Gillespie & Co. of New York, Inc. v. Weyerhaeuser Co.
| Decision Date | 01 April 1976 |
| Docket Number | No. 718,D,718 |
| Citation | 533 F.2d 51 |
| Parties | 1976-1 Trade Cases 60,808 GILLESPIE & COMPANY OF NEW YORK, INC., and Gillespie & Company of Puerto Rico, Inc., Plaintiffs-Appellants, v. WEYERHAEUSER COMPANY, Defendant-Appellee. ocket 75-7569. |
| Court | U.S. Court of Appeals — Second Circuit |
Gary Mailman, Julian S. Perlman, Allan J. Kirschner, Liebman, Eulau, Robinson & Perlman, New York City, for plaintiffs-appellants.
George A. Davidson, Robert J. Sisk, Barbara L. Yessel, Hughes Hubbard & Reed, New York City, for defendant-appellee.
Before FEINBERG, Circuit Judge, MOORE, Senior Circuit Judge, and WYZANSKI, Senior District Judge. *
The narrow question which we find dispositive of this case, is whether the District Court abused its discretion in denying a preliminary injunction.
Because of the narrowness of the issue, and because we seek to avoid any implication of our own views of what a plenary trial might show to be the facts or what are the ultimate conclusions of law, we shall be brief in describing the controversy as it now appears on the basis of the evidence so far taken in the trial court.
Weyerhaeuser Company, defendant-appellee, among its activities, manufactures milk-container blanks used by dairies. Gillespie & Company of New York, Inc., one of plaintiff-appellants, among its activities, exports such containers. There is now no need to refer to Gillespie and Company of Puerto Rico, Inc., because so far no significant evidence respecting it has been admitted in the District Court.
Gillespie, whether as a customer or as an agent a point not so far determined for 27 years acquired containers from Weyerhaeuser pursuant to well-defined relationships not, however, embodied in an all-embracing written contract. Gillespie then marketed the containers in Puerto Rico and other areas south of the United States.
On December 4, 1974, Weyerhaeuser, having the view that its relationship with Gillespie was terminable at will, informed Gillespie that Weyerhaeuser terminated, effective February 1, 1975, its relationship and offered Gillespie several hundred thousand dollars, said by Weyerhaeuser to be the economic equivalent of Gillespie's profits for one year in handling Weyerhaeuser containers. Gillespie objected. It ceased to make payments which would ordinarily have been due to Weyerhaeuser for products it had shipped to Gillespie. On its part, Weyerhaeuser cancelled pending Gillespie orders, suspended shipments to Gillespie, and repossessed eleven ocean freight containers which had already been delivered to the dock.
December 17, 1974 Gillespie commenced this action. Its complaint included claims of (1) breach of contract, based chiefly on the allegedly unreasonably short notice of termination of its relationship with Weyerhaeuser, (2) inducing breach of contract, (3) unfair competition, and (4) various alleged violations of the anti-trust laws. Weyerhaeuser denied liability, and counterclaimed for more than $1,500,000 said to be owed for milk containers.
Two and a half months later, March 4, 1975, Gillespie filed a motion seeking to enjoin Weyerhaeuser from (1) soliciting plaintiffs' customers, (2) disparaging plaintiffs, (3) appropriating plaintiffs' shipments of containers to Gillespie, and (4) directing plaintiffs' customers to pay defendant, rather than plaintiffs, for shipments previously made to such customers in plaintiffs' name.
Because plaintiffs were not prepared, argument in the District Court did not occur until April 11, 1975. July 2, the District Judge denied the motion. July 14, Gillespie moved for reargument. September 3, the District Judge denied it. October 1 Gillespie filed a notice of appeal, but did not seek temporary relief pending appeal. In this Court Gillespie twice sought and obtained extensions of time to file its brief.
Meanwhile, June 18, 1975...
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