Instant Air Freight Co., a Corporation of the State of New Jersey v. C.f. Air Freight, Inc., a Corporation of the State Ofdelaware, Emery Air Freight Corporation, Acorporation of the State of Delaware.appeal of C.f. Air Freight, Inc, 882 F.2d 797 (3d Cir. 1989)

We here examine a preliminary injunction which restrained C.F. Air Freight, Inc. ("C.F.") from terminating its air freight handling contract with Instant Air Freight Company ("Instant"). Because our independent examination of the record reveals that Instant has not established the irreparable injury necessary for the issuance of a preliminary injunction and because the bond requirement of the Federal Rules of Civil Procedure 65(c) has not been met, we will reverse and remand with instructions to vacate the preliminary injunction.

Instant, a New Jersey corporation, was formed in 1971 and since that date has provided air freight handling services to C.F., a Delaware corporation. The most recent contract between the two parties, entered into on March 2, 1987, covers a four-year period ending March 2, 1991.

On April 7, 1989, C.F. merged with Emery Air Freight Corp. ("Emery"), a Delaware corporation.¹  By letter dated April 11, 1989, C.F. notified Instant that effective April 17, 1989, C.F. would be closing their Elizabeth, New Jersey terminal through which the freight handled by Instant had been routed. C.F. offered, pursuant to paragraph EIGHTH of their contract, to pay Instant the sum of $220,000 in liquidated damages.² 

On April 14, 1989, Instant filed a complaint seeking injunctive relief. On that same day Judge Murray G. Simon of the New Jersey Superior Court entered an order temporarily enjoining C.F. from terminating the agreement with Instant and from "utilizing the services of any person or entity other than plaintiff in contravention of the aforesaid agreement." On April 17, 1989, the Superior Court of New Jersey, Judge Harry A. Margolis, found C.F. in violation of the temporary restraining order and entered an order in aid of litigant's rights. On April 18 C.F. removed the case to the United States District Court for the District of New Jersey, citing diversity of citizenship of the parties. On April 20, 1989, after hearing oral arguments on the respective applications of the parties, the district court granted Instant's request to convert the state court temporary restraining order into a preliminary injunction. The court also imposed sanctions and fees against C.F. for its continuing violation of the two prior state court orders.

The district court initially found that Instant was likely to succeed on the merits and also determined that Instant would suffer irreparable harm if the agreement was terminated. Since eighty percent of Instant's business is devoted to servicing C.F., Instant "will lose the main portion of its business, many if not all of its employees, and its goodwill and reputation in the industry. Without an uninterrupted continuance of the agreement, the business undoubtedly will be forced to shutdown or significantly curtail its operation."

The district court rejected C.F.'s contention that Instant's losses would be compensable by money damages. "The long term relationship between the parties, the justifiable reliance by plaintiff on the continuance of that business, its historical availability to serve the defendant over all of these years and the priority given to defendant's business, and the difficulty in valuing the goodwill and, in particular, the right of first refusal under the agreement, make money damages an inadequate remedy." The court found that in balancing the harm which would be suffered by Instant against the harm that a preliminary injunction would cause to C.F. the balance favored the issuance of a preliminary injunction since the adverse effects on C.F. had "been brought about by the voluntary action of the defendant."³ 

With regard to the bond requirement under Fed. R. Civ. P. 65(c) the district court denied C.F.'s request for a bond and adopted Instant's proposal that C.F. retain the $220,000 in damages which C.F. acknowledged it owed to Instant.

The district court stated:

What I will do is deny the bond now without prejudice. If you can establish that you are actually sustaining damages, you can come back and you will have some numbers, actual expense, and then if you can satisfy me that your potential losses exceed what is being withheld under the contract, then at that time, we will all know much more about what is happening in the real world and I will certainly reconsider. So I will deny the application for the bond without prejudice, with the understanding that you will have the opportunity to satisfy me that your potential damages exceed the amount that you will be holding now as security.

The court further stated that "in my mind it would take some period of time to use up the $220,000."

Since this is an appeal of a preliminary injunction issued by the district court, we have jurisdiction pursuant to 28 U.S.C. § 1292(a).

