S & S Sales Corp. v. Marvin Lumber & Cedar Co.

• Decision Date: 18 October 2006
• Docket Number: No. 06C0354.,06C0354.
• Citation: 457 F.Supp.2d 903
• Parties: S & S SALES CORPORATION, Plaintiff, v. MARVIN LUMBER & CEDAR COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

457 F.Supp.2d 903

S & S SALES CORPORATION, Plaintiff, v. MARVIN LUMBER & CEDAR COMPANY, Defendant.

No. 06C0354.

United States District Court, E.D. Wisconsin.

October 18, 2006.

John F. Hovel, Michael D. Fischer, Sarah J. Friday, Kravit Hovel Krawczyk & Leverson SC, Milwaukee, WI, for Plaintiff.

Justice E. Lindell, Robert R. Weinstine, Tiffany A. Blofield, Winthrop & Weinstine PA, Minneapolis, MN, William E. Duffin, Godfrey & Kahn SC, Milwaukee, WI, for Defendant.

DECISION AND ORDER

ADELMAN, District Judge.

Plaintiff S & S Sales, Inc. ("S & S"), a distributor of windows manufactured by defendant Marvin Lumber and Cedar Company ("Marvin"), brought the present action alleging that Marvin violated the Wisconsin Fair Dealership Law ("WFDL"), Wis. Stat. § 135.01 et seq., by selling windows directly (rather than through S & S) to several large dealers in eastern Wisconsin. S & S argued that Marvin's action substantially changed the arrangement between the parties and requested a preliminary injunction barring Marvin from selling "dealer direct." I held a hearing, and on June 20, 2006 denied S & S's request for preliminary relief. S & S Sales Corp. v. Marvin Lumber & Cedar Co., 435 F.Supp.2d 879 (E.D.Wis. 2006). S & S timely appealed, and pursuant to Fed.R.Civ.P. 62(c), now asks me to enjoin Marvin from selling dealer direct while its appeal is pending.

I. JURISDICTION

I first address whether I have jurisdiction to grant the relief S & S requests. Generally speaking, once a notice of appeal is filed, a district court is divested of jurisdiction over those aspects of the case involved in the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). The rule is its purpose is to promote judicial economy and avoid the confusion that would ensue from having the same issue before two courts simultaneously. Natural Res. Def. Council v. Southwest Marine, 242 F.3d 1163, 1166 (9th Cir.2001). The principle of exclusive appellate jurisdiction, however, is not absolute. Union Oil Co. of Ca. v. Leavell, 220 F.3d 562, 565-66 (7th Cir.2000). The district court retains jurisdiction during the pendency of an appeal to act to preserve the status quo. Newton v. Consol. Gas Co., 258 U.S. 165, 177, 42 S.Ct. 264, 66 L.Ed. 538 (1922). This is so because district courts have inherent power to issue orders that they deem necessary to ensure the effectiveness of the eventual judgment. 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2904 (2d ed.1995). If district courts lacked such power, they would be unable to prevent a prevailing party from losing the benefit of a judgment. Union Oil Co., 220 F.3d at 565-66.

Fed.R.Civ.P. 62(c) codifies the above exception to the jurisdictional transfer principle. Allan Ides, The Authority of a Federal District Court to Proceed After a Notice of Appeal Has Been Filed, 143 F.R.D. 307, 320 (1992). As is relevant here, the rule provides that "when an appeal is taken from an interlocutory ... judgment granting ... or denying an injunction, the [district] court in its discretion may suspend ... or grant an injunction during the pendency of the appeal." Although the rule appears to grant unlimited authority to grant injunctive relief pending appeal, courts have construed it narrowly. Ides, supra, at 321. This interpretation of Rule 62(c) is derived from Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623, 625 (2d Cir.1962), in which a party brought a motion in the district court to vacate an injunction based on new evidence after having appealed the court's order granting the injunction. The Second Circuit held:

Once the appeal is taken ... jurisdiction passes to the appellate court. Thereafter, the appellant is not usually entitled as of right to present new evidence or argument to the trial court, which in the exercise of a sound discretion will exercise jurisdiction only to preserve the status quo as of the time of appeal. Appellant's proper procedure is then to request leave of the court of appeals to proceed in the lower court. He need not even dismiss his appeal, for we have always been ready to suspend proceedings while new matter was introduced below. But absent permission of the appellate court to reopen, sound judicial administration demands that unless the judge is satisfied that this order was erroneous he shall use his power under Rule 62(c) only to preserve the status of the case as it sits before the court of appeals.

Id. (citation omitted.)

