EMEP LLC v. NORTH AMERICAN RECOVERY MANAGEMENT LLC
ORDER ON PLAINTIFFS MOTION FOR A TEMPORARY RESTRAININGORDER granting 4 Motion for TRO By JUDGE JON D. LEVY. (akr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NORTH AMERICAN RECOVERY )
ORDER ON PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING
This matter comes before the Court on the motion of Plaintiff EMEP, LLC for
a Temporary Restraining Order (ECF No. 4).
This case arises out of an alleged agreement relating to the sale of land and
assets in East Millinocket, Maine (“the Property”) by Defendant North American
Recovery Management, LLC (“NARM”) to Plaintiff EMEP, LLC (“EMEP”). EMEP
claims that the parties entered a binding Letter of Intent governing the sale of the
former Great Northern Paper Mill in East Millinocket. EMEP further claims that
NARM is refusing to honor the parties’ agreement, and is preparing to accept new
offers for the purchase of the property. EMEP also asserts that NARM is currently
engaged in demolition activities on the property in violation of the agreement
between the parties. EMEP seeks a Temporary Restraining Order to enjoin NARM
from: (1) selling or conveying the property or any assets located thereon; (2) harming
or interfering with any asset of the property not identified in a Land Use Permit
issued to NARM by the Maine Department of Environmental Protection on February
1, 2017; and (3) engaging in any activities on the property not authorized by the
February 1 Land Use Permit.
In considering a request for a temporary restraining order, the court must
determine: “(1) the movant’s likelihood of success on the merits; (2) whether and to
what extent the movant would suffer irreparable harm if the request were rejected;
(3) the balance of hardships between the parties; and (4) any effect that the injunction
or its denial would have on the public interest.” Wicked Good Charcoal, Inc. v. The
Ranch-T, LLC, 2015 WL 9581739, at *1 (D. Me. Dec. 30, 2015) (quoting DiazCarrasquillo v. Garcia-Padilla, 750 F.3d 7, 10 (1st Cir. 2014)).
Likelihood of Success on the Merits
After reviewing EMEP’s submissions, I conclude that, at this extremely
preliminary stage, EMEP has demonstrated a likelihood of success on the merits as
to its breach of contract and promissory estoppel claims. The Letter of Intent appears
to be an enforceable contract, and EMEP presents credible evidence that NARM
breached the contract. Cf. Tobin v. Barter, 2014 ME 51, ¶ 10, 89 A.3d 1088, 1091-92
(describing elements for breach of contract claim).
EMEP also presents credible evidence that it will suffer irreparable harm if
NARM is allowed to sell the property to another party or harm the assets on the
property that EMEP contracted to purchase.
EMEP has invested a significant
amount of money in obtaining the necessary permits and funding for carrying out its
plan to repurpose the property as a biofuel refinery. EMEP’s submissions indicate
that the former Great Northern Paper Mill property is an important part of a
statewide plan for the construction and operation of biofuel plants and that the lost
business opportunities associated with the demolition or a sale of the Property in
violation of the asserted contract would be substantial.
EMEP has therefore
demonstrated a likelihood of irreparable harm. See Woodfords Family Servs., Inc. v.
Casey, 832 F. Supp. 2d. 88, 101 (D. Me. 2011) (recognizing lost business opportunity
as irreparable harm).
Balance of Hardships
The balance of hardships appears to weigh in favor of EMEP. According to the
evidence presented in support of EMEP’s motion, NARM has not yet begun
entertaining other offers for the property. While EMEP indicated that NARM was
currently engaged in demolition that may or may not violate the terms of the
requested injunction, the hardship associated with a minor delay in any demolition
not authorized by Section 1.B of the Land Use Permit is significantly outweighed by
the hardship that may be suffered by EMEP in the event the injunction is not granted,
as outlined above. Moreover, the injunction sought will not prevent NARM from
engaging in demolition activity according to the terms of the Land Use Permit.
“The public interest generally is not a significant factor in a controversy
between private parties.” Woodfords, 832 F. Supp. 2d at 101. To the extent that this
factor applies, EMEP has presented persuasive arguments relating to the potential
benefits to the region of its proposed biofuel refinery.
Security and Notice
Federal Rule of Civil Procedure 65(c) provides that a temporary restraining
order may only issue if the movant gives security for the damages that might be
sustained by the issuance of the order, but courts have discretion to determine that
no security is warranted. See Wicked Good Charcoal, 2015 WL 9581739, at *2 (citing
Crowley v. Local No. 82, Furniture & Piano Moving, Furniture Store Drivers, Helpers,
Warehousemen & Packers, 679 F.2d 978, 1000 (1st Cir. 1982), rev’d on other grounds,
467 U.S. 526 (1984)). In light of the fact that NARM is in possession of EMEP’s
$100,000 deposit related to the alleged sale contract, I find that no security is
necessary in this case.
For the reasons stated above the Motion for Temporary Restraining Order
(ECF No. 4) is GRANTED and I hereby ORDER that Defendant North American
Recovery Management, LLC, and its officers, agents, servants, employees, attorneys,
and any and all persons in active concert or participation with them who receive
notice of such judgment, directly or otherwise, are temporarily enjoined from:
1. Selling or conveying the Property, or any assets located thereon, as defined
by the Letter of Intent between the parties, to any other person or entity;
2. Harming, altering, or otherwise interfering with any asset of the Property
not identified in the February 1, 2017 Land Use Permit; and
3. Engaging in any activities on the Property not authorized by the February
1, 2017 Land Use Permit. Defendant may, therefore, conduct demolition
specifically authorized by Section 1.B of the Land Use Permit.
Dated this 28th day of February 2017.
/s/ JON D. LEVY
U.S. DISTRICT JUDGE
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