Phibro Biodigester v. Murphy-Brown LLC
MEMORANDUM DECISION and Order denying 58 Motion for Preliminary Injunction. Signed by Judge Robert J. Shelby on 11/18/2022. (jl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFF’S
MOTION FOR A PRELIMINARY
PHIBRO BIODIGESTER, LLC,
Case No. 4:22-cv-00050-RJS-PK
Chief District Judge Robert J. Shelby
Magistrate Judge Paul D. Kohler
Plaintiff Phibro Biodigester, LLC (Phibro) owns and operates an anaerobic digester
facility in Beaver County, Utah (Phibro Facility). The Phibro Facility obtains pig manure
exclusively from Defendant Murphy-Brown, LLC (Murphy-Brown) which Phibro processes to
produce methane used for electricity generation. 1 Recently, Murphy-Brown began closing down
operations of the Murphy-Brown pig barns that supple manure to Phibro. 2 Facing a manure
supply shutdown, Phibro filed a Motion for Preliminary Injunction seeking to enjoin MurphyBrown from ceasing operations. 3 For the reasons explained below, the court denies Phibro’s
Murphy-Brown is a livestock producer that raises pigs for market. 4 It owns the Blue
Mountain, Skyline, and Skyline West farm complexes (BMS Farms) in Beaver County and Iron
Dkt. 51 ¶¶ 2-3, 5 (Amended Complaint).
Id. ¶¶ 5-8.
Dkt. 58 (Motion for Preliminary Injunction and Memorandum in Support) (Inj. Mot.).
Dkt. 26-1 ¶ 4 (Declaration of James W. Webb).
County, Utah. 5 Murphy-Brown is permitted to have roughly 450,000 ‘finisher’ pigs at the BMS
Farms finisher barns. 6 Phibro uses manure from some of the BMS Farms finisher barns to
operate an anaerobic digester facility, producing methane gas for electricity production. 7
The parties’ manure supply relationship is governed by the Amended and Restated
Manure Supply Agreement (ARMSA). 8 The ARMSA was signed in July 2013 by MurphyBrown and Phibro’s predecessor-in-interest, BM Biogas. 9 In 2016, BM Biogas defaulted on its
obligations under a financing agreement and a receiver was appointed over its assets, including
its rights under the ARMSA. 10 Phibro ultimately paid $875,000 for BM Biogas’s assets in a
receivership sale. 11 Those assets, including the rights held under the ARMSA, were then
assigned to Phibro in February 2019. 12
The ARMSA provides that Murphy-Brown will sell Phibro manure for use at the Phibro
Facility in exchange for a royalty. 13 Manure is defined in the ARMSA as specifically referring
to manure from the hogs at the BMS Farms finisher barns that were part of the defined
Production Pods at the time the ARMSA was entered (ARMSA Finisher Barns). 14 Phibro has no
Dkt. 26-1 ¶ 5 (Webb Decl.).
Dkt. 26-1 ¶ 13 (Webb Decl.); Dkt. 58-2 at 140:4-12 (Deposition of James W. Webb taken September 27, 2022)
(hereinafter Webb Depo.).
Dkt. 26-1 ¶¶ 27 (Webb Decl.); Dkt. 34 ¶¶ 19-21 (Supplemental Rebuttal Declaration of Simon Greenshields)
(hereinafter Greenshields Supp. Decl.).
Dkt. 26-1 ¶¶ 18, 23, 27 (Webb Decl.); Dkt. 4-1 (ARMSA).
Dkt. 4-1 (ARMSA); Dkt. 26-1 ¶ 18 (Webb Decl.).
Dkt. 4 ¶¶ 26-28 (Declaration of Simon Greenshields) (hereinafter Greenshields Decl.).
Dkt. 4 ¶¶ 33-34 (Greenshields Decl.).
Dkt. 4 ¶¶ 33-38 (Greenshields Decl.); Dkt. 75-2 (Assignment and Assumption Agreement).
Dkt. 4-1 §§ 2.1, 8 (ARMSA).
Dkt. 4-1 § 1 (ARMSA) (Manure under the ARMSA includes “all manure from finishing operations from the hogs
located at the Production Pods.” Production Pods are defined as the “Skyline West Production Pod, the Skyline
Production Pod, and the Blue Mountain Production Pod.” Each of the Production Pods is defined as the “existing
finisher barns” in each respective farm complex as of the date the ARMSA was entered.).
right to manure from other BMS Farms barns that are not part of the ARMSA Finisher Barns,
such as the nursery, sow, or boar barns. Consistent with the ARMSA and related land lease
agreements, the Phibro Facility is on Murphy-Brown property near the BMS Farms. 15
The ARMSA provides for an initial term of ten years starting January 1, 2013 with two
subsequent five year automatic renewal periods. 16 The ARMSA also includes provisions
requiring Murphy-Brown to maintain certain finisher hog population levels at the ARMSA
Finisher Barns, notice requirements related to material operational changes, a provision for early
termination of the ARMSA, royalty payment guidelines, dispute resolution procedures, and a
limitation of liability clause. 17
Phibro spent roughly two million dollars obtaining BM Biogas’s rights under the
ARMSA and as an initial capital investment repairing the Phibro Facility to make it operational
after a lengthy period of inattention. 18 Since gaining rights under the ARMSA, taking over the
Phibro Facility, and getting the Phibro Facility operational, Phibro has taken the manure it
required to operate from Murphy-Brown consistent with the ARMSA. 19 To date, Phibro has
been unable to match the previous productivity of BM Biogas at the Phibro Facility. 20
In June 2022, Murphy-Brown announced that due to the rising costs of doing business in
California, it was shutting down a meat processing plant in Vernon, California (Vernon Plant). 21
Dkt. 4 ¶¶ 9, 12, 16 (Greenshields Decl.).
Dkt. 4-1 § 3.1.1 (ARMSA).
Dkt. 4-1 §§ 3.2, 4.3, 8, 13.3, 13.4 (ARMSA).
Dkt. 4 ¶ 41 (Greenshields Decl.) (“Between its bid at auction and the money it has invested, therefore, Phibro
spent more than $1,900,000 on the Facilities and associated operations”).
Dkt. 34 ¶ 4 (Greenshields Supp. Decl.).
Dkt. 75-1 ¶¶ 7, 11 (Greenshields Third Decl.); Dkt. 75-1 at 9 (August 4, 2021 Email from Simon Greenshields to
Kraig Westerbeek noting that current Phibro production is 16MW compared to BM Biogas’s production being
Dkt. 26-1 ¶ 54 (Webb Decl.); Dkt. 58-2 at 99:23-100:19 (Webb Depo.).
