Global Oil Tools, Inc. v. Expeditors International of Washington, Inc. et al

Filing 85

ORDER AND REASONS denying 70 Motion for Preliminary Injunction. Signed by Judge Sarah S. Vance on 1/2/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GLOBAL OIL TOOLS, INC.
VERSUS

CIVIL ACTION
NO. 16-16372

EXPEDITORS INTERNATIONAL OF
WASHINGTON, INC. ET AL.

SECTION “R” (1)

ORDER AND REASONS
Plaintiff Global Oil Tools, Inc. moves for a preliminary injunction. 1 For
the following reasons, the motion is denied.

I.

BACKGROUND
Plaintiff sells tools for oil and gas exploration. 2 In early 2016, plaintiff

was in negotiations to sell a large number of tools, worth $2.4 million, as well
as intellectual property to an overseas buyer. 3 In anticipation of this sale,
plaintiff packed these tools and intellectual property into two shipping
containers, and contracted with defendants Andrea Merzario, S.A. and
Expeditors International of Washington, Inc. (Expeditors) to arrange for the
shipment of these containers to Constanta, Romania. 4 Expeditors arranged

1
2
3
4

R. Doc. 70.
R. Doc. 70-1 at 2.
R. Docs. 82-16, 82-17; R. Doc. 70-1 at 2, 7.
R. Doc. 70-1 at 2-3; R. Doc. 82-17.

for the containers to sail from New Orleans on March 12, 2016, aboard a ship
operated by defendant Hapag-Lloyd (America), LLC.5

The containers

arrived in New Orleans from Houma, Louisiana on March 8,6 but plaintiff
(through Expeditors) requested that Hapag-Lloyd delay the trans-Atlantic
shipment for two weeks. 7
The containers were then scheduled to sail in late March aboard the
M/V BAVARIA. On March 22, plaintiff instructed Expeditors to delay the
shipment again. 8 Expeditors relayed this instruction to Hapag-Lloyd,9 but
Hapag-Lloyd failed to relay it to defendant Ports America Louisiana, L.L.C.
(Ports America), the stevedoring company responsible for loading containers
onto the M/V BAVARIA. 10 The ship, with plaintiff’s containers on board,
sailed on March 28. 11
After the ship sailed, plaintiff acquiesced in the discharge of its
containers at Constanta. 12 The containers arrived at Constanta on April 23,

R. Doc. 77-2.
R. Doc. 70-1 at 3.
7
R. Doc. 76-1 at 5-6.
8
R. Doc. 70-1 at 3-4.
9
Id. at 12.
10
R. Doc. 76-1 at 1-2.
11
Id. at 15. Hapag-Lloyd discovered the mistake on the same day, see
R. Doc. 70-1 at 17, and plaintiff learned of the mistaken shipment shortly
thereafter, id. at 18.
12
R. Doc. 70-1 at 5; R. Doc. 82-10. The containers were transshipped at
Cagliari, Italy. R. Doc. 70-1 at 33.
2
5

6

2016. 13

The bill of lading, issued by plaintiff on May 30, identifies

Romarftrans Group Srl. (RGS) as plaintiff’s intermediate consignee.14 RGS
is Andrea Merzario’s agent in Romania. 15 Acting through RGS, and pursuant
to plaintiff’s instructions, Andrea Merzario moved the containers to a
bonded storage facility in June 2016. 16 The sale of plaintiff’s tools and
intellectual property was never consummated, and the containers remain in
Constanta.
Plaintiff sued Expeditors and Zurich American Insurance Company
(Zurich), Expeditors’ liability insurer, on November 15, 2016, for damages
and declaratory relief.17 Plaintiff added Hapag-Lloyd, Ports America, and
Andrea Merzario as defendants on March 13, 2017.18 Several defendants
have filed cross-claims and counterclaims.
Plaintiff now moves for a preliminary injunction against all
defendants. 19 The motion first requests that the Court order defendants to

