Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., No. 554

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore WATERMAN, MANSFIELD and OAKES; PER CURIAM; MANSFIELD
Citation596 F.2d 70
PartiesJACKSON DAIRY, INC., Appellee, v. H. P. HOOD & SONS, INC., Appellant. ocket 78-7587.
Decision Date23 March 1979
Docket NumberNo. 554,D

Page 70

596 F.2d 70
JACKSON DAIRY, INC., Appellee,
v.
H. P. HOOD & SONS, INC., Appellant.
No. 554, Docket 78-7587.
United States Court of Appeals,
Second Circuit.
Argued Dec. 15, 1978.
Decided March 23, 1979.

Page 71

Allen S. Joslyn, Cahill Gordon & Reindel, New York City (P. Kevin Castel, Cahill Gordon & Reindel, New York City, and Alan B. George, Carroll, George, Hill & Anderson, Rutland, Vt., of counsel), for appellant.

Michael B. Clapp, Dinse, Allen & Erdmann, Burlington, Vt., for appellee.

Before WATERMAN, MANSFIELD and OAKES, Circuit Judges.

PER CURIAM:

This appeal is from a preliminary injunction granted in a diversity action by the United States District Court for the District of Vermont, Albert W. Coffrin, Judge. Appellee, Jackson Dairy, Inc., is "the exclusive distributor" of appellant's "Schedule 3B" products under a contract dated March 7, 1967, in a certain Vermont-New Hampshire territory. 1 The injunction restrains appellant, H. P. Hood & Sons, Inc., 2 a northeastern dairy products manufacturer and processor, from selling certain products 3 that it markets directly to two large chain store customers, Grand Union Co. (Grand Union) and First National Stores, Inc. (Finast), "knowing that they are being purchased for transshipment to retail establishments within Jackson's exclusive sales territory." 4 Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., No. 78 Civ. 234 (D. Vt. Nov. 13, 1978), at 4. Appellant argues that appellee failed to satisfy any of the requisites for issuance of a preliminary injunction, including probable success on the merits and a "clear showing of irreparable harm," and that the injunction as framed may cause appellant "immediate irreparable harm," "serious hardship," and "irreparable loss" because it threatens the continuation of the more than $4 million of business that it does with Grand Union and Finast. We reverse and remand.

Briefly stated, the facts are as follows. Grand Union has eleven stores in the Jackson territory and Finast at least three. Since 1967, Jackson has distributed Hood products to these stores as well as other chains and a number of "Mom & Pop" stores in the territory. Jackson's total sales to Grand Union and Finast in 1977 were in excess of $223,000. In early October 1978 Hood began supplying Grand Union and Finast with the "Schedule 3B" products at their central warehouses Outside Jackson's

Page 72

territory, and the two chains then commenced to supply their retail outlets Within Jackson's territory directly from those warehouses. Although the parties disagree as to whether the two chains or Hood itself conceived this idea of operation, the facts are that the warehousing system bypasses Jackson and that both chains, which are independent of and often competing with each other, adopted that system more or less simultaneously. Pricing arrangements do not appear in the record below. The complaint alleges breach of the exclusive distributorship agreement.

The standard in the Second Circuit 5 for injunctive relief clearly calls for a showing of (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. See Caulfield v. Board of Education, 583 F.2d 605, 610 (2d Cir. 1978); See also New York v. Nuclear Regulatory Commission, 550 F.2d 745, 750, 755 (2d Cir. 1977); Triebwasser & Katz v. American Telephone & Telegraph Co., 535 F.2d 1356, 1358-59 (2d Cir. 1976). As to the kind of irreparable harm that the party seeking an injunction must show, the language of some past cases has suggested to some a spectrum ranging from possible 6 to probable, which is defined as "not remote or speculative but . . . actual and imminent." 7 We need not for present purposes delve into the abstract question whether the spectrum of language demonstrates a variance in the law or a sliding scale of judgment dependent upon external facts or factors, although we note that in one of the most recent cases, New York v. Nuclear Regulatory Commission, supra, the panel uses the probability formulation, expressly rejects mere possible injury as a sufficient basis for an injunction, and in fact finds imminent harm in the earlier cases even though they purported to apply only a possibility standard. For it has always been true that irreparable injury means injury for which a monetary award cannot be adequate compensation and that where money damages is adequate compensation a preliminary injunction will not issue. Studebaker Corp. v. Gittlin, 360 F.2d 692, 698 (2d Cir. 1966); Foundry Services, Inc. v. Beneflux Corp., 206 F.2d 214, 216 (2d Cir. 1948). And here we think that appellee did not...

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967 practice notes
  • Conan Properties, Inc. v. Mattel, Inc., No. 84 Civ. 5799 (RPP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 19, 1989
    ...going to the merits to make them a fair ground for litigation.'" 724 F.2d at 359 (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979)). The Second Circuit then affirmed. According to the panel, "the district court reasonably found that the only parts of the ......
  • Nakatomi Inv., Inc. v. City of Schenectady, No. 96-CV-1226.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • January 7, 1997
    ...73, 77 (2d Cir.1992); Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). The Second Circuit, however, has also held that "where the moving party seeks to stay governmental action taken in the public......
  • John D. Justice v. King, Case # 08-CV-6417-FPG
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • March 27, 2015
    ...of hardships tipping decidedly toward the party requesting preliminary injunctive relief." Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam). As Plaintiff points out, the violation of a constitutional right will demonstrate irreparable harm. Lynch v.......
  • Trump v. Deutsche Bank AG, Docket No. 19-1540-cv
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 3, 2019
    ...International, Inc. , 933 F.3d 173, 184 (2d Cir. 2019) (quotation marks deleted); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc. , 596 F.2d 70, 72 (2d Cir. 1979). The Committees contend that the likelihood-of-success standard applies; Appellants contend that the serious-questions standard ap......
  • Request a trial to view additional results
966 cases
  • Conan Properties, Inc. v. Mattel, Inc., No. 84 Civ. 5799 (RPP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 19, 1989
    ...going to the merits to make them a fair ground for litigation.'" 724 F.2d at 359 (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979)). The Second Circuit then affirmed. According to the panel, "the district court reasonably found that the only parts of the ......
  • Nakatomi Inv., Inc. v. City of Schenectady, No. 96-CV-1226.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • January 7, 1997
    ...73, 77 (2d Cir.1992); Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). The Second Circuit, however, has also held that "where the moving party seeks to stay governmental action taken in the public......
  • John D. Justice v. King, Case # 08-CV-6417-FPG
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • March 27, 2015
    ...of hardships tipping decidedly toward the party requesting preliminary injunctive relief." Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam). As Plaintiff points out, the violation of a constitutional right will demonstrate irreparable harm. Lynch v.......
  • Trump v. Deutsche Bank AG, Docket No. 19-1540-cv
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 3, 2019
    ...International, Inc. , 933 F.3d 173, 184 (2d Cir. 2019) (quotation marks deleted); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc. , 596 F.2d 70, 72 (2d Cir. 1979). The Committees contend that the likelihood-of-success standard applies; Appellants contend that the serious-questions standard ap......
  • Request a trial to view additional results
1 books & journal articles
  • An Empirical Look at Preliminary Injunctions in Challenges Under Environmental Protection Laws
    • United States
    • Environmental Law Reporter Nbr. 47-5, May 2017
    • May 1, 2017
    ...Channel Outdoor Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003). 19. See Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (listing a legal standard with only three prongs); Clear Channel Outdoor Inc. , 340 F.3d at 813 (same); see also Morath, supr......

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