that players of this caliber intended to formalize many expensive
"details" which appear to remain unresolved on the evidence of record to
date. Indeed, a jury could easily decide on this record that in light of
the detail accompanying the August 1999 Agreement (which by the terms of
¶ 15.16 bargained for back and forth negotiations in the context of
exercising the right of first opportunity) neither party would reasonably
expect that a transaction for all the sections would simply be handled
under the same terms and conditions of the original agreement as
Garnet Mine also moves this Court to enjoin and restrain Brandolini
from forcing immediate settlement. Plaintiff contends that Brandolini
cannot move for settlement because he has failed to meet his obligations
under the August 1999 Agreement. For instance, plaintiff argues that
Brandolini cannot at this time meet his duty to provide sanitary sewer
under the terms of the August 1999 Agreement. (Pl.'s Mem. of Law at 12;
Pl.'s Ex. 1 at ¶ 6.12.) Because plaintiff has moved this Court only
to enjoin settlement as to the whole property, and because I conclude
that plaintiff has failed to meet its burden in demonstrating the
likelihood that it would prevail on the key issue of whether there is a
binding contract to purchase the whole property, I conclude that it is
unnecessary to address whether it is reasonably likely that Garnet Mine
would succeed on the merits of its contention that Brandolini has not met
its obligation under the contract.2. Irreparable Harm
Even if Garnet Mine were able to meet its burden with respect to the
reasonable likelihood of success inquiry, for the following reasons, I
conclude that plaintiff would not be able to meet the irreparable harm
burden. To make a showing of irreparable harm: "`plaintiff must
demonstrate potential harm which cannot be redressed by a legal or an
equitable remedy following a trial. The preliminary injunction must be
the only way of protecting the plaintiff from harm.'" Campbell Soup Co.
v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992) (quoting Instant Air
Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989))
(emphasis in original). The "`requisite feared injury or harm must be
irreparable — not merely serious or substantial,' and it `must be
of a peculiar nature, so that compensation in money cannot atone for
it.'" Id. (quoting ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir.
1987)). See also KP First Ave., L.P. v. Prentiss Properties Acquisition
Partners, L.P., No. Civ. A. 01-1396, 2001 WL 438416, at *5 (E.D.Pa. Apr.
26, 2001) (finding no per se rule of irreparable harm in cases involving
an injury to an interest in land within this Circuit). Thus the question
is whether money damages could make Garnet Mine whole if it could not
purchase all sections of the property.
Garnet Mine contends in a very conclusory manner that it would be
irreparably harmed by having to develop sections 2, 3 and 4 without
section 1 because the sections are more valuable as an entirety than
separate.*fn7 Plaintiff also argues that Brandolini is forcing
sections 2, 3, and 4 in order to carry out his threat to convey section 1
to a third party. However, Garnet Mine failed to produce any evidence
that Brandolini had such intentions.*fn8 In addition, Garnet Mine argues
that it had the final plans for the property changed because it was
acting under the belief that plaintiff was to purchase the whole
property. Garnet Mine believes that under the final plans it would be
unable to commence the development of sections 2, 3 and 4. Again, Garnet
Mine never provided evidence that it cannot develop without section 1.
Presumably, when parties signed the August 1999 agreement, they planned
to co-develop the land under one final plan. This Court is not convinced
that such an arrangement is not possible under the new plans.
I conclude that the most the evidence demonstrates is that without
section 1, Garnet Mine faces the distinct possibility of a loss of
economic opportunity to achieve maximum profits. I conclude further that
such injury can be compensated by monetary damages, even if the damages
are difficult to prove.*fn9
I have concluded that plaintiff has not met its burden of proof on the
two most important considerations on a preliminary injunction: the
likelihood of success on the merits and irreparable harm. Since plaintiff
must make a showing of all four factors, and has failed to prove the
first two factors for consideration, I will not address the merits of the
remaining factors, namely, balancing the hardships and public interests.
In sum, plaintiffs asked this Court to become snarled in a bitter dispute
over a complex land deal, and I conclude that this bitter dispute remains
for resolution as the case develops.
Accordingly, for the foregoing reasons, the motion for preliminary
injunction will be denied. An appropriate Order follows.
AND NOW, this 13th day of June, 2001, upon consideration of the motion
of plaintiff for a temporary restraining order and preliminary injunction
(Document No. 2), pursuant to Federal Rule of Civil Procedure 65, and
having held a hearing on June 5th, 6th, and 8th, 2001 at which the
parties offered evidence, presented testimony, and this Court heard oral
arguments on, and having concluded, for the reasons set forth in the
foregoing memorandum, that plaintiff has not met its burden of
establishing a reasonable likelihood of success or irreparable harm, and
that a temporary restraining order and preliminary injunction is
therefore not warranted under on the evidence now in the record, IT IS
HEREBY ORDERED that the motion for preliminary injunction is DENIED.