R. Doc. 70-1 at 33.
R. Doc. 76-1 at 16.
15
See R. Doc. 82-11 (letter of attorney authorizing RGS, on behalf of
Andrea Merzario, to represent plaintiff’s interests in Romania).
16
R. Docs. 82-13, 82-14.
17
R. Doc. 1.
18
R. Doc. 16. Plaintiff also sued, and later voluntarily dismissed, New
Orleans Terminal, LLC. See R. Doc. 41.
19
R. Doc. 70.
3
13

14

preserve and protect the containers and their cargo.20 Plaintiff also seeks to
enjoin defendants from interfering with the shipment of the containers back
to New Orleans. 21

II.

LEGAL STANDARD
A party may obtain a preliminary injunction only if: (1) there is a

substantial likelihood that the movant will prevail on the merits; (2) there is
a substantial threat that the movant will suffer irreparable harm if the
injunction is not granted; (3) the threatened injury to the movant outweighs
the potential injury to the defendant; and (4) the preliminary injunction will
not disserve the public interest. Guy Carpenter & Co., Inc. v. Provenzale,
334 F.3d 459, 464 (5th Cir. 2003). When evaluating whether the movant has
satisfied these requirements, the Court must remember that “[a] preliminary
injunction is an extraordinary remedy which courts grant only if the movant
has clearly carried the burden as to all four elements.” Id. Granting a
preliminary injunction is “the exception rather than the rule.” Miss. Power
& Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).

20
21

Id. at 13.
Id. at 14.
4

The central prerequisite for injunctive relief “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.” Id. at 629 (quoting 11A Wright &
Miller, Federal Practice and Procedure § 2948.1 (3d ed. 2017)). “In general,
a harm is irreparable where there is no adequate remedy at law, such as
monetary damages.” Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011).
This risk of harm must be “more than mere speculation,” id. at 601; “[a]
presently existing actual threat must be shown,” 11A Wright & Miller,
Federal Practice and Procedure § 2948.1. The Court has “no discretion to
grant [preliminary injunctive] relief absent an adequate showing of likely
irreparable harm.” Id.

III. DISCUSSION
The Court will not issue a preliminary injunction in this case because
plaintiff has made no showing of irreparable harm. Plaintiff asserts that
without a preliminary injunction, it faces the loss of over $2,000,000 in
inventory as well as its intellectual property. This loss, plaintiff avers, will
cause it to go out of business.22

22

R. Doc. 70-1 at 8.
5

First, plaintiff has not shown an injunction is necessary to preserve and
protect its property. There is no evidence that the property is at risk of
physical damage while warehoused in Romania. While some damage from
salinization was discovered during a limited inspection of the containers, this
damage occurred during transit—not at port. 23 There is also no evidence that
plaintiff’s intellectual property is at risk of misappropriation.

Plaintiff

therefore fails to show that irreparable harm is likely absent an injunction
mandating preservation and protection of its property.
Likewise, plaintiff has not shown an injunction is necessary to prevent
defendants from interfering with the shipment of the containers back to New
Orleans. Plaintiff asserts that defendants have “hijacked” its property and
now “demand a ransom for its return.”24 These assertions have no basis in
the record. As late as March 4, 2016, plaintiff communicated its intention to
ship the containers to Constanta, Romania later that month. 25 Plaintiff then
instructed Expeditors to hold the containers in New Orleans. 26 Expeditors
relayed this instruction to Hapag-Lloyd. 27 But Hapag-Lloyd neglected to tell
Ports America not to load the containers onto the M/V BAVARIA. After the