In reviewing the district court's grant or denial of a preliminary injunction, we must determine whether the court abused its discretion, committed error in applying the law, or made a clear mistake in considering the proof. Frank's GMC Truck Center, Inc. v. G.M.C., 847 F.2d 100, 101 (3d Cir. 1988).

We utilize a federal standard in examining requests to federal courts for preliminary injunctions. As we stated in Systems Operations, Inc. v. Scientific Games Dev. Corp., 555 F.2d 1131 (3d Cir. 1977), " [a]lthough the right upon which this cause of action is based is state-created, Rule 65(a) of the Federal Rules of Civil Procedure contemplates a federal standard as governing requests addressed to federal courts for preliminary injunctions."⁴  Id. at 1141.II.

We have often recognized that the grant of injunctive relief is an "extraordinary remedy, which should be granted only in limited circumstances." Frank's GMC, 847 F.2d at 102 (citation omitted).

In order to obtain a preliminary injunction we have repeatedly held that the moving party must demonstrate:

(1) the reasonable probability of eventual success in the litigation and (2) that the movent will be irreparably injured pendente lite if relief is not granted. Moreover, while the burden rests upon the moving party to make these two requisite showing, the district court "should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest."

In Re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982) (citations omitted). Thus, irreparable injury must be present for a preliminary injunction to issue. " [A] failure to show a likelihood of success or a failure to demonstrate irreparable injury must necessarily result in the denial of a preliminary injunction."⁵  Arthur Treacher's, 689 F.2d at 1143.

The district court found that there is a substantial likelihood of success by Instant on the merits. While paragraph EIGHTH of the agreement does appear at first glance to be a straightforward liquidated damages clause, there are a number of other paragraphs in the contract which belie this view.⁶  Examining these other provisions of the contract, we find that the district court did not abuse its discretion in determining that there was a substantial likelihood of success by Instant on the merits.B.

In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. The preliminary injunction must be the only way of protecting the plaintiff from harm. See e.g., Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S. Ct. 1798, 1803, 72 L. Ed. 2d 91 (1982); Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356 and n. 9 (3d Cir. 1980).

Instant argues that without the preliminary injunction entered by the district court "Instant's business will be completely destroyed, its employees and jobs will be lost and its goodwill and business reputation will be ruined.... Instant will be forced to lay off most, if not all, of its 70 employees and will lose everything it has built over the past two decades."

The crucial issue in determining whether the district court abused its discretion in finding irreparable injury in this case is the question of whether money damages provide an adequate remedy at law to Instant. The Supreme Court, in speaking to the standards for granting preliminary injunctions, has noted:

[I]t seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.... 'The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.' (emphasis in original).

Sampson v. Murray, 415 U.S. 61, 90, 94 S. Ct. 937, 953, 39 L. Ed. 2d 166 (1964) (quoting Virginia Petroleum Jobbers Assn. v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958)). As we stated in Arthur Treacher's: " [W]e have never upheld an injunction where the claimed injury constituted a loss of money or loss capable of recoupment in a proper action at law." Id. at 1145. In Frank's GMC, 847 F.2d 100 (3d Cir. 1988) we found that " [t]he availability of adequate monetary damages belies a claim of irreparable injury." Id. at 102.

The bottom line in this case, as in Frank's GMC, centers on the loss of money which Instant will suffer as a result of the contract termination. Here the monetary damages which Instant alleges it is suffering are capable of ascertainment and award at final judgment if Instant prevails. These money damages will fully compensate Instant for its losses. See Arthur Treacher's, 689 F.2d at 1146. As we stated in Morton v. Beyer, 822 F.2d 364 (3d Cir. 1987), "although we are not insensitive to the financial distress suffered by [the plaintiff], we do not believe that loss of income alone constitutes irreparable harm."⁷  In determining whether a remedy in damages for a breach of contract would be adequate the following circumstances are significant: "(a) the difficulty of proving damages with reasonable certainty, (b) the difficulty of procuring a suitable substitute performance by means of money awarded as damages, and (c) the likelihood that an award of damages could not be collected." Restatement (Second) of Contracts Sec. 360 (1981).

