AVX Corporation v. Corning Glass Works, et al
Filing
314
ORDER denying 277 Motion for Temporary Restraining Order; denying 277 Motion for Preliminary Injunction. Counsel is reminded to read the order in its entirety for critical information. Signed by District Judge Louise Wood Flanagan on 5/18/2020. (Collins, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:15-CV-543-FL
AVX CORPORATION,
Plaintiff,
v.
CORNING INCORPORATED,
Defendant.
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ORDER
This matter is before the court on plaintiff’s motion for temporary restraining order
(“TRO”) and for preliminary injunction (DE 277).1 The motion has been briefed fully and the
issues raised are ripe for ruling. For the following reasons, plaintiff’s motion is denied.
STATEMENT OF THE CASE
Plaintiff commenced this action on October 15, 2015, asserting claims for costs and
damages, as well as declaratory and injunctive relief, associated with alleged environmental
contamination on its property at 3900 Electronics Drive in Raleigh, North Carolina (hereinafter,
the “Property”), formerly owned by defendant between 1962 and 1987. Plaintiff purchased the
Property in 1987 as part of a multi-party “Agreement of Purchase and Sale” (hereinafter “Purchase
Agreement”), executed by defendant and several entities affiliated with defendant who are formerdefendants in this matter (hereinafter, the “former secondary defendants”).
1
Also pending, but not yet ripe, is plaintiff’s motion to strike/exclude the supplemental expert opinions of
Daniel G. Sullivan and David L. Duncklee (DE 310), which will be addressed by separate order.
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Plaintiff filed its operative complaint on October 13, 2017.2 Defendant filed an answer and
six counterclaims, on October 27, 2017, contending that plaintiff is responsible for additional
environmental contamination on the Property. In orders on motions to dismiss and for summary
judgment, entered August 28, 2018, and September 26, 2019, respectively, the court dismissed in
part several claims asserted by plaintiff and counterclaims by defendant, as well as all claims
against the former secondary defendants, with the following claims and counterclaims now
remaining for trial:
1)
Claims and counterclaims under CERCLA for cost recovery, contribution, and declaratory
relief, under 42 U.S.C. §§ 9607(a)(1), 9613(f) and (g)(2), (claims I-II, and IV-V,
counterclaims I-II, and IV-V), except for that part of the claims and counterclaims bearing
on the issue of whether plaintiff used or released TCE at the Property, which issue the court
decided in plaintiff’s favor as a matter of law; and
2)
Claims and counterclaims for breach of contract/indemnification and state law declaratory
relief, (claims III and XI, counterclaims III and VI), except for that part of defendant
Corning’s breach of contract counterclaim claim and related counterclaim for declaratory
relief premised upon violations attributable to plaintiff, which issue the court decided in
plaintiff’s favor as a matter of law.
(See Order (Sept. 26, 2019) at 3, 68; AVX Corp. v. Corning Inc., No. 5:15-CV-543-FL, 2019 WL
4727851, at *2-3, 35-36 (E.D.N.C. Sept. 26, 2019)).
On October 17, 2019, the parties filed a joint status report in furtherance of the court’s trial
planning and scheduling. That same date, plaintiff filed the instant motion, seeking a temporary
restraining order and preliminary injunction “enjoining [defendant] from continuing to interfere
2
Unless otherwise specified, all references to the “complaint” refer to the Third Amended Complaint filed
October 13, 2017.
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with and obstruct [plaintiff’s] implementation of permanent storm water controls at [the Property],
as requested by the North Carolina Department of Environmental Quality, and as required by
[plaintiff’s] City of Raleigh-issued land-disturbing and zoning permits.” (Pl’s Mot. (DE 277) at 1).
In support of the motion, plaintiff relies upon the following: 1) declaration of John Waites, an
environmental manager with plaintiff, with exhibits comprising a) City of Raleigh permits; b)
plaintiff’s grading plan; c) a March 15, 1993, lease, and March 9, 2018, letter renewal, between
plaintiff and defendant (hereinafter the “Lease”); and d) City of Raleigh inspection reports; 2)
correspondence between plaintiff and defendant regarding the Property; 3) correspondence
between the parties and the North Carolina Department of Environmental Quality (NCDEQ); 4)
excerpts of deposition of Daniel Shields; and 5) City of Raleigh storm water ordinance.
