As requested by the Court, plaintiffs have submitted proposed findings of fact and conclusions of law. These findings quite naturally restate the allegations of the complaint, and may be suggested by the following excerpts:
'6. * * * that commencing in November of 1958 and up to the Fall of 1961, the defendant has attempted to coerce and intimidate the plaintiff dealer by threatening cancellation of its franchise if sales goals set unilaterally by the defendant were not reached, and consummated the threats by giving notice of cancellation prior to the commencement of this suit, which notice had an effective date subsequent to the institution of this suit.
'7. The defendant has treated the franchise with the plaintiff dealer as canceled after February 3, 1962, and has refused to accept any orders from the plaintiff dealer subsequent to that date.
'8. The refusal of the defendant to honor orders of the plaintiff dealer has seriously curtailed its ability to operate the business, and unless delivery is compelled by the court, there will be irreparable harm and damage to the intangible good will of the plaintiff's business, and to the employees of the plaintiff dealer.'
Having heard the witnesses for the plaintiffs and examined the exhibits in the record, this Court is not in position to adopt those findings as having been proved.
Plaintiffs' own pleadings and testimony reveal that the agency agreement with Ford was a complex one -- but one which plaintiffs elected to take, in preference to a five-year agreement. The agreement in question, executed originally in 1957, was terminable on 120 days' notice without cause, and on 90 days' notice with cause.
It is true that a termination in bad faith by either party would -- under the Act -- be no termination at all. On the other hand, the correspondence and testimony reveals termination notices by Ford dating back to 1959 -- followed by what might be called indefinite reprieves.
On plaintiffs' side, it is apparent that the situation has been a most difficult one, with their investment constantly endangered by the fact that their franchise was hanging in the balance. Meanwhile, they were not always able to secure the kinds of cars for which there was the greatest demand, and were shipped, from time to time, models which were hard to move.
As to the last-mentioned difficulty, plaintiffs' own witness, A. A. Swenson, Jr., on redirect examination testified that he was subjected to high quotas, and by no means secured all the fast-moving models which he ordered (N.T. p. 108).
Reference to the testimony which derogates from plaintiffs' claim is made for the limited purpose of passing upon the request for temporary injunction. The respective pulls and tugs of plaintiffs' evidence are suggested not as an expression of immutable views, or in justification of one position or the other, as was said in Barker Painting Co. v. Brotherhood of Painters, 15 F.2d 16, 18 (3rd Cir. 1926),
'* * * but merely to show that many variable and intangible factors inevitably enter into the situation, making the injunctive process of doubtful propriety and legality. It is a principle long recognized that the power to grant the extraordinary remedy of injunction should be exercised by courts with great caution and applied only in very clear cases. Truly v. Wanzer, 5 How. 141, 12 L. Ed. 88; Irwin v. Dixion, 9 How. 11, 13 L. Ed. 25 * * *.'
Plaintiffs deny that the law requires a 'clear case' (supra), and that a statement like the following, as stated in Charles Simkin & Sons, Inc v. Massiah, 289 F.2d 26, 29 (3rd Cir. 1961) is too strong under the law applicable here:
'* * * As a prerequisite to the issuance of an interlocutory injunction, the moving party must show a clear right to relief. There must be no disputed issues of fact.'
Plaintiffs themselves do not deny, however, that the party moving for preliminary injunction must at least make a showing of probable success upon final hearing. North Carolina Natural Gas Corp. v. United States, 200 F.supp. 740, 743 (D.Del.1961). They rely largely upon a dictum in Yakus v. United States, 321 U.S. 414, 440, 64 S. Ct. 660, 88 L. Ed. 834 (1943):
'* * * Even in suits in which only private interests are involved the award is a matter of sound judicial discretion, in the exercise of which the court balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction.'
The necessity of balancing the competing equities has been recognized by this Court. Pennsylvania Motor Truck Ass'n v. Port of Phila. M.T. Ass'n, 183 F.Supp. 910, 918 (E.D.Pa.1960). But the discretionary power to grant a preliminary injunction is a power to be exercised with great caution. Murray Hill Restaurant, Inc. v. Thirteen Twenty One Locust, 98 F.2d 578, 579 (3rd Cir. 1938).
Since the injunction which is sought has mandatory aspects, the burden of making a strong showing, on the part of plaintiffs, is a heavy one. See W. A. Mack, Inc. v. General Motors Corporation, 260 F.2d 886 (7th Cir. 1958).
To recite all the semantic variations of the phrases which courts have used in describing the chancellor's chore cannot serve any useful purpose. It is enough to say that the issues are doubtful. As was said in Madison Square Garden Corporation v. Braddock, 90 F.2d 924, 927 (3rd Cir. 1937):
'* * * It has been well stated that upon an application for a preliminary injunction to doubt is to deny.'
Accordingly, after hearing all of the plaintiffs' evidence, and considering the exhibits and arguments, this Court finds that plaintiffs have failed to meet the burden required of them and, therefore, finds as a fact that plaintiffs have failed to prove bad faith, coercion, discrimination, or threatened irreparable harm warranting the issuance of a preliminary injunction under the law. It is to be understood however, that this Court is in no sense deciding the case on the merits.
It is therefore the ruling of this Court that plaintiffs' petition for preliminary injunction be dismissed and it is SO ORDERED.
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