United States Court of Appeals
Fifth Circuit
F I L E D
REVISED AUGUST 9, 2005
July 26, 2005
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 04-10965
PCI TRANSPORTATION INC,
Plaintiff-Appellant
versus
FORT WORTH & WESTERN RAILROAD COMPANY,
Defendant-Appellee
On Appeal from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, WIENER and CLEMENT, Circuit Judges.
WIENER, Circuit Judge:
Appellant PCI Transportation, Inc. (“PCI”) appeals the
district court’s orders denying (1) remand, and (2) a preliminary
injunction. We affirm.
I. FACTS AND PROCEEDINGS
PCI receives and distributes rail cargo in Fort Worth, Texas,
via a distribution warehouse serviced by a spur that comes off of
railroad lines of the Union Pacific Railroad (“Union Pacific”) and
the Burlington Santa Fe Railroad (“BNSF”). Appellee Fort Worth &
Western Railroad Co. (“FWWR”) is a short-line railroad that
operates passenger and freight trains within Texas. FWWR operates
a switching yard that, via PCI’s spur, links its warehouse to the
Union Pacific and BNSF railroads. Under various agreements, Union
Pacific and BNSF deliver railcars to FWWR’s switching yard, after
which FWWR switches and delivers these cars to customers of Union
Pacific and BNSF, such as PCI, for unloading. After the railcars
are unloaded, FWWR returns the empty cars to the main railroads’
lines. BNSF and Union Pacific compensate FWWR for its switching
services, but the railroads also charge FWWR for the time that it
retains the railcars at its switching yard. In turn, FWWR collects
demurrage1 fees from end-use customers such as PCI.
In August 2001, after a dispute had arisen concerning
demurrage charges imposed on PCI by FWWR, these parties entered
into a contract (the “contract”) aimed at avoiding further
conflict, a goal that the contract has obviously failed to attain.
The entire contract is a one page letter, and is self-styled with
two different names —— “Confidential Demurrage Contractual
Agreement” and “Confidential Contractual Agreement for Free Time.”
The language of the contract provides that (1) PCI will have four
demurrage-free days, and (2) FWWR is committed to providing PCI
with a minimum of one “switch” daily, seven days per week. The
contract also establishes the demurrage rate applicable after free
1
Demurrage is a charge assessed for detaining a freight
car, truck, or other vehicle beyond any free time stipulated for
loading or unloading.
2
time expires. (The contract was never placed in evidence before
the district court, but following oral argument on appeal, it was
submitted to us under seal.) PCI alleges that, since the execution
of the contract and in conformity with common industry practice,
FWWR has delivered cars to PCI on a first-in, first-out (“FIFO”)
basis.
In February 2004, more than two years after execution of the
contract, a new dispute arose between PCI and FWWR concerning
demurrage charges for the month of June 2003. PCI contends that
FWWR had engaged in several practices that resulted in improper
demurrage fees being charged to PCI, to wit: (1) FWWR varied from
its practice of delivering cars to PCI on a FIFO basis, with the
result that FWWR held cars intended for PCI’s customers for longer
than four days; (2) at times, FWWR had delivered rail cars on PCI’s
spur backwards, making it impossible for PCI to unload those cars
and requiring FWWR to move the cars out, reverse them, then bring
them back in again with the next group of cars; (3) FWWR provided
PCI with a delivery schedule the effect of which virtually
guaranteed that some of the cars would be held in the FWWR yard for
more than four days, thereby unnecessarily incurring demurrage
costs.
PCI filed suit in state court alleging that FWWR had breached
the contract. PCI also claimed intentional interference with
contractual relations and requested a TRO, a “temporary
injunction,” and a permanent injunction restraining FWWR for a
3
period of ten years from (1) “providing purported notice of
cancellation of any agreements between PCI and FWWR”; (2) “refusing
to deliver less than ten (10) PCI-bound railroad cars with cargo
per day to PCI on its spur, to the extent such cars are available”;
(3) “delivering cars to PCI’s spur on any basis other than on the
basis of delivery of those PCI-bound cars which have been in FWWR’s
possession the most number of days”; and (4) “imposing or
attempting to impose any demurrage charges upon PCI, or in the
alternative, imposing or attempting to impose any demurrage charges
upon PCI when timely delivery of PCI’s cars on a first-in, first-
out basis would have resulted in no demurrage charges, and in those
situations where no demurrage charges would accrue but for FWWR’s
service failures”. The state court granted PCI’s request for a
TRO.
