Trinity USA Operating, LLC v. Barker et al
ORDER finding as moot 11 Motion for Temporary Restraining Order, Preliminary Injunction and Permanent Injunction. The case is dismissed for lack of a live case or controversy. Signed by District Judge Carlton W. Reeves on 07/21/2011(WB)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
TRINITY USA OPERATING, LLC
CAUSE NO. 4:11-CV-00106-CWR-LRA
MOLLIE ODOM BARKER, ET AL.
ORDER OF DISMISSAL
The above-styled matter is before the Court on the Motion for Temporary Restraining
Order, Preliminary Injunction and Permanent Injunction [Docket No. 11] of Trinity USA
Operating, LLC. Having considered the arguments offered in support of the motion and the
evidence tendered at a live hearing on July 8, 2011, along with the record as a whole, the Court
has concluded sua sponte that a lack of a live case or controversy demands this case’s dismissal.
Trinity USA Operating, LLC (hereinafter “Trinity”) is a drilling company based in
Houston, Texas. According to its Complaint [Docket No. 1], Trinity holds mineral rights to a
large tract in Wayne County, Mississippi, in which Mollie Odom Barker and her co-defendants
(hereinafter “defendants”) control the surface rights. At the hearing, through its counsel, Trinity
advised that it owns mineral interests/leases and exploration rights in Wayne County, see
Transcript at 1, 36, and that it is currently undertaking a seismic exploration project in Wayne
County covering approximately 25,000 acres over 39 square miles.
At some point prior to June 6, 2011, and possibly as early as January, Trinity began
advising the surface dwellers, including the defendants, of its intent to enter the land for the
purpose of conducting seismic exploration, a process that requires laying sensitive “listening”
devices to detect the sound-wave patterns from controlled, underground explosions. Although it
claims that it bore no such obligation, Trinity attempted to contract with the surface dwellers for
their blessings to enter the land; in exchange, Trinity offered small sums of money that varied
according to each surface dweller’s acreage.1
Many of the surface tenants acceded to Trinity’s requests, but others did not. Those who
did not constitute “a very small percentage.”2 And on June 17, 2011, Trinity sued the land
owners who either had not agreed to the company’s terms or had failed to respond to the letter.
Specifically, Trinity sought injunctive relief enjoining the defendants from preventing Trinity’s
exploration. As counsel for Trinity explained at the July 8 hearing,
the reason we have initiated this action is really to protect our crew when is [sic] they
go out on the properties and make sure we are not going to be charged with trespass
and that they are able to – they can safely execute their operation and will not be
forced out because at the end of the days [sic] it [is] a large financial obligation . . .
Transcript at 5.3
On June 21, 2011, Trinity moved the Court for a temporary restraining order, a
Trinity represented to the Court that it had conducted title searches of the land and sent
letters to all the owners of the various properties. In the letters, Trinity “offered [surface
dwellers] the opportunity to execute a permit for Trinity to conduct surface operations over these
lands and for which [surface dwellers] would be paid a total of $10.00 per acre.”
At one point in the live hearing, plaintiff’s counsel represented that the percentage of
acres that would be the subject of any injunction was only 1.4 percent.
Counsel elaborated by explaining that the exploration costs Trinity approximately
$32,000 per day, and that Trinity was concerned that if a landowner were to call the sheriff or
otherwise interfere with its rights to conduct its operations, then it would incur significant
financial costs. Therefore, Trinity “brought this motion here today to confirm our right to be on
the property and to obtain the relief we are asking.” Transcript at 5. At the time of the hearing,
Trinity had begun its operations and expected that the job will be completed within a couple of
months. Transcript at 7, 28.
preliminary injunction, and a permanent injunction [Docket No. 11]. The Court conducted a
telephone conference with Trinity’s attorneys on June 24, 2011, and ordered them to provide
notice of the hearing date to the defendants.
