In an action for the redelivery of goods or chattels brought pursuant to General Laws c. 214, sec. 3 , an order that a party redeliver goods or chattels may be made ex parte, pursuant to the provisions of Rule 65(a) and existing law governing the issuing of restraining orders, or with notice and hearing, pursuant to Rule 65(b) and existing law governing the issuing of preliminary injunctions. No restraining order or preliminary injunction for the redelivery of goods or chattels shall issue except upon the applicant's giving security, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.

Adopted December 22, 1978, effective January 15, 1979.

Reporter's Notes

(1996) With the merger of the District Court Rules into the Mass.R.Civ.P., Rule 65.2 has now been made applicable to the District Court. However, the applicability of this rule to the District Court does not serve to grant jurisdiction to the District Court over actions to compel redelivery of goods pursuant to G.L. c. 214, § 3 . This statute grants jurisdiction only to the Supreme Judicial Court and the Superior Court. See Rule 82.

(1979) Two Massachusetts statutes govern actions to recover goods or chattels: G.L. c. 247 (Replevin) permits plaintiff to obtain the disputed property prior to trial, without hearing, and without justification such as imminent destruction, transfer, or concealment of the property. This statute is probably unconstitutional (see Fuentes v. Shevin, 407 U.S. 67 , 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)). The other statute, G.L. c. 214, § 3 gives the Supreme Judicial Court and Superior Court equitable jurisdiction to order redelivery of goods or chattels taken or detained from the owner, without requiring the owner first to establish inadequacy of the legal remedy. "The supreme judicial and superior courts shall have original and concurrent jurisdiction of the following cases: (1) Actions to compel the redelivery of goods or chattels taken or detained from the owner . . ." G.L. c. 214, § 3 .

As G.L. c. 214, § 3 provides a legal vehicle for recovery of property, its marriage with Rule 65 (Injunctions) provides a simple and flexible procedure, affording the same constitutional safeguards as a detailed statute. Although "injunction" and "restraining order", as used in Rule 65, literally imply restraint or inaction, the rule clearly also covers any order requiring affirmative conduct, the so-called "mandatory injunction", International Longshoremen's Ass'n, Local No. 1291 v. Philadelphia Marine Trade Assn, 389 U.S. 64 , 75-76, 88 S.Ct. 201, 207-208, 19 L.Ed.2d 236 (1967).

Rule 65(a) allows the ex parte recovery of property only "if 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 his attorney can be heard in opposition." Even then, the time provisions of Rule 65(a) provide a wronged defendant the opportunity to obtain an immediate hearing. Likewise, plaintiff seeking a preliminary injunction must establish (1) an irremediable deprivation of his rights during pendency of the action; and (2) the likelihood that he will ultimately succeed on the merits. Under Rule 65.2, these provisions control the pre-trial recovery of property.

Unlike Rule 65(c), Rule 65.2 requires security in all cases, although it leaves the amount to the determination of the court. Because the pre-trial recovery of property is so constitutionally sensitive, security should be mandatory. On the other hand, the rule does not impose an arbitrary dollar requirement (as, for example, twice the value of the property). Sometimes defendant has wrongfully taken or withheld plaintiffs property as security for a disputed debt less than the value of the property. Certainly, a bond in the amount of the debt is adequate.