Provisional remedies are court orders issued before a final judgment to temporarily preserve rights or assets. These remedies are typically sought during the initial stages of a legal proceeding to prevent irreparable harm and require a showing of likelihood of success on the merits of the claim. Examples of provisional remedies include attachment, garnishment, replevin, receivership, notice of pendency, and temporary injunctions such as temporary restraining orders or preliminary injunctions. Provisional remedies are an important aspect of legal proceedings as they help ensure that parties are not unfairly prejudiced while waiting for a final resolution of their dispute.
The Due Process clauses of the Constitution apply to provisional remedies because they cause deprivation of liberty or property. However, provisional remedies typically have fewer procedural safeguards than final judgments to ensure their effectiveness. Otherwise, they would serve little purpose.
In light of these characteristics, courts use a variety of safeguards before ordering provisional remedies. First, before ordering a provisional remedy, courts almost always hold a hearing. Temporary restraining orders are a notable exception to this general rule. Courts also usually require the party requesting a provisional remedy to post a bond sufficiently large to cover any damage that the other parties would suffer if the remedy was wrongly ordered. When administering this bond requirement, courts usually make an exception for poor but deserving movants. Other safeguards or procedures may apply as well, depending on the jurisdiction, remedy, and situation. See, e.g., Mitchell v. W. T. Grant Co., 416 U.S. 600; See also: State Civil Procedure Rules.
The Federal Rules of Civil Procedure (FRCP) authorize federal courts to issue temporary restraining orders and preliminary injunctions. Federal Rules of Civil Procedure Rule 65. In addition, the FRCP Rules authorize federal courts to use any provisional remedy available to state courts in the state the federal court sits in. Federal Rules of Civil Procedure Rule 64.
See Civil Procedure.
[Last updated in March of 2024 by the Wex Definitions Team]