The hearing was held on July 8, 2011. At the hearing, Trinity presented testimony from
Charles Morrison, its consulting geophysicist, regarding the manner in which it conducts its
seismic explorations, specifically noting the care that Trinity undertakes to avoid disturbing
anything on the property, including topsoil, pipelines houses, water wells, trees, or any
agricultural objects such as livestock. Moreover, immediately prior to moving onto a tract,
Trinity makes contact with the consenting landowners to advise them that they are en route so as
not to show up unannounced.
Morrison also testified that any refusals by the defendants to allow entry onto their lands
would cost Trinity approximately $32,000 per day – approximately $3,200 per hour for a tenhour day. Morrison explained to Trinity’s attorney in the following colloquy:
And in the event that your [sic] prohibited from going on a particular
piece of property, how does that affect your crews and how you
continue with the [seismic exploration]?
* * *
It would potentially shut us down for a period of time depending on
where it is. It could basically shut – it could have affect [sic] the
shutting the operation down if we can’t get in the [shots] before we
complete . . . . It would certainly be detrimental.4
Morrison further explained that a denial of access to certain properties could negatively
affect the reliability of Trinity’s data and could end up causing it to have to spend several
additional million dollars. Transcript at 27. In addition, if their exploration uncovers certain
minerals, then Trinity would seek to lease the mineral rights from the owners, and those leases
generally are for 36 months but may last for 60 months. Transcript at 42.
Transcript at 26.
Woody Jordan, a named defendant, who had been served on June 28, also appeared pro
se at the hearing. Jordan advised that he did not have an attorney and wanted to learn the
outcome of these proceedings before he decided whether to retain counsel. Jordan offered his
concerns to the Court regarding Trinity’s request, but he declined to offer evidence in his
defense. However, he was permitted to question Morrison, the only witness offered by Trinity.
No other defendant appeared, and no other testimony was provided.
Temporary restraining orders, preliminary injunctions, and permanent injunctions are
extraordinary forms of relief. Ridgely v. FEMA, 512 F.3d 727, 734 (5th Cir. 2008). Although this
observation rises frequently from courts considering requests for such orders, the enormity of the
relief is difficult to overstate. See generally Wright, Miller & Kane, Federal Practice and
Procedure: Civil 2d § 2948 (noting that courts describe such requests as “drastic,”
“extraordinary,” and the requesting party must make a “clear showing”). In essence, a movant for
pre-trial, injunctive relief represents to the court that its case is so particularly unusual, the
strength of its case so particularly great, and the risk of incurable injury so particularly
unbearable that the promise of a typical day in court ultimately will serve no practical purpose.
Therefore, in order to preserve the possibility of a meaningful decision, courts are empowered by
Rule 65 of the Federal Rules of Civil Procedure to enjoin a party’s behavior without a trial on the
merits if the movant is able to make four showings:
(1) a substantial likelihood of success on the merits, (2) a substantial threat of
irreparable injury in the injunction is not issued, (3) that the threatened injury if the
injunction is denied outweighs any harm that will result if the injunction is granted,
and (4) that the grant of an injunction will not disserve the public interest.
Janvey v. Alguire, 628 F.3d 164, 174 (5th Cir. 2010). See also Schindler v. Schiavo, 403 F.3d
1223, 1225 (11th Cir. 2005) (same factors govern both temporary restraining orders and
These elements are not arbitrary and disconnected; rather, they enjoy a direct relationship
such that the strength of one showing lessens the necessity of another. For example, a movant
with a clear, unchallengeable right to legal relief will have a lighter burden of proof regarding the
risk of irreparable injury; likewise, a party seeking to enjoin behavior that undoubtedly will result
in a wound that no court could possibly heal will be entitled to an injunction even when its
likelihood of success on the merits is less than indisputable. See Triebwasser & Katz v. AT&T,
535 F.2d 1356, 1359 (2nd Cir. 1976); Kamine/Besicorp Allegany L.P. v. Rochester Gas & Elec.
Corp., 908 F. Supp. 1180, 1187 (W.D.N.Y. 1995). See also Wright, Miller & Kane, supra, at §
2951 (courts balance the harms that may be caused by the granting or the denial of injunctive
relief; “therefore, when the injury that allegedly will result if the restraining order is denied is
very grave, less of a showing is required than if the injury would be slight.”).
