Modern Computer Systems, Inc. v. Modern Banking Systems, Inc. Modern Banking Systems of Southern Wisconsin

871 F.2d 734, 1989 U.S. App. LEXIS 4017, 1989 WL 27982

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 29, 1989
• Docket: 88-1393
• Status: Published

Opinions

MAGILL, Circuit Judge.

Modern Computer Systems, Inc. (MC) appeals from the district court’s ¹ denial of its motion for a preliminary injunction pending a ruling on the merits of its claims against Modern Banking Systems, Inc. (MB). The gravamen of MC’s case is that MB may not lawfully terminate MC as its computer software distributor or market software in MC’s exclusive sales territory. MC alleges, inter alia, that violations of the Minnesota Franchise Act, Minn.Stat. Ch. 80C (1986 and Supp.1987), committed by MB necessitate the requested injunctive relief.

The district court based its denial of MC’s motion on two findings. First, it concluded that because of a choice of law clause in the MC-MB contract, Nebraska law (not the Minnesota Franchise Act) must govern all disputes between the parties arising from the contract. Second, the court found that MC failed to carry its burden to prove that MB’s actions caused the irreparable injury integral to any request for injunctive relief.

On appeal, a panel of this court, in a 2-1 decision, reversed the district court’s judgment, finding that “the Minnesota Franchise Act should be applied * * * ” and that “Modern Computer has shown a likelihood of success on the merits * * Modern Computer Systems v. Modern Banking Systems, 858 F.2d 1339 (8th Cir.1988). That decision was vacated when rehearing en banc was granted. On rehearing, the court en banc voted (8-2 decision) to affirm the judgment of the district court. Since the district court did not err in its conclusions that the choice of law clause is enforceable and that MC failed to prove irreparable injury, MC’s motion is denied.

I. BACKGROUND

On October 22, 1980, MC and MB signed a contract that gave MC exclusive rights to distribute MB’s computer software in Minnesota. The distributorship agreement was a standard form contract with preset, nonnegotiable terms. The contract included a clause establishing that if the agreement engendered litigation between the parties, the laws of Nebraska (MB’s place of business) would govern.

The contract authorized MC to distribute computer systems created by MB. The hardware in the systems came from the Texas Instruments Corporation. The accompanying software was designed and developed by MB. Although it could have purchased hardware directly from Texas Instruments, MC paid MB a premium price for it in order to obtain MB software (which facilitates use by commercial banking establishments) as well.

By 1987, MC had purchased over $3.6 million worth of computer systems from MB and amassed a client list of eighty-six financial institutions in the region in which it distributed MB systems. MC grew from a two-man “start up” operation to a thriving company with twenty-five employees. However, to a substantial degree, it remained financially dependent on its continuing relationship with MB; over seventy percent of MC’s business was in some respects related to the sale and maintenance of MB systems and the sale of supplies required by MB systems purchasers.

As MC expanded, it installed computer systems in more than 400 institutions throughout the United States. All of its commerce outside of Minnesota and North Dakota was entirely unrelated to MB and its products. MC’s distribution zone for MB products grew from Minnesota alone to a region comprising Minnesota, North Dakota and, for two years, South Dakota. In 1983, MC sought to expand into Wisconsin, but MB prevented it from doing so by threatening to enter the Minnesota market as a direct competitor if MC’s expansion plans persisted.

In 1986, MB decided to convert its distributors into licensees. With the exception of MC, all of the erstwhile distributors acceded to MB’s demand for a new li-censor-licensee arrangement. Because MC refused to alter its contract, MB began to charge MC, as a distributor, more for its software than it charged licensees.

Alarmed by the way its relationship with MB had deteriorated, MC filed suit against MB in Minnesota state court on August 4, 1987. MC requested a declaration of its rights under the distributorship agreement as they pertained to (1) whether MC could expand into the Wisconsin market; (2) whether MB could require MC to purchase its Texas Instruments hardware; (3) whether MB could require hardware/software tie-in sales; and (4) whether MB’s policy of charging distributors more than licensees was lawful.

The suit was dismissed on October 20, 1987. The Minnesota district court exercised its discretionary right not to assert jurisdiction because the parties, in the distributorship agreement’s forum selection clause, agreed “to exclusive venue in Douglas County, Nebraska in any litigation between them concerning this contract.” Modern Computer Systems v. Modern Banking Systems, No. 104618, slip op., Dakota County, Minnesota, October 20, 1987 (unpublished memorandum opinion).²

The court supported its decision to enforce the forum selection clause with Minnesota Supreme Court precedent:

“[WJhen the parties to a contract agree that actions arising from that contract will be brought in a particular forum, that agreement should be given effect unless it is shown by the party seeking to avoid the agreement that to do so would be unfair or unreasonable.” Minnesota law, therefore, favors the enforcement of forum selection clauses.