The court held a Rule 16 status conference on October 29, 2019, and reconvened a status
conference and motion hearing on November 5, 2019. Upon joint status report filed by the parties,
on November 18, 2019, the court entered a trial scheduling order setting trial to commence on
August 3, 2020, the date of its current setting. The court held in abeyance briefing on the instant
motion “pending efforts by the parties to resolve amicably issues raised therein,” (Order (Nov.
18, 2019) at 1), which stay the court continued in text orders entered up through February 24, 2020.
In the meantime, the parties engaged in a period of limited supplemental expert discovery, in
accordance with the court’s December 17, 2019, modification to the case management order.
Upon status report indicating impasse in resolution of the motion, the court directed
briefing to resume on the instant motion on March 27, 2020. On April 24, 2020, defendant
responded in opposition to the motion, relying upon a declaration of counsel with exhibits
comprising: 1) an environmental evaluation of the Property prepared by Mid-Atlantic Associates,
Inc., on September 3, 2015; 2) correspondence between the parties and their agents and
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consultants; 3) transcript of deposition of Thomas Darby; 4) reports, surveys and permits related
to the Property; and 5) correspondence between the parties and NCDEQ.
Plaintiff replied on May 8, 2020, relying upon additional correspondence between the
parties.
STATEMENT OF FACTS
For background, the court incorporates herein by reference the statement of undisputed
facts contained in the court’s summary judgment order. (See Order (Sept. 26, 2019) at 7-18; AVX
Corp., 2019 WL 4727851, at *4-11). The court summarizes below additional facts pertinent to the
instant motion.
The Lease between the parties, first executed March 15, 1993, recites that defendant
“received approval from the State of North Carolina of a corrective action plan relating to the
remediation of certain environmental matters predating [defendant’s] sale of the [Property] to
AVX, and this corrective action plan requires the installation of certain groundwater wells and the
construction of a groundwater treatment system and small central treatment building at the
[Property] and [defendant’s] access to the wells, the system and the building.” (Lease (DE 278-2
at 20-21).3
For this purpose, the Lease provides that plaintiff lets to defendant and defendant takes
from plaintiff the following premises (the “Leased Premises”) at the Property: “the groundwater
monitoring, observation and treatment wells and the underground recovery system junction boxes
and conduits, the treatment facility and the right of ingress and egress in connection therewith, all
as shown on Drawing No. 591574G1 of Law Environmental, Inc. Proposed Recovery System
3
Page numbers in citations to record documents, including a corresponding docket entry “DE” number,
reference the page number specified in the court’s electronic case filing system and not the page number or party
appendix page number showing on the face of the underlying document, if any.
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Layout dated 02/01/92 as the same may be amended or modified from time to time.” (Id. at 21).
Attached to the lease as Exhibit A is the referenced drawing, an excerpt of which is copied below:
(Id. at 28).
According to plaintiff, in 2016, before it demolished the former manufacturing building on
the Property and removed the building slabs, its consultant submitted to the City of Raleigh for
approval a grading plan that included temporary and permanent storm water controls. (See Waite
Decl. (DE 278-2) ¶¶ 4-5; id. Ex. B. (DE 278-2 at 14-18)). The City of Raleigh issued “Land
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Disturbing” and “Zoning” permits to plaintiff on October 6, 2016, including provisions for “Storm
Water Tracking.” (Id. Ex. A (DE 278-2 at 7-12)). According to plaintiff, its grading plan requires
“conveyance piping to convey storm water from the former building area to the on-site stream,”
thus traversing an area of the Property that is subject to the terms of the Lease. (Waite Decl. (DE
278-2) ¶¶ 7-8).