But “[p]erhaps the single most important prerequisite for the issuance of a preliminary
injunction 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 §2948.1. Accord Norwalk Core v.
Norwalk Bd. of Educ., 298 F. Supp. 203, 206 (D. Conn. 1968) (citing Capital City Gas Co. v.
Phillips Petroleum Co., 373 F.2d 128, 131 (2nd Cir. 1967)). The importance of irreparability
cannot be overstated; generally speaking, the injury must affect something that money simply
But even a flawless showing on one element will not excuse a total absence of proof on
another. Fanning v. High Mountain Inspection Servs., Inc., 520 F. Supp. 2d 55, 58 (D.D.C.
2007). Furthermore, it bears noting that although the denial of a request for a temporary
restraining order or preliminary injunction “may work injury to the movant, this alone is
insufficient to compel its issuance.” Norwalk Core, 298 F. Supp. at 206.
Upon review of the pleadings, arguments, the transcript of the proceedings, and
governing authority, the Court is satisfied that Trinity has shown beyond any reasonable dispute
a mineral owner or a lessee of the mineral estate, in the absence of additional rights
expressly conveyed or reserved, may use as much of the surface as is reasonably
necessary to exercise its right to recover minerals, without liability for surface
damage. This right means that the mineral lessee can go on the land and do all those
things necessary and incidental to the drilling of a well . . . .
EOG Resources, Inc. v. Turner, 908 So. 2d 848, 854 (Miss. Ct. App. 2005) (Chandler, J.).
Aside from the state of Mississippi law, though, Trinity has shown this Court very little.
Although Trinity contends that it owns the mineral rights to the tracts of land occupied by the
defendants, it has submitted no substantial evidence to prove that claim.5 The Court has seen no
contracts and heard no testimony reflecting Trinity’s legal right to the minerals beneath the
defendants’ lands. But what causes the Court the most concern is the fact that Trinity has offered
no proof that the injury to be suffered at the defendants’ hands is an irreparable one – only that it
is an expensive one.
The Court relied upon the representation of counsel and thus finds that Trinity had
identified and notified each property owner and had made an attempt to negotiate with them on
the access to and use of the property. Similarly, the Court is satisfied that counsel for Trinity
provided notice of the hearing to the defendants.
The total absence of evidence of irreparable harm which is disconnected from a fear of
costing Trinity more money raises a red flag and counsels the Court to slow its hand and not
grant such extraordinary relief.6
A case from the Texas Court of Appeals is instructive on this point. In Browning v.
Mellon Exploration Co., 636 S.W.2d 536 (Tex. Ct. App. 1982), the Court affirmed a trial judge’s
decision to enjoin surface dwellers from interfering with a drilling company’s oil well, much as
Trinity urges this Court to do. However, in Browning, “the trial court’s order contained an
express finding that [the company] [wa]s the exclusive owner of the oil, gas and mineral lease on
the land in question,” and “[t]he trial court also found that the [surface dwellers] ha[d]
substantially interfered with [the company]’s right of access . . . .” Id. at 539. In the case at bar,
Trinity has not provided substantial evidence on which this Court could reach conclusions like
those at which the Browning trial judge arrived.
Chiefly, Trinity’s motion rests on the theory that the daily loss of $32,000 would amount
to an irreparable injury. But that position lacks merit. Generally speaking, “[a]n injury is
Admittedly, at the close of the hearing, the Court indicated an inclination to grant the
requested relief. But after reviewing the transcript, the Court found no testimony offered
concerning irreparable harm that could not be solved through future monetary relief. In fact, after
a recess during the hearing, the Court posed the specific question to counsel: “[W]hat is the
irreparable harm other than right now the loss of $362,000 [sic] in damages that I presume
Trinity believes it cannot recover.” Transcript at 44. In response, Trinity’s lead and co-counsel
mentioned lost business opportunities, a fear that Trinity might lose some business contracts, and
a further concern that it might lose some mineral leases. “It is not,” the attorneys answered, “it’s
not just $32,000 a day[,] it’s not just the $4.4 million tied up on the project. There are any
number of ramifications beyond just the dollar value of every day that we’re not allowed access
to the property.” Transcript at 45. On reflection, that averment is too speculative to support the
drastic relief that Trinity requests. See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v.
