Ex-Parte and/or Emergency Motions and Relief

Minn Gen. R. Prac 3 – MN Court Rules (ex-parte orders)

Minn Gen. R. Prac. 303 – MN Court Rules(Motions; Emergency Relief; Orders to Show Cause)

Minn Rule Civ. Pro 65 – MN Court Rules(Injunctions)

Emergency Relief vs. Ex-Parte Relief

“Emergency” and “ex parte” are not synonymous, though sometimes both might be justified in a particular situation. It is important to use the correct terms when discussing.

Emergency Relief – Emergency relief may be appropriate where there is urgency, not caused by lack of diligence on the part of the moving party, that makes the normal deadlines in the rules unworkable. Even where exigent circumstances justify shortening the deadlines, they do not generally excuse the giving of notice – or the attempt thereof – to the other side.

When asking for Emergency Relief, you are telling the Court that there are exigent circumstances (such as taking the kids out of the country in 2 weeks) that make going through the standard motion timelines unreasonable. You are asking the Court to shorten the standard timelines for filing/serving/hearing a motion, BUT you are still providing notification to the other party (even though it is not the standard, required timeframe for notification).

Ex-Parte – When emergency relief is sought AND the situation is so that notification of the motion/request is likely to make any relief impossible to obtain, the Court may consider the matter ex parte (without notice to the other side).

EX-PARTE ORDERS ARE ALWAYS TEMPORARY AS THE OTHER PARTY HAS A RIGHT TO BE HEARD AND PRESENT INFORMATION TO THE COURT. AN ACTUAL MOTION HEARING DATE SHOULD BE SET BY THE COURT WHEN THEY ISSUE THE EX-PARTE ORDER. 

What the Rules say about when Ex Parte Relief is appropriate:

Rule 303.04 Advisory Committee Comment – 2012 amendment: Where destruction of property or evidence is threatened, assets appear to be concealed or are threatened to be concealed, or the abduction of children has occurred or is threatened, or other situations exist where the giving of notice is likely to make any relief impossible to obtain, the court may consider the matter ex parte (without notice to the other side).

Rule Civ Pro 65: A temporary restraining order may be granted without written or oral notice to the adverse party or that party’s 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 that party’s attorney can be heard in opposition, and
• (2) the applicant’s attorney states to the court in writing the efforts, if any, which have been made to give notice or the reasons supporting the claim that notice should not be required.

Requirements for emergency relief

1. Rule 303.04: The party seeking emergency relief must state with specificity in a motion and affidavit:
   1. (i) Why emergency relief is required;
   2. (ii) The relief requested;
   3. (iii) Disclosure of any other attempts to obtain the same or similar relief and the result;
   4. (iv) If there was a prior attempt to obtain emergency relief, the name of the judicial officer to whom the request was made;
   5. (v) if a prior request was denied for the same or similar relief, explain what new facts are presented to support the current motion.
2. Rule 303.04: The party seeking emergency relief must present a proposed order for the court’s consideration.
3. Rule 303.04: The party seeking emergency relief must serve the motion and affidavit, including notice of the time when and the place where the motion will be heard, on the other party or counsel.
   1. If contact/service with the other party has been attempted but unsuccessful, then the party seeking emergency relief must provide a written statement that the party has made a good faith effort to contact the other party or counsel and has been unsuccessful;

Requirements for emergency EX-PARTE relief

1. Rule 303.04: The party seeking emergency relief must state with specificity in a motion and affidavit:
   1. (i) Why emergency relief is required;
   2. (ii) The relief requested;
   3. (iii) Disclosure of any other attempts to obtain the same or similar relief and the result;
   4. (iv) If there was a prior attempt to obtain emergency relief, the name of the judicial officer to whom the request was made;
   5. (v) if a prior request was denied for the same or similar relief, explain what new facts are presented to support the current motion.
2. Rule 303.04: The party seeking emergency relief must present a proposed order for the court’s consideration.
3. Rule 303.04: The party seeking emergency relief must:
   1. (i) the party seeking emergency relief provides a written statement that the party has made a good faith effort to contact the other party or counsel and has been unsuccessful; or
   2. (ii) the supporting documents show good cause why notice to the other party should not be required and the court waives the notice requirement.

What to do after receiving a temporary ex parte order from Court

1. Ensure the court date works for the attorney. If it doesn’t, immediately request a continuance with the Court.
2. Immediately serve (doesn’t have to be personal service, but should at least be certified mail) a copy of the temporary order, notice of hearing, and all the previously filed motion documents on OPP (motion, aff, exhibits, etc). Also include a letter explaining what you are serving and details on the scheduled hearing date.
3. Start preparing for motion hearing.

How to prepare for hearing after the receiving the Order

Rule 304.04 (f): An order granting emergency relief without notice shall include a return hearing date before the judicial officer hearing the matter. If the relief obtained affects custody or parenting time, the court shall set the matter for hearing within 14 days of the date the emergency relief is granted.

Rule 65: “When the motion comes on for hearing, the party who obtained the temporary restraining order shall proceed with the application for a temporary injunction, and, if the party does not do so, the court shall dissolve the temporary restraining order. On written or oral notice to the party who obtained the ex parte temporary restraining order, 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.”

Essentially, the person who obtained the ex-parte order must convince the Court that the ex-parte order needs to remain in place, either as a continued, temporary order or as a permanent order.

You may want to prepare an additional affidavit with more information, depending on how much information you included in your original affidavit and whether any new information has arisen. OPP may submit an affidavit and then you’ll want to respond to that.