Professional Documents
Culture Documents
____________________
Space
challenges the
and in
favor
Ventures,
Inc.
("SVI"
entry of a preliminary
of
plaintiff-appellee
("Feinstein" or
"plaintiff").1
court
determining
erred in
In this appeal,
likelihood of success on
that
or
defendant"defendant")
injunction against it
Alan
Shawn
Finding that
the district
plaintiff demonstrated
and remand.
I.
I.
Feinstein
we vacate
__
BACKGROUND
BACKGROUND
__________
On
collectibles,
count
April
8,
initiated
complaint against
distributor
1992,
plaintiff,
this
litigation by
defendant SVI,
of trading cards.
marketer
filing
of
a four
a manufacturer
and
Counts
____________________
1. As an initial matter, we note that plaintiff challenges
our jurisdiction to hear this appeal. In so doing, he relies
upon authority indicating that an interlocutory order which
has the incidental effect of denying injunctive relief can
only be appealed under 28 U.S.C.
1292(a)(1) where the order
will have a "`serious, perhaps irreparable, consequence'" and
where it "can be
`effectively challenged' only by an
immediate appeal."
See Stringfellow v. Concerned Neighbors
___ ____________
___________________
in Action, 480 U.S. 370, 379 (1987) (quoting Carson v.
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______
American Brands, Inc., 450 U.S. 79, 84 (1981)).
Such
_______________________
authority is inapposite here, however, where the order at
issue clearly and directly granted a preliminary injunction
after
a
hearing
on
plaintiff's
request
therefor.
Accordingly, because 28 U.S.C.
1292(a)(1)
grants us
jurisdiction over "interlocutory orders of the district
courts . . . granting . . . injunctions," we find that we
have jurisdiction over this appeal.
-22
III
and
IV stated
that defendant
had breached
on September 4, 1991.
a contract
On April
which
is
entitled
"Breach of
plaintiff's Count
Confidentiality."
____________________
In
2. Defendant
contract.
subsequently
counterclaimed
for
breach
of
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to solicit
II
concludes
with
refrain from
for
damages
and
soliciting
request
plaintiff's customers,
(2)
to
(5) to provide
(4)
an
this
plaintiff
a hearing
proceeded as
if
the
duty of
confidentiality
referenced in
More
specifically,
about
to breach an
defendant would
keep
the list
Count II
plaintiff testified
was contract-based.
that
Although
defendant was
it is
____________________
3. During the course of
the hearing, plaintiff
also
introduced affidavits from Beverly S. Vale and Edward P.
Walton tending to support plaintiff's claim that he and
defendant had an oral agreement, and that the duty at issue
in Count II arose from this agreement.
-44
assumption.
In the
portion of its
operated under
and to keep
(2) how
district court
immediate
also found
and irreparable
that plaintiff
harm if
would suffer
the injunction
were not
providing
Therefore,
plaintiff
the
with the
district
be adversely affected by
relief
court
requested.
entered
an
See
___
id.
___
injunction
____________________
4. The district court made these findings in the course of
considering,
as it must
before issuing a preliminary
injunction, whether plaintiff was likely to succeed on the
merits of his claim. See, e.g., Narragansett Indian Tribe v.
___ ____ _________________________
Guilbert, 934 F.2d 4, 5 (1st Cir. 1991).
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forbidding
defendant from
using plaintiff's
customer list.
court
demonstrated a
erred
in
ruling
likelihood of
Count II claim.
the
that
had
success on
plaintiff
the merits of
his
constrained to agree.
It
is
court's decision
under
settled
that
to grant
relatively
"`we
or deny a
deferential
scrutinize
a district
preliminary injunction
glass.'"
Id.
___
(quoting
1988)).
Thus,
discretion, we
However,
will not
"`[a]pplication of
determining
the
likelihood
disturb its
ruling.
an
improper legal
of
success on
the
See id.
___ ___
standard in
merits
or
misapplication
discretion.'"
862 F.2d 896, 900 (1st Cir. 1988) (quoting Planned Parenthood
__________________
instance,
legal standard
demonstrated a
the district
in
court applied
determining that
likelihood of
success on
an
plaintiff had
the merits of
his
-66
breach of
confidentiality claim.
the district
was
based
upon
defendant.
does
not
court assumed
an
oral
The problem
sound in
The
between
plaintiff
contract.5
As we
read
II claim
and
Count II
it, Count
II
to divulge
the
district
succeed
on
or use
"confidential" information.6
court's ruling
his
Count II
that
claim,
plaintiff
made
reference to
abuse of its
discretion.
the preliminary
as
is likely
it was
favor of plaintiff,
to
without
principles, was
injunction in
Thus,
an
entry of
which is
III.
III.
____
CONCLUSION
CONCLUSION
__________
For
injunction
the
reasons
entered in favor
stated
above,
of plaintiff
the
on his
preliminary
breach of
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5. Nothing in Count II even remotely suggests that the duty
of confidentiality arises from an
explicit contractual
provision.
6. In so stating, we do not decide whether Count II, in its
current incarnation, is sufficient to state such a claim.
7. Because we find that the district court abused its
discretion in determining that plaintiff was likely to
succeed on the merits of his breach of confidentiality claim,
we vacate and remand without considering defendants' other
challenges to the district court's injunction order.
-77
confidentiality claim
is vacated.8
This
action is remanded
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8. Of course, defendant should in no way construe our
dissolution of the injunction as an endorsement of its
argument that it is entitled to use plaintiff's customer
list.
-88