Bishop, 839 F. Supp. 68, 74-75 (D. Me. 1993) (claims of loss of good will and future economic
injury too speculative for court to grant injunctive relief).
‘irreparable’ only if it cannot be undone through monetary remedies.” Deerfield Med. Ctr. v. City
of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981). Exceptions to that rule exist. For
example, “when economic rights are especially difficult to calculate, a finding of irreparable
harm may be appropriate.” Lakedreams v. Taylor, 932 F.2d 1103, 1109 (5th Cir. 1991).
Likewise, a movant demonstrates the possibility of an irreparable injury “when it is shown that a
money judgment will go unsatisfied absent equitable relief.” Alvenus Shipping Co., Ltd. v. Delta
Petroleum (U.S.A.) Ltd., 876 F. Supp. 482, 487 (S.D.N.Y. 1994) (cited by Specialty Healthcare
Mgmt. v. St. Mary Parish Hosp., 220 F.3d 650, 658 (5th Cir. 2000)). But Trinity has not even
argued, much less proven, that either of those exceptions is appropriate in this case. On the
contrary, Trinity’s primary argument is that the defendants’ actions stand to result in the loss of
tens of thousands of dollars per day. Grievous though such an injury would be, it is not without
the possibility of remedy and, therefore, is not irreparable. Injunctive relief cannot rest on such an
Although it did not present substantial evidence on this point, Trinity argued – without
any hint of specificity – at the July 8 hearing that any delays created by the defendants’ behavior
could result in lost business opportunities. See supra, n.6. The absence of substantial evidence on
that point is reason enough to deny Trinity’s motion because a “[s]peculative injury is not
sufficient[.] . . . [A] preliminary injunction will not be issued simply to prevent the possibility of
some remote future injury.” United States v. Emerson, 270 F.3d 203, 262 (5th Cir. 2001). But the
risk of lost business opportunities, like the fear of a $32,000 daily loss, is not an injury that is
irreparable in character. See Baja Contractors, Inc. v. City of Chicago, 830 F.2d 667 (7th Cir.
1987) (reversing injunction granted in favor of corporation that had alleged its lost business
opportunities would amount to irreparable injury); In re Sabratek Corp., 257 B.R. 732, 737
(Bankr. D. Del. 2000); New Pac. Overseas Group (USA) Inc. v. Excal Int’l Dev. Corp., 1999 WL
285493, *7 (S.D.N.Y. 1999); IPT Co., Inc. v. United States Dept. of Treasury, 1992 WL 212437,
*4 (S.D.N.Y. 1992) (citing Miss America Org. v. Mattel, Inc., 945 F.2d 536, 545-46 (2nd Cir.
1991)); Weston Servs., Inc. v. NUS Corp., 1991 WL 32824, *6 (E.D. Pa. 1991). Lost business
opportunities resting on more than pure speculation can, like any other form of monetary
damages, be proven in the course of normal litigation.
When a party moves for a temporary restraining order or preliminary injunction, the
burden of proof is a heavy one. Earlier this year, this Court heard a motion for a preliminary
injunction filed by a business against one of its competitors for employing what the plaintiff
alleged to be an illegal business practice. The parties called several witnesses and introduced
binders full of documents in a hearing that lasted a full day, and even in light of that great body
of evidence, this Court still did not grant the preliminary injunction. See Order [Docket No. 20]
in Bond Pharmacy v. AnazaoHealth Corp., No. 3:11-cv-00058-CWR-FKB. As the Court
observed in that case, the burden of proof in this setting is an “extraordinarily high standard.”
