CitiSculpt LLC v. Advanced Commercial credit International (ACI) Limited

Filing 14

ORDER and OPINION denying 7 Motion for Preliminary Injunction. Signed by Honorable Bruce Howe Hendricks on 2/7/17.(alew, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

CitiSculpt, LLC,

)
)
Plaintiff, )
vs.
)
)
Advanced Commercial Credit
)
International (ACI) Limited, d/b/a
)
ACI Capital Partners,
)
)
Defendant. )
_______________________________)

Civil Action No.: 6:17-cv-69-BHH

OPINION AND ORDER

This matter is before the Court on the motion of Plaintiff CitiSculpt, LLC
(“CitiSculpt”) for a preliminary injunction (ECF No. 7) enjoining and restraining
Defendant Advanced Commercial Credit International Limited (“ACI”), its agents and
employees from representing that it is the exclusive debt broker for CitiSculpt with
respect to a particular real estate closing, and from interfering with CitiSculpt’s
economic opportunities and contracts regarding the real property in question. (Id. at 3.)
The motion is denied.
BACKGROUND
CitiSculpt is under contract with the owner of certain real property located in the
State of South Carolina, County of Greenville, to purchase said property (“10 S
Academy Street”). CitiSculpt alleges: (1) that it had a contract with ACI whereby ACI
would provide financing for CitiSculpt to acquire the 10 S Academy Street property; (2)
that ACI breached that contract by failing to provide financing; (3) that ACI is now

1

contacting third parties, from which CitiSculpt is trying to acquire financing, telling them
that ACI is the exclusive debt broker for the 10 S Academy Street closing; and (4) that
CitiSculpt may not be able to obtain financing unless Defendant ceases such
communications with third parties. (See ECF Nos. 1; 7.) CitiSculpt claims that ACI is
“intentionally interfering with CitiSculpt’s prospective business contacts and threatening
legal action against prospective lenders.” (ECF No. 7 ¶ 12.)
STANDARD OF REVIEW
The Supreme Court has stressed that “[a] preliminary injunction is an
extraordinary remedy never awarded as of right.” Winter v. Nat. Resources Def.
Council, Inc., 555 U.S. 7, 24 (2008); see also Pashby v. Delia, 709 F.3d 307, 319 (4th
Cir. 2013) (“Because preliminary injunctions are extraordinary remedies involving the
exercise of very far-reaching power, this Court should be particularly exacting in its use
of the abuse of discretion standard when it reviews an order granting a preliminary
injunction.” (quotation marks and citation omitted)). To obtain a preliminary injunction,
the moving party must establish: “(1) that he is likely to succeed on the merits, (2) that
he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the
balance of equities tips in his favor, and (4) that an injunction is in the public interest.”
Id. at 320. The party seeking the injunction bears the burden to establish each of these
elements by a “clear showing.” The Real Truth About Obama, Inc. v. Fed. Election
Comm’n, 575 F.3d 342, 346 (4th Cir. 2009).
DISCUSSION
CitiSculpt has not made a clear showing that it is likely to succeed on the merits.
There is a considerable disconnect between CitiSculpt’s motion and its complaint. The

2

motion is premised on the notion that ACI is tortiously interfering with CitiSculpt’s
economic opportunities and contracts with respect to its efforts to purchase the 10 S
Academy Street property. (See ECF No. 7 ¶ 14.) The complaint alleges causes of action
for fraud in the inducement, negligent misrepresentation, and breach of contract. (ECF
No. 1 ¶¶ 25-51.)
CitiSculpt attached a two page affidavit made by its general counsel in a
purported attempt to substantiate the allegation that ACI is inappropriately informing
third-party prospective lenders that ACI is the exclusive debt broker for the 10 S
Academy Street closing, as well as threating legal action against prospective lenders.
(ECF No. 7-1.) These assertions are hearsay and fail to even name prospective lenders
with which ACI is supposed to have had inappropriate contact. (See id. ¶¶ 6-7.) This
evidence hardly qualifies as an adequate showing that ACI has engaged in tortious
interference with CitiSculpt’s prospective business relationships. But the defect in
CitiSculpt’s motion is more fundamental: CitiSculpt has not even begun to show, let
alone made a clear showing, that it will succeed on the merits of the claims in its
complaint. The Court need say no more. The first Winter factor has not been satisfied.
Turning to the second Winter factor, the Court finds that CitiSculpt has not shown
that it is likely to suffer irreparable harm in the absence of injunctive relief. As Judge
Childs noted in her recent ruling on a preliminary injunction motion: “When analyzing the
irreparable harm element, there are two inquiries: 1) whether the plaintiff is indeed
suffering actual and imminent harm; and 2) whether that harm is truly irreparable, or
whether it can be remedied at a later time with money damages.” Poly-Med, Inc. v.

3

Novus Sci. Pte Ltd., No. 8:15-CV-01964-JMC, 2016 WL 7111704, at *9 (D.S.C. Dec. 7,
2016) (citations omitted).
CitiSculpt has not made a clear showing that it is suffering actual harm or
imminently will suffer harm as a result of ACI’s alleged inappropriate communications
with third-party prospective lenders. With due respect, Mr. Applefield’s affidavit will not
do. The portion of the affidavit that is material to the motion currently before the Court
consists of nothing more than non-specific, unsubstantiated, and conclusory allegations
regarding what ACI’s “agents and employees” may or may not have said during
conversations in which CitiSculpt took no part. (See ECF No. 7-1 ¶¶ 7-9.)
Even further from CitiSculpt’s reach is a clear showing that any putative harm it is
suffering, or may suffer in the future, is irreparable. CitiSculpt has not alleged, let alone
shown, that it has lost any business relationships with third-party lenders as a
consequence of ACI’s communications, that it has lost any financing opportunities, or
that it will be unable to close on the property in question. ACI aptly described this flaw in
CitiSculpt’s motion as follows: “Plaintiff has merely alleged that, in the absence of
injunctive relief, it will be harmed, and has left the nature and extent of that harm up to
the Court’s imagination.” (ECF No. 13 at 4.) But even if CitiSculpt had shown specific
harms of an actual or imminent nature, it has not given even the least explanation of
why such harm would be irreparable. Presumably, the worst harm CitiSculpt could
suffer is a lost economic opportunity to acquire the 10 S Academy Street property.
However, there is no reason these speculative damages could not be remedied through
monetary compensation. Accordingly, CitiSculpt has failed to show that any damages it
has suffered, or may suffer, in the context of this commercial transaction are irreparable.

4

Having already found CitiSculpt’s motion deficient on the first two Winter factors,
it would be extraneous for the Court to continue with its analysis. Suffice to say, a
preliminary injunction is not an appropriate remedy based on the record and the theory
advanced by CitiSculpt. The Court finds it unnecessary to conduct a hearing on this
matter.
CONCLUSION
For the reasons set forth above, CitiSculpt’s motion for a preliminary injunction
(ECF No. 7) is DENIED. ACI’s corresponding request for reimbursement of the costs
and legal fees it has incurred in connection with responding to the motion (ECF No. 13
at 11) is also DENIED.
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks___
United States District Judge
February 7, 2017
Greenville, South Carolina

5