Commonwealth of Puerto Rico v. Price Commission, Civ. No. 229-72.

• Decision Date: 15 March 1972
• Docket Number: Civ. No. 229-72.
• Citation: 342 F. Supp. 1308
• Parties: The COMMONWEALTH OF PUERTO RICO, Plaintiff, v. PRICE COMMISSION et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

342 F. Supp. 1308

The COMMONWEALTH OF PUERTO RICO, Plaintiff, v. PRICE COMMISSION et al., Defendants.

Civ. No. 229-72.

United States District Court, D. Puerto Rico.

March 15, 1972.

Wallace Gonzalez Oliver, Atty. Gen., Jose Enrique Amadeo, Deputy Atty. Gen., Gilberto Gierbolini, Sol. Gen., San Juan, P. R., for plaintiff.

Julio Morales, U. S. Dist. Atty., San Juan, P. R., for Price Commission.

Ragan & Mason, Washington, D. C., Jimenez & Fuste, San Juan, P. R., for Sea Land Service.

Bird & Bird, San Juan, P. R., Coles & Goertner, Washington, D. C., for Sea-train Lines.

ORDER

TOLEDO, District Judge.

On March 8, 1972 codefendant, Sea-Land Service, Inc., filed a Motion to Increase Bond, requesting an amendment to the Temporary Restraining Order issued by this Court on March 7, 1972, so as to increase the security for the payment of costs and damages which may be incurred or suffered by any party who might have been wrongfully enjoined or restrained.

For the consideration of this motion, the following statement of facts is pertinent:

On March 7, 1972, this Court issued a Temporary Restraining Order providing, among other things, that codefendant, Sea-Land Service, Inc. be restrained and enjoined from giving further effect to, collecting increased freight charges pursuant to, or taking any action pursuant to, Supplement Number 9 to Sea-Land Service, Inc., Tariff FMC-F 21 and Supplement Number 9 to Sea-Land Service, Inc., Tariff FMC-F 18. Said Order was issued on condition that plaintiff first give security in the sum of $100,000.00 for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.

Plaintiff complied with the posting of the required bond on March 8, 1972, at 12:30 P.M. On that same day codefendant, Sea-Land Service, Inc., filed the motion herein under consideration, requesting that the bond be increased from $100,000.00 to $290,000.00. Said codefendant accompanied its Motion with a supporting affidavit¹ and a "Memorandum of Points and Authorities". Plaintiff replied with a Motion and Memorandum in Opposition.

At the hearing on the Motion held on March 10, 1972, all parties appeared represented by counsel and were heard on the matter.

The United States Attorney, in representation of the United States Government and the Price Commission, assumed no position as to the Motion now under consideration.

After duly considering the arguments and memoranda filed by the parties concerned, this Court hereby makes the following findings:

The amount of security bond required for the issuance of a Temporary Restraining Order is a matter that falls within the ample range of discretion of this Court. Rule 65(c) of the Federal Rules of Civil Procedure, Title 28, United States Code, provides for the posting of a bond in the amount that the Court deems proper.² This, of course entails the power of discretion on the part of this Court in arriving at what it considers to be adequate and sufficient security. Detroit Trust Company v. Campbell River Lumber Co. (9 Cir. 1938), 98 F.2d 389; Washington Capitol Basketball Club, Inc. v. Barry (D.C.Calif.1969), 304 F.Supp. 1193.

A movant who requests an increase in the amount of security required by a Court must consider all of the offsetting factors involved which may have an effect on the net result of the estimated costs or damages to be incurred. Washington Capitol Basketball Club, Inc. v. Barry, supra. Codefendant, Sea-Land Service, Inc., argues that the loss of higher revenues because of charging the lower freight rates will reduce its earnings by approximately $29,000.00 per day. The only evidence in support of this claim is the affidavit mentioned about and explained in our footnote 1. Aside from the fact that said statement is obviously a self-serving document, there is nothing in it to show that the offsetting factors, such as salaries, general expenses, taxes, etc., were considered in arriving at the conclusion that defendant would suffer a $29,000.00 a day reduction in earnings. These offsetting factors must be considered since the estimated amount of damages must be in terms of a net figure. Washington Capitol Basketball Club, Inc. v. Barry, supra.

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