Money damages in this case should be provable with reasonable certainty given the lengthy history of the two companies' association and the more than two years already performed under the contract. Any damage to Instant is susceptible of precise measurement in light of the volume of freight Instant has handled for C.F. over the period of the contract. If C.F. in fact provides eighty percent of Instant's business, as Instant maintains, the calculation of the damage to Instant which results from the breach of the last two years of the contract would seem to admit of a ready mathematical computation. Suitable substitute performance by means of money awarded as damages can compensate Instant fully for its lost profits and other injuries it may prove. There is certainly no question that an award of damages would be collectable. C.F., as Instant has emphasized, is a corporation with annual revenues of more than one billion dollars. Thus, in considering significant factors to be weighed in deciding whether damages at law are adequate in the case of a breach of contract, we conclude that each factor points to the adequacy of money damages.

The only question which remains then, is whether, despite the adequacy of money damages there, nonetheless, is irreparable injury since Instant may no longer be in existence to collect any money damages it is awarded. The district court's determination that Instant will be forced to shut down is not supported by any financial statements or projections in the record indicating that Instant will be forced into bankruptcy. Instant still maintains twenty percent of its business. It is entirely free and always has been free to secure other business. The contract with C.F. will terminate in less than nineteen months in any case. We therefore conclude that the district court abused its discretion in finding Instant likely to cease its existence and thereby suffer irreparable injury.

In Morton we found that there was a likelihood of success on the merits in the case of a government employee terminated without pay. However, we concluded that there was no irreparable harm present despite the fact that the employee in question was "someone who lives, in effect, on his salary." The district court had determined that deprivation of that salary would be "economically irreparable and c [ould] not be cured by giving the money back at a subsequent date." 822 F.2d at 372.

In Frank's GMC we noted that loss of the market segment in question there amounting to some twenty-six percent of Frank's GMC's profits, "does not place its continued business survival in serious jeopardy." Id. at 102, n. 4.

In Arthur Treacher's, which we believe controls the instant case, Arthur Treacher's sought a preliminary injunction which would require one of its franchisees to pay $200,000 in past due and current royalties before trial. The district court concluded that Arthur Treacher's would be irreparably harmed without such relief. The district court reasoned:

All parties agree that the royalties are the "lifeblood of a franchise system." Without these royalties, Arthur Treacher's cannot exist. It has been represented to the court that the company is on the verge of bankruptcy ... The court finds that continued non-payment of royalties pending litigation will inescapably result in the destruction of Arthur Treacher's and this without more, warrants a finding of irreparable harm pendente lite absent the mandatory injunction. If Arthur Treacher's ultimately prevails at trial, any award of money damages could hardly compensate if it is bankrupt and without a franchise system which took years to develop.

Id. at 1141 (quoting district court). We found that the district court had erred as a matter of law in finding irreparable injury for two reasons. First, the individual franchisee in that case could not, in and of itself, cause Arthur Treacher's bankruptcy. Second, "the record which consists primarily of general statements pertaining to the refusal of all franchisees to pay royalties is insufficient in any event to support a finding that Arthur Treacher's was on the verge of bankruptcy, let alone that it was suffering irreparable injury from A and B's individual action." Id. at 1146 (emphasis added). In the instant case we likewise have no clear factual record apart from general statements to the effect that Instant will no longer exist as a result of the termination. As in Arthur Treacher's we find these insufficient to demonstrate irreparable harm.

If this were a case where the public interest was directly affected, our consideration might be different. As the Supreme Court has observed, "parts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved." Virginian Ry. Co. v. System Fed'n No. 40, 300 U.S. 515, 552, 57 S. Ct. 592, 601, 81 L. Ed. 789 (1937). This is especially the case where the public interest in question has been formalized in a statute. See Government of Virgin Islands, Dept. of Conservation and Cultural Affairs v. Virgin Islands Paving, 714 F.2d 283, 286 (3d Cir. 1983). We have previously held that a statutory provision authorizing preliminary injunctive relief upon a showing of probable cause to believe that the statute is being violated may be considered a substitute for a finding of irreparable harm for purposes of a preliminary injunction issued under Rule 65. See Id. at 286.

With regard to the public interest analysis Instant has not cited to us nor have we located any New Jersey statute concerning the regulation of business dislocations which might indicate a determination by the New Jersey legislature of a public policy which C.F. has violated.

