12. May the court grant the toy manufacturer's request for a temporary restraining order?

D is correct. A temporary restraining order (TRO) is a form of injunctive relief granted when it is necessary to prevent irreparable injury to a party and the injury will result before a preliminary injunction hearing can be held. A TRO may be granted WITHOUT notice of the hearing to the adverse party if three requirements are met: (i) the moving party gives specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition; (ii) the moving party certifies in writing all efforts to give notice of the hearing, if any, AND the reasons why notice should not be required; AND (iii) the moving party provides some security, the amount of which is determined by the court, to pay for any costs and damages incurred by the adverse party if he has wrongfully enjoined or restrained. Fed. R. Civ. P. 65(b).

Here, by requesting a TRO before the employee received notice, the toy manufacturer still has the opportunity to demonstrate to the court that these requirements have been satisfied, including the extent of its irreparable injury/loss should the court wait until the employee is heard on the matter.

A is incorrect. Although generally, a TRO requires notice, notice may not be required if the above elements are met. Here, there are not enough facts to establish that the notice requirement was not met because the toy manufacturer still has the opportunity to show the court the extent of the irreparable injury.

B is incorrect. This is an incorrect application of the law. A preliminary injunction may not be issued without notice to the adverse party. Here, the facts indicate that notice has not been given to the former employee, so the appropriate remedy for the toy manufacturer is not a preliminary injunction.

C is incorrect. Whether this is a diversity action is not dispositive of whether the toy manufacturer should receive a TRO. Although TROs are available in diversity actions, the moving party (here, the toy manufacturer) must still make a sufficient showing to obtain the injunctive relief, as explained above.