Nearly all of the finisher pigs sent to market from the BMS Farms operations go to the Vernon
Plant for processing. 22 Due primarily to the Vernon Plant closure, Murphy-Brown decided to
close the BMS Farms finisher barns. 23
Later in June 2022, Murphy-Brown announced to farmers at the BMS Farms its plans to
depopulate the BMS Farms finisher barns starting in October 2022 and ending in February
2023. 24 As part of its plans to cease operations of the BMS Farms finisher barns, MurphyBrown also stopped inseminating sows at BMS Farms around June 2022. 25 In July 2022,
Murphy-Brown sent letters to farmers working at the BMS Farms finisher barns informing the
farmers that new pigs would not be sent to the barns once current populations were sent to
market. 26 The letters also offered the farmers additional payments in exchange for cooperating
with the farm closures. 27
Approximately 450 employees work for Murphy-Brown in Milford, Utah. 28 With the
upcoming BMS Farms finisher barn closures, Murphy-Brown will be reducing the number of
Utah employees. 29 Murphy-Brown has offered all of the Murphy-Brown employees losing jobs
due to the BMS Farms closures jobs at other Murphy-Brown facilities. 30 A majority of the offers
Dkt. 26-1 ¶ 55 (Webb Decl.).
Id. at ¶ 55-57 (Webb Decl.).
Dkt. 4 ¶ 42 (Greenshields Decl.).
Dkt. 58-2 at 25:1-12 (Webb Depo.).
Dkts. 5-1, 5-2.
Dkts. 5-1, 5-2.
Dkt. 58-2 at 178:23-25 (Webb Depo.).
Id. at 179:1-8.
for new Murphy-Brown jobs have been accepted, even though some of the new jobs are located
outside of Utah. 31
After the closure announcements, Phibro sought information and assurances from
Murphy-Brown concerning the BMS Farms finisher barns depopulation. 32 Not receiving the
information it sought, Phibro filed suit against Murphy-Brown August 8, 2022 seeking injunctive
relief based on Murphy Brown’s alleged breaches of the ARMSA by depopulating the finisher
barns. On August 22, 2022, Murphy-Brown sent Phibro a letter noting the pending closure of
the finishing barns at BMS Farms and purportedly terminating the ARMSA and related land
Upon filing suit on August 8, 2022, Phibro concurrently filed a Motion for Temporary
Restraining Order and/or Preliminary Injunction seeking an order directing Murphy-Brown to
continue to perform under the ARMSA and to reverse its plan to close the BMS Farms finisher
barns. 34 Phibro’s TRO Motion relied heavily on its contention that because the ARMSA is a
requirements contract, specific performance is an available remedy under the Utah Uniform
Commercial Code. 35
After full briefing, a hearing was held on Phibro’s TRO Motion on August 26, 2022 and
August 29, 2022. 36 This court denied the TRO Motion by oral ruling August 29, 2022. 37 The
Id. at 179:1-20.
Dkt. 4 ¶¶ 44-49 (Greenshields Decl.).
Dkt. 34-5 (Letter dated August 22, 2022 from Jim Webb to Simon Greenshields) (hereinafter Termination Letter).
Dkt. 3 (TRO Motion).
Dkt. 3 at 19, 23-24 (TRO Motion).
Dkts. 42, 48.
court’s denial acknowledged Phibro appeared to make a sufficient showing it was likely to
succeed on at least some of its contract claims, but found Phibro did not: (1) provide sufficient
evidence to demonstrate the balance of harms tilted in its favor; or (2) demonstrate it would be
irreparably harmed if injunctive relief was not issued in given the totality of the circumstances of
the relationship created by the ARMSA. 38 The relevant circumstances the court identified
included the limited term of the ARMSA, the operation of the limitation of liability provision in
the ARMSA, the parties’ sophistication, and the suitability of the relationship for establishing
and calculating economic harms caused by any breach. 39 The court emphasized that the ruling
was preliminary, based on a limited record before the parties had conducted any discovery, and
did not establish the law of the case moving forward. 40
The parties then conducted expedited discovery in anticipation of forthcoming
preliminary injunction proceedings. 41 On September 13, 2022, Phibro filed an Amended
Complaint again seeking equitable relief enjoining Murphy-Brown from depopulating the
ARMSA Finisher Barns. 42 The Amended Complaint largely reasserts the allegations in Phibro’s
initial Complaint, but includes additional breaches of the ARMSA including the alleged failure
to give notice of material changes to operations, an improper attempt to terminate the ARMSA,
and improper depopulation of the ARMSA Finisher Barns. 43 The Amended Complaint also
newly alleges breaches of the land leases related to the ARMSA. 44
Transcript of August 29, 2022 hearing before Judge Robert J. Shelby on Phibro’s Motion for TRO at 153:1518;166:15-17; 171:19-176:3.
Id. at 171:19-176:3.
Id. at 153:19-154:8.
Dkt. 51 (Amended Complaint).
Phibro filed its Motion for Preliminary Injunction on September 30, 2022. 45 In it, Phibro
renews its request that the court order Murphy-Brown to perform under the ARMSA and to
reverse its plans to close the BMS Farms finisher barns. 46 After full briefing, a hearing on
Phibro’s Motion was held October 17, 2022. 47
A party seeking preliminary injunctive relief must demonstrate four elements: “(1) a
substantial likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is
issued; (3) that the threatened injury outweighs the harm that the preliminary injunction may
cause the opposing party; and (4) that the injunction, if issued, will not adversely affect public
interest.” 48 Because a “preliminary injunction is an extraordinary remedy,” the grant of such
relief is “the exception rather than the rule.” 49 To prevail, the “movant's right to relief must be
clear and unequivocal.” 50
Certain injunctions are disfavored and require a greater showing from the movant. 51 If the
injunctive relief requested: (1) “mandates action” rather than prohibits action, (2) “changes the
status quo,” or (3) “grants all the relief that the moving party could expect from a trial win” then
Dkt. 58 (Inj. Mot.).
Dkt. 58 (Inj. Mot.).
Dkt. 86. After the hearing, supplemental briefing and objections were filed. Dkts. 88, 90, 94. The court finds the
post-hearing briefing procedurally improper. In any event, the supplemental briefing asserts arguments related to
the likelihood of success on the merits, which the court does not address in this Order. See dkt. 88.
