The test for granting a preliminary injunction has been often restated; its core has changed little in recent decades. In order to secure a preliminary injunction, a movant must, barring circumstances not involved here, establish (a) irreparable harm and (b) either (1) likelihood of success on the merits, or (2) fair ground for litigation and a balance of hardships tipping decisively in favor of the movant. ICN Pharmaceuticals, Inc. v. Khan, 2 F.3d 484, 1993 U.S. App. LEXIS 21649, (2d Cir. 1993), slip op at 5605; Plaza Health Lab, 878 F.2d 577, 580 (2d Cir 1989); Jackson Dairy v. HP Hood & Sons, 596 F.2d 70, 72 (2d Cir 1979); Triebwasser & Katz v. AT&T, 535 F.2d 1356 (2d Cir 1976); see Silberman, Injunctions by the Numbers: Less Than the Sum of Its Parts, 63 Chi-Kent L Rev 279 (1987).
I do not find that plaintiffs have established either likelihood of success on the merits or a balance of hardships tipping decisively in their favor.
Exxon's principal ground for termination of plaintiffs' Exxon franchise was use of Exxon trademarks to sell other gasoline. Under 15 USC 2802(b)(2)(C) and 2802(c)(10), "willful mislabelling or misbranding of motor fuels or other trademark violations" are sufficient cause for termination under the relevant circumstances.
Exxon also relies on sales of other gasoline in ways that might confuse the public, such as placing those other gasolines in pumps with Exxon's name on them, as a ground for termination pursuant to 15 USC 2082(b)(2)(A), based on a contractual provision prohibiting such behavior. See HRH Service Station v. Exxon, 591 F. Supp. 25, 26 (SDNY 1983).
The individual plaintiff's initial affidavit of May 26, 1993 states that during November 1992, plaintiffs received a partial load of gasoline which had been refused by a dealer on Montvale, New Jersey unable to accommodate the load; the truck which made the delivery bore the name of T&R Transportation, an outside hauler, and also conspicuously bore an EXXON logo.
Exxon's territory manager's affidavit of June 14, 1993 states that Exxon never authorized less than full loads to be delivered to plaintiffs on this occasion or otherwise, and that plaintiffs received deliveries in November 1992 of 3,000, 3,000, 3,000 and 3,502 gallons whereas a full load is typically at least 9,000 gallons. This affidavit further asserts that the individual plaintiff conceded that some gasoline in Exxon pumps were "sort of Exxon deliveries."
Although plaintiffs filed a reply affirmation of their attorney and a much briefer one by the individual plaintiff, no invoices or receipts of any kind documenting the sources of the less-than-9,000 gallon deliveries were provided even after those were called into question.
No specific sworn denial of the statements attributed to the individual plaintiff was made even after Exxon's manager had asserted that such statements had been made. No assertion is made that non-EXXON gasoline was purchased and put into accurately identified non-EXXON pumps, thereby avoiding trademark infringement or violation of contract.
While I deny plaintiffs' motion for a preliminary injunction, I also deny Exxon's motion. Denial of the plaintiffs' motion automatically ends the agreed interim stay of Exxon's ability to terminate the plaintiffs' franchise. No evidence has been submitted indicating any irreparable injury to Exxon if it is required to pursue normal termination procedures should it elect to do so, including resort to state court if such steps as eviction (requested in its motion in this court) were to become necessary. It is my understanding that the station is not now in operation.
Where events with irrevocable effects which are difficult to unscramble are imminent, quick resolution on the merits can at times be crucial to the interests of all involved. That has already been achieved here insofar as Exxon's current ability to terminate plaintiffs' franchise is concerned.
Further relief at present is not exigent. This is not a case where, as in certain corporate control controversies, judicial relief to be meaningful must be complete and immediate as outlined in Piper v. Chris-Craft Industries, 430 U.S. 1, 42, 51 L. Ed. 2d 124, 97 S. Ct. 926 (1977), quoting Electronic Specialty Co. v. International Controls, 409 F.2d 937, 947 (2d Cir 1969); see Laycock, The Death of the Irreparable Injury Rule, 103 Harv L Rev 687 (Jan. 1990).
There is obviously no risk that misconduct by plaintiffs will put Exxon out of business, which might suffice to show irreparable injury. John B Hull, Inc. v. Waterbury Petroleum Products, 588 F.2d 24, 29 (2d Cir 1978), cert. denied 440 U.S. 960, 59 L. Ed. 2d 773, 99 S. Ct. 1502 (1979).
I have considered Exxon's application for injunctive relief against trademark infringement, but at this juncture perceive no indication that whatever wrongdoing may have occurred is continuing or is likely to recur, given Exxon's ability to terminate the franchise.
I have considered combining the parties' motions for preliminary injunctions with an expedited trial on the merits pursuant to Fed.R.Civ.P. 65(a)(2). This would, however, compel continuance of the franchise for what might be a substantial period of discovery, during which risk of trademark infringement might arise or the property be vacant with harm to all parties.
Dated: White Plains, New York
September 13, 1993
VINCENT L. BRODERICK, U.S.D.J.