FWWR then removed the case to federal court, asserting that
PCI’s state law claims were completely preempted by the Interstate
Commerce Commission Termination Act of 1995 (“ICCTA”).2 The ICCTA
overhauled the Interstate Commerce Act (“ICA”), including the
elimination of the Interstate Commerce Commission and replacing it
with the Surface Transportation Board (“STB”). PCI filed a motion
for remand, arguing that the suit was outside the ambit of the
ICCTA. The district court denied PCI’s motion, concluding that
removal was proper under the doctrine of complete preemption.
2
49 U.S.C. §§ 10101, et. seq.
4
PCI filed a request for a temporary injunction and hearing in
the district court, seeking essentially the same relief that it had
sought in state court. This was PCI’s second motion for injunctive
relief. Its first motion was denied for procedural reasons. The
district court denied PCI’s motion without a hearing, holding that,
as a result of PCI’s failure to proffer into evidence the contract
on which it based its claims for relief, it had not demonstrated,
prima facie, that the district court, as distinguished from the
STB, had jurisdiction to entertain PCI’s requested injunctive
relief. The district court also held that PCI failed to
demonstrate that it would suffer irreparable injury absent an
injunction. PCI appeals the district court’s denial of its remand
motion, denial of its motion for a preliminary injunction, and
refusal to hold a hearing on the motion for a preliminary
injunction.
II. ANALYSIS
A. Appeal of the Remand Order
An order denying a motion to remand is not appealable as a
final decision within the meaning of 28 U.S.C. § 1291; standing
alone, such a ruling cannot be appealed unless certified by the
district court under 28 U.S.C. § 1292(b).3 PCI nevertheless
contends that we have jurisdiction to consider its appeal of the
3
Poirrier v. Nicklos Drilling Co., 648 F.2d 1063, 1064-65
(5th Cir. 1981); Lewis v. E.I. Du Pont De Nemours & Co., 183 F.2d
29, 31 (5th Cir. 1950).
5
remand order, citing the Ninth Circuit’s decision in O’Halloran v.
University of Washington.4 The court in O’Halloran held that an
appeal from an order denying a motion to remand is reviewable prior
to final judgment when joined with an interlocutory appeal from an
order granting or denying an injunction.5
Several other circuits have held the same, either expressly or
implicitly.6 We have not previously addressed the question whether
the denial of a remand order becomes reviewable when it is coupled
with an interlocutory appeal of an injunction order under 28 U.S.C.
1292(a)(1). We did conclude in Texas v. Real Parties in Interest,
however, that the denial of a remand order can be reviewed in
conjunction with the interlocutory appeal of an order denying a
claim of Eleventh Amendment immunity, the latter order being
appealable under the collateral order doctrine.7 In deciding that
4
856 F.2d 1375 (9th Cir. 1988).
5
Id. at 1378.
6
See James v. Bellotti, 733 F.2d 989, 992 (1st Cir. 1984)
(“The denial of an injunction is an appealable interlocutory
order under 28 U.S.C. § 1292(a)(1), and the refusal to remand to
the state court, though not directly appealable by itself, is
reviewable in conjunction with the interlocutory appeal.”);
Beech-Nut, Inc. v. Warner-Lambert Co., 480 F.2d 801, 803 (2d Cir.
1973) (considering interlocutory appeal of denial of remand order
along with denial of injunctive relief without discussion of why
consideration of remand was proper); Kysor Indus. Corp. v. Pet,
Inc., 459 F.2d 1010, 1011 (6th Cir. 1972) (holding that because
the case was properly before the court on interlocutory appeal of
the denial of a motion for a preliminary injunction, and the
remand issue was jurisdictional, the remand issue must be
reached).
7
259 F.3d 387, 391 (5th Cir. 2001).
6
we could consider the order denying remand, we looked solely to
whether the Eleventh Amendment immunity issue was non-frivolous and
properly before us on appeal.8 Implicit in that decision is the
conclusion that, once appellate jurisdiction has been established,
we are compelled to address questions of federal jurisdiction.
