peace." (Smith Dep. at 41; John Barrett Dep. at 66).
John then went to get his wife. When Lynne arrived on the scene she attempted to show Officer Durant papers regarding their right to the truck. (Durant Dep. at 16; Barrett Aff. P 12). Officer Durant responded that this was a civil matter in which he could not get involved. (Durant Dep. at 17; Smith Dep. at 28). Soon thereafter, Harwood arrived on the scene. John and Harwood then became involved in an argument, during which John struck Smith. (John Barrett Dep. at 68-69; Durant Dep. at 18; Smith Dep. at 30). Officer Durant told John that if he struck Smith again, he would be arrested and placed in the squad car. (Lynne Barrett Dep. at 21-22; Durant Dep. at 19; Smith Dep. at 29).
Eventually, Smith asked John for the keys to the truck. (Smith Dep. at 30). John gave them to Smith voluntarily, the parties dispersed, and Smith towed the truck to his establishment. (Smith Dep. at 30, 55).
A. Standard for a Preliminary Injunction
In order to obtain a preliminary injunction, the plaintiffs must show (1) irreparable harm; and (2) either (a) likelihood of success on the merits, or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of hardships tipping in the movant's favor. Molloy v. Metropolitan Transp. Auth., 94 F.3d 808, 811 (2d Cir. 1996); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979).
A. Irreparable Harm
Courts in this Circuit have repeatedly held that "'perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.'" Borey v. National Union Fire Ins. Co., 934 F.2d 30, 34 (2d Cir. 1991) (quoting Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir. 1983)). The party seeking the preliminary injunction must demonstrate that "it is likely to suffer irreparable harm if equitable relief is denied." Borey, 934 F.2d at 34 (quoting JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990)) (emphasis in original). Hence, a mere possibility of irreparable harm is insufficient to justify the drastic remedy of a preliminary injunction. Borey, 934 F.2d at 34.
Plaintiffs point to the following in support of their argument that they will suffer irreparable harm if the injunction is not granted: (1) instead of making monthly payments of $ 300 to Harwood for the truck, they are now forced to lease a truck at a cost of $ 470 per week; (2) on information and belief, Harwood and Smith would not be able to satisfy a judgment against them; (3) plaintiffs believe that Harwood and Smith are using their truck with the likelihood of waste, damage and deterioration; and (4) the unconstitutional deprivation of their property. The second of these assertions assumes that the plaintiffs have a viable § 1983 claim. That issue is dealt with in the discussion of plaintiffs' likelihood of success on the merits, infra.
As to the relevance of the alleged due process violation, while some constitutional deprivations amount to per se irreparable harm, see, e.g., Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) ("loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury"), "the cases where courts have held that a constitutional deprivation amounts to an irreparable harm 'are almost entirely restricted to cases involving alleged infringements of free speech, association, privacy, or other rights as to which temporary deprivation is viewed of such qualitative importance as to be irremediable by any subsequent relief.'" Marano v. New York City Transit Authority, 1993 U.S. Dist. LEXIS 402, 1993 WL 17434 at *3 (E.D.N.Y.) (quoting Public Serv. Co. of New Hampshire v. Town of West Newbury, 835 F.2d 380, 382 (1st Cir. 1987)). Thus, plaintiffs' allegation of a due process deprivation, without more, does not establish irreparable harm. Marano, 1993 U.S. Dist. LEXIS 402, 1993 WL 17434 at *3; see also Church of Scientology of California v. United States, 920 F.2d 1481, 1488 (9th Cir. 1990), cert. denied, 500 U.S. 952, 114 L. Ed. 2d 711, 111 S. Ct. 2258 (1991).
As to the remaining assertions, plaintiffs overlook the general rule that "where monetary damages may provide adequate compensation, a preliminary injunction should not issue." Jayaraj v. Scappini, 66 F.3d 36, 39 (2d Cir. 1995). Plaintiffs themselves concede that their losses are specifically quantifiable, noting that they anticipate total economic losses of over $ 30,000 from the loss of access to their truck. (Pl. Mem. in Support at 9). They do not assert, for example, that they have been unable to carry on their business. Cf. New York State Trawlers Assoc. v. Jorling, 764 F. Supp. 24, 26 (E.D.N.Y.) (noting that loss of profits severe enough to drive party out of business can constitute irreparable harm), aff'd, 940 F.2d 649 (2d Cir. 1991).
The very measurability of the bulk of plaintiff's alleged losses -- i.e., the difference between the amount they must pay to lease a truck and the monthly payments they were making on the repossessed truck -- compels a finding that plaintiffs have not suffered damages that cannot adequately be compensated by a monetary award. See, e.g., Lower Manhattan Loft Tenants v. New York City Loft Board, 1997 U.S. Dist. LEXIS 2018, 1997 WL 86404, *6 (S.D.N.Y.) (no irreparable harm where plaintiffs' only loss -- the difference between replacement and depreciated value -- was "purely monetary and readily quantifiable"). Thus, plaintiffs have failed to establish the element of irreparable harm.
B. Plaintiffs Fail to Establish a Likelihood of Success on Their Federal Claim.
Additionally, plaintiffs fail to establish that they are likely to succeed on the merits of their § 1983 claim. Subject matter jurisdiction in this action is premised upon the existence of a federal question, see 28 U.S.C. § 1331, specifically plaintiffs' § 1983 claim that they were deprived of property in violation of the Fourteenth Amendment's due process guarantee. It is now axiomatic that "almost all of the constitutional protections of individual rights and liberties restrict only the actions of governmental entities." ROTUNDA, NOWAK & YOUNG, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 14.4 (1986). The Fourteenth Amendment itself "erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U.S. 1, 13, 92 L. Ed. 1161, 68 S. Ct. 836 (1948); see National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 191, 102 L. Ed. 2d 469, 109 S. Ct. 454 (1988); Rendell-Baker v. Kohn, 457 U.S. 830, 837, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982). Specifically, the Fourteenth Amendment's due process guarantee "can be violated only by conduct that may be fairly characterized as 'state action.'" Lugar v. Edmondson Oil Co., 457 U.S. 922, 924, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). Moreover, the "under color of law" requirement of § 1983 is virtually identical to the state action requirement of the Fourteenth Amendment. United States v. Price, 383 U.S. 787, 794 n.7, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966).
"At some point, as the police involvement becomes increasingly important, repossession by private individuals assumes the character of state action." Mann v. Hillsborough County Sheriff's Office, 946 F. Supp. 962, 967 (M.D.Fla. 1996). In the present case, there is no allegation that any state official effectuated the repossession. Nonetheless, courts have held that state action may be found where
the [police] officer assists in effectuating a repossession over the objection of a debtor or so intimidates him to refrain from exercising his legal right to resist a repossession. While mere acquiescence by the police to "stand by in case of trouble" is insufficient to convert a repossession into state action, police intervention and aid in the repossession does constitute state action.