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Covertech Fabricating, Inc. v. TVM Building Products, Inc.

United States District Court, W.D. Pennsylvania

October 26, 2017

COVERTECH FABRICATING, INC., Plaintiffs,
v.
TVM BUILDING PRODUCTS, INC.; TVM INDUSTRIES, INC.; TVM FOAM SYSTEMS, INC.; TVM INSULATION, INC.; TVM SEALANTS, INC.; TVM MANUFACTURING, INC.; TVM HOLDINGS USA, INC.; TVM HOLDINGS, INC.; TVM CANADA, INC.; MITEX INTERNATIONAL, INC.; MITEX BUILDING PRODUCTS, LLC; MITEX FOAM SYSTEMS, LLC; MITEX MANUFACTURING, LLC; MITEX GROUP, INC., MICHAEL BOULDING, SEAN BOULDING, and WILLIAM TROTTERS, Defendants.

          MEMORANDUM OPINION

          KIM R. GIBSON, UNITED STATES DISTRICT JUDGE

          I. Introduction

         Pending before the Court is Plaintiff Covertech Fabricating, Inc.'s Motion for Temporary Restraining Order and Preliminary Injunction. (ECF No. 3.) The Court has reviewed Plaintiff's Motion (ECF No. 3), Plaintiff's Brief in Support thereof (ECF No. 4), and Plaintiff's Verified Complaint (ECF No. 1). Upon review of these submissions, the Court is persuaded that Plaintiff has met the high standard for obtaining a temporary restraining order ("TRO"). The Court will, therefore, enter a TRO-albeit without one of the conditions requested by Plaintiff-and set a hearing for Plaintiff's request for a preliminary injunction. For the reasons that follow, Plaintiff's Motion is GRANTED IN PART and DENIED IN PART.

         II. Plaintiff Has Met the Heavy Burden of Rule 65(b)(1) to Merit the Grant of an Ex Parte TRO

         Pursuant to Federal Rule of Civil Procedure 65(b)(1), a court may issue an ex parte TRO where (1) "specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition" and (2) "the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." Fed. R. Civ. P.65(b)(1). Plaintiff has satisfied both of these requirements.

         First, the facts, as set forth in the Verified Complaint (ECF No. 1), clearly show that immediate irreparable harm will result to Plaintiff before the adverse party can be heard in opposition. The Verified Complaint clearly demonstrates that Defendants are likely to transfer assets as soon as they learn about the present lawsuit-an action Defendants have previously taken when faced with the enforcement of this Court's judgment. Absent a TRO, Defendants would be free to immediately begin dissipating assets and moving assets beyond the reach of Plaintiff, potentially precluding Covertech from recovering millions of dollars owed to Covertech from a prior, unsatisfied judgment from this Court.

         Second, as set forth by an affidavit filed by Plaintiff's counsel (ECF No. 4-1), Covertech has sought to provide Defendants with notice of the instant lawsuit and TRO Motion by various means, including sending the relevant court filing to the last known counsel of Defendants via e-mail and U.S. Mail and hiring a process server to attempt to effectuate service on each of the named Defendants.

         Thus, upon reviewing the Verified Complaint, the exhibits thereto, and Plaintiff's Brief in Support of its Motion for Temporary Restraining Order and Preliminary Injunction, the Court finds that Plaintiff has satisfied both of the requirements of Rule 65(b)(1).

         III. Plaintiff Has Satisfied the Four-Part TRO Test

         Beyond the requirements of Rule 65(b)(1) for issuing an ex parte TRO, a party seeking a TRO must also establish (1) a likelihood of success on the merits, (2) that denial of injunctive relief will result in irreparable harm, (3) that granting the temporary restraining order will not result in irreparable harm to the defendants, and (4) that granting the TRO is in the public interest. See Maldonado v. Houston, 157 F.3d 179, 184 (3d Cir. 1997). The requirements for a temporary restraining order are the same as those for a preliminary injunction. Saluck v. Rosner, C.A. No. 98-5718, 2003 WL 559395, at *2 (E.D. Pa. Feb. 25, 2003). The Court finds that each of these four elements is satisfied.

