Z VIEW ENTERPRISES, LLC et al v. GIANT EAGLE, INC.

Filing 319

ORDER DENYING deft Giant Eagle's motion 309 to deny pltfs' motion for PI w/out a hearing & DENYING as MOOT pltfs' motion 312 for a status conference & to set briefing schedule re: deft's expedited motion to deny motion for PI. (See order for complete details.) Signed by Christopher C. Conner on 11/4/19. (kmMD)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SEVEN Z ENTERPRISES, INC.,
et al.,
Plaintiffs
v.
GIANT EAGLE, INC.,
Defendant

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CIVIL ACTION NO. 2:17-CV-740
(Chief Judge Conner)

ORDER
AND NOW, this 4th day of November, 2019, upon consideration of the motion
(Doc. 309) to deny plaintiffs’ motion for preliminary injunction without a hearing
filed by defendant Giant Eagle, Inc. (“Giant Eagle”), wherein Giant Eagle contends
that plaintiffs cannot make out a colorable claim of likely irreparable harm in the
absence of injunctive relief, one of the “two most critical factors” for issuance of a
preliminary injunction, see Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir.
2017) (internal quotation marks omitted), and in which Giant Eagle relies primarily
on selective portions of plaintiffs’ depositions, (see Doc. 311 at 4-11), and the court
noting that a hearing on plaintiffs’ motion (Doc. 276) for preliminary injunction is
scheduled for December 9, 2019, (see Doc. 284), and that discovery is ongoing, (see
generally Docs. 303, 304), and the court further observing that where there are
disputes as to material facts, a hearing on a motion for injunctive relief is ordinarily
required, Arrowpoint Capital Corp. v. Arrowpoint Asset Mgmt., LLC, 793 F.3d 313,
324 (3d Cir. 2015) (quoting Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 719 n.16
(3d Cir. 2004)), and it appearing that disputes of material facts exist regarding
whether plaintiffs are likely to suffer irreparable harm from the fuelperks+

program absent injunctive relief, and the court finding that the instant motion for
preliminary injunction is not the type that can be decided on the paper record
alone, see Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175-76 (3d Cir. 1990),
and that plaintiffs are not required to litigate the merits of their motion for
injunctive relief in advance of the scheduled hearing, it is hereby ORDERED that:
1.

Giant Eagle’s motion (Doc. 309) to deny plaintiffs’ motion for
preliminary injunction without a hearing is DENIED.

2.

Plaintiffs’ motion (Doc. 312) “for a status conference and to set a
briefing schedule regarding defendant’s ‘expedited motion to deny
motion for preliminary injunction’” is DENIED as moot. 1

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania

1

We separately note our concern with what appear to be significant
inconsistencies between the allegations in plaintiffs’ motion for preliminary
injunction and the deposition testimony of several of the independent retailers.
(Compare Doc. 276 ¶ 3 (“The Independent Retailers are now desperately cash
strapped and on the brink of closure because of fuelperks+.”), and id. ¶ 86 (“The
impact of the weekly redemption costs of the fuelperks+ program on each of the
Plaintiffs’ cash flows has significantly impaired their ability to operate on a weekly
basis.”), with Doc. 311-3, Allridge Dep. 336:9-16 (Question: “[I]s Mon Valley Foods
cash strapped now?” Answer: “No.” Question: “Are you on the brink of closing any
of the stores?” Answer: “No.”), and Doc. 311-1, Zupancic Dep. 144:10-11 (Question:
“Is your business short on cash?” Answer: “No.”), 182:2-7 (Question: “Are you on
the verge of bankruptcy?” Answer: “No.” Question: “You’re not going out of
business if Giant Eagle takes [the fuelperks+ Year-Over-Year Credit] away, are
you?” Answer: “No.”)). We remind the parties of their obligations under Federal
Rule of Civil Procedure 11(b)(3), and of the court’s discretion under Rule 11(c)(3) to
ensure that those obligations are observed.