Nor is there any allegation of a federal antitrust violation which would provide a public interest rationale for an injunction. In Bateman v. Ford Motor Co., 302 F.2d 63, 66 (3d Cir. 1962), we noted that "A judgment for damages acquired years after his franchise has been taken away and his business obliterated is small compensation to one, who as here, has had a Ford franchise since 1933." Id. at 66. See also Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir. 1970) ("The right to continue the business in which William Semmes has engaged for 20 years and into which his son had recently entered in not measurable entirely in monetary terms; the Semmes want to sell automobiles, not to live on the income from a damage award."). Bateman, however, involved a preliminary injunction granted in the context of an alleged antitrust violation. An antitrust violation was also at the center of Bergen Drug Co. v. Parke Davis & Company, 307 F.2d 725 (3d Cir. 1962), also cited by Instant. The concern in both these cases was to maintain the status quo while the antitrust litigation was pursued. In the case before us no such antitrust violation has been asserted.

In Systems Operations Inc. v. Scientific Games Dev. Corp., 555 F.2d 1131 (3d Cir. 1977) we found that a district court commits reversible error when it fails to require the posting of a bond by the successful applicant for a preliminary injunction.⁸  Id. at 1145. See also Frank's GMC, 847 F.2d at 103.

In response to C.F.'s request for a one million dollar bond, counsel for Instant argued to the district court:

The defendant is a multi-billion dollar company.

....

Could my client put up a million dollars? I really don't know that this company has that kind of security to furnish to a surety company in order to permit the surety company to write the bond. A quarter of a million dollars is a lot of money. If we had that, yes, we would have the wherewithal to put up a very large bond, and that is a tremendous premium to pay. That the defendant has it, and let the defendant continue to sit were [sic] that money.

It is true that a bond may create a barrier to the granting of a preliminary injunction. The barrier fulfills one of the purposes of the bond requirement.

Requiring plaintiff to post a bond departs from the usual American approach of keeping the cost of litigation down to encourage people to resort to courts. The bond grows out of the idea that because of attenuated procedure, an interlocutory order has a higher than usual chance of being wrong. Bonds are common for pre-judgment remedies like attachment, garnishment and replevin. The bond deters rash applications for interlocutory orders; the bond premium and the chance of liability on it causes plaintiff to think carefully beforehand. An incorrect interlocutory order may harm defendant and a bond provides a fund to use to compensate incorrectly enjoined defendants.

O. Fiss and D. Rendleman, Injunctions 383 (1984).

Rule 65.1 of the Federal Rules of Civil Procedure requires that security given pursuant to Rule 65 be

given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as the sureties agent upon whom any papers affecting the sureties liability on the bond or undertaking may be served. The sureties liability may be enforced on motion without the necessity of an independent action.

These requirements were not met in the arrangement approved by the district court pursuant to which C.F. would maintain in its possession the $220,000 of liquidated damages which it acknowledged was owed to Instant.

It is generally settled that, with rare exceptions, a defendant wrongfully enjoined has recourse only against the bond. As the Supreme Court has stated "A party injured by the issuance of an injunction later determined to be erroneous has no action for damages in the absence of a bond." W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, Corp. Linoleum and Plastic Workers, 461 U.S. 757, 770 n. 14, 103 S. Ct. 2177, 2185 n. 14, 76 L. Ed. 2d 298 (1983). See also Adolf Coors Co. v. A & S Wholesalers Inc., 561 F.2d 807 (10th Cir. 1977); Buddy Systems Inc. v. Exer-Genie, Inc., 545 F.2d 1164 (9th Cir. 1976), cert. denied, 431 U.S. 903, 97 S. Ct. 1694, 52 L. Ed. 2d 387 (1977). Where a bond is denied, as it was in the case before us, the party against whom the injunction issues is limited in seeking a remedy if they win on the merits.⁹  Furthermore, the bond serves to inform the plaintiff of the price they can expect to pay if the injunction was wrongfully issued.

We need not determine whether a remand on the bond issue requiring the district court to impose a bond would cure the bond problem in this case since we have independently found that the irreparable harm necessary for the grant of the injunction was lacking.

We conclude that Instant did not meet its affirmative burden of showing irreparable injury. Therefore, the district court improvidently granted the preliminary injunction. Furthermore, the district court erred in issuing the preliminary injunction without requiring Instant to post a bond. For the foregoing reasons, we will reverse and remand with instructions to vacate the preliminary injunction.

