleaded as Cause of Action or Claim for Relief. There is, however, some confusion in the Bar as I have recently seen, several times, a party including in a Complaint a “Claim for Relief” or “Cause of Action” for “Injunction.” In one state court case, the Plaintiff pleaded only one Cause of Action for “Temporary Restraining Order and Preliminary Injunction.” Of course, the response was a Motion to Dismiss under Rule 12(b)(6) because there was no claim stated upon which relief could be granted. This is “Black Letter Law” in state and federal courts. Indeed, it is so well established that I did not even see it necessary to discuss it in my most recent book, Donnellon, D.J., Injunctions and Restraining Orders in Ohio 2020 Edition (Amazon KDP, 2020) available HERE. The purpose of this first in a series of blog articles is to correct this common misconception.
Under Ohio law, whether temporary, preliminary, or permanent, “injunctive relief is a remedy, not a cause of action.” Bresler v. Rock, 2018–Ohio–5138, 117 N.E.3d 184 (10th Dist.), citing Premier Health Care Servs. v. Schneiderman, 2d Dist. No.
18795, 2001 WL 1479241 (Aug. 21, 2001) (“A preliminary injunction is a remedy; it is not a cause of action or claim for relief.”); accord Capital Equity Grp. v. Ripken Sports Inc., N.D. Ohio No. 1:16CV1953, 2017 WL 4155766, at *7 (Sept. 19, 2017) (injunction is remedy and not independent cause of action), aff’d 744 Fed. Appx. 260, 264-265 (6th Cir. 2018) (“district court properly dismissed plaintiff’s claims for preliminary injunction, appointment of a receiver, and action on accounting because they are not standalone causes of action, but merely equitable remedies that rely upon a valid claim.”) Cf. Black’s Law Dictionary “Remedy” (10th ed. 2014) (“The means of enforcing a right or preventing or redressing a wrong; legal or equitable relief.”).
The other jurisdictions where I am licensed, Kentucky and federal, follow suit. Moore v. White, 2017 Ky. App. Unpub. LEXIS 219 (March 24, 2017) (Injunctive relief is a remedy, not a cause of action. A permanent injunction is an equitable remedy for certain torts or wrongful acts of a defendant where a damage remedy is inadequate. A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action for tort or other wrongful act against a defendant and that equitable relief is appropriate.) Madej v. Maiden, 951 F.3d 364 (6th Cir. 2020) (An injunction is a remedy, not a claim. If plaintiffs cannot show actual success on their claims, they cannot obtain a permanent injunction); see also Edwards v. Wells Fargo Bank, N.A., 2013 U.S. Dist. LEXIS 96517 (Central Dist. Cal. 2013).
As these cases, from various jurisdictions all instruct, a plaintiff must state a cause of action for which equitable relief – not dollar damages – is available. This can be contract, tort, or statutory. But, the “relief” or “remedy” does not arise from the pleadings. Instead, it must arise from a separate motion or application to the court.
This should be, but apparently is not, a logical extension from the very first factor a movant must show to receive temporary or preliminary injunction relief: a likelihood of success on the merits of the claim supporting injunctive relief. There must be a specific cause of action involving a claim that supports injunctive relief. The remedy, therefore, of “injunction” cannot be such a claim.
Please watch for articles addressing additional “misconceptions,” including the relationship between a TRO and preliminary injunction, and whether a claim for declaratory judgment can be addressed through preliminary injunction.