Id. (quoting Hauenstein & Bermeister, Inc. v. MET-FAB Industries, Inc., 320 N.W.2d 886 (Minn.1982)).

In addition to emphasizing that Minnesota law favors the enforcement of clearly worded and otherwise not unreasonable forum selection clauses, the Minnesota district court obliquely raised another rationale for denying MC’s motion: MB’s actions caused no irreparable harm to MC. The court reasoned that “[tjhere is no evidence * * * that [MC] could not have acquired computer software suitable for banking from any other source. Plaintiff himself states he can purchase the computer hardware directly.” Modern Computer Systems v. Modern Banking Systems, No. 104618, slip op., Dakota County, Minnesota, October 20, 1987 (unpublished memorandum opinion).

After the dismissal of MC’s state claim, MB commenced a breach of contract action against MC in Nebraska state court.³ The litigation continued to flourish, as MC filed the instant action in the United States District Court for the District of Nebraska. MC’s new suit contained a multitude of allegations, charging MB with interference with prospective contractual relations, defamation, breach of contract, promissory es-toppel, antitrust violations, unfair competition, and violations of the Minnesota Franchise Act and the Wisconsin Fair Dealership law. MC sought a preliminary injunction forbidding the termination of the MC-MB distributorship agreement and MC-MB competition in Minnesota pending ruling on the merits of MC’s claims. ■

The district court, emphasizing the absence of irreparable injury, also denied MC’s motion for a preliminary injunction.⁴ Ultimately, the court concluded that MC would not be pushed to the brink of extinction (with irreparably damaged goodwill and reputation) absent injunctive relief. On the contrary, the court concluded MC could survive, perhaps nearly financially intact, by pursuing other avenues of business, viz., maintenance service and emphasis on clients outside Minnesota and North Dakota. The district court also analyzed the distributorship agreement’s choice of law clause, concluding that the parties’ selection of Nebraska law to govern disputes arising out of the agreement was enforceable since it was reasonable, agreed upon mutually in clear language, and not contrary to the laws or fundamental policies of Minnesota. Accordingly, the court denied MC’s request for injunctive relief.

II. DISCUSSION

We agree with the district court’s conclusions concerning both of this case’s salient issues. Our review of the record convinces us that MC failed to establish the irreparable injury required to necessitate injunctive relief. Moreover, we agree that no fundamental public policy of Minnesota overrides the choice of law provision agreed upon by the parties in the distributorship agreement.

A. No Irreparable Injury

The burden of proving that a preliminary injunction⁵ should be issued rests entirely with the movant. See Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir.1987); Jensen v. Dole, 677 F.2d 678, 680 (8th Cir.1982). Unless the district court’s denial of injunctive relief is the product of an abuse of discretion or misplaced reliance on an erroneous legal premise, we may not reverse on appeal. See, e.g., Calvin Klein Cosmetics Corp. v. Lenox Laboratories, Inc., 815 F.2d 500, 503 (8th Cir.1987); Randall v. Wyrick, 642 F.2d 304, 308 (8th Cir.1981).

In 1981, this court convened en banc to “clarify the standard to be applied by the district courts in this circuit in considering requests for preliminary injunctive relief.” Dataphase Systems, Inc. v. CL Systems, Inc., 640 F.2d 109, 112 (1981) (en banc). The Dataphase court emphasized that when deciding whether to issue a preliminary injunction, a district court must consider four relevant factors: the threat of irreparable harm to the movant, the balance between such irreparable harm and the corresponding harm that injunctive relief would inflict on other interested parties, the movant’s prospects for success on the merits, and the public interest. Id. at 113. The court then stated that “[i]n balancing the equities[,] no single factor is determinative.” Id. However, one moving for a preliminary injunction is required to show the threat of irreparable harm. In fact, absence of a finding of irreparable injury is sufficient grounds for vacating a preliminary injunction. Id. at 114.