Order at 5. In the case at bar, Trinity simply has not met it.
The record before the Court could not support the conclusion that the injury Trinity fears
is an irreparable one, and therefore, the motion for a temporary restraining order and related relief
would not be well taken. But ultimately, Trinity’s case must be dismissed altogether for a more
fundamental reason: not only has Trinity failed to show that it faces an irreparable injury, but it
has not even alleged that a live case or controversy exists.
Federal courts enjoy only limited jurisdiction, and under Article III of the Constitution,
“[a] federal court is without power . . . to give advisory opinions which cannot affect the rights of
the litigants in the case before it.” St. Pierre v. United States, 319 U.S. 41, 42 (1943). “[T]he
party seeking relief must have suffered, or be threatened with, an actual injury traceable to the
defendant and likely to be redressed by a favorable judicial decision.” Spencer v. Kemna, 523
U.S. 1, 7 (1998) (quotations omitted).
Upon review of the transcript from the July 8 hearing, it is now apparent to the Court that
the case at bar fails to present an actual injury or threat thereof. Although Trinity contended in its
Complaint that the “[d]efendants have denied, and continue to deny, Trinity access to and use of
[d]efendants’ [l]ands for Trinity’s seismic exploration operations,” Complaint at 16, counsel for
Trinity made clear at the July 8 hearing that its prayer for relief is purely prospective in nature.
The plaintiff’s attorney candidly advised the Court that “the reason we have initiated this action
is really to protect our crew when . . . they go out on the properties and make sure we are not
going to be charged with trespass and that they are able to – they can safely execute their
operation and will not be forced out.” See supra at 2. But the Court was presented with neither
evidence nor suggestion that Trinity had approached a piece of property and was turned around
by a particular landowner. The sheriff had not been called. No threats have been made. There has
been now showing that any particular landowners will interfere with Trinity’s rights. Nothing has
happened. Cf. Adobe Sys., Inc. v. South Sun Prods., Inc., 187 F.R.D. 636, 641 (S.D. Cal. 1999)
(specific facts must be demonstrated to justify enjoining party, and petitioner simply cannot rely
on the weight of its claims).
Similarly, Trinity’s attorney told the Court at another point during the hearing that Trinity
“has sought to negotiate with the surface owners to [acquire] permits and to compensate them for
the right to go across the property,” and that each defendant declined to make a deal. Transcript
at 2. But even if that allegation were true, such refusals would not amount to invasions of the
rights that Trinity claims to hold because the defendants were under no legal obligations to
accede to Trinity’s offers. To put it another way, Trinity does not claim that the defendants
actually have interfered with its seismic exploration or have threatened to interfere with it;
Trinity merely claims that the defendants declined to agree to contracts that would have provided
for Trinity’s entry upon the surface of the land. Trinity had no right to such an agreement, and
therefore, its legal rights have not been injured.
When and if a defendant actually impedes Trinity in the exercise of a legal right or
threatens so to act, then a live case or controversy might exist – perhaps even one that presents a
set of facts warranting the issuance of injunctive relief. But for now, the record before the Court
demonstrates not only that Trinity has not suffered an irreparable injury, but that it has not yet
suffered any actionable injury.
It is well established that federal courts must consider the question of jurisdiction even if
not raised by the parties. Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001).
Moreover, if at any point during the life of a case a lack of subject-matter jurisdiction becomes
apparent, then a federal court is obligated to dismiss. Alvarez v. Smith, ___ U.S. ___, 130 S. Ct.
576, 580 (2009). That obligation has presented itself to the Court and, under the limits imposed
by Article III, leaves room for only one course of action.
Therefore, the case is dismissed for lack of a live case or controversy, and the plaintiff’s
motion for a temporary restraining order and related relief is dismissed as moot. A Final
Judgment will be entered to this effect.
SO ORDERED this Twenty-First day of July 2011.
/s/ Carlton W. Reeves
Hon. Carlton W. Reeves
United States District Court Judge
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