The parties corresponded numerous times between March 10, 2017, and this year,
regarding plaintiff’s proposals for placing stormwater conveyance piping over the area of the
Property that is subject to the terms of the Lease. (See, e.g., DE 278-2 to DE 278-17; DE 309-40
to DE 309-56). On May 10, 2017, the City of Raleigh found the Property “not in compliance with
the land disturbing permit, associated approved plans & specifications,” with the direction to
“restore drainage per the approved plan.” (Waite Decl., Ex. D (DE 278-2 at 31)). On May 28,
2019, NCDEQ requested plaintiff “immediately regrade and/or backfill the area of the former
building [on the Property] so that storm water drains away from the areas of known soil and
groundwater contamination and no longer collects and ponds in this area.” (DE 278-19 at 3). In
addition, NCDEQ advised plaintiff “to conduct assessment and remediation, individually or jointly
with [defendant], in the areas of its [Property] that are not currently being addressed by [defendant]
under the [NCDEQ] Rec Program.” (Id.).
In a September 17, 2019, letter to plaintiff, NCDEQ stated that “[c]onveying stormwater
away from the former building area is currently of primary importance, and will benefit both
[defendant] and [plaintiff’s] interests at the site.” (DE 279-6 at 2). NCDEQ further requested that
plaintiff “provide information about any recent efforts by [plaintiff] to request [defendant’s]
cooperation on this matter, and to request detailed information from [defendant] about why they
[sic] consider the proper conveyance of presumably uncontaminated stormwater via surface
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drainage through their leased portion of the site to have any adverse impacts that would outweigh
the universally understood negative impacts of allowing standing water to infiltrate contaminated
areas.” (Id. at 3).
Additional facts pertinent to the instant motion will be set forth in the analysis below.
COURT’S DISCUSSION
A.
Standard of Review
“A plaintiff seeking a preliminary injunction must establish that [it] is likely to succeed on
the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
B.
Analysis
A TRO and preliminary injunction are not warranted under the circumstances of this case
for multiple reasons, which the court sets forth in turn below.
1.
Relief Sought
“The rationale behind a grant of a preliminary injunction has been explained as preserving
the status quo so that a court can render a meaningful decision after a trial on the merits.”
Hazardous Waste Treatment Council v. South Carolina, 945 F.2d 781, 788 (4th Cir.1991)
(quotations omitted). Accordingly, “[m]andatory preliminary injunctive relief in any circumstance
is disfavored, and warranted only in the most extraordinary circumstances.” Taylor v. Freeman,
34 F.3d 266, 270 n. 2 (4th Cir.1994).
In addition, “[t]the purpose of interim equitable relief is to protect the movant, during the
pendency of the action, from being harmed or further harmed in the manner in which the movant
contends it was or will be harmed through the illegality alleged in the complaint.” Omega World
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Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997). “Thus, a preliminary
injunction may never issue to prevent an injury or harm which not even the moving party contends
was caused by the wrong claimed in the underlying action.” Id. In other words, “[a] preliminary
injunction is always appropriate to grant intermediate relief of the same character as that which
may be granted finally, but conversely, preliminary relief may never be granted that addresses
matters which in no circumstances can be dealt with in any final injunction that may be entered.”
In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003) (internal citations
omitted), abrogated on other grounds by eBay, Inc. v. MercExchange. LLC, 547 U.S. 388 (2006).
A movant must demonstrate “a need to protect the status quo and to prevent irreparable harm
during the pendency of the litigation to preserve the court’s ability in the end to render a
meaningful judgment on the merits.” Id. at 526. “If that need is not presented, then a preliminary
injunction should not be considered.” Id. (emphasis added).
Here, the temporary injunctive relief sought by plaintiff is not warranted because plaintiff
seeks a mandatory injunction without demonstrating extraordinary circumstances for such an
injunction. Plaintiff asks the court to prohibit defendant from “continuing to interfere with and
obstruct [plaintiff’s] implementation of permanent storm water controls.” (Pl’s Mot. (DE 277) at
1). In this respect, plaintiff seeks to have the court do the opposite of preserving the status quo,
and instead change what is allegedly “continuing” to take place to another action preferred by
plaintiff. (Id.). Plaintiff has not demonstrated the requisite “most extraordinary” circumstances
for such a mandatory injunction. Taylor, 34 F.3d at 270 n. 2. Indeed, plaintiff does not purport to
describe extraordinary circumstances in its motion or briefs in support thereof.
Furthermore, plaintiff seeks relief that is not requested in the first instance in the complaint.
