casemark/ex-parte-seizure-order

Ex Parte Seizure Order

Drafts a court-ready ex parte seizure order with findings, scope, bond, and due process provisions for IP or asset-based litigation.

Prerequisites

Collect before drafting:

• Case caption — court, division, case number, parties with procedural designations
• Factual record — declarations, investigative reports, or financial records establishing urgency (dissipation risk, destruction, irreparable harm)
• Property description — physical descriptions, serial numbers, locations, valuations, or digital/IP asset identifiers
• Legal basis — Lanham Act § 34(d) / 15 U.S.C. § 1116(d) for counterfeiting; FRCP 65 for TRO-based seizure; or state analog
• Executing party — U.S. Marshals, local law enforcement, court-appointed receiver, or PI with law enforcement escort
• Bond amount — security covering seized property value plus anticipated business interruption damages

Order Structure

1. Caption and Title

Standard case caption followed by "EX PARTE SEIZURE ORDER."

2. Recitals

• Date/time of application; note no appearance by defendant
• Documents reviewed (motion, memorandum, declarations, exhibits)
• Finding that notice would defeat relief (specify destruction/concealment risk)

3. Findings of Fact — Four-Factor Analysis

Each factor requires a specific finding with record citations:

| Factor | Required Finding | |--------|-----------------| | Likelihood of success | Prima facie case established — cite Decl. ¶ ___, Ex. ___ | | Irreparable injury | Delay causes destruction/dissipation/ongoing IP harm | | Inadequacy of other remedies | Monetary damages and ordinary process insufficient | | Balance of hardships | Plaintiff's harm from denial exceeds defendant's harm from grant |

Lanham Act counterfeiting seizures require additional findings under § 1116(d)(4)(B): (a) defendant would destroy/hide goods if notified; (b) plaintiff has not publicized the application; (c) court has subject-matter jurisdiction. Always verify current statutory text.

4. Seizure Provisions

Property — list with particularity:

• Category, physical description, serial/model numbers
• Location(s) with address, unit, access hours
• Digital assets: specify forensic imaging method and access limitations

Executing parties — identify authorized agents (Marshals, local law enforcement, receiver, counsel with escort)

Execution parameters:

• Permissible hours (e.g., 6:00 a.m.–10:00 p.m.)
• Entry conditions (peaceable; forced entry only if specified condition met)
• Inventory requirement: itemized list with photographic documentation
• Minimize interference with non-seized operations

Effective period — specify start date/time through expiration date/event.

5. Chain of Custody and Storage

• Custodian/facility for seized items
• Preservation conditions (perishable goods, digital forensic images)
• Access restricted to specified parties pending further order

6. Bond and Security

• Plaintiff posts bond of $[AMOUNT] with Clerk by [DATE/TIME] as condition of order taking effect
• Failure to post bond: order automatically vacated

7. Post-Seizure Notice and Hearing

• Serve defendant within 24–48 hours of execution with copy of order, motion, and all supporting papers
• Adversarial hearing no later than 14 days post-seizure
• Defendant may move to dissolve or modify on showing of changed circumstances or wrongful seizure
• Counter-bond option: defendant posts $[AMOUNT] to regain possession pending final resolution

8. Prohibitions and Safeguards

• No unnecessary damage during seizure
• No seizure of property outside described categories
• No review of seized materials by plaintiff/agents until further order

9. Signature Block

Standard judicial signature block with date, judge name, title, and court.

Pitfalls and Checks

• Property specificity — vague descriptions are grounds for quashing; err toward maximum detail
• Lanham Act vs. FRCP 65 — distinct frameworks; confirm which applies and include correct statutory findings
• Bond adequacy — must reflect realistic value of all seized property plus business interruption; underestimating creates wrongful seizure liability
• 14-day hearing — due process floor; never omit scheduling or noting this requirement
• Digital assets — include specific forensic preservation protocol; generic "seize computers" language is routinely challenged
• State court — verify analogous state seizure statute and local rules for divergent bond/notice requirements
• No ex parte contact — order application must not be disclosed to opposing party or counsel before entry
• Senior review — required before filing; due process errors risk sanctions or fee-shifting