The district court did not err in denying preliminary injunctive relief in this case because MB’s actions caused no irreparable injury to MC. The district court did not abuse its discretion or rely on an erroneous legal premise when it concluded that MC would not sustain irreparable harm if MB terminated the distributorship agreement and entered into direct competition with MC for the patronage of customers in Minnesota and North Dakota. As the court emphasized, MC is free to purchase hardware directly from Texas Instruments. In addition, nothing prevents MC from purchasing its software requirements from another company. Moreover, even if MC loses the eighty-six clients to whom it has sold MB systems, it will still have a customer base in excess of 310. The record contains abundant indications that MC’s dealings with MB have dwindled significantly in the last two years and that MC has other significant avenues of business (encompassing both sales and maintenance) despite the deterioration of the relationship with MB.

Finally, MC will not be irreparably harmed by the denial of its motion because with or without injunctive relief, it will have an adequate remedy at law if it succeeds in establishing the merits of its substantive allegations of antitrust violation (with its concomitant treble damages for victors), wrongful termination, defamation, breach of contract, et cetera.

Finding no proof of irreparable injury, we conclude our Dataphase analysis, convinced that the decision of the district court not to grant injunctive relief was not an abuse of discretion.

B. Choice of Law

Even if we assume, arguendo, that MC has proved the threshold issue of irreparable harm and that MC then proceeded to construct a cogent argument under the remainder of the Dataphase analysis, we would nevertheless affirm the district court’s denial of injunctive relief pursuant to the Minnesota Franchise Act. We are convinced that the choice of law clause in the MC-MB distributorship agreement precludes the application of Minnesota law to this dispute.

MC argues that by inserting an anti-waiver clause in its Franchise Act, Minnesota expressed a fundamental public policy opposing waiver via party agreement. This policy, the argument continues, overrides the choice of law clause in the distributorship agreement. We believe that this argument underestimates both the applicability of Tele-Save Merchandising Co. v. Consumers Distributing Co., 814 F.2d 1120 (6th Cir.1987), to this case and the bargaining power MC possessed when it signed the distributorship agreement. Therefore, we agree once more with the conclusions of the district court.

In Tele-Save, the Sixth Circuit upheld a choice of law provision in a supply agreement despite the existence of an Ohio statute that (like the Minnesota Franchise Act) includes a non-waiver provision. The court chose to enforce the choice of law provision for the following reasons: (1) the parties had agreed in advance to the law to be applied in future disputes; (2) contacts between the parties were fairly evenly divided between the state selected in the contract and the plaintiff’s home state; (3) the parties were not of unequal bargaining strength; and (4) the application of the law chosen in the contract was not repugnant to the public policy of the plaintiff’s state. Id. at 1123.

An analysis like that employed in Tele-Save reveals that the same result must be reached in this case.

MC’s arguments concerning the choice of law issue contain two fundamental misunderstandings. First, as we will examine later, MC is incorrect in its assumption that Minnesota clearly has the stronger state interest in this case. Second, we do not agree that a fundamental public policy of Minnesota (protection of in-state companies by the Minnesota Franchise Act) overrides the choice of the parties in light of the reasoning in Tele-Save.

The Minnesota Franchise Act was adopted sixteen years ago. It protects franchisees in Minnesota from unreasonable or abusive treatment by powerful franchisors. See Clapp v. Peterson, 327 N.W.2d 585, 586 (Minn.1982); Martin Investors, Inc. v. Vander Bie, 269 N.W.2d 868, 872 (Minn.1978). To qualify for the Act’s protection, a Minnesota franchisee must: (1) have a right to use the franchisor’s trade name or commercial symbol; (2) share a community of interests with the franchisor in the marketing of goods or services; and (3) be required to pay a franchise fee. Minn.Stat. 80C.01(4). See generally RJM Sales and Marketing, Inc. v. Banfi Products Corp., 546 F.Supp. 1368, 1373 (D.Minn.1982); Chase Manhattan Bank v. Clusiau Sales and Rental, Inc., 308 N.W.2d 490, 492 (Minn.1981).

The Act imposes a number of procedural requirements, demands factual disclosures by would-be franchisors, and regulates termination of franchises. The sole remedy offered by the Act for unfair or inequitable termination of franchises is injunctive relief. See Minn.Stat. 80C.02, .04, .06, .14(1), .14(3); Mason v. Farmers Insurance Cos., 281 N.W.2d 344, 348 (Minn.1979).

The anti-waiver provision, § 80C.21, reads as follows:

Any condition, stipulation or provision purporting to bind any person acquiring any franchise to waive compliance with any provision of sections 80C.01 to 80C.22 or any rule or order thereunder is void.

Having briefly set out the essential content of the Act, we now proceed to apply the analysis developed in Tele-Save.