Valdez v. Grisham, No. 21-2105, 2022 WL 2129071, at *3 (10th Cir. June 14, 2022) (quoting Diné Citizens
Against Ruining Our Env't v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016) (internal quotation marks omitted)).
Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d 1221, 1232 (10th Cir. 2019) (quoting Free the Nipple–Fort
Collins v. City of Fort Collins, Colo., 916 F.3d 792, 797 (10th Cir. 2019) (internal quotations omitted)).
Dine Citizens Against Ruining Our Env't, 839 F.3d at 1281 (quoting Wilderness Workshop v. BLM, 531 F.3d
1220, 1224 (10th Cir. 2008)).
Mrs. Fields Franchising, LLC, 941 F.3d at 1232.
the movant faces a higher burden. 52 So-called “mandatory” injunctions are also disfavored. An
injunction is “mandatory if the requested relief affirmatively requires the nonmovant to act in a
particular way, and as a result places the issuing court in a position where it may have to provide
ongoing supervision to assure the nonmovant is abiding by the injunction.” 53 An injunction that
would force a party’s continued participation in a business venture and require ongoing
cooperation with a litigation opponent is a disfavored, mandatory injunction that would
“undoubtedly” require ongoing court supervision. 54 A movant seeking a disfavored injunction
must make a “strong showing” on the “likelihood-of-success-on-the-merits and the balance-ofharms factors.” 55
Phibro’s requested injunction is a disfavored mandatory injunction. Phibro seeks an
order requiring Murphy-Brown to “maintain a population of no fewer than 405,000 hogs at the
BMS Finisher Barns.” 56 On its face, Phibro’s requested relief seeks an order of mandatory
action: “maintain[ing] a population of . . . hogs.” While Phibro argues that the requested
injunction merely maintains the status quo, 57 injunctions do not automatically avoid heightened
scrutiny “merely because they preserve the status quo.” 58 Regardless of how the status quo is
impacted, Phibro seeks an order that would require mandatory action which constitutes a
Schrier v. Univ. Of Co., 427 F.3d 1253, 1261 (10th Cir. 2005) (cleaned up).
UHSpro, LLC v. Secure Documents, Inc., No. 2:17-CV-00411-JNP, 2017 WL 2729082, at *3-4 (D. Utah June 23,
Mrs. Fields Franchising, LLC, 941 F.3d at 1232.
Dkt. 58 at 43 (Inj. Mot.).
Id. at 24.
Schrier, 427 F.3d at 1260.
Phibro’s argument that its request for relief prohibiting depopulation does not require
Murphy-Brown to do anything fails. 59 Couched as a double negative, Phibro’s argument ignores
the reality of actions that would be required to maintain a population of finisher pigs. An
injunction granting Phibro’s requested relief would necessarily mandate Murphy-Brown take
affirmative actions including starting inseminating sows to replenish the finisher barns once the
current pigs are sent to market, rescinding or modifying job offers to employees impacted by the
pending closures, and rescinding termination letters or negotiating new contracts with farmers to
raise pigs at the finisher barns, among other actions. Additionally, it would require MurphyBrown to operate a segment of its business it is attempting to close for business reasons and
would require Murphy-Brown to cooperate with a litigation opponent.
Additionally, it is easy to forecast a myriad of situations where this court would be
required to supervise Murphy-Brown’s compliance with an injunction, including related to
insemination, pig population levels and replenishment, and manure delivery and return. 60
Therefore, to obtain the disfavored injunctive relief it seeks, Phibro faces a heightened burden
and must make a “strong showing” that the “likelihood-of-success-on-the-merits and the
balance-of-harms factors” tilt in its favor. 61
Dkt. 58 at 24 (Inj. Mot.).
As an example of issues that may arise and require court supervision of an issued injunction, in the short time
since the filing of the Amended Complaint, Phibro now alleges in their Motion an additional breach of the ARMSA
based on an allegation that “[i]n the last couple of weeks, [Murphy-Brown] has stopped accepting manure at certain
lagoons” at the BMS Farms. Dkt. 58 at 31 (Inj. Mot). Conversely, Murphy-Brown alleges issues have arisen related
to Phibro not taking manure from 40,000 finisher pigs at several of the BMS Farms due to Phibro employment
issues. Dkt. 67 ¶ 63 (Opposition to Motion for Preliminary Injunction) (hereinafter Opp’n). Given that both parties
raise new issues related to performance under the ARMSA, it appears the court would be required to actively
supervise any injunction issued.
Mrs. Fields Franchising, LLC, 941 F.3d 1221 at 1232.
Phibro may obtain a preliminary injunction only if “monetary or other traditional legal
remedies are inadequate, and the right to relief is clear and unequivocal.” 62 Preliminary
injunctions are “drastic remedies” and movants must clearly carry the “burden of persuasion.” 63
Because “a showing of probable irreparable harm is the single most important prerequisite for
the issuance of a preliminary injunction,” 64 this factor is addressed first. The court then analyzes
the balance of harms factor where Phibro must make a “strong showing.”
I. PHIBRO FAILS TO DEMONSTRATE IRREPARABLE HARM
A party seeking injunctive relief must “demonstrate a significant risk that he or she will
experience harm that cannot be compensated after the fact by money damages. 65 “Determining
whether irreparable harm exists can be a difficult and close question” because irreparable harm
can be challenging to define. 66 However, “economic loss suffered by a business entity usually
does not, in and of itself, constitute irreparable harm.” 67 Moreover, establishing irreparable harm
is not “an easy burden” to meet. 68 The injury forming a basis for the injunction must be “certain
and great,” not “merely serious or substantial.” 69 Supposition will not suffice—the movant must
First W. Cap. Mgmt. Co. v. Malamed, 874 F.3d 1136, 1141 (10th Cir. 2017) (cleaned up).
UHSpro, LLC, 2017 WL 2729082 at *3.
First W. Cap. Mgmt. Co., 874 F.3d at 1141.
Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1262 (10th Cir. 2004) (internal citations
and quotation marks omitted).
UHSpro, LLC, 2017 WL 2729082 at *6 (quoting Port City Properties v. Union Pac. R. Co., 518 F.3d 1186, 1190
(10th Cir. 2008)).
Dominion Video Satellite, Inc., 356 F.3d at 1262 (quoting Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250,
1258 (10th Cir. 2003)).