In the context of the collateral order doctrine, we perceive
no difference in the distinction between Eleventh Amendment
immunity and remand. We thus conclude that PCI’s appeal of the
denial of its motion for a preliminary injunction is both non-
frivolous and properly before us. Consonant with our holding in
Real Parties in Interest, we first consider the jurisdictional
question whether the district court erred in denying PCI’s motion
to remand the case to state court.
B. Removal and Remand
The district court denied PCI’s motion to remand the case,
relying primarily on (1) the Northern District of Iowa’s reasoning
in Cedarapids, Inc. v. Chicago, Central & Pacific Railroad Co.9
and (2) § 10501 of the ICCTA. Section 10501 provides:
(b) The jurisdiction of the Board over--
(1) transportation by rail carriers, and the
remedies provided in this part with respect to
rates, classifications, rules (including car
service, interchange, and other operating
rules), practices, routes, services, and
facilities of such carriers; and
8
Id.
9
265 F. Supp.2d 1005 (N.D. Iowa 2003).
7
(2) the construction, acquisition, operation,
abandonment, or discontinuance of spur,
industrial, team, switching, or side tracks,
or facilities, even if the tracks are located,
or intended to be located, entirely in one
State,
is exclusive. Except as otherwise provided in this part,
the remedies provided under this part with respect to
regulation of rail transportation are exclusive and
preempt the remedies provided under Federal or State
law.10
PCI contends that removal was improper because the relief that PCI
requests is expressly excluded from the reach of the ICCTA by §
10709 of that act. “We exercise plenary, de novo review of a
district court’s assumption of subject matter jurisdiction.”11
1. PCI’s § 10709 Argument
FWWR establishes rates for its transportation services, as
well as rules and practices related to those services, including
specifically the rules relating to the imposition of demurrage
fees.12 The injunctive relief PCI seeks would regulate the
operation of FWWR’s switching yard and would therefore fall
squarely under § 10501(b). PCI argues nonetheless that its dispute
with FWWR is purely over FWWR’s compliance with the contract, and
that, under 49 U.S.C. § 10709, such contracts are not subject to
10
49 U.S.C. § 10501.
11
Hoskins v. Bekins Van Lines, 343 F.3d 769, 772 (5th Cir.
2003).
12
49 U.S.C. § 10701.
8
the ICCTA and thus not under the jurisdiction of the STB. Section
10709 provides in relevant part:
(a) One or more rail carriers providing
transportation subject to the jurisdiction of
the Board under this part may enter into a
contract with one or more purchasers of rail
services to provide specified services under
specified rates and conditions.
(b) A party to a contract entered into under
this section shall have no duty in connection
with services provided under such contract
other than those duties specified by the terms
of the contract.
(c)(1) A contract that is authorized by this
section, and transportation under such
contract, shall not be subject to this part,
and may not be subsequently challenged before
the Board or in any court on the grounds that
such contract violates a provision of this
part.
(2) The exclusive remedy for any alleged
breach of a contract entered into under this
section shall be an action in an appropriate
State court or United States district court,
unless the parties otherwise agree.
None disputes that FWWR is a rail carrier and PCI is a purchaser of
its services.13
PCI’s position on the applicability of § 10709 can be
distilled to two arguments. First, PCI argues that the STB has no
jurisdiction to hear claims even related to agreements governed by
§ 10709, citing the language of the statute and decisions of the
13
“‘[R]ail carrier’ means a person providing common carrier
railroad transportation for compensation,” 49 U.S.C. § 10102(5),
and a “railroad” includes a “switch, spur, track, terminal,
terminal facility, and a freight depot, yard, and ground, used or
necessary for transportation.” § 10102(6)(C).
