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B&G Equipment Company, Inc. v. Airofog USA, LLC

United States District Court, M.D. Florida, Tampa Division

June 20, 2019

AIROFOG USA, LLC, Defendant.



         This cause comes before the Court upon the Report and Recommendation filed by Magistrate Judge Anthony E. Porcelli on April 5, 2019 (Doc. 31).[1] In the Report and Recommendation (the “R&R”), Magistrate Judge Porcelli recommends that Plaintiff's Motion for Preliminary Injunction be denied.

         All 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 adopted.

         I. Background[2]

         B&G 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 Sprayer.

         Sections 3.3(a) and 3.4 of the Settlement Agreement specifically state:

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 (, (ii) CAMCODE® destructible labels made by Horizons Inc. (, or (iii) NADCO® destructible vinyl labels [Material 7613] made by Nadco Tapes & Labels, Inc. (
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).

         Though 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.

         Rule 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).

         In the 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.

         Moreover, 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).

         With 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, ...

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