         First, the Court agrees with the argument and reasoning of Plaintiff's Brief (see ECF No. 4 at 9-19) and finds that the facts of the Verified Complaint establish more than a reasonable probability of success on the merits such that a TRO should issue. To establish a reasonable probability of success on the merits such that a TRO should issue, a "plaintiff need only prove a prima facie case, not a certainty that [it] will win." Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 173 (3d Cir. 2001); see also Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017) ("[The court does] not require at the preliminary stage a more-likely-than-not showing of success on the merits because a likelihood of success on the merits does not mean more likely than not.") (internal quotation marks omitted). Plaintiff has met this burden with the allegations of the Verified Complaint for its asserted causes of action.[1]

         Second, as discussed supra, the Court finds that the allegations of the Verified Complaint demonstrate that injunctive relief is necessary to prevent immediate and irreparable harm to Plaintiff. Namely, Plaintiff has, for the purposes of its Motion, sufficiently shown that, absent immediate injunctive relief, Defendants are likely to dissipate and deplete their assets such that Plaintiff is unable to collect on the judgment previously entered by this Court.[2] Plaintiff has alleged sufficiently that Defendants have previously performed evasive transfers to avoid the collection of the judgment in this case and will likely once again engage in such evasive conduct to dissipate assets and transfer them beyond the reach of Plaintiff such that Plaintiff's judgment would go unsatisfied. See Gelfand v. Stone, 727 F.Supp. 98, 102 (S.D. N.Y. 1989) (stating that injunctive relief is appropriate where the totality of circumstances indicate that the "past predilection for deceptive and fraudulent practices is likely to continue."). Thus, the Court finds that this significant threat of wrongful dissipation and transfer of assets to frustrate the collection of Plaintiff's judgment is sufficient demonstration of a likelihood of irreparable harm if injunctive relief is not granted.

         Third, the Court finds that the balance of harms clearly and strongly weighs in favor of Plaintiff. Defendants will not be harmed in any significant manner by the requested TRO. Defendants are enjoined only from asset transfers outside the ordinary course of business. Furthermore, if Defendants seek such a transfer, they may petition the Court to seek authorization. In contrast, if the Court denies Plaintiff's Motion, they may likely never be able to collect their two-year-old, multimillion-dollar judgment against Defendants. See Berger v. Weinstein, Civ. A. No. 98-5861, 2016 WL 1359459, at *8 (E.D. Pa. Apr. 6, 2016) ("The balance of the harms weighs in favor of granting an injunction. It has been years since the judgment was entered and Judgment Creditors have yet to see a dime. Despite [the defendant's] cries of poverty, the injunction that the Court will enter is not so broad as to place her family in financial peril."). In sum, Defendant's lawful and proper business and livelihood are scarcely harmed by the grant of TRO, but Plaintiff could likely lose upwards of $5.4 million in the form of an unsatisfied judgment.

         Fourth, the grant of TRO in this case is clearly in the public interest. "The public has an interest in the enforcement of judgments." State Farm Mut. Auto Ins. Co. v. Am. Rehab & Physical Therapy, Inc.,376 Fed.Appx. 182, 184 (3d Cir. 2010). "The public interest will be furthered if judgment debtors are prohibited from frustrating the legal process, and judgment creditors are protected from having to expend endless resources to collect on their judgments." Star Creations Inv. Co. v. Alan Amron Dev., Inc., No. Civ. A. 95-4328, 1995 WL 495126, at *20 (E.D. Pa. Aug. 18, 1995). In the present case, Plaintiff made numerous efforts to collect on it judgment to no avail. According to the well-pleaded allegations of the Verified Complaint, the Defendants have evaded and will likely continue to evade Plaintiff's recovery efforts through improper transfers of assets to a complicated web of entities ...


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