DANTZLER INC v. HUBERT MOORE LUMBER COMPANY INC et al

Filing 27

ORDER denying 18 Motion for TRO. Ordered by Judge Hugh Lawson on 6/5/2013. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

DANTZLER, INC.,
Plaintiff,
v.

Civil Action No. 7:13-CV-56 (HL)

HUBERT MOORE LUMBER COMPANY,
INC., WILBUR STANLEY MOORE,
individually and as guarantor, NORMA
MOORE GASKINS, individually and as
guarantor, JOAN MOORE DRAWDY,
individually and as guarantor, and
DUPONT PINE PRODUCTS, LLC,
Defendants.

ORDER
This case is before the Court on Plaintiff’s Motion for Temporary
Restraining Order and Preliminary Injunction (Doc. 18). A preliminary injunction
hearing was held on June 4, 2013.1 After hearing evidence and argument, the
Court denied the motion from the bench. This written order memorializes that
ruling.
Plaintiff’s motion for injunctive relief was filed in this Court on May 24,
2013. Plaintiff initially requested a preliminary injunction pursuant to Federal Rule
1

While the motion also requested a temporary restraining order, the June 4 hearing
was intended to be a preliminary injunction hearing, and counsel for Plaintiff stated at
the hearing that Plaintiff was at that time requesting a preliminary injunction. The Court
will only refer to the preliminary injunction request in this Order. For all intents and
purposes the temporary restraining order request is moot.

of Civil Procedure 65 enjoining Defendant Hubert Moore Lumber Company
(“HMLC”), Defendants Stanley Moore, Norma Moore Gaskins, and Joan Moore
Drawdy, and Defendant DuPont Pine Products from closing on the purchasing
agreement, transferring the tangible or intangible assets of the HMLC sawmill, or
otherwise encumbering those assets, until a trial on the merits is held. However,
during a telephone conference on May 30, 2013, counsel for Defendants
informed the Court and Plaintiff that the HMLC sawmill and associated assets
were sold to Defendant DuPont Pine Products in March of 2013. A warranty deed
and bill of sale reflecting the transfer are in the record.2 In light of the sale, the
nature of Plaintiff’s injunctive relief request necessarily shifted. In Plaintiff’s prehearing brief, and when questioned by the Court at the hearing, Plaintiff’s
counsel stated that Plaintiff was now seeking preliminary injunctive relief in the
form of a mandatory injunction that would unwind the March sale and restore the
status quo as it existed before the lease agreement was entered into between
HMLC and DuPont Pine Products in November of 2012. Accordingly, Plaintiff’s
request must be considered by the Court with greater scrutiny because the
burden for a movant requesting a mandatory injunction is higher than for a
movant requesting a standard preliminary injunction.
2

The fact the sawmill has already been sold to a third party distinguishes this case from
Mercedes-Benz USA, LLC v. Star Automobile Co., No. 3:11-CV-73 (CAR), 2011 WL
2175037, at *1 (M.D. Ga. June 3, 2011), an unreported case decided by another judge
in this district.
2

A mandatory injunction requires a defendant to do some positive act, as
opposed to a standard preliminary injunction where a defendant is ordered to
stop doing something or not to do something. While mandatory injunctions are
available under Rule 65, they are rarely issued and are generally not favored in
the Eleventh Circuit. “Mandatory injunctions are to be sparingly issued and [only]
upon a strong showing of necessity and upon equitable grounds which are
clearly apparent.” Fox v. City of W. Palm Beach, 383 F.2d 189, 194 (5th Cir.
1967).3 “A mandatory injunction . . . especially at the preliminary stage of
proceedings, should not be granted except in rare instances in which the facts
and law are clearly in favor of the moving party.” Miami Beach Fed. Sav. & Loan
Ass’n v. Callander, 256 F.2d 410, 415 (5th Cir. 1958). With these edicts in mind,
the Court will now turn to the test for preliminary injunctive relief.
The issuance of a preliminary injunction is an extraordinary and drastic
remedy that should not be granted unless the movant clearly carries its burden
on each of [four] prerequisites. Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th
Cir. 2011) (citations omitted). Plaintiff has the burden of persuasion for each of
the four factors, and failure to establish any of the four factors is fatal to a request
for a preliminary injunction. Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade
3

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to October 1, 1981.

3

County Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009). The four prerequisites
are: “(1) a substantial likelihood of success on the merits; (2) that irreparable
injury will be suffered if the relief is not granted; (3) that the threatened injury
outweighs the harm the relief would inflict on the non-movant; and (4) that the
entry of the relief would serve the public interest.” Schiavo ex rel. Schindler v.
Schiavo, 403 F.3d 1223, 1225-28 (11th Cir. 2005).
As stated at the hearing, the Court finds that Plaintiff has not satisfied any
of the prongs of the preliminary injunction test. First, the evidence presented did
not demonstrate a substantial likelihood of success for Plaintiff on the merits of
its claims. Of course, that is not to say that Plaintiff will not ultimately be
successful in the case, but at this point the Court cannot find that Plaintiff has
shown a substantial likelihood of success. Second, the evidence presented did
not support the proposition that irreparable injury would be suffered if the
requested relief was not granted. Instead, it appears at this time that Plaintiff can
be made whole through monetary damages. In other words, Plaintiff has an
adequate remedy at law, which means there is no reason for the Court’s
equitable powers to come into play. Again, this may change as Plaintiff has
requested permanent injunctive relief, but at this stage equitable relief is not
appropriate.4 Third, the evidence was incomplete on the issue of whether the
4

The Court also considers delay in assessing irreparable harm. M&G Elecs. Sales
Corp. v. Sony Kabushiki Kaisha, 250 F.Supp.2d 91, 105 (E.D.N.Y. 2003) (quoting Tom
4

threatened injury outweighs the harm the relief would inflict on the Defendants.
Finally, there was little or no evidence as to whether the entry of the relief would
serve the public interest, and counsel’s argument on the point was not
persuasive. Because Plaintiff cannot meet all four prongs of the preliminary
injunction test, its request for such relief must be denied.
A plaintiff seeking a mandatory injunction has a particularly heavy burden
of persuasion. Plaintiff in this case has not met that high burden. Therefore,
Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction
(Doc. 18) is denied.
SO ORDERED, this the 5th day of June, 2013.
s/ Hugh Lawson_______________
HUGH LAWSON, SENIOR JUDGE

mbh

Doherty Assoc., Inc. v. Saban Entm’t, Inc., 80 F.3d 27, 39 (2d Cir. 1995)). The timeline
of events in this case raises questions as to whether there truly was a sense of urgency
on the part of Plaintiff to protect itself from irreparable harm. Plaintiff filed a lawsuit in
Florida in November of 2012 and approximately one week later filed a motion for
injunctive relief. The hearing on that motion was put off for three months, and when it
was supposed to take place, Plaintiff voluntarily agreed to dismiss its motion for
injunctive relief. Plaintiff then waited over a month to file its lawsuit in this Court, even
after being notified in writing a month earlier that the sawmill had been conveyed to
DuPont Pine Products. (And as an aside, there is nothing “obtuse” about the March 21
letter in the Court’s opinion.) Plaintiff then waited yet another month to file its motion for
injunctive relief. For harm to be irreparable, it has to be “actual and imminent.” Siegel v.
LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (citation omitted). When the entirety of
Plaintiff’s actions is considered, it indicates an absence of actual and imminent harm.
5