9
STB refusing to consider such disputes.14 We see nothing in the
statutory language that supports PCI’s “related to” argument,
however, and PCI fails to direct us to any such language. In fact,
§ 10709(b) specifies that a party entering into such a contract has
only “those duties specified by the terms of the contract.” The
decisions of the STB cited by PCI also fail to support its
argument. H.B. Fuller Co. v. Southern Pacific Transportation Co.15
is inapposite because the contract at issue there was a
comprehensive one that purported to govern the entire relationship
between the litigants. Fuller, a manufacturer, sued Southern
Pacific, alleging that the railroad had imposed unreasonable
storage and demurrage charges. The transportation in question was
subject to a “contract for carriage.” Fuller argued that its
claims fell outside that contract and thus within the STB’s
jurisdiction, because the contract did not explicitly address
demurrage or storage charges. The STB rejected Fuller’s argument
and held that the claims fell outside its jurisdiction. Although
the contract did not explicitly address those areas, it did
incorporate by reference the “tariffs, rules and regulations which
would apply” if there was no contract to govern those areas not
covered by the contract. Therefore, held the STB, the referenced
14
Reply Brief at 6. PCI did discuss the STB cases in its
initial brief, but appears to have asserted the “even related to”
argument for the first time on reply.
15
STB Docket No. 41510 (Aug. 20, 1997).
10
tariff terms became part of the contract. The other two STB
decisions that PCI cites add nothing to the analysis.16
In Cross Oil Refining & Marketing, Inc. v. Union Pacific
Railroad Co,17 a decision not cited by PCI, the STB considered
whether a series of purported contracts were the kind governed by
§ 10709. Cross Oil argued that § 10709 did not apply because,
under the agreements in question, service and equipment were to be
provided on the same basis as those provided to other shippers.
The STB rejected Cross Oil’s argument, ruling that the
transportation at issue was provided under the contracts: Each
contract affirmatively stated that it was made pursuant to § 10709,
identified the origins and destinations, and specified the terms of
the contract and the rates for the commodities. As in Fuller, the
STB held that rail contracts can incorporate tariff provisions by
reference yet still fall outside the STB’s jurisdiction.
Unlike the agreements at issue in the cited cases, the
contract in the instant case is very limited in scope, and does not
incorporate any tariff provisions. As such, any relief requested
16
Minn. Power Inc. v. Duluth, Missabe and Iron Range Ry.
Co., STB Docket No. 42038 (July 7, 1999), merely states that
movement governed by a rail transportation contract is “beyond
our regulatory purview under 49 U.S.C. 10709(c)” without
providing any further analysis. Parrish & Heimbecker, Inc., STB
Docket No. 42031 (May 22, 2000), discusses the Staggers Act,
stating only that the statute removed contract service from the
authority of the ICC (predecessor to the STB).
17
STB Finance Docket No. 33582 (Oct. 19, 1998).
11
by PCI that falls outside of the contract’s express coverage is not
governed by § 10709.
The second argument made by PCI is that all relief requested
is within the contract’s coverage and therefore within the reach of
§ 10709. In its reply to FWWR’s response to PCI’s motion to
remand, PCI contended in district court that even if the contract
does not specifically address (1) whether FWWR was required to
place cars at PCI’s spur on a FIFO basis, or (2) whether FWWR is
required to place a “full spot” of ten cars at PCI’s spur each day,
the consistent conduct of the parties under the contract
constitutes their agreed interpretation, causing those requirements
to be incorporated into the contract. On appeal, PCI no longer
asserts that the parties’ prior conduct interpreted or supplemented
the contract, arguing instead that all requested relief is within
the language of the contract, namely that the parties’ prior
conduct, as well as the Texas railroad industry’s customs and
practices, inform what the term “switch” means. PCI relies
primarily on the deposition testimony of Charley Godsey, the
operations manager for FWWR, to establish that the term “switch”
encompasses the portion of injunctive relief that FWWR insists
falls outside of the contract. FWWR counters that the “switch”
language in the contract was solely meant to change the number of
days per week that switching services would be provided to PCI, but
does not provide an alternative definition of “switch.”
