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Applied Partners, Inc. v. Liquasol, LLC

United States District Court, S.D. West Virginia, Charleston Division

January 29, 2018

APPLIED PARTNERS, INC.,
v.
LIQUASOL, LLC, et al.,

          MEMORANDUM OPINION AND ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE.

         Pending before the court is Plaintiff's Application for a Preliminary Injunction [ECF No. 5]. The defendants filed a response [ECF No. 7]. This matter is now ripe for adjudication. For the following reasons, the Motion is DENIED.

         I. Background

         On January 12, 2018, the plaintiff filed this action pursuant to a contract it entered into with the defendants. See Compl. [ECF No. 1]. According to the plaintiff, the defendants are currently harvesting and selling timber, and the plaintiff is entitled to receive 50% of the profits from this enterprise pursuant to their contract. Id. ¶¶ 9-11. On January 19, 2018, the plaintiff filed an application for an attachment and preliminary injunction against the defendants. Pl.'s Appl. for Prelim. Inj. 1-5 [ECF No. 5]. The plaintiff requests that the court enter an order restraining and enjoining the defendants from spending or dissipating any of the proceeds from the sale of the timber, and require the remission of all proceeds from the sale of the timber to a receiver appointed by the court until the resolution of this matter. Id. at 5-6.

         II. Discussion

         In its motion, the plaintiff argues that it is entitled to: (1) an attachment pursuant to West Virginia Code § 38-7-1, and (2) a preliminary injunction pursuant to Federal Rule of Civil Procedure 65. Id. 1-5.

         a. West Virginia Code § 38-7-1

         Under Federal Rule of Civil Procedure 64, “every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment.” West Virginia Code § 38-7-1 allows plaintiffs to receive an order of attachment against defendants before a judgment in certain circumstances. The section provides that to have any property seized, the plaintiff must file

with the clerk of the court in which such action . . . is brought, his own affidavit or that of some credible person, stating the nature of the plaintiff's claim and the amount, at the least, which the affiant believes the plaintiff is justly entitled to recover . . . and also that the affiant believes the plaintiff is justly entitled to recover in the action . . . and also that the affiant believes that some or more of the grounds mentioned in the next following section of this article exist for such attachment.

W. V. Code § 38-7-1. The plaintiff did not submit an affidavit with his motion. Therefore, he is not eligible to receive an attachment pursuant to West Virginia Code § 38-7-1.

         b. Federal Rule of Civil Procedure 65

         Federal Rule of Civil Procedure 65 governs preliminary injunctions. A preliminary injunction is an extraordinary remedy intended to protect the status quo and prevent irreparable harm during the pendency of a lawsuit.” Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017). Plaintiffs “must overcome the presumption that a preliminary injunction will not issue when the harm suffered can be remedied by money damages at the time of judgment.” Id. “The reluctance to award preliminary injunctions where the harm at issue can be remedied by an award of money damages at judgment arises out of the concerns raised by the preliminary injunction remedy.” Hughes Network Sys., Inc., v. InterDigital Commc'n Corp., 17 F.3d 691, 693 (4th Cir. 1994). “[G]ranting a preliminary injunction requires that a district court, acting on an incomplete record, order a party to act, or refrain from acting, in a certain way. The danger of a mistake in this setting is substantial.” Id. (quoting Am. Hosp. Supply Corp. v. Hosp. Prods., Ltd., 780 F.2d 589, 593 (7th Cir.1986)) (internal quotation marks omitted).

         The United States Supreme Court and the United States Court of Appeals for the Fourth Circuit have provided district courts with a precise analytical framework for determining whether to grant preliminary relief. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 346-47 (4th Cir. 2009), vacated on other grounds, 130 S.Ct. 2371 (2010). First, the plaintiffs must make a clear showing that they are likely to succeed on the merits. The Real Truth About Obama, Inc., 575 F.3d at 346. Second, the plaintiffs must make a clear showing that they are likely to be irreparably harmed absent preliminary relief. Id. Third, the plaintiffs must show that the balance of equities tips in their favor. Id. Finally, the plaintiffs must show that an injunction is in the public interest. Id. All four requirements must be satisfied. Id.

         As to the second element, that the movant is likely to suffer irreparable harm, “[t]he key word . . . is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough.” Hughes Network Sys., Inc., 17 F.3d at 694 (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)). The Supreme Court has explained that the injury must be more than speculative-it must be real and actual. Henderson v. Bluefield Hosp. Co., LLC, 208 F.Supp.3d 763, 770 (S.D. W.Va. 2016) (citing Winter, 555 U.S. at 22). “Bare allegations of what is likely to occur are of no value since the court must decide whether the harm will in fact occur.” Id. (quoting Wisconsin Gas Co. v. Fed. Energy Regulatory Comm'n, 758 F.2d 669, 758 ...


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