United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
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
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.
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.
West Virginia Code § 38-7-1
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
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 §
Federal Rule of Civil Procedure 65
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).
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.
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