12
Under Texas law, the primary concern of a court construing a
contract is to “ascertain the true intent of the parties as
expressed in the instrument.”18 Even when there is neither patent
nor latent ambiguity in the wording of a contract, “[e]xtrinsic
evidence may, indeed, be admissible to give the words of a contract
a meaning consistent with that to which they are reasonably
susceptible.”19 “A specialized industry term may require extrinsic
evidence of the commonly understood meaning of that term within the
specialized industry.”20 PCI provides a string of citations to the
Godsey deposition to support its definition of “switch”. A review
of the cited portions of the record reveals, however, that Godsey
was never asked to explain or define the meaning of providing a
“switch.” His deposition lays out how FWWR deals with customers
and states that FWWR (1) does not impose demurrage charges when the
mistakes are its own, (2) uses a FIFO method to determine which
cars to deliver, and (3) will fill the spot available on a
customer’s spur each day. None of this, however, is ever tied by
the deposition to the meaning of providing a “switch.”
18
Dell Computer Corp. v. Rodriguez, 390 F.3d 377, 388 (5th
Cir. 2004); Mescalero Energy, Inc. v. Underwriters Indem. Gen.
Agency, Inc., 56 S.W.3d 313, 319 (Tex. App. – Houston [1st Dist.]
2001, pet. denied).
19
Nat’l Union Fire Ins. Co. v. CBI Indus. Inc., 907 S.W.2d
517, 521 (Tex. 1995).
20
Royal Maccabees Life Ins. Co. v. James, 146 S.W.3d 340,
345-46 (Tex. App. – Dallas 2004, pet. filed).
13
Even if we were to accept PCI’s broad definition of “switch,”
the injunctive relief it seeks is still broader than that which the
contract governed. The last portion of PCI’s request seeks to
control FWWR’s ability to impose demurrage charges under any
circumstances, or in the alternative, any circumstance in which no
demurrage charges would accrue but for FWWR’s service failures, not
just those situations in which FWWR fails either to provide a full
spot of cars or to deliver the cars on a FIFO basis. We hold that,
at the very least, a portion of FWWR’s claims are governed by the
ICCTA.
2. Complete Preemption
For the district court to have removal jurisdiction, 28 U.S.C.
§ 1441 requires that “the case be one over ‘which the district
courts of the United States have original jurisdiction.’”21 Whether
a claim arises under federal law is a question determined by
reference to the plaintiff’s “well-pleaded complaint.”22 As a
defendant may remove a case only if the claims could have been
brought in federal court, “the question for removal jurisdiction
must also be determined by reference to the ‘well-pleaded
complaint.’”23 “Under the well-pleaded complaint rule, ‘federal
21
Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir.
2000) (citation omitted).
22
Hoskins, 343 F.3d at 772 (citing Louisville & Nashville
R. Co. v. Mottley, 211 U.S. 149, 152 (1908)).
23
Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808
(1986).
14
jurisdiction exists only when a federal question is presented on
the face of plaintiff’s properly pleaded complaint.’”24 “As a
general rule, absent diversity jurisdiction, a case will not be
removable if the complaint does not affirmatively allege a federal
claim.”25 Potential defenses, including a federal statute’s
preemptive effect, do not provide a basis for removal.26
In Beneficial National Bank v. Anderson, the Supreme Court
recognized two exceptions to this last rule: (1) when Congress
expressly provides for removal and (2) when a federal statute
wholly displaces the state-law cause of action through complete
preemption.27 The latter exception is the one that is at issue in
the instant case. As stated above, standard preemption does not
provide a basis for removal. In contrast, complete preemption is
jurisdictional in nature and, as such, “authorizes removal to
federal court even if the complaint is artfully pleaded to include
solely state law claims for relief or if the federal issue is
initially raised solely as a defense.”28
24
Hoskins, 343 F.3d at 772 (quoting Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987)).
25
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003).
26
Id. (citing Franchise Tax Bd. of Cal. v. Construction
Laborers Vacation Trust for Southern Cal., 463 U.S. 1
(1983))(emphasis added).
27
Id. at 8.
28
Johnson, 214 F.3d at 632 (citation omitted).