Neither party denies that the distributorship agreement established the law to be used in future disputes. Paragraph 16 of the agreement plainly states that “[t]he parties agree that this agreement shall be governed by the laws of Nebraska.”

As for the division of contacts between the parties and the two potential forum states, we believe they are fairly evenly divided between Nebraska and Minnesota. Nebraska is MB’s state of incorporation and principal place of business, the site of the negotiation and signing of the MC-MB agreement, and the state named in the choice of law clause. Minnesota is the place of performance of the contract, MC’s place of incorporation, and the home of a great deal of MC’s clientele. We conclude that this “fairly even division” satisfies the requirement in Tele-Save.

Next, we must consider the parties’ relative levels of bargaining power. In an earlier incarnation of this case, the Minnesota district court, see supra pp. 736-737, specifically found that at the time of their agreement, MC and MB were not of unequal bargaining power. Modern Computer Systems v. Modern Banking Systems, No. 104618, slip op., Dakota County, Minnesota, October 19, 1987 (unpublished memorandum opinion). The court concluded that “[t]he contract is not adhesive. There is no evidence of a great disparity in bargaining power between the parties * * *.” Id.

Although we recognize that the literature of franchising law is strewn with reports of sophisticated and financially powerful franchisors taking advantage of relatively inexperienced franchisees, we do not believe that the facts in this case fit that stereotype. This matter involves multi-mil-lion-dollar dealings between two computer companies with nationwide clienteles. To give MC the benefit of protection under the Minnesota Franchising Act after they knowingly waived it (without attempting to negotiate for more favorable choice of law terms) would be unduly paternalistic. Some evidence of oppressive, unreasonable or unfair use of superior bargaining position, as in a contract of adhesion, is required before a court can justifiably disregard a mutually agreed upon choice of law clause. No such extreme circumstances exist in this case. Accordingly, we see nothing that persuades us that MC’s and MB’s levels of bargaining power were widely disparate at the time of their agreement.

Last, we are unpersuaded by MC’s argument that a fundamental public policy of Minnesota overrides the choice of law clause and requires application of Minnesota law. The Minnesota Franchise Act undeniably does evince a policy in favor of offering franchisees in Minnesota remedies greater than those available under traditional common law, but we also see a powerful countervailing policy: Minnesota’s traditional willingness to enforce parties’ choice of law agreements: see Milliken and Co. v. Eagle Packaging Co., 295 N.W. 2d 377 (1980) (when parties agree that the law of another state shall govern their agreement, Minnesota courts will interpret and apply the law of the state where such an agreement is made); Combined Insurance Co. of America v. Bode, 247 Minn. 458, 77 N.W.2d 533 (1956) (parties to a contract acting in good faith and without an intent to evade the law may agree that the law of the state in which the contract is made shall govern its interpretation).

III. CONCLUSION

The district court did not abuse its discretion or rely on an erroneous legal premise when it concluded that MC sustained no irreparable harm resulting from MB’s actions and that the parties’ choice of law clause was enforceable. Therefore, the court’s denial of MC’s motion for preliminary injunctive relief pursuant to the Minnesota Franchise Act is affirmed.

1 . The Honorable Lyle E. Strom, United States Chief District Judge for the District of Nebraska.

2 . Ordinarily, we do not cite unpublished opinions in this circuit. Eighth Circuit Local Rule 8(i) indicates that "[no] party may cite an opinion that was not intended for publication by this or any other federal or state court * * *." However, Rule 8(i) goes on to make an exception "when the cases are related by virtue of an identity between the parties or the causes of action.” Since the parties and underlying disputes in the instant case are identical to those in the Minnesota district court case, Rule 8(i) authorizes this citation. See, e.g., Jones v. Mabry, 723 F.2d 590, 596 (1983) (there is no impropriety in the use of an unpublished opinion when causes of action are identical).

3 . MC then removed the case to federal court.

4 . Federal diversity jurisdiction in this case is pursuant to 28 U.S.C. §§ 1331 and 1337.

5 . When this court evaluates a motion for preliminary injunctive relief, we do so in accordance with Rule 65 of the Federal Rules of Civil Procedure and relevant federal case law. In diversity jurisdiction cases, we apply federal instead of state law because the United States Supreme Court has held that federal law governs all procedural issues in federal courts, regardless of the basis of jurisdiction. Therefore, an applicable Federal Rule of Civil Procedure (in this case, Fed.R.Civ.P. 65) must be used instead of a corresponding state rule of procedure when a conflict arises between them. See Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); Hughes v. Mayo Clinic, 834 F.2d 713, 717 (8th Cir.1987).