Construed narrowly, Rule 62(c) only authorizes district courts to issue orders designed to preserve the status quo or, perhaps somewhat more liberally, to preserve the integrity of the case on appeal. Id.; see, e.g., Ortho Pharm. Corp. v. Amgen, Inc., 887 F.2d 460, 464 (3d Cir. 1989) (stating that Rule 62(c) permits district courts to alter the status quo pending an appeal but only to the extent that the alteration "preserves the integrity" of the appeal); Coastal Corp. v. Tex. E. Corp., 869 F.2d 817, 819-20 (5th Cir.1989) (stating that under Rule 62(c), district courts may only issue orders designed to preserve the status quo). Thus, in the present formulation under Rule 62(c), judicial authority "must be designed to aid the appeal and, accordingly, may not materially alter the status of the case on appeal." Ides, supra, at 322.

Some commentators have criticized the narrow interpretation of Rule 62(c). See 16 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, supra, § 3921.2 (stating that

there are good reasons to challenge this narrow view. The theory that a line can be drawn between district court action designed to `maintain the status quo' and other actions plunges courts headlong into the always unsatisfactory task of determining what is the status quo.... The risk that district courts will act precipitously in ways that interfere with courts of appeals' deliberations seems more abstract than real).

Attempting to provide greater clarity to the concept of preserving the status quo, Judge Posner writes:

Maintaining the status quo means that a controversy will still exist once the appeal is heard. Any action on the district court's part which has the effect of divesting the court of appeals of its jurisdiction over the matter, by eliminating the controversy prior to the hearing on the appeal is inappropriate.

12 Moore's Federal Practice § 62.06[1] (3d ed.2006).

Turning to the present case, as previously indicated I denied S & S's request for a preliminary injunction barring Marvin from selling dealer-direct. S & S appealed and now asks for an injunction barring Marvin from selling dealer direct pending appeal—precisely the relief that I previously denied. Thus, based on the principles discussed above, whether I have jurisdiction to grant S & S's request depends on whether doing so would eliminate the controversy before the court of appeals or, put slightly differently, would materially alter the status of the appeal. Although it might appear that granting S & S an injunction pending appeal would grant it the ultimate relief that it seeks and thus eliminate the pending controversy, I conclude that this would not be so. S & S could not drop the appeal without losing the benefit of the injunction. Thus, whether or not I grant S & S's request for relief pending appeal, the question of whether I wrongly denied its application for a preliminary injunction would remain a live issue in the court of appeals. While courts may be reluctant to grant an injunction pending appeal when doing so in effect grants the appellant—at least temporarily—the ultimate relief it is seeks, there is no reason they should not be able to do so. See 11 Wright, et al., supra, § 2904. Thus, I conclude that I have jurisdiction to address S & S's request.

II. CONSIDERATION OF NEW MATERIAL

Before proceeding to the merits of such request, however, I note that in support of its application for an injunction pending appeal, S & S presents facts and legal arguments that it did not present in connection with its application for a preliminary injunction. Specifically, S & S seeks to present the evidence that one additional employee has departed since I issued my previous order, testimony from the deposition of Mark Shuter, taken June 14, 2006, the third affidavit of Mark Heard, and various documents in support of S & S's theories regarding its interpretation of the presumption in the Wisconsin Fair Dealership Act. Circuit courts have expressed different views as to whether a district court considering a request for an injunction pending appeal may consider material not previously presented. Compare Neiv York v. NRC, 550 F.2d 745, 758-59 n. 7 (2d Cir.1977) (citing Sayco, 302 F.2d at 625 and holding in the negative), with Chem. Weapons Working Group v. Dep't of the Army, 101 F.3d 1360, 1362-63 (10th Cir. 1996) (Lucero, J, dissenting) (stating that

it does not necessarily follow from the refusal to grant a preliminary injunction that the district court would also refuse injunctive relief pending appeal. This is particularly so when the relief sought pending appeal is premised primarily on new evidence which the district court has not yet had a chance to consider)

(citation omitted). I believe that in addressing a request for an injunction pending appeal, I should be able to consider new material. However, even considering S & S's new factual and legal arguments, I conclude that it is not entitled to an injunction pending appeal.

III. MERITS

Turning to the merits of S & S's request, in order to establish an entitlement to an injunction pending appeal, an appellant must show (1) that it is likely to prevail on the merits of the appeal; (2) that it will likely suffer irreparable injury if I deny an injunction; (3) that the other parties involved will not be substantially harmed by granting its application; and (4) granting the injunction will serve the public interest. Glick v. Koenig, 766...