15
Prior to the decision in Beneficial, we considered complete
preemption to be a narrow exception, noting that the Supreme Court
had only recognized its existence in the areas of federal labor
relations and the Employee Retirement Security Act of 1974
(“ERISA”).29 Our pre-Beneficial test for complete preemption
required the defendant to show that
(1) the statute contains a civil enforcement provision
that creates a cause of action that both replaces and
protects the analogous area of state law; (2) there is a
specific jurisdictional grant to the federal courts for
enforcement of the right; and (3) there is a clear
Congressional intent that claims brought under the
federal law be removable.30
In Hoskins, however, we modified the test in response to the
Supreme Court’s Beneficial decision, in which the Court extended
the doctrine of complete preemption to the National Bank Act. It
reasoned that because the National Bank Act provides the exclusive
cause of action for claims of usury against a national bank, all
such claims arise under federal law for purposes of federal
jurisdiction.31 In light of the decision in Beneficial, we held in
Hoskins that the proper focus of complete preemption analysis is on
29
Id. (citing to Avco Corp. v. Machinists, 390 U.S. 557
(1968) and Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987)).
30
Id. The district court, in concluding there was complete
preemption, neither applied our circuit’s test nor looked to the
Supreme Court’s decision in Beneficial.
31
Beneficial Nat’l Bank, 539 U.S. at 11.
16
whether Congress intended that the federal action be exclusive, as
opposed to whether Congress intended that the claim be removable.32
In Hoskins, we considered whether there is complete preemption
of claims asserted under the Carmack Amendment to the Interstate
Commerce Act.33 As there is neither language in the statute
expressing Congress’s intent that the Carmack Amendment provide the
exclusive cause of action for claims arising out of the interstate
transportation of goods by a common carrier nor any legislative
history to be examined, we looked to our own cases and those of the
Supreme Court to determine whether Congress did indeed intend for
the Carmack Amendment to provide the exclusive cause of action,
holding that it did.34 In the instant case, the plain language of
§ 10501 supports our conclusion that Congress intended actions
regarding “rates, classifications, rules (including car service,
interchange, and other operating rules), practices, routes,
services, and facilities of such carriers”35 to be governed
exclusively by the ICCTA. The House Report on the proposed ICCTA
32
Hoskins, 343 F.3d at 776. Our holding in Hoskins,
reversing our prior holding that the Carmack Amendment did not
support complete preemption, reflects Justice Scalia’s conclusion
that the majority’s holding in Beneficial makes finding complete
preemption easier than existed under Taylor. Beneficial Nat’l
Bank, 539 U.S. at 16-19 (Scalia, J., dissenting).
33
49 U.S.C. § 14706. Section 14706 resides under the part
of the ICA governing Motor Carriers. The Carmack Amendment also
modified the Rail part of the ICA. 49 U.S.C. § 11706.
34
Hoskins, 343 F.3d at 776.
35
49 U.S.C. § 10501(b)(1).
17
also supports the conclusion that the ICCTA provides the exclusive
cause of action:
[Section 10501] replaces the railroad portion of former
Section 10501. Conforming changes are made to reflect
the direct and complete pre-emption of State economic
regulation of railroads. The changes include extending
exclusive Federal jurisdiction to matters relating to
spur, industrial, team, switching or side tracks formerly
reserved for State jurisdiction under former section
10907. The former disclaimer regarding residual State
police powers is eliminated as unnecessary, in view of
the Federal policy of occupying the entire field of
economic regulation of the interstate rail transportation
system. Although States retain the police powers
reserved by the Constitution, the Federal scheme of
economic regulation and deregulation is intended to
address and encompass all such regulation and to be
completely exclusive.36
In light of the plain language of the statute and its legislative
history, and in accordance with our holding in Hoskins, we hold
that the complete preemption doctrine applies. And, as the ICCTA
provides the exclusive cause of action for PCI’s non-contractual
relief, we hold that those claims “‘only arise[] under federal law
and could, therefore, be removed under § 1441.’”37 The district
court’s denial of remand was thus appropriate.
C. PCI’s Preliminary Injunction Request
36
H.R. REP. NO. 104-311, at 95-96 (1995). The Conference
Report emphasized that the conference version of the bill was
meant to preserve the exclusivity of federal remedies in the area
of rail regulation that existed prior to the passage of the
ICCTA. H.R. CONF. REP. NO. 104-422, at 167.
37
Hoskins, 343 F.3d at 778 (quoting Beneficial, 539 U.S. at
11).