Id. at 1262-63 (quoting Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001)
(internal citation and quotations omitted)).
submit “sufficient evidence of irreparable harm.” 70 Phibro fails to meet its burden of
demonstrating irreparable harm will occur without injunctive relief because the totality of the
circumstances surrounding the manure-supply relationship do not support a finding of irreparable
harm and because Phibro has failed to provide sufficient argument or evidence to the contrary.
The Totality of Circumstances Weighs Against Finding Irreparable Harm
Phibro fails to establish irreparable harm because the circumstances and characteristics of
the relationship that Phibro and Murphy-Brown bargained for are especially well-suited to
compensation with money damages. For starters, Phibro’s Motion rests entirely on alleged
breaches of the ARMSA by Murphy-Brown. 71 While Phibro tries to use the UCC to point the
remedy for breach towards specific performance, 72 the classic remedy for a breach of contract is
money damages. 73 Additionally, the ARMSA has a finite term; the relevant industries are
commoditized; the parties drafting the ARMSA were sophisticated and deliberate in creating
provisions like the limitation of liability; and the relationship has a limited scope, historical
royalty payments, and performance data that can be used for calculating economic damages.
Other courts may reach opposite outcomes in somewhat similar cases where some of
these characteristics are absent. However, in light of the totality of the facts and circumstances at
issue here, Phibro cannot show it will be irreparably harmed without injunctive relief.
K-TEC, Inc. v. Vita-Mix Corp., No. 2:06-CV-108 TC, 2008 WL 11518866, at *3 (D. Utah Mar. 19, 2008).
Dkt. 58 at 26-31 (Inj. Mot.).
Id. at 31-35.
Kearl v. Rausser, No. 2:04CV00175 BSJ, 2007 WL 626356, at *2 (D. Utah Feb. 23, 2007).
1. The Finite Life of the ARMSA Weakens Phibro’s Claim of Irreparable Harm.
The ARMSA-created relationship is limited to no more than twenty years and is already
roughly halfway complete. 74 This substantially undercuts Phibro’s argument for irreparable
harm based on injury to business reputation or the loss of goodwill. In some contexts, damage to
a business reputation will sustain injunctive relief. However, the fixed term here uniquely
focuses the parties on maximizing the economic returns of the relationship over the short-term of
the relationship, not on building a long-term reputation or brand. This reality is supported by the
fact that Phibro has done virtually no “marketing, advertising, or promotion” of its brand or
facility. 75 This is not to say that Phibro would not face “substantial” reputational harms or the
loss of goodwill if it can no longer access Murphy-Brown manure—but the bar to demonstrate
irreparable harm is high and the potential loss of reputation and goodwill here are not sufficiently
“certain and great.” 76
2. Phibro’s Sales into a Commoditized Energy Market Undercuts Its Claim of Irreparable
The ARMSA is a manure supply contract where the manure is processed and used as fuel
to generate electricity and associated renewable energy credits. 77 Energy production and
renewable credits are both commoditized markets where brand reputation is less critical. Phibro
does not provide unique electricity or special energy credits. These are fungible. Provided
Phibro has electricity and energy credits to sell, Phibro’s reputation and goodwill are less
Dkt. 4-1 § 3.1.1 (ARMSA).
Dkt. 69-3 at 143 (Phibro Profit and Loss Statement attached as Exhibit 29 to Greenshields Depo.) (hereinafter
Phibro P&L); see also Dkt. 67-7 at 14 (Phibro Response to Interrogatory No. 7).
Dominion Video Satellite, Inc., 356 F.3d at 1262-63 (quoting Prairie Band of Potawatomi Indians, 253 F.3d at
1250 (internal citation and quotations omitted)).
Dkt. 4-1 § 2 (ARMSA).
critically important for operations than in other industries without fungible, commoditized
This is evidenced by Phibro having customers such as Tenaska Power Services that are
not end customers, but are actually buying the energy from Phibro and then selling it on into
California markets in exchange for a royalty. 78 Again, this does not mean Phibro’s reputation
and goodwill would not be damaged without injunctive relief or that they play no role in Phibro’s
ability to operate, but it illustrates that the potential reputational harm and loss of goodwill does
not rise to the level required to establish irreparable harm.
3. The ARMSA’s Specific Terms and Deliberate Limitations Weighs Against Finding
The parties to the ARMSA were sophisticated, understood the circumstances of the
transaction, and deliberately defined the boundaries of the relationship in the ARMSA. This is
demonstrated by the ARMSA’s express limitation of liability provision, the early termination
provision, and the lack of any provision acknowledging irreparable harm or mandating specific
performance in the event of breach.
The ARMSA contemplated Phibro’s predecessor-in-interest would be making significant
capital investment for improvements on Murphy-Brown’s property, including that the Phibro
Facility would be essentially landlocked and dependent on a supply of manure from MurphyBrown. 79 Despite this, the parties significantly limited the potential liability either party could
Dkt. 69-3 (Greenshields Depo. at 116:20-121:23); Dkt. 34 ¶ 27 (Greenshields Supp. Decl.).
Dkt. 4-1 § 5 (ARMSA) (outlining forthcoming construction by Phibro’s predecessor); id. § 3.2 (ARMSA)
(providing Murphy-Brown does not have the usual termination rights when Phibro stops operating generating
facility if Phibro’s stoppage is to make capital improvements).
face for breaching the ARMSA and specifically excluded any liability related to the cost of
capital for breach or nonperformance of the ARMSA. 80
Additionally, while the parties included specific limitations on liability, they did not
include an express right to specific performance and did not acknowledge irreparable harm
would occur in the event of a breach of the ARMSA. 81 Phibro argues this oversight is deliberate
because the parties drafting the ARMSA relied on general Utah Uniform Commercial Code
(UCC) principles governing the ARMSA. 82 For purposes of this Order, the court assumes that
the ARMSA is a requirements contract, that manure is a unique good governed by the UCC, and
that the parties drafting the ARMSA were aware of the background legal landscape associated
with the UCC.
The UCC, however, does not mandate or create a presumption of specific performance
for requirements contracts or unique goods. 83 Instead, it merely permits specific performance
where goods are unique or in other proper circumstances. 84 Obtaining injunctive relief requires a
showing that the right to relief is “clear and unequivocal.” 85 That the UCC permits specific
performance in some circumstances does not meet this burden.
Further, while the UCC provides a general framework, parties in Utah are still free to
contract around nearly all provisions of the UCC 86 and are specifically permitted to limit liability
Dkt. 4-1 § 13.4 (ARMSA).
See generally Dkt. 4-1 (ARMSA).
Dkt. 58 at 37-44 (Inj. Mot.).
Utah Code Ann. § 70A-2-716.
Id. (“Specific performance may be decreed . . . .” (emphasis added)).
Dine Citizens Against Ruining Our Env't, 839 F.3d at 1281 (internal citation omitted).
Utah Code Ann. § 70A-1a-302.
by arms-length bargain. 87 Acceptable limitations of liability under the UCC include exclusion of
consequential damages, as was done here, 88 or by providing “for remedies in addition to or in
substitution for those provided” under the UCC. 89 Specifically, the UCC provides, as an
example, that damages could be limited “to return of the goods and repayment of the price.” 90
Therefore, expressly under the provisions of the UCC, a party requiring a rare and unique good
in order for its business to survive may, by bargain in a contract, agree to be limited only to the
return of the good and repayment of price in the event unsuitable goods are sent.
Here, the parties to the ARMSA created specific liability provisions and limitations.
Notably, even though the ARMSA limits significant liabilities, it specifically provides that some
forms of liability are not included in the limitation of liability provision. Under Section 12.4,
Phibro must indemnify Murphy-Brown for liability flowing from claims or losses arising out of
Phibro’s negligence or failure to adhere to Murphy-Brown’s bio-security rules, including the loss
of Murphy-Brown’s hogs or reasonable attorney’s fees. 91 Under the limitation of liability
provision of the ARMSA, the parties agree that Phibro’s liabilities arising out of Section 12.1
“are not the type of damages restricted by the provisions of [this provision].” 92 That the
ARMSA specifically limits liability but also includes carve outs is significant. The ARMSA,
however, does not make reference to specific performance or irreparable harm, which undercuts
Phibro’s ability to clearly show it has a right to injunctive relief.
Utah Code Ann. § 70A-2-719.
Id. (emphasis added).
Dkt. 4-1 § 12.4 (ARMSA).
Id. § 13.4.
The ARMSA also contemplated circumstances where the parties could terminate the
agreement without liability, including if Murphy-Brown discontinued operations of the Circle
Four Farms, which encompasses the BMS Farms finisher barns. 93 The parties offer different
interpretations of the scope of Murphy-Brown operations included in “Circle Four Farms” as
defined in the ARMSA. 94 Murphy-Brown offers that Circle Four Farms encompasses only the
ARMSA Finisher Barns, while Phibro asserts it includes other farms such as the sow farm,
nursery, and boar farms. 95
Regardless of how Circle Four Farms is defined -- and the court does not reach this issue
-- Murphy-Brown is shutting down all of the ARMSA Finisher Barns that Phibro has any right to
receive manure from under the ARMSA. 96 And regardless of which party’s interpretation of
Circle Four Farms is used, it is indisputable that shuttering all of Murphy-Brown’s pig barns in
Beaver and Iron County is the most that was required to terminate the ARMSA without any
liability to Phibro. 97 At any point, Murphy-Brown could decide to close Circle Four Farms,
limited at most to only two counties in Utah -- even if Murphy-Brown did not adjust operations
anyplace else nationally -- and face no liability. Whether Murphy-Brown is validly terminating
the ARMSA is not decided by this Order. However, the deliberate drafting of the ARMSA to
allow termination without any liability if Murphy-Brown decided to close Circle Four Farms,
however defined, weighs against a finding of irreparable harm here now. 98
Dkt. 4-1 § 3.2 (ARMSA).
Compare Dkt. 58 at 1-2 (Inj. Mot.) with Dkt. 67 ¶ 37 (Opp’n).
Dkt. 4-1 § 1 (ARMSA).
Id. at § 1 (ARMSA) (limiting Circle Four Farms to Beaver and Iron County Utah); id. at § 3.2.
Phibro alleges Murphy-Brown owns roughly 725,000 hogs in Utah, with 450,000 hogs at BMS Farms. Dkt. 58 at
5. That Murphy-Brown is eliminating the operations related to the 450,000 hogs at BMS Farms means even under
the broader interpretation of Circle Four Farms advanced by Phibro, Murphy-Brown’s attempted termination is
substantially similar to the maximum that could possibly be required under the ARMSA. A valid termination under
Moreover, even where contracts are governed by the UCC for unique goods or
requirements, courts still often look at whether other traditional forms of irreparable harm exist,
such as whether the party would be able to meet its contractual obligations to other parties, 99
whether there would be “destruction of its reputation,” 100 or damage to goodwill in a small
industry where “relationships and reputation are paramount.” 101 Requiring more than a
particular contract type or term to find irreparable harm is consistent with the Supreme Court’s
warning against establishing broad, categorical conclusions in injunction cases. 102 Similarly in
the Tenth Circuit, in cases where irreparable harm is alleged based on breach of an exclusivity
clause, courts still look to traditional markers of irreparable harm as part of the analysis. As
explained more fully below, Phibro fails to demonstrate irreparable harm under traditional tests.
Viewed in total, the structure and terms of the ARMSA weigh against a finding of irreparable
4. A Finding of Irreparable Harm is Undercut Because the Relationship Created by the
ARMSA is Especially Well-Suited to Calculating Monetary Damages.
The relationship between Phibro and Murphy-Brown under the ARMSA readily lends
itself to the calculation of monetary damages. First, there is substantial historical performance
under the ARMSA that can be used to determine what monetary damages may be appropriate.
This includes information about past amounts of manure taken, regular royalty calculations, and
the ARMSA may still require much more than what Murphy-Brown is doing, but it is demonstrative of the intention
of the parties regarding potential liabilities in the event Murphy-Brown decided to discontinue operations. This is
not dispositive of the issue of irreparable harm, but it is a factor demonstrating the intention of the parties drafting
the ARMSA that aids in evaluating the totality of the circumstances here.
MAG Aerospace Indus., LLC v. Precise Aerospace Mfg., Inc., No. 5:18-CV-01096-RGK-JC, 2018 WL 6074596,
at *3 (C.D. Cal. July 18, 2018).
JD Norman Indus., Inc. v. Metaldyne, LLC, No. 15-13863, 2016 WL 1637561, at *8 (E.D. Mich. Apr. 26, 2016).
Bionpharma Inc. v. CoreRx, Inc., 582 F. Supp. 3d 167, 175 (S.D.N.Y. 2022).
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 392-94 (2006).
energy generation. Additionally, the energy market is a commodity sector where forecasting is
ordinary and future performance under the ARMSA is limited to a finite term. Taken together,
the ability to forecast future performance or to calculate monetary damages here is reasonable
and appropriate. As evidence of this, Phibro sufficiently trusted past performance to create
future projections through 2033 that Phibro represented were sufficiently reliable to use during
purchase negotiations last year. 103
Viewed as a whole, the relationship between Murphy-Brown and Phibro under the
ARMSA and the circumstances at issue here weigh against a finding of irreparable harm.
Phibro’s Argument and Sparse Evidence Do Not Establish Irreparable Harm
Phibro essentially asks the court to find irreparable harm is per se established under
certain circumstances present here. Phibro attempts to establish irreparable harm will occur
absent an injunction because: (1) monetary damages are inadequate given the ARMSA is a
requirements contract and Phibro cannot cover, 104 (2) Phibro will suffer loss of reputation and
goodwill, 105 (3) there is a limitation of liability provision, 106 (4) Phibro will be forced out of
business, 107 and (5) damages are too difficult to calculate. 108 Phibro’s arguments and sparse
evidence do not establish a clear and unequivocal right to relief.
Dkt. 75-1 at 13 (12 Year Cash Flow Model Valuation Scenarios).
Dkt. 58 at 31-34 (Mot. Inj.).
Id. at 35.
Id. at 41-42.
Id. at 41.
Id. at 38.
1. There is No Per Se Presumption that Irreparable Harm Exists for Breaches of Contracts
with Unique Goods.
Phibro spends significant time articulating why the manure at issue is a unique good
based on the ARMSA being a requirements contract and Phibro’s inability to cover. As the court
explained above, for purposes of this Order the court assumes the ARMSA is a requirements
contract, that manure is a unique good, and that Phibro cannot cover. However, Phibro does
little to explain why that clearly demonstrates irreparable harm. Citing two non-controlling cases
it argues “damages are often inadequate when the subject of as agreement is unique” based on
the contract being a requirements contract or the inability to cover. 109 Phibro provides no
guidance concerning when damages are found to be inadequate or the circumstances delineating
where they are found to be adequate or inadequate.
What Phibro seems to seek is a bright-line rule recognizing irreparable harm exists and
warrants injunctive relief in all requirements cases or all cases where goods cannot be covered.
But Phibro fails to establish that is the law. And as explained above, the UCC does not create an
automatic right to specific performance. Rather, courts evaluating requirements contracts or
unique goods still look to other traditional forms of irreparable harm and avoid creating
categorical bases for injunctive relief.
In passing, Phibro offers conclusory statements that it has shown traditional forms injury
that, when combined with the ARMSA being a requirements contract or manure being a unique
good, establish irreparable harm. 110 Phibro concludes without pointing to any evidence that it
will lose its competitive place in the marketplace, will be forced to close its doors, and that
damages will be hard to calculate. As explained in more detail below, Phibro fails to meet its
Id. at 31.
Dkt. 72 at 26-27 (Reply).
burden on each conclusion because it has not provided sufficient evidence of these harms.
Phibro, therefore, can only meet its burden to show irreparable harm if the court concludes the
breach of a requirements contract or a contract for a unique good is per se evidence of
irreparable harm. Because the court declines to do so, Phibro fails to meet its burden to
demonstrate irreparable harm.
2. Phibro Provides No Evidence of Harm to Reputation or Goodwill.
A party must provide actual evidence of damage to reputation or goodwill to show
irreparable harm. 111 Phibro fails to provide any such evidence. In its briefing, Phibro identifies
no contracts it must fulfill, no customers reliant upon it, and no reputation that it has to lose. To
the contrary, Murphy-Brown points out that Phibro does not enjoy a reputation in the biogas
industry, except that it has a problematic reputation related to a history of poor performance. 112
Phibro’s conclusion that its reputation will be harmed if it does not generate electricity is not
sufficient. 113 And even if the court were to consider the mention of three customers that Phibro
includes in a declaration, 114 the only contracts Phibro produced connected to these customers do
not list Phibro as a party to the contracts or the owner or operator of the biodigester facility. 115
Additionally, the term of the ARMSA is finite, which reduces the severity of any
reputational harm argument. Whatever reputation Phibro could develop does not carry beyond
the term of the ARMSA for purposes of evaluating irreparable harm. Given the lack of evidence
Schrier, 427 F.3d at 1267.
Dkt. 69-3 at 68 (May 21, 2019 Springville City Staff Report noting that the relationship with Phibro and its
predecessor, there were frequent plant outages without production, equipment failures, and underperformed
Dkt. 58 at 35 (Inj. Mot.).
Dkt. 34 ¶ 27 (mentioning California System Operator, Tenaska Power Services, and Three Degrees).
Dkt. 69-3 at 105-106 (Environmental Attribute Purchase Agreement between Phibro Americas, LLC and
Degrees3 Transportation Solutions, LLC with a term through December 31, 2023.); Dkt 69-3 at 131 (Master Power
Purchase and Sale Agreement between Tenaska Power Services Co. and Phibro Americas LLC).
regarding Phibro’s customers and reputation, and in view of counter-evidence that Phibro
already has reputational shortcomings, Phibro has failed to sufficiently demonstrate irreparable
harm based on loss of reputation.
3. A Limitation of Liability Provision Does Not Create Presumptive Irreparable Harm.
A limitation of liability clause does not automatically create a presumption that
irreparable harm exists. Both parties have offered non-controlling caselaw in which courts
reached opposite views on the impact of a limitation of liability provision. Phibro’s cited case 116
holds that a limitation of liability might justify injunctive relief because the limitation could
jeopardize relief on the merits. 117 In contrast, Murphy-Brown offers cases focusing on the
inherent inequity of allowing a party to bargain away rights to damages at arms-length and then
to use that limitation as a sword to obtain extraordinary relief through injunction. 118
In Utah, contract law is amoral. 119 Parties are almost universally “free to contract
according to their desires in whatever terms they can agree upon.” 120 The UCC also supports
parties creating the boundaries and limits of their transactions; the UCC permits discarding
almost all of the UCC framework and permits liability limitations. 121 It would be antithetical to
the freedom to contract if courts worked around the parties’ bargained-for limitations to grant
extraordinary relief in equity based on those same negotiated limitations. The parties to the
Phibro also mentions Chambers v. Edmondson, 594 F.3d 742 (10th Cir. 2010). It does not govern in this
situation. Sophisticated parties limiting liability by contract is not the same as a complete bar to recovery based on
Bionpharma Inc. v. CoreRx, Inc., 582 F. Supp. 3d 167, 176 (S.D.N.Y. 2022).