The complaint does not seek a permanent injunction enjoining defendant from interfering with or
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obstructing plaintiff’s implementation of permanent storm water controls on its Property. It does
not mention a need for implementation of permanent storm water controls on its Property, even
though the operative complaint was filed well after the need for storm water controls allegedly
arose, and after the March 2017 date on which defendant allegedly first failed to cooperate with
implementation of conveyance piping across the portion of the Property at issue. (See Compl. (DE
105); Pl’s Mem. (DE 278) at 1, 4-8). As such, the relief sought by the instant motion is not of the
same character of the relief that maybe granted finally.
Plaintiff argues that the injunctive relief sought is procedurally proper because “it relates
to both the operative complaint and to [defendant’s] counterclaim alleging that the pooling of
stormwater is exacerbating [defendant’s] contamination at the property.” (Pl’s Reply (DE 313) at
6). As an initial matter, any reference to the counterclaim is insufficient to warrant the relief sought
in the instant motion, because the counterclaim is brought by defendant, seeking relief on behalf
of defendant. No matter how closely related defendant’s counterclaim is to the stormwater issues
raised by the plaintiff, (see, e.g., Answer and Counterclaims (DE 116) ¶ 34, 38, 62, 68, 70, 74 &
pp. 56-57), it does not contain a permanent request for the relief that plaintiff seeks through the
instant motion.
With respect to the complaint, plaintiff’s argument that its request for relief “relates to” the
complaint is insufficient to establish the necessary link between the permanent relief sought in the
action and the temporary relief sought in the instant motion. Plaintiff points, for example, to the
fact that the complaint “refers to” the Lease that “is the subject of this motion.” (Pl’s Reply (DE
313) at 8). Plaintiff also points to its allegations that defendant “knowingly delayed in addressing
its contamination at the Property.” (Id.). But, where the instant motion is premised upon a “breach
of the Lease,” (Pl’s Mem. (DE 278) at 10), the complaint asserts no such claim of breach.
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Moreover, the allegations in the complaint pertaining to the Lease and delays do not reference
defendant’s lack of cooperation with plaintiff’s implementation of stormwater controls on the
former building site on the Property. (See, e.g., Compl. (DE 105) at ¶¶ 68, 83, 106, 163, 174, 182,
197 and pp. 4-5, 59).
In any event, while defendant’s alleged conduct and interactions with
plaintiff generally may be pertinent to resolution of issues remaining for trial, the mere relation
between those issues and issues raised in the instant motion papers is insufficient to merit an award
of the specific TRO and preliminary injunction sought here.
In sum, the relief sought in the instant motion is not warranted by the claims in the
complaint. In so holding, the court is not expressing an opinion on whether and to what extent any
or all of the conduct that is subject of the briefing on the instant motion may be pertinent for
consideration in adjudicating the issues that remain for trial. It suffices merely for purposes of this
motion that a TRO and preliminary injunction as requested now by plaintiff is not appropriate in
light of the claims that are advanced in the complaint, in accordance with the law of the circuit
regarding circumstances for the award of temporary injunctive relief. See Hazardous Waste
Treatment Council, 945 F.2d at 788; Taylor, 34 F.3d at 270 n. 2; Omega World Travel, Inc., 111
F.3d at 16; In re Microsoft Corp. Antitrust Litig., 333 F.3d at 525.
2.
Likelihood of Success
In addition, and in the alternative, plaintiff has not demonstrated a likelihood of success on
the merits of its instant claim for injunctive relief. Plaintiff suggests that the relief sought is
justified where defendant has “breach[ed] . . . the Lease,” by refusing to give plaintiff “permission
to install the piping on the leased Property,” or “refused consent” for installation of the piping, or
“refus[ed] to give plaintiff entry for this purpose.” (Pl’s Mem. (DE 278) at 5, 10). But, plaintiff
does not advance any argument as to why the terms of the lease required defendant to give
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permission or consent to plaintiff to install piping. The lease gives plaintiff unconditionally a
“right to enter the Leased Premises upon reasonable notice to [defendant].” (Lease ¶8 (DE 278-2
at 23)). Moreover, plaintiff does not allege any instance in which it was denied entry after giving
notice to defendant.
