Provisional remedy
Encyclopedia
The purpose of a provisional remedy is the preservation of the status quo
until final disposition of a matter can occur.
Under United States law, FRCP
64 provides with several types of seizure (e.g. garnishment
, replevin
, attachment
) that a Federal Court may use pursuant to state law. FRCP 65 concerns Temporary Restraining Order (may be made ex parte
) and preliminary injunction (requires some hearing).
In order to establish the constitutionality of a provisional remedy, two cases must be distinguished. The 3-part test established in Matthews determines whether a prejudgment remedy meets the constitutional requirements when Government seeks deprivation on its own initiative. The court must take into consideration the private interest of the party against whom the remedy is sought, the risk of erroneous deprivation as well as the probable value, if any, of addition or substitute safeguards and, the moving party's interest.
The 3-part test established in Connecticut v. Doehr
determines whether a prejudgment remedy meets the constitutional requirements when Government action is applied to a suit between private parties. The due process analysis involves the same requirements as set forth in Matthews.
The court must also take into account whether there are exigent circumstances, a bond requirement, a judicial assessment, a detailed statement of factual basis, and a prompt post-seizure hearing.
Status quo
Statu quo, a commonly used form of the original Latin "statu quo" – literally "the state in which" – is a Latin term meaning the current or existing state of affairs. To maintain the status quo is to keep the things the way they presently are...
until final disposition of a matter can occur.
Under United States law, FRCP
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
64 provides with several types of seizure (e.g. garnishment
Garnishment
A garnishment is a means of collecting a monetary judgment against a defendant by ordering a third party to pay money, otherwise owed to the defendant, directly to the plaintiff...
, replevin
Replevin
In creditors' rights law, replevin, sometimes known as "claim and delivery," is a legal remedy for a person to recover goods unlawfully withheld from his or her possession, by means of a special form of legal process in which a court may require a defendant to return specific goods to the...
, attachment
Attachment (law)
Attachment is a legal process by which a court of law, at the request of a creditor, designates specific property owned by the debtor to be transferred to the creditor, or sold for the benefit of the creditor. A wide variety of legal mechanisms are employed by debtors to prevent the attachment of...
) that a Federal Court may use pursuant to state law. FRCP 65 concerns Temporary Restraining Order (may be made ex parte
Ex parte
Ex parte is a Latin legal term meaning "from one party" .An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present. In Australian, Canadian, U.K., Indian and U.S...
) and preliminary injunction (requires some hearing).
In order to establish the constitutionality of a provisional remedy, two cases must be distinguished. The 3-part test established in Matthews determines whether a prejudgment remedy meets the constitutional requirements when Government seeks deprivation on its own initiative. The court must take into consideration the private interest of the party against whom the remedy is sought, the risk of erroneous deprivation as well as the probable value, if any, of addition or substitute safeguards and, the moving party's interest.
The 3-part test established in Connecticut v. Doehr
Connecticut v. Doehr
Connecticut v. Doehr, 501 U.S. 1 , was a case in which the Supreme Court of the United States held that a state statute that authorizes prejudgment attachment of real estate without prior notice or hearing, without a showing of extraordinary circumstances, and without a requirement that the person...
determines whether a prejudgment remedy meets the constitutional requirements when Government action is applied to a suit between private parties. The due process analysis involves the same requirements as set forth in Matthews.
The court must also take into account whether there are exigent circumstances, a bond requirement, a judicial assessment, a detailed statement of factual basis, and a prompt post-seizure hearing.