Exhibitors Poster Exchange, Inc. v. National Screen Service Corp.

Fifth Circuit

Exhibitors Poster Exchange, Inc. v. National Screen Service Corp.

441 F.2d 560, 1971 U.S. App. LEXIS 10437

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 30, 1971

DocketNo. 30886

StatusPublished

Cited by12 cases

This text of 441 F.2d 560 (Exhibitors Poster Exchange, Inc. v. National Screen Service Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 441 F.2d 560, 1971 U.S. App. LEXIS 10437 (5th Cir. 1971).

Pincite

Opinions

PER CURIAM:

Exhibitors Poster Exchange, Inc., appeals from the District Court’s denial of its motion for a preliminary injunction. Exhibitors contends that the District Court abused its discretion in refusing to grant the mandatory relief for which it prayed. We affirm.

In its motion for entry of a preliminary injunction, Exhibitors averred: (1) that National Screen Service Corporation had acquired most of Exhibitors’ previous customers since March 1, 1963; (2) that Exhibitors could regain a substantial number of its lost customers if it could resume full-scale operation of its business; (3) that unless full-scale operation resumed immediately, Exhibitors probably could not regain a sufficient number of customers to ensure successful pursuit of its business; (4) that National Screen was conspiring to prevent Exhibitors from resuming full-scale operation of its business. Exhibitors prayed for a mandatory preliminary injunction to enjoin National Screen “from continuing to refuse to sell [Exhibitors] supplies of standard motion picture advertising posters pending the trial” on the merits.

Refusing to grant such injunctive relief, the District Court concluded that Exhibitors had failed to show a likelihood of success on the merits or of irreparable injury. Furthermore, the court opined that Exhibitors, having acquiesced for the last five years in the acts of National Screen, was precluded from seeking a mandatory injunction. However, although it denied Exhibitors’ motion for the preliminary injunction, the District Court considered the case of such nature that it should be set for trial as soon as possible.

The purpose of a preliminary injunction is to preserve the status quo and thus prevent irreparable harm until the respective rights of the parties can be ascertained during a trial on the merits. Miami Beach Federal Savings & Loan Ass’n v. Callander, 5 Cir. 1958, 256 F.2d 410, 415; accord, Quon v. Stans, N.D.Cal.1970, 309 F.Supp. 604, 607 & n. 3. The decision whether or not a preliminary injunction will issue lies within the sound discretion of the trial court. Leu v. American Fidelity Life Insurance Co., 5 Cir. 1970, 430 F.2d 672, quoting Tatum v. Blackstock, 5 Cir. 1963, 319 F.2d 397, 401-402; see Arco Fuel Oil Co. v. Atlantic Richfield Co., 2 Cir. 1970, 427 F.2d 517, 519. Nevertheless, when a plaintiff applies for a mandatory preliminary injunction, such relief “should not be granted except in rare instances in which the facts and law are clearly in favor of the moving party.” Miami [562]*562Beach Federal Savings & Loan Ass’n v. Callander, supra, 256 F.2d at 415. See also CORE v. Douglas, 5 Cir. 1963, 318 F.2d 95, 97.

We perceive no abuse of discretion in the District Court’s denial of Exhibitors’ motion for a preliminary injunction. It is manifest that Exhibitors has not sustained its heavy burden of proof in this instance.¹

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM:

Exhibitors Poster Exchange, Inc., appeals from the District Court’s denial of its motion for a preliminary injunction. Exhibitors contends that the District Court abused its discretion in refusing to grant the mandatory relief for which it prayed. We affirm.

In its motion for entry of a preliminary injunction, Exhibitors averred: (1) that National Screen Service Corporation had acquired most of Exhibitors’ previous customers since March 1, 1963; (2) that Exhibitors could regain a substantial number of its lost customers if it could resume full-scale operation of its business; (3) that unless full-scale operation resumed immediately, Exhibitors probably could not regain a sufficient number of customers to ensure successful pursuit of its business; (4) that National Screen was conspiring to prevent Exhibitors from resuming full-scale operation of its business. Exhibitors prayed for a mandatory preliminary injunction to enjoin National Screen “from continuing to refuse to sell [Exhibitors] supplies of standard motion picture advertising posters pending the trial” on the merits.

Refusing to grant such injunctive relief, the District Court concluded that Exhibitors had failed to show a likelihood of success on the merits or of irreparable injury. Furthermore, the court opined that Exhibitors, having acquiesced for the last five years in the acts of National Screen, was precluded from seeking a mandatory injunction. However, although it denied Exhibitors’ motion for the preliminary injunction, the District Court considered the case of such nature that it should be set for trial as soon as possible.

The purpose of a preliminary injunction is to preserve the status quo and thus prevent irreparable harm until the respective rights of the parties can be ascertained during a trial on the merits. Miami Beach Federal Savings & Loan Ass’n v. Callander, 5 Cir. 1958, 256 F.2d 410, 415; accord, Quon v. Stans, N.D.Cal.1970, 309 F.Supp. 604, 607 & n. 3. The decision whether or not a preliminary injunction will issue lies within the sound discretion of the trial court. Leu v. American Fidelity Life Insurance Co., 5 Cir. 1970, 430 F.2d 672, quoting Tatum v. Blackstock, 5 Cir. 1963, 319 F.2d 397, 401-402; see Arco Fuel Oil Co. v. Atlantic Richfield Co., 2 Cir. 1970, 427 F.2d 517, 519. Nevertheless, when a plaintiff applies for a mandatory preliminary injunction, such relief “should not be granted except in rare instances in which the facts and law are clearly in favor of the moving party.” Miami [562]*562Beach Federal Savings & Loan Ass’n v. Callander, supra, 256 F.2d at 415. See also CORE v. Douglas, 5 Cir. 1963, 318 F.2d 95, 97.

We perceive no abuse of discretion in the District Court’s denial of Exhibitors’ motion for a preliminary injunction. It is manifest that Exhibitors has not sustained its heavy burden of proof in this instance.¹

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

441 F.2d 560, 1971 U.S. App. LEXIS 10437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/exhibitors-poster-exchange-inc-v-national-screen-service-corp-ca5-1971.

Opinions

Related

Cite This Page — Counsel Stack