Roso-Lino Beverage Distributors, Inc. v. Coca-Cola Bottling Co. of New York, Inc.

• Decision Date: 19 November 1984
• Docket Number: ROSO-LINO,No. 456,D,COCA-COLA,456
• Citation: 749 F.2d 124
• Parties: 1984-2 Trade Cases 66,296 BEVERAGE DISTRIBUTORS, INC., Plaintiff-Appellant, v. TheBOTTLING COMPANY OF NEW YORK, INC., Defendant-Appellee. ocket 84-7811.
• Court: U.S. Court of Appeals — Second Circuit

Page 124

749 F.2d 124

1984-2 Trade Cases 66,296

ROSO-LINO BEVERAGE DISTRIBUTORS, INC., Plaintiff-Appellant, v. The COCA-COLA BOTTLING COMPANY OF NEW YORK, INC., Defendant-Appellee.

No. 456, Docket 84-7811.

United States Court of Appeals Second Circuit.

Argued Nov. 5, 1984.

Decided Nov. 19, 1984.

Andrew R. Cooper, New York City (Stanley Israel, Diane L. Weinstein, Kliegman, Goldstein, Israel & Cooper, New York City, of counsel), for defendant-appellee.

Murray L. Skala, New York City (Amos Alter, Feder, Kaszovitz, Isaacson, Weber & Skala, New York City, of counsel), for plaintiff-appellant.

Before KAUFMAN, TIMBERS, and PRATT, Circuit Judges.

PER CURIAM:

Plaintiff Roso-Lino Beverage Distributors, Inc. ("Roso-Lino") appeals from a judgment of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, denying plaintiff's motion for a preliminary injunction prohibiting defendant The Coca-Cola Bottling Company of New York, Inc. ("Coca-Cola") from terminating plaintiff's Coca-Cola distributorship, granting defendant's cross-motion for an order directing the parties to arbitrate the termination dispute, and staying further court proceedings on plaintiff's other claims. We reverse the denial of plaintiff's motion and grant a preliminary injunction; we affirm the district court's order directing the parties to arbitrate, and we affirm the court's stay of further proceedings.

Roso-Lino had held a small Coca-Cola distributorship on the west side of Manhattan for approximately eleven years when, in early August, 1984, it was given notice by Coca-Cola that Roso-Lino's distributorship was to be terminated one week later. Roso-Lino brought suit claiming that the termination was wrongful and that Coca-Cola had engaged in price discrimination among its distributors in violation of the Robinson-Patman Act, 15 U.S.C. Sec. 13 et seq.; Coca-Cola denied any wrongdoing and claimed that under the distributorship agreement the termination dispute should be arbitrated. The district judge found that the agreement did require arbitration of the termination dispute, and he stayed proceedings on the Robinson-Patman claims until arbitration was completed. Plaintiff's motion for a preliminary injunction was denied at the same time the judge ordered arbitration.

We reverse the denial of the preliminary injunction because it appears, from the record before us, that the district court believed its decision to refer the dispute to arbitration stripped the court of power to grant injunctive relief. The fact that a dispute is to be arbitrated, however, does not absolve the court of its obligation to consider the merits of a requested preliminary injunction; the proper course is to determine whether the dispute is "a proper case" for an injunction. Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, 1067 (2d Cir.1972); see Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). There is no indication in the case before us that the district court made such a determination.

Since the district court's decision was made on the basis of a paper record, without an evidentiary hearing, we are in as good a position as the district judge to determine the propriety of granting a preliminary injunction. See Jack Kahn Music Company v. Baldwin Piano & Organ Company, 604 F.2d 755 (2d Cir.1979). In our circuit a preliminary injunction will be issued when there is 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." Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir.1979). In the present case this test has been met.

The loss of Roso-Lino's distributorship, an ongoing business representing many years of effort and the livelihood of its husband and wife owners, constitutes irreparable harm. What plaintiff stands to lose cannot be fully compensated by subsequent monetary damages. See Semmes Motors, Inc. v. Ford Motor Company, 429 F.2d 1197, 1205 (2d Cir.1970) (right to continue twenty-year old dealership "is not measurable entirely in monetary terms"); Janmort Leasing, Inc. v. Econo-Car International, Inc., 475 F.Supp. 1282, 1294 (E.D.N.Y.1979) (loss of business not compensable in monetary terms and not reducible to monetary value). It is equally clear that the equities tip decidedly in favor of Roso-Lino. It is unlikely that Coca-Cola will suffer greatly if the...