Unpublished Disposition, 872 F.2d 426 (9th Cir. 1989)

MEMORANDUM^** 

Appellee Bison Operating Co. brought this action to quiet title to a piece of property in Montana, and sought a preliminary injunction ousting the defendants-appellants from the land pending a final decision in the action. The district court granted the injunction. Appellants have appealed both the district court's Order to Show Cause and the issuance of the injunction.

The District Court's Order to Show Cause is not an appealable order. See 28 U.S.C. § 1292(a) (1). The appeal of the Order is therefore dismissed.

Appellants argue that the district court lacked jurisdiction because service of process was defective. This claim has not properly been preserved for appeal. Although appellants made a timely challenge to service when the action was pending in state court, appellee Bison was entitled to cure any defect in service by re-serving appellants after the case was removed to federal court. See 28 U.S.C. § 1448. The record shows that a new complaint and summons were served after removal. See Excerpts of Record at 41-42. Appellants Kerricks never challenged the second service at all. Appellant Bretz did challenge the second service, but his claim on appeal that Bison failed to comply with FRCP 4(d)'s requirement that the summons and complaint be served together squarely conflicts with the affidavit he signed below in support of his challenge to service.¹  Bretz cannot now claim that he did not receive the complaint and summons together. Thus, all appellants waived their claims of defective service by failing to present their objections in a timely fashion to the district court. See Savarese v. Edrick Transfer & Storage, Inc., 513 F.2d 140, 145 (9th Cir. 1975).

A district court's issuance of preliminary injunctive relief will be reversed only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 849 (9th Cir. 1985).

1. Availability of injunction under state law

Appellants argue that under Montana law courts may not issue preliminary injunctions in property disputes. However, Montana law does not control a federal court's decision whether to issue a preliminary injunction. Federal courts may grant a preliminary injunction if the movant has demontrated a combination of probable success on the merits and the possibility of irreparable harm. See Benda v. Grand Lodge, 584 F.2d 308, 314 (9th Cir. 1978). The district court properly invoked this standard in considering Bison's request for injunctive relief. See Excerpts of Record at 86.

Appellant Bretz argues that the district court abused its discretion in granting the injunction to Bison, when Bison was unable to fulfill its side of the contract. Specifically, Bretz claims that Bison was by its own admission unable to perform its alleged contractual obligation to convey certain grazing leases to the appellants. However, Bison's ability to convey the leases has no apparent relevance to the question whether a preliminary injunction ousting Bretz from the property was proper. The district court found that Bison was probably entitled to the property because Bretz and the Kerricks had breached the contract for sale by failing to make the required payments; it also found that Bison would incur irreparable harm if unable to winter its cattle on the property. Neither finding is clearly erroneous. See Colorado River Indian Tribes, 776 F.2d at 849. Nothing more was required for the district court to issue the preliminary injunction.

The order granting the preliminary injunction is AFFIRMED.