Indeed, plaintiff does not offer any argument as to the likelihood of its success on the
merits. Rather plaintiff contends it has “raised fair grounds for the litigation,” describing other
claims it has asserted. (Pl’s Mem. (DE 278) at 16). As an initial matter, this is not the standard
for a TRO or preliminary injunction, which requires a clear showing of a likelihood of success on
the merits. See Winter, 555 U.S. at 22 (stating a movant “must establish that he is likely to succeed
on the merits” and “injunctive relief . . . may only be awarded upon a clear showing that the
plaintiff is entitled to such relief”). In any event, whether plaintiff will succeed on other grounds
advanced in this litigation is not pertinent to whether plaintiff could succeed on demonstrating a
breach of the Lease by defendant, a claim not asserted in the complaint.
Thus, plaintiff has not demonstrated a likelihood of success on the merits necessary to
obtain a TRO or preliminary injunction. Again, in so holding, the court expresses no view on the
merits of plaintiff’s claims remaining for trial, nor the import of the allegations asserted in its
motion papers on the issues remaining.
3.
Irreparable Injury
Furthermore, and in the alternative, plaintiff has not demonstrated that it is likely to suffer
irreparable harm in the absence of the requested injunctive relief. Plaintiff suggests that it will be
harmed by NCDEQ and City of Raleigh regulatory action if it does not install stormwater piping
on its Property. (Pl’s Mem. (DE 278) at 12). However, as an initial matter, nothing in the Lease
prohibits plaintiff from installing storm water piping as needed on its Property, particularly where
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the piping is related to the site of the former manufacturing plant. (See, e.g., Lease ¶¶ 8, 13 (DE
278-2 at 23, 25). While plaintiff has demonstrated that defendant likely would object to such
installation above the portion of the Property subject of the Lease, and the manner of such
installation could impact CERCLA contribution allocations, plaintiff has not demonstrated that it
has been physically impeded from proceeding in accordance with its interests on its own Property.
That point aside, plaintiff has not demonstrated that any harm to it resulting from regulatory
action by NCDEQ or the City of Raleigh could not be remedied, if due to defendant’s conduct,
through monetary relief. See Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, Owned by
Sandra Townes Powell, 915 F.3d 197, 218 (4th Cir. 2019) (“[W]hen anticipated economic losses
will be recoverable at the end of litigation, then those losses generally will not qualify as
irreparable for purposes of preliminary relief.”).
Furthermore, the record reflects that the parties have made progress in negotiating terms
and conditions for laying conveyance piping on the portion of the Property subject to the Lease.
(See, e.g., Reply (DE 313) at 1 (“Corning has finally engaged with AVX, [and] some progress has
been made.”)). With the progress already made, and with trial scheduled only a few months out,
plaintiff has not demonstrated a likelihood of irreparable harm in the form of regulatory action,
where the parties now are proceeding towards a cooperative resolution, as NCDEQ requested, and
where NCDEQ itself questioned defendant’s rationale for objecting to conveyance piping over the
portion of the Property subject to the Lease. (See DE 279-6 at 2-3).
While plaintiff suggests in reply that progress made so far is partial only, and that items
remain before the stormwater conveyance project is completed, (see, e.g., Reply (DE 313) at 1),
this does not advance its position concerning likelihood of irreparable harm. Indeed, it is uncertain
at this point if entry of the injunction exactly as plaintiff requested would serve any purpose, where,
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as plaintiff admits in its reply, “Corning has finally engaged with AVX.” (Id.). While the court
in theory could more narrowly tailor an injunction to meet the most recent circumstances, plaintiff
has not suggested the terms of such a modified injunction, nor proposed injunction language with
specific terms. See Fed. R. Civ. P. 65(d)(1) (stating that “[e]very order granting an injunction and
every restraining order must . . . state its terms specifically and . . . describe in reasonable detail –
and not by referring to the complaint or other document – the act or acts restrained or required.”).
In sum, plaintiff fails to demonstrate a likelihood of irreparable harm if the requested injunction is
not entered.
Given the aforementioned shortcomings, the court need not reach defendant’s
additional arguments in opposition to the instant motion.
CONCLUSION
Based on the foregoing, plaintiff’s motion for temporary restraining order and for
preliminary injunction (DE 277) is DENIED.
SO ORDERED, this the 18th day of May, 2020.
_____________________________
LOUISE W. FLANAGAN
United States District Judge
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