23
24
25
26
27

Id.
R. Doc. 70 at 10.
R. Doc. 82-6 at 1.
R. Doc. 70-1 at 3-4.
Id. at 12.
6

containers mistakenly sailed, plaintiff consented to their discharge in
Constanta.28 In June 2016, plaintiff instructed Andrea Merzario to move the
containers to a bonded storage facility in Constanta, where they remain.29
This chain of events shows that none of the defendants deliberately shipped
the containers without plaintiff’s approval. And once the mistaken shipment
was discovered, defendants did not move the containers anywhere without
plaintiff’s consent.
The containers and their cargo now appear to be in the possession of
RGS, Andrea Merzario’s agent in Romania and plaintiff’s intermediate
consignee.30 The containers are physically located in a bonded storage
facility operated by S.C. UMEX S.A. Constanta.31 There is no evidence that
any defendant is holding the containers “hostage,” as plaintiff asserts. 32
Neither is there any evidence that any defendant is interfering, or is likely to
interfere, with the shipment of the containers back to New Orleans.

Id. at 5; R. Doc. 82-10.
R. Docs. 82-13, 82-14.
30
R. Doc. 76-1 at 16; R. Doc. 82-11.
31
See R. Doc. 82 at 8; R. Doc. 82-15 (indicating that the containers were
inspected at the UMEX terminal in Constanta on June 30, 2016).
32
R. Doc. 70-4 at 4. Indeed, the only defendant that has any control
over the containers is Andrea Merzario.
7
28
29

It appears that the only source of disagreement among the parties is
the question of who should pay upfront for the return shipment.33 In
November 2017, the parties discussed dividing these costs among
themselves, but did not reach an agreement. 34 To the extent plaintiff seeks
to require defendants to contribute to the costs of shipment, such a
requirement is not an appropriate subject of injunctive relief. See Dennis
Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 279 (5th Cir. 2012)
(“Mere injuries, however substantial, in terms of money, time and energy
necessarily expended in the absence of [an injunction], are not enough. The
possibility that adequate compensatory or other corrective relief will be
available at a later date, in the ordinary course of litigation, [weighs] heavily
against a claim of irreparable harm.” (alterations in original) (quoting
Morgan v. Fletcher, 518 F.2d 236, 240 (5th Cir. 1975))). Plaintiff could
simply pay the shipping costs itself and then seek to recover the costs in a
damages suit. See Justin Indus., Inc. v. Choctaw Sec., L.P., 920 F.2d 262,
269 (5th Cir. 1990) (noting that the availability of a “self-help remedy”
suggests that plaintiff “has not necessarily suffered an injury that is incapable
of repair without judicial intervention”).

33
34

See R. Doc. 82-1.
See id.
8

Indeed, the only non-financial obstacle to returning the containers to
New Orleans appears to be a customs issue. According to plaintiff, the
Romanian customs authority will not permit the intellectual property in the
containers to leave Romania because this property is not included in the bill
of lading. 35 Of course, the Court’s injunctive power does not extend to the
Romanian customs authority. And “injunctive relief may properly be refused
when it would interfere with [an]other nation’s sovereignty.” Bano v. Union
Carbide Corp., 361 F.3d 696, 716 (2d Cir. 2004). Furthermore, plaintiff had
ample opportunity to review the bill of lading, but did not add intellectual
property to it. 36 Because there is no evidence that defendants are interfering,
or will likely interfere, with the shipment of plaintiff’s containers back to New
Orleans, plaintiff fails to show that irreparable harm is likely without an
injunction.
Moreover, plaintiff waited over a year and a half since the containers
first shipped, and a year since this suit began, to seek a preliminary
injunction. This delay belies its claim of irreparable harm. See Gonannies,
Inc. v. Goupair.Com, Inc., 464 F. Supp. 2d 603, 609 (N.D. Tex. 2006); see
also 11A Wright & Miller, Federal Practice and Procedure § 2948.1 (“A long

35
36

R. Doc. 70-1 at 8; R. Doc. 82 at 4.
See R. Doc. 82-12.
9

delay by plaintiff after learning of the threatened harm also may be taken as
an indication that the harm would not be serious enough to justify a
preliminary injunction.”).

IV.

CONCLUSION
For the foregoing reasons, the Court DENIES plaintiff’s motion for a

preliminary injunction.

New Orleans, Louisiana, this _____ day of January, 2018.
2nd
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

10