Arborjet, Inc. v. Rainbow Treecare Scientific Advancements, Inc.

Filing 132

Judge Nathaniel M. Gorton: MEMORANDUM & ORDER entered denying 122 Motion Emergency MOTION TO ADVANCE MATTER FOR TRIAL AND FOR AN IMMEDIATE STATUS CONFERENCE TO MITIGATE THE PREJUDICE TO DEFENDANT CAUSED BY THE UNANTICIPATED DELAY FROM THE COURT'S RESCHEDULING OF THE TRIAL DATE by Rainbow Treecare Scientific Advancements, Inc. (Danieli, Chris)

United States District Court
District of Massachusetts
ARBORJET, INC.,
Plaintiff,
v.
RAINBOW TREECARE SCIENTIFIC
ADVANCEMENTS, INC.,
Defendant.

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Civil Action No.
14-14129-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises from the alleged breach of a sales agency
agreement between plaintiff Arborjet, Inc. (“Arborjet”) and
defendant Rainbow Treecare Scientific Advancements, Inc.
(“Rainbow”).

Arborjet designs and manufactures insect and pest

control products for direct injection into trees.

Rainbow is a

direct competitor of Arborjet that manufactures and sells
pesticides for the protection of trees and also distributes
pesticides manufactured by other companies.
Pending before the Court is defendant’s motion to advance
the matter for trial and to hold a status conference (Docket No.
122).

For the reasons that follow, defendant’s motion will be

denied.

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I.

Background
Plaintiff Arborjet filed a complaint in November, 2014 that

asserted claims for 1) breach of contract, 2) breach of implied
covenant of good faith and fair dealing, 3) false advertising
and false designation of origin in violation of the Lanham Act,
15 U.S.C. § 1125(a), 4) false advertising in violation of M.G.L.
c. 266, § 91, et seq. and 5) common law unfair competition.
The Court granted a preliminary injunction the following
month that ordered defendant to cease and desist selling,
distributing and/or marketing the product ArborMectin.

The

Court also ordered plaintiff to post a $500,000 security bond.
In February, 2015, this Court held a scheduling conference
and informed the parties that, if they did not file dispositive
motions, the Court would be able to schedule a jury trial to
commence on September 14, 2015.

The following month, defendant

filed an assented-to motion to continue that particular trial
date so as to accommodate defense counsel’s observance of the
Jewish holiday.

The Court rescheduled the trial for October 5,

2015.
In May, 2015, the parties filed a joint motion to extend
the deadlines for discovery and the filing of dispositive
motions.

The Court approved the proposed extensions and

rescheduled the trial for October 13, 2015.

On September 23,

2015, due to conflicts on its trial docket with respect to two
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criminal cases, one of which has multiple defendants, the Court
postponed the commencement of the trial in this case until
January 11, 2016.
II. Defendant’s motion
On September 25, 2015, defendant filed an unopposed motion
entitled:
DEFENDANT’S EMERGENCY MOTION TO ADVANCE THIS MATTER FOR
TRIAL AND FOR AN IMMEDIATE STATUS CONFERENCE TO MITIGATE
THE
PREJUDICE
TO
THE
DEFENDANT
CAUSED
BY
THE
UNANTICIPATED DELAY FROM THE COURT’S RESCHEDULING OF THE
TRIAL DATE[.]
Defendant asserts that many of its consumers place their orders
for ArborMectin for the upcoming year during the autumn and
winter seasons so that they can take advantage of early order
discounts.

Defendant contends that, in light of the preliminary

injunction, the continuance of the trial until January, 2016
will cause it to forego a second year of ArborMectin sales and
that the $500,000 security bond posted by plaintiff in
accordance with the terms of the preliminary injunction
(“preliminary injunction bond”) will not adequately redress
defendant’s damages if defendant prevails at trial.
Defendant thus moves for the Court 1) to reschedule the
trial to an earlier date, 2) to hold an “immediate status
conference” to discuss an alternative trial schedule and other
methods of mitigating defendant’s damages in the event that

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defendant prevails at trial and 3) to be flexible in its
scheduling.
Due to trial conflicts in criminal cases which take
precedence over civil cases, the Court cannot at this time
accommodate defendant’s request to advance the trial in this
case and declines to hold a status conference on the issue.
If, however, a vacancy occurs in its trial schedule due to
the pre-trial resolution of either of the conflicting criminal
cases, the Court will immediately and sua sponte reschedule the
trial in this case accordingly and notify the parties.

The

parties are forewarned that they are to be ready to proceed to
trial on relatively short notice if availability arises.
Otherwise, the case remains scheduled for trial to commence with
jury empanelment on Monday, January 11, 2016 at 9:00 A.M.
The Court recognizes that the amount of a preliminary
injunction bond may restrict the amount of damages recoverable
by an enjoined party if that party later prevails at trial. See
Int’l Ass’n of Machinists & Aerospace Workers v. Eastern
Airlines, Inc., 925 F.2d 6, 10 (1st Cir. 1991) (“[I]f a bond is
posted, liability is limited to the terms of the bond in the
absence of a showing of bad faith or malicious prosecution.”);
Northeast Airlines, Inc. v. World Airways, Inc., 262 F. Supp.
316, 319 (D. Mass. 1966) (“Under federal law a party enjoined
may recover damages from an injunction improvidently granted
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solely upon and to the extent of any injunction bond unless he
can prove malicious prosecution.”).

In light of the delayed

commencement of trial, the Court will require plaintiff to post
an additional preliminary injunction bond of $250,000 so that
the total amount of security will be $750,000.

ORDER
For the foregoing reasons, defendant’s motion to advance
the matter for trial and for an immediate status conference
(Docket No. 122) is DENIED.

The Court DIRECTS plaintiff to post

a second security bond in the amount of Two Hundred Fifty
Thousand Dollars ($250,000), on or before Friday, October 9,
2015, in order to increase the total amount of the security
posted in accordance with the terms of the preliminary
injunction (Docket No. 35) to Seven Hundred Fifty Thousand
Dollars ($750,000).

So ordered.
/s/ Nathaniel M. Gorton____
Nathaniel M. Gorton
United States District Judge
Dated September 30, 2015

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