Opinion
Civil Action No. 3:00cv00013
August 7, 2000
Jonathan T. Wren, Martin Raynor, P.C., Charlottesville, Va, For Plaintiff.
Dexter Brock Green, Jones Green, Charlottesville, Va, Sheldon H. Parker, Parker Destefano, Charlottesville, Va, For Defendants.
MEMORANDUM OPINION
Before this court are the plaintiff's February 10, 2000 Motion for Preliminary Injunction and the memoranda of the parties in support and opposition thereto. The plaintiff seeks relief in this case under the Lanham Act and the common and statutory law of the Commonwealth of Virginia, alleging: a violation of the Lanham Act's prohibition of unfair competition, pursuant to 15 U.S.C. § 1125(a), common law and statutory unfair competition, common law trade name and service mark infringement, and common law trade dress infringement.
I.
A. Facts
The plaintiff, Yellow Cab, has been owned and operated by the Graves family since 1936, doing business as a taxicab service in the cities of Charlottesville and Waynesboro, and in the counties of Albemarle, Fluvanna, Greene, Nelson, Louisa, Augusta, Appomatox, and Orange [hereinafter greater Charlottesville/Albemarle community or the community]. Yellow Cab was incorporated under the laws of Virginia in 1966. It has continuously used in all aspects of its business the YELLOW CAB trade name and service mark since 1936 and the yellow trade dress exclusively since the 1950s. However, YELLOW CAB was never federally registered as a trademark or trade name of the plaintiff, nor is there any registered trade dress for the plaintiff, other than that required for local ordinances. The plaintiffs contend that, up until about 1997 or 1998, there was no other taxi service in the community that used the word combination YELLOW CAB as part of its trade name.
The plaintiff has expanded its business through the use of a variety of advertising and marketing media, including but not limited to: telephone directory listings, the taxicab itself, ads in hotel service books, a direct line at the airport, participation in the "Safe Ride Home Program" during the holidays, charitable giving in the company's name, etc. As a result, the plaintiff contends, its trade name, service mark and trade dress are widely recognized by consumers in the greater Charlottesville/Albemarle community. Yellow Cab also claims to have developed a good will and strong reputation in the greater Charlottesville/Albemarle community for its service.
The defendants, William J. Rocha, Jonathan Rocha, and Theodore Smith are individuals who have been operating taxicab services in the community since approximately 1997. Previously, in 1997, William Rocha was hired by Yellow Cab as an assistant dispatcher, but he was fired 3 or 4 months later for allegedly starting untrue rumors, an allegation which Mr. Rocha denies. The three individuals have been involved in the taxicab business in Charlottesville since about 1997, however Mr. Rocha has apparently been in the transportation business since 1953. William Rocha filed a certificate for the operation of a taxicab business in Albemarle Circuit Court under the name of Albemarle Yellow Cab Co. He also filed for a certificate for the operation of a taxicab business under the name of Yellow Cab Coach, which is the same entity as Yellow Cab Coach Co. All the entities were advertised to the public as businesses providing taxicab services to the community. Another certificate for the operation of a taxicab business was filed by Jonathan Rocha under the name City Cab Company, which is the same entity as City Cab Courier. City Cab was advertised to the public as a business providing taxicab services.
The defendants have advertised Albemarle Yellow Cab Co., Yellow Cab Coach Co., and City Cab in the 1999 and/or 2000 Yellow Pages telephone directories for the greater Charlottesville/Albemarle community. The phone numbers listed for the three taxicab companies are different, but all of the numbers tie in to the answering service for City Cab. All calls placed to any of the three cab companies is answered by a person who says that the caller has reached City Cab.
The plaintiff claims that it is the lawful owner in the greater Charlottesville/Albemarle community of all rights in and to the YELLOW CAB trade name and service mark in connection with the sale of taxi services, and all rights in and to the trade dress by which the plaintiff's taxis are known, i.e., taxis that are painted yellow. Yellow Cab's lawsuit is prompted by what they call the "confusingly similar trade names" used by the defendants: Albemarle Yellow Cab Co., Yellow Cab Coach Co., and Yellow Cab Coach and the use of these names in the community in advertising. (Pl. Mem. in Supp. at 3.) The plaintiff does not allege that the defendant now operates, or intends to operate, any cab that use the words YELLOW CAB or the yellow trade dress. The plaintiff claims that "the Deceivers' intention . . . in using these trade names is to wrongfