Permobil Ltd. v. Moxi Enterprises, LLC

Filing 58

ORDER granting #42 Motion for Preliminary Injunction. See Order for further details. Signed by Magistrate Judge Anthony E. Porcelli on 5/9/2022. (BMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PERMOBIL LTD.,
Plaintiff,
v.

Case No. 8:22-cv-807-AEP

MOXI ENTERPRISES, LLC,
Defendant.
/
ORDER
This matter comes before the Court on Plaintiff Permobil, Ltd.’s
(“Permobil”) Amended Motion for Preliminary Injunction (Doc. 42) and
Defendant Moxi Enterprises, LLC’s (“Moxi”) response in opposition thereto (Doc.
46). The undersigned conducted a hearing on the Amended Motion for Preliminary
Injunction on May 2, 2022. For the reasons that follow, the Motion for Preliminary
Injunction is granted.
I.

Background

Permobil brought this action for injunctive relief, damages for breach of
contract, and tortious interference (Docs. 1-1 & 35). Permobil seeks an injunction
precluding Moxi from selling or distributing any product identified on its exclusive

distribution list with Permobil to any other distributor in Canada, including Blake
Medical. 1
On or about January 1, 2021, Permobil and Moxi entered into an exclusive
Distribution Agreement, whereby Permobil was the exclusive distributor of certain
Moxi products throughout Canada (Doc. 35-1). The products governed by the
Agreement are listed at the Distributions Agreement’s Exhibit A (Doc. 35-1, at 10).
Permobil employs a sales force throughout Canada, which educates and trains
customers (retailers, distributors, and end users) about the unique aspects of its
products, including Moxi products.
In the summer of 2021, pursuant to the Distribution Agreement, Moxi
implemented a 43% price increase on its products sold to Permobil. Alternatively,
Moxi requested Permobil provide a quarterly guarantee of sales for its products at a
10% price increase rather than the 43% price increase or terminate the contract, to
which Permobil declined, choosing instead to continue to distribute Moxi products
throughout Canada at the 43% price increase with no sales guarantee. Permobil
notified Moxi that it would, and did, pass the 43% price increase on to Permobil’s
customers. In late 2021, Moxi then entered into a verbal “handshake” agreement
with Blake Medical, a Canadian company, to allow for Blake Medical to distribute
Moxi products. Moxi sold products to Blake Medical at a 10% price increase rather
than the 43% price increase to Permobil, thereby allowing Blake Medical to

The Court analyzed the Distribution Agreement, which invokes Canada law. Moxi
argues that Missouri law should apply, but the parties all agree that for purposes of this
injunction, the choice of law (Canada, Missouri, or Florida) would not change the result.

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undercut Permobil’s pricing. At the hearing, Permobil’s Senior Vice President of
Sales, Todd Walling, testified to the damage done to Permobil’s good will with its
customers, with Blake Medical’s sales of Moxi products at a significantly lower
price.
II.

Standard of Review

“The purpose of a preliminary injunction is merely to preserve the relative
positions of the parties until a trial on the merits can be held.” Univ. of Texas v.
Camenisch, 451 U.S. 390, 395 (1981). “A district court may grant injunctive relief if
the movant shows the following: (1) substantial likelihood of success on the merits;
(2) irreparable injury will be suffered unless the injunction issues; (3) the threatened
injury to the movant outweighs whatever damage the proposed injunction may
cause the opposing party; and (4) if issued, the injunction would not be adverse to
the public interest.” McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.
1998). “A preliminary injunction is an extraordinary and drastic remedy not to be
granted unless the movant clearly establishes the ‘burden of persuasion’ as to the
four requisites.” All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d
1535, 1537 (11th Cir. 1989).
III.

Discussion

The first factor in determining whether a preliminary injunction should be
issued is whether Plaintiff can show a substantial likelihood it will prevail on the
merits of its claims. The admitted evidence by Moxi establishes that, as the record
stands before the Court, Permobil has a substantial likelihood of success on the

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merits on at least its claim for breach of contract. Despite the Distribution
Agreement calling for Permobil to be the sole distributor of Moxi products in
Canada until December 31, 2022, Moxi subsequently entered into an agreement
with Blake Medical which also allowed for Blake Medical to distribute Moxi
Products in Canada. There was no evidence that Permobil has failed to use its
reasonable best efforts or that its decision to pass the 43% price increase to its
customers was a violation of the Distribution Agreement.
The second factor in determining whether a preliminary injunction should be
issued is whether the party seeking a preliminary injunction has established it will
suffer irreparable harm unless the injunction is issued. The Court finds, through
evidence so presented, the damage sustained to Permobil’s good will and reputation
(if any) based on Blake Medical’s sale of Moxi products is difficult to quantify, such
that monetary damages simply relating to the lost sale of Moxi products cannot be
established. The Court finds that irreparable harm to Permobil is established.
The third factor in determining whether a preliminary injunction should be
issued is whether the threatened harm to the moving party outweighs the potential
harm the proposed injunction may cause the opposing party if the injunction is
issued. The injury to Permobil is established above. Moxi claims that if it continues
to receive fewer purchases from Permobil it may be forced to go out of business or
file for protection of bankruptcy. The evidence established that Moxi is capable of
financially continuing at a 10% price increase, rather than the 43% price increase,
because it so agreed with Blake Medical. Further, the requirement that Permobil

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“guarantee” a quarterly sales quota is not part of any written guarantee from Blake
Medical. Therefore, the threat of damage to Moxi is not established. The Court
finds that the balance of harms weighs in favor of Permobil at this time. However,
should circumstances change regarding the parties’ implicit obligations to operate
in good faith in performance of the Distribution Agreement, the Court will certainly
entertain any new evidence provided to it which may bear on the balance of harms
factor.
The fourth factor in determining whether a preliminary injunction should be
issued is if issued, the injunction would not disserve or be adverse to the public
interest. The public’s interest is established by the enforcement of valid and
enforceable contracts. As a result, the Court finds, at this point in time, that the
public interest weighs in favor of granting the injunction.
As noted, a preliminary injunction is an extraordinary remedy to be used only
when a moving party carries its burden as to the four prerequisites. See All Care
Nursing Serv., Inc., 887 F.2d at 1537. Based on the foregoing and for the reasons
stated at the hearing, the Court finds that Plaintiff carried its burden in this instance.
Accordingly, it is hereby
ORDERED:
1.

Plaintiff’s Amended Motion for Preliminary Injunction (Doc. 42) is

GRANTED.
2.

Moxi Enterprises, LLC is prohibited from utilizing any other

distributor other than Permobil, Ltd. to sell the products listed at Exhibit A to the

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Parties’ Distribution Agreement (Doc. 35-1) in Canada up to and including
December 31, 2022, or through the conclusion of this case, whichever is earlier.
DONE AND ORDERED in Tampa, Florida, on this 9th day of May, 2022.

cc:

Counsel of Record

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