SEITZ, Circuit Judge, dissenting.

My essential difference with the majority is based on my view that the district court did not abuse its discretion in finding irreparable harm on this record.

On this appeal from an order granting a preliminary injunction, the first critical issue to be addressed here, as the majority notes, is whether Instant showed a reasonable probability of ultimate success on the merits of the legal issue presented.

It is certainly reasonable to interpret Article Eighth to mean that the Agreement would not necessarily terminate with the closing of the terminal. That reading is necessarily implied in the very language of Article Eighth. Since other provisions of the agreement and evidence of record can be read to support a conclusion that the closing would not terminate the agreement, I agree with the majority that the "probability of success" requirement was met.

If Article Eighth is inapplicable and there was a breach of other provisions of the contract, it must then be determined whether Instant has an adequate remedy at law for damages or whether it has shown irreparable harm cognizable in equity. See Fleischer v. James Drug Stores, 1 N.J. 138, 62 A.2d 383 (1948); First National State Bank v. Commonwealth Federal Savings and Loan Ass'n, 610 F.2d 164 (3d Cir. 1979) (applying New Jersey law).

It is at this point that I part company with the majority. The majority states that Instant failed to make a showing of irreparable harm and thus limits plaintiff's relief to damages. The district court found to the contrary and I believe its conclusion is supported by this record.

In an unchallenged affidavit of Instant's president, it is stated:

15. The transportation and related services provided by Instant to CFAF pursuant to the Agreement accounts for approximately 80% of Instant's entire business. In order to service the needs of CFAF under the Agreement, Instant employs approximately 70 workers, including 64 current full-time employees and more than 100 employees during the Christmas season. The great majority of Instant's employees are skilled drivers, warehouseman and cargo handlers with many years of experience in the air freight industry. Instant's employees work six days per week, 24 hours per day in three overlapping 10-hour shifts, in order to effectuate the transport of approximately 60,000 pounds of CFAF cargo per night, including emergency medical supplies and equipment. Instant owns and operates approximately 44 trucks and vans, as well as trailers, including recently acquired vehicles at substantial cost and purchased to service CFAF's needs under the Agreement.

16. With approximately two years remaining to the term of the Agreement, and millions in revenues anticipated to be received from CFAF during that time, the loss of CFAF's business would effectively destroy Instant and wreak havoc upon Instant's employees and their families. Notwithstanding the express obligations of CFAF under the Agreement, including Instant's right of first refusal, CFAF is attempting to terminate the Agreement by transferring all its business into the Emery system, thereby effectively putting Instant out of business virtually overnight.

The quoted historic facts and the reasonable inference to be drawn therefrom were relied on by the district court. They can only be overturned if they are clearly erroneous. F.R.Civ.P. 52(a). Since no countervailing facts were offered by defendant, Air Freight, I certainly am not left with the definite and firm conviction that a mistake was committed by the district court. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948). Nor, to the extent the finding of irreparable harm implicates a question of law based on the facts, do I find any error.

I therefore believe that the district court did not abuse its discretion in concluding that injunctive relief was warranted. Several provisions of the agreement quoted by the majority fully permit the conclusion that Instant was entitled to receive the agreed portions of Air Freight's business regardless of the closing of the terminal. Certainly that is the understanding of Article Eighth of the agreement expressed in the affidavit of Instant's President. Furthermore, Instant might well be able to look to other sources to try to save its business if reasonable time is available to permit it to carry on its enterprise elsewhere. On this record the district court was justified in concluding that money damages are not an adequate measurement of the potential loss of good will.

Finally, I address the majority's alternative holding that the district court committed error when it failed to require the plaintiff to provide the appropriate security under Fed. R. Civ. P. 65(c). I agree with this conclusion insofar as it goes. The majority went on to note that it need not decide whether a remand would be appropriate in this case because it determined that the irreparable harm necessary for the grant of the preliminary injunction was lacking.

Since I find no legal infirmity with the preliminary injunction, I would reach the issue set aside by the majority and remand this case to the district court. The purpose of the remand would be to permit the district court to conduct an appropriate adversary hearing to determine what security should be fixed in light of the established requirements of Fed. R. Civ. P. 65(c).