security bond not required by trial court upon issuance of preliminary injunction where no material damage could ensue
How later courts described this case
- security bond not required by trial court upon issuance of preliminary injunction where no material damage could ensue
- no bond required where defendant would not appear to face material damage
- no bond required where no material damage would ensue
Written by the judges who cited it.
The opinion
MILLER, Circuit Judge
(dissenting).
I am unable to agree with the disposition of this case by the majority opinion.
Since the defendants in the two cases are different, the ruling necessarily rests upon the facts (1) that the products sold by the defendant in the Illinois case were manufactured by the appellees in this case and are identical in nature with those involved in this case, and (2) that there is a privity of interest between the defendants in the respective cases. The majority opinion recognizes the necessity of these facts. But there are no findings of fact to that effect by the District Judge, and, in my opinion, the record before us does not warrant us in assuming that those are the facts.
Appellees’ verified motion for the injunction states that “this defendant is advised and believes” that fact number one is so. Appellants’ counter-affidavit states that the affiant “is informed and believes” that the Illinois defendant offers the products involved in that case “under its own identifications” and that its advertisements of such products “does not indicate that any of the products shown therein are manufactured by the defendants” in the present proceeding. Appellants point to the possibility of the Illinois defendants selling articles not manufactured by the appellees, which would not be identical in nature with those involved in this case. No evidence was offered by the parties or heard by the District Judge.
On the question of privity, appellees’ verified motion states that “this defendant has, by an instrument in writing, assumed the defense of said Chicago case and has agreed to indemnify the defendants therein from all loss and damage.” Appellants’ counter-affidavit states that the defendants “have not produced for the inspection of the Judge before whom the case is pending or of counsel for plaintiffs therein any instrument in writing” as claimed by appellees. The indemnity agreement was not offered in evidence, and no testimony was offered or heard concerning it. A printed reproduction of it in appellees’ brief in this court does not put it in evidence, or make it a part of the record in this case. There may be several things about it which appellants want to question, including the date of execution, which is not shown, and the authority of the officer signing it to execute such an instrument.
Although appellants’ counter-affidavit is not a categorical denial of the facts upon which appellees base their motion, about which the motion admits appellees have no independent knowledge, I think it sufficiently raised the factual issue so as to require the District Judge to at least receive some evidence, documentary or oral testimony, for the purpose of ascertaining what the facts were. It is well settled that a preliminary injunction should not issue unless the trial judge is convinced with reasonable certainty of the applicant’s right to it. Hall Signal Co. v. General Ry. Signal Co., 2 Cir., 153 F. 907 ; St. Louis Street Flushing Mach. Co. v. Sanitary Street Flushing Mach. Co., 8 Cir., 161 F. 725 ; Anargyros & Co. v. Anargyros, 9 Cir., 167 F. 753, 769 ; *818 Wing v. Arnoll, Em.App., 198 F.2d 571, 575 .
In my opinion, the record before us raises issues of material facts, upon which evidence should have been heard by the District Judge and about which findings were necessary. Rule 52(a), Rules of Civil Procedure. Public Service Commission v. Wisconsin Telephone Co., 289 U.S. 67 , 53 S.Ct. 514 , 77 L.Ed. 1036 ; Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 316 , 60 S.Ct. 517 , 84 L.Ed. 774 ; Compare: Sartor v. Arkansas Gas Corporation, 321 U.S. 620 , 64 S. Ct. 724 , 88 L.Ed. 967 ; Winnick v. Commissioner, 6 Cir., 199 F.2d 374 .
I am also of the opinion that the District Judge was in error in not requiring the giving of security by the appellee as required by Rule 65(c), Rules of Civil Procedure. Chatz v. Freeman, 7 Cir., 204 F.2d 764, 768 ; Hopkins v. Wallin, 3 Cir., 179 F.2d 136 . The continued sale by the Illinois defendants of infringing products for an indefinite time in the future while the present action is being prosecuted to a conclusion, will cause material damage to appellants against which they are entitled to protection. Yakus v. United States, 321 U.S. 414, 440 , 64 S.Ct. 660 , 88 L.Ed. 834 .