18
We review the denial of a preliminary injunction for abuse of
discretion.38 “Even though ‘the ultimate decision whether to grant
or deny a preliminary injunction is reviewed only for abuse of
discretion, a decision grounded in erroneous legal principles is
reviewed de novo.’”39
To obtain a preliminary injunction, the applicant must show
(1) a substantial likelihood that he will prevail on the merits,
(2) a substantial threat that he will suffer irreparable injury if
the injunction is not granted, (3) that his threatened injury
outweighs the threatened harm to the party whom he seeks to enjoin,
and (4) that granting the preliminary injunction will not disserve
the public interest.40 “We have cautioned repeatedly that a
preliminary injunction is an extraordinary remedy which should not
be granted unless the party seeking it has ‘clearly carried the
burden of persuasion’ on all four requirements.”41
PCI fails to establish that there is a substantial likelihood
that it will prevail on the merits. As the district court noted in
its denial of the injunction, PCI never submitted the contract to
the court for it to review. Without the contract, the district
38
Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d
192, 195 (5th Cir. 2003).
39
Id. (quoting Women’s Med. Ctr. v. Bell, 248 F.3d 411, 419
(5th Cir. 2001)).
40
Id. at 195-96.
41
Id. at 196 (quoting Miss. Power & Light Co. v. United Gas
Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985)).
19
court could not possibly evaluate whether PCI was likely to prevail
on the merits. In addition, PCI fails to show that it would suffer
irreparable injury if an injunction were not granted. PCI’s doom-
and-gloom prediction that without an injunction it would lose the
use of the track and be forced out of business is not borne out by
the record and the briefs. The only consequence of contract
cancellation appears to be a reversion to the terms and conditions
provided by the federal tariff that governs such operations. Any
damage resulting from a shorter period before demurrage is charged
can be compensated for monetarily.42 We hold that there was no
abuse of discretion by the district court in denying the injunction
sought by PCI.
D. Failure to Conduct a Hearing
PCI makes the additional argument that the district court
erred in failing to conduct a hearing before denying its motion for
a preliminary injunction. Federal Rule of Civil Procedure 65(a)(1)
specifies that “[n]o preliminary injunction shall be issued without
notice to the adverse party.” “We have interpreted the notice
requirement of Rule 65(a)(1) to mean that ‘where factual disputes
are presented, the parties must be given a fair opportunity and a
42
See Morgan v. Fletcher, 518 F.2d 236, 240 (5th Cir. 1975)
(citations and quotations omitted) (“Mere injuries, however
substantial, in terms of money, time and energy necessarily
expended in the absence of a stay, are not enough. The
possibility that adequate compensatory or other corrective relief
will be available at a later date, in the ordinary course of
litigation, weights heavily against a claim of irreparable
harm.”).
20
meaningful hearing to present their differing versions of those
facts before a preliminary injunction may be granted.’”43
PCI relies on our decision in Commerce Park as support for its
contention that, before a preliminary injunction motion can be
denied, a hearing must be held. In Commerce Park, however, we
merely assumed for the purpose of our analysis that Rule 65
required that a hearing be held prior to the denial of a motion for
a preliminary injunction.44 The plaintiff has the burden of
introducing sufficient evidence to justify the grant of a
preliminary injunction.45 PCI’s motion for a preliminary injunction
was predicated on the breach of a contract that was never put
before the district court. PCI also failed to adduce any probative
evidence that it would suffer irreparable injury in the absence of
an injunction; its only factual offering was the conclusional
statement that the demurrage charges would be too costly for it to
remain in business. PCI’s failure to introduce the contract into
evidence and its failure to establish the existence of a factual
43
Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir.
1996) (quoting Commerce Park at DFW Freeport v. Mardian Constr.
Co., 729 F.2d 334, 342 (5th Cir. 1984)).
44
Commerce Park, 729 F.2d at 341.
45
Canal Auth. of the State of Florida v. Callaway, 489 F.2d
567, 578-79 (5th Cir. 1974).
21
dispute on the question whether it would suffer irreparable injury
made a hearing unnecessary.46
The district court’s orders denying PCI’s motion for remand
and denying PCI’s motion for a preliminary injunction —— including
its refusal to conduct a hearing —— are, in all respects,
AFFIRMED.
46
Kaepa, Inc., 76 F.3d at 628 (“If no factual dispute is
involved . . . no oral hearing is required.”).
22