United States District Court, M.D. Florida, Tampa Division
CLIARLENE EDWARDS HONEYWELL UNITED STATES DISTRICT JUDGE.
cause comes before the Court upon the Report and
Recommendation filed by Magistrate Judge Anthony E. Porcelli
on April 5, 2019 (Doc. 31). In the Report and Recommendation
(the “R&R”), Magistrate Judge Porcelli
recommends that Plaintiff's Motion for Preliminary
Injunction be denied.
parties were furnished copies of the Report and
Recommendation and were afforded the opportunity to file
objections pursuant to 28 U.S.C. § 636(b)(1). Plaintiff,
B&G Equipment Company, Inc. (“B&G”),
filed an objection (Doc. 37) (the “Objection”),
to which Defendant Airofog USA, LLC (“Airofog”)
responded (Doc. 39). Upon consideration of the R&R, the
Objection, and upon this Court's independent examination
of the file, it is determined that the Objection should be
overruled, and the Report and Recommendation should be
brought this action, in part, to seek relief for the ongoing
irreparable harm caused by Airofog's breach of a
settlement agreement. B&G previously dismissed a lawsuit
against Airofog based on a settlement agreement between the
parties, in which Airofog agreed to make certain changes to
its pest control products to avoid confusion with
B&G's products (the “Settlement
Agreement”). B&G claims that Airofog breached the
Settlement Agreement by failing to adhere to the following
promises: to mark the AF Sprayer as “Made in
China” with vinyl, destructible labels; to make the
length of the spraying wands for the AF Sprayer either
7½ or 17½ inches exactly; and that the spraying
wands, hose, trigger valve, and filter for the AF Sprayer
would not be interchangeable with the parts of the B&G
3.3(a) and 3.4 of the Settlement Agreement specifically
All stickers comprise vinyl, destructible labels, or some
equivalent type of label which is tamper resistant, or which
is made in such a manner so as not to be easily removable
from the respective Products without destruction of the label
itself. B&G agrees that the following types of labels are
appropriate for use in connection with this sub-section: (i)
Brady Defender™ destructible labels made by Brady
(http://www.bradybrandprotection.com/), (ii) CAMCODE®
destructible labels made by Horizons Inc.
(https://www.camcode.com/), or (iii) NADCO® destructible
vinyl labels [Material 7613] made by Nadco Tapes &
Labels, Inc. (http://www.nadco-inc.com/index.html).
The lengths of the wands for the AF Sprayer shall be only 7
½ inches or 17 ½ inches, and shall not be
interchangeable with wands for the current B&G Sprayer;
The hose, trigger valve, and filter for the AF Sprayer shall
not be interchangeable with the current B&G Sprayer; No.
parts for the AF Sprayer shall be interchangeable with the
B&G Sprayer, except for the parts shown in Exhibit C
attached hereto . . .
Doc. 1-3 (Ex. C).
the AF Sprayer at issue has been sold in the same
configuration for over a year, B&G claims that it
discovered for the first time, in December of 2018, that
Airofog had been selling pest control products in violation
of the Settlement Agreement. In December of 2018, B&G
sent a letter requesting that Airofog cure such breaches. As
Airofog failed to cure the alleged breaches, and pursuant to
the express terms of the Settlement Agreement, B&G seeks
injunctive relief. It claims irreparable harm by
Airofog's continued breach of the Settlement Agreement
because November through February are the high time for sales
of pest control products.
65(a) of the Federal Rules of Civil Procedure governs the
entry of a preliminary injunction. The purpose of a
preliminary injunction is to maintain the status quo until
the court can enter a final decision on the merits of the
case. Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th
Cir. 2011). A party seeking entry of a preliminary injunction
must establish four elements: (1) a substantial likelihood of
success on the merits; (2) a substantial threat of
irreparable injury if the injunction is not granted; (3) the
threatened injury to the moving party outweighs whatever
damage the proposed injunction may cause the opposing party;
and (4) if issued, the injunction would not be adverse to the
public interest. See Siegel v. LePore, 234 F.3d
1163, 1176 (11th Cir. 2000).
Eleventh Circuit, “[a] preliminary injunction is an
extraordinary and drastic remedy” and district courts
should not grant it unless the movant clearly meets its
burden as to each of the four prerequisites. Id.
Thus, failure to demonstrate any one of those requirements
will result in the district court's denial of the motion.
Local Rule 4.06(b)(1) provides that a party applying for a
preliminary injunction must support the allegations by
specific facts shown in a verified complaint or accompanying
affidavits. M.D. Fla. R. 4.06(b). See also Palmer v.
Braun, 155 F.Supp.2d 1327, 1331 (M.D. Fla. 2001)
aff'd, 287 F.3d 1325 (11th Cir. 2002) (internal
citations omitted) (“To carry its burden, a plaintiff
seeking a preliminary injunction must offer proof beyond
unverified allegations in the pleadings. Moreover, vague or
conclusory affidavits are insufficient to satisfy the
plaintiff's burden”). But in considering a motion
for preliminary injunctive relief, a district court may rely
on affidavits and hearsay materials that would not be
admissible as evidence for entry of a permanent injunction.
Levi Strauss & Co. v. Sunrise Int'l Trading
Inc., 51 F.3d 982, 985 (11th Cir. 1995).
this standard in mind, the Magistrate Judge held an
evidentiary hearing to permit B&G to present evidence to
meet its burden. He concluded that B&G was not entitled
to a preliminary injunction. The Magistrate Judge reviewed
the three bases for the alleged breaches of the Settlement
Agreement. He found the following: the “Made in
China” label was in breach because he could remove it
with his fingers, Doc. 31 at 5; the record and evidence did
not demonstrate that Airofog's wand lengths were in
violation of the Settlement Agreement, ...