Click Boarding LLC v. Smartrecruiters, Inc., No. 21-CV-210 (NEB/BRT), 2021 WL 1851944, at *5 (D. Minn.
May 10, 2021).
TruGreen Companies, L.L.C. v. Mower Bros., Inc., 2008 UT 81, ¶ 19, 199 P.3d 929, 933.
Mind & Motion Utah Invs., LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 35, 367 P.3d 994, 1003 (internal citation
Utah Code Ann. § 70A-2-719; Utah Code Ann. § 70A-1a-302.
ARMSA included a limitation of liability provision deliberately. The parties now will have the
opportunity to argue about the full application of the liability limitation provision and ultimately
obtain the full benefit of the bargain they entered. As such, the presence of a limitation of
liability provision does not, by itself, create irreparable harm.
4. Phibro has Insufficiently Demonstrated the Factual Circumstances of Going Out of
The permanent shuttering of a business might support a finding of irreparable harm in
some instances. But a party raising this harm must make a sufficient evidentiary showing. If a
business is already worthless, there is no irreparable harm in it closing. 122 It is not enough for a
party to self-servingly conclude that its business or project may close.
Phibro vaguely argues that absent injunctive relief, it will be forced out of business. 123
Phibro’s offered declarations likewise offer vague conclusions including that “[o]perations in
Utah will not survive.” 124 However, Phibro does not sufficiently detail the operations of its
business to demonstrate irreparable harm. There is no doubt that if Phibro is unable to obtain
manure under the ARMSA, it will drastically impact its business. The full extent of that impact,
however, is unknown because Phibro has failed to make a sufficient evidentiary showing.
Since taking over the Biodigester Facility and rights under the ARMSA in 2019, Phibro
has a cumulative net income loss of over $5 million dollars. 125 In 2021 alone, EBITDA was a
loss of more than a million dollars. 126 For the entire period Phibro has owned the Biodigester
J.P.T. Auto., Inc. v. Toyota Motor Sales, U.S.A., Inc., 659 F. Supp. 2d 350, 355 (E.D.N.Y. 2009).
Dkt. 75 at 20 (Reply).
Dkt. 4 ¶ 21 (Greenshields Decl.).
Dkt. 69-3 at 143 (Phibro Profit and Loss Statement, All Dates).
Facility, Phibro has only generated a little over $700,000 in revenue. 127 Phibro purchased the
assets of BM Biogas, including its rights under the ARMSA, for $875,000. This means that
setting aside all expenses for nearly 4 years and setting aside all of the capital improvements
Phibro has made in the nearly four years since taking over, Phibro has still failed to generate
more revenue than the original purchase price. Moreover, Phibro bought a failed business out of
receivership and has yet to demonstrate productivity even equal to the failed business. 128 This
evidence raises serious questions about whether Phibro has any value and precludes a finding
that Phibro will be irreparably harmed by going out of business.
Conversely, it is also not clear that Phibro will definitely go out of business. Phibro
argues that it is in the “relatively early stages of a long-term investment” and that “Phibro
anticipated that it would operate at a loss for some time before it would begin to yield a
profit.” 129 Despite all of the losses thus far, Phibro remains in business. Phibro has produced no
evidence demonstrating when it will be unable to continue to pay its debts. Phibro did not point
to its balance sheet to demonstrate its current financial condition or any evidence of its access to
capital to continue operations. Nor has Phibro pointed to evidence outlining the full scope of its
business operations. Phibro’s reliance on assertions it will go out of business without pointing to
supporting evidence is insufficient to meet its burden to show irreparable harm will occur
without injunctive relief.
Dkt. 75-1 at 9 (August 4, 2021 Email from Simon Greenshields to Kraig Westerbeek noting that current Phibro
production is 16MW compared to BM Biogas’s production being around 30MW).
Dkt. 72 at 22 (Reply).
5. Phibro’s Damages Can Reasonably Be Calculated.
Phibro argues the time left in the stated term of the ARMSA and evolving nature of the
renewables energy market make it difficult, if not impossible, to calculate damages. 130 This
argument is not persuasive. The fixed length of time remaining under the ARMSA makes the
calculation of future damages more feasible, not less. 131 Courts have also found that with
enough data, periods of turbulence can be separated out and do not prevent damage
calculations. 132 So too here. The court in unconvinced that Phibro’s damages cannot be
reasonably calculated given the limited future term and historical operational data. That Phibro
has used historical performance to create forecasts through 2033 133 for purchase negotiations is
evidence that damages can be reasonably calculated. Phibro cannot demonstrate irreparable
harm based on the difficulty of calculating damages.
Looking at the totality of circumstances related to the relationship between Phibro and
Murphy-Brown under the ARMSA, and in light of the evidence and arguments the parties
present, the court finds Phibro has failed to carry its burden to show irreparable harm will occur
without injunctive relief. This alone requires the court to deny Phibro’s Motion.
Dkt. 72 at 27 (Reply).
Mrs. Fields Franchising, LLC, 941 F.3d at 1231 (Noting calculation of a permanent license would be nearly
impossible, while years of historical data would permit calculating the future value of the remainder of a five-year
Id. at 1236 (“Setting aside the period of the great recession and the period following the warehouse fire, that
leaves a total of approximately eight years and three months’ worth of sales data . . . Nothing in the record or in
MFGPC's briefs persuades us that this data cannot serve as a reasonable measure of MFGPC's damages.”).
Dkt. 75-1 at 13 (12 Year Cash Flow Model Valuation Scenarios).
II. THE BALANCE OF HARMS WEIGHS IN FAVOR OF DENYING THE
Weighing the respective harms, Phibro has not made a strong showing that the threatened
injury to Phibro outweighs the harm the preliminary injunction may cause Murphy-Brown.
Before granting or withholding injunctive relief, “a court must balance the competing claims of
injury and must consider the effect on each party . . . .” 134 In weighing the respective harms, it is
the irreparable harms of the movant that are weighed against the harms to the non-movant. 135
Because Phibro’s requested relief is a mandatory injunction, Phibro must make a strong showing
on this factor to obtain an injunction. 136 But under either the heightened or default standard,
Phibro is unable here to meet its burden to show that the balance of harms tilts in its favor.
Initially, the court rejects Phibro’s argument that Murphy-Brown’s actions in closing the
BMS Farms finisher barns are a pretense to put a competitor out of business or otherwise
constitute misconduct. 137 Phibro recites no evidence to support this argument. 138 The court also
rejects Phibro’s argument that Murphy-Brown’s harms are self-inflicted and the type that should
be excluded from a balancing analysis. 139 As the Tenth Circuit explained in Sierra Club, Inc. v.
Bostick, a finding of wrongful conduct is critical to a conclusion that harm is self-inflicted. 140 In
Sierra Club, the appellants argued that because TransCanada had entered into contracts to build a
pipeline prior to Army Corps approval, the harms stemming from construction delays were self-
Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 542 (1987).
Fish v. Kobach, 840 F.3d 710, 754 (10th Cir. 2016).
Mrs. Fields Franchising, LLC, 941 F.3d at 1232.
Dkt. 72 at 32 (Reply).
This argument seems especially unfounded given the evidence before the court regarding Phibro’s production,
revenues, profits, and comparing the scale of the BMS Farms operation to Phibro’s Biodigester Operations.
Dkt. 72 at 31-32 (Reply).
Sierra Club, Inc. v. Bostick, 539 F. App'x 885, 894 (10th Cir. 2013).
inflicted. 141 The Sierra Club Court rejected the harm as being self-inflicted because there was no
wrongful conduct on the part of TransCanada. 142 Phibro has presented no evidence that MurphyBrown’s conduct involved wrongful action or misconduct.
Phibro’s alleged injury is potential loss of its investment in the biodigester business and
what it believes will be significant future profits if Phibro is forced out of business. 143 The court
does not discount that without an injunction Phibro will be unable to operate the Phibro
Biodigester Facility and that its business will be drastically altered. However, as explained
above, what that means is entirely unclear because Phibro has failed to present clear evidence the
court can use to determine the value of that injury, if any.
For example, Phibro points to projections that it will make a minimum of $13 million in
net income through the end of the term outlined in the ARMSA. 144 But the $13 million net
income projection does not appear to be a reliable figure for the court to evaluate. That
projection assumed an additional $1.7 million in capital investment and assumed that Phibro
could operate at 30MW. 145 During purchase negotiations, Phibro admitted it was only operating
at 16MW, and Phibro has presented no evidence that it has invested the $1.7 million required for
the projection. 146 Moreover, Murphy-Brown expressed skepticism that significant production
improvement could occur with the current system and only a $1.7 million dollar investment. 147
Id. at 890-92.
Id. at 893-94.
Dkt. 75 at 35-36 (Reply).
Id. at 36-37.
Dkt. 75-1 at 13 (12 Year Cash Flow Model Valuation Scenarios) (referencing the “Status QUO 30 MW Daily
Id. at 9 (email exchange between Simon Greenshields and Kraig Westerbeek discussing Phibro’s production level
and the $1.7 million capital investment in the projections).
Id. at 9 (Kraig Westerbeek email to Simon Greenshields noting “I am not clear on how productivity is going to be
increased substantially with the current system with $1.7M cap-ex.”).
And the projection forecasted $4.04 million in revenues in 2022 with net income of $2.54
million. 148 Phibro’s evidence is nowhere near this projection—it admits it is still operating at a
loss 149 and total revenue for the entire life of the project to date is only $700k. 150 Phibro has
produced no evidence its projection is tied to the reality of its operation. Additionally, the
projection does not show exploding exponential revenues, it shows an increase in net income in
2022, and then stable, but decreasing net income through 2033. 151
And as explained above, Phibro has produced no evidence of when or why it will be
profitable in the future, nor has it produced evidence explaining how it is capitalized or how it
continues to operate at a loss. In essence, Phibro has failed to demonstrate it is not on the verge
of putting itself out of business. But it asks the court to simply trust that it will make millions of
Conversely, the harms Murphy-Brown faces are significant. First, the loss of control
over a business is a real and significant harm. This court has previously noted the harms caused
by losing “the right to control its business,” the harm of being “forced into a business
relationship for an extended period of time with [a] litigation rival” and how these types of harm
prevent a company from “expanding or exploring other opportunities.” 152 The loss of business
autonomy is a real harm regardless of the financial impact.
Additionally, an injunction would require Murphy-Brown to spend millions of dollars
each month operating a part of its business determined not to be economically feasible as the
Dkt. 75-1 at 13 (12 Year Cash Flow Model Valuation Scenarios) (referencing the “Status QUO 30 MW Daily
Dkt. 72-2 ¶ 7 (Greenshields Third Decl.) (Simon Greenshields admitting Phibro continues to operate at a loss).
Dkt. 69-3 at 143 (Phibro Profit and Loss Statement, All Dates).
Dkt. 75-1 at 13 (12 Year Cash Flow Model Valuation Scenarios) (emphasis added).
UHSpro, LLC, 2017 WL 2729082 at *7.
Vernon Plant closes down. 153 Although the historical profits Murphy-Brown has received from
operating the BMS Farms substantially lessen the severity of this harm, an injunction would still
force Murphy-Brown to operate a segment of its business it no longer wants to operate or
believes is economically feasible to operate, employ hundreds of employees, and spend millions
of dollars each month in expenses. On balance, the harms to Murphy-Brown are more severe
than the potential closure of Phibro’s operation given that Phibro has provided no reliable
evidence of financial viability. This is especially true considering Phibro asks the court to force
Murphy-Brown to operate at full-capacity levels when Phibro does not consistently come close
to using all of the manure generated by Murphy-Browns operations at the ARMSA Finisher
Barns. 154 Phibro has not shown its harm outweighs the potential harm to Murphy-Brown, much
less made a strong showing this factor weighs in its favor. This failure alone requires the court
to deny Phibro’s Motion.
III. LIKELIHOOD OF SUCCESS ON THE MERITS AND PUBLIC INTEREST
Having concluded that Phibro failed to establish the existence of irreparable harm or that
the balance of harms weighs strongly in its favor, “it is unnecessary  to address the remaining
two requirements for the imposition of a preliminary injunction.” 155
For the reasons explained above, the court concludes that Phibro has failed to carry its
burden of demonstrating that a preliminary injunction is appropriate. Accordingly, Phibro’s
Motion for Preliminary Injunction 156 is DENIED.
Dkt. 26-1 ¶¶ 54-62 (Declaration of James W. Webb).
Dkt. 26-1 ¶ 41 (Webb Decl.).
Mrs. Fields Franchising, LLC, 941 F.3d at 1236.
Dkt. 58 (Inj. Mot.).
SO ORDERED this 18th day of November 18, 2022.
BY THE COURT
Robert J. Shelby
United States Chief District Judge
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