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
The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well ...
,
FRCP 64 provides with several types of seizure (e.g.
garnishment
Garnishment is a legal process for collecting a monetary judgment on behalf of a plaintiff from a defendant. Garnishment allows the plaintiff (the "garnishor") to take the money or property of the debtor from the person or institution that holds t ...
,
replevin
Replevin () or claim and delivery (sometimes called revendication) is a legal remedy, which enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses.
Etymology
The word "replevi ...
,
attachment
Attachment may refer to:
Entertainment
* ''Attachments'' (novel), a 2011 novel by Rainbow Rowell
* ''Attachments'' (TV series), a BBC comedy-drama that ran from 2000 to 2002
Law
* Attachment (law), a means of collecting a legal judgment by lev ...
) that a Federal Court may use pursuant to state law. FRCP 65 concerns Temporary Restraining Order (may be made
ex parte
In law, ''ex parte'' () is a Latin term meaning literally "from/out of the party/faction of" (name of party/faction, often omitted), thus signifying "on behalf of (name)". An ''ex parte'' decision is one decided by a judge without requiring al ...
) 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'', 501 U.S. 1 (1991), was a United States Supreme Court case in which the Court held that a state statute authorizing prejudgment attachment of a defendant's real property upon the filing of an action without prior notice ...
'' 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.
References
*https://web.archive.org/web/20070221195120/http://www.edcostello.com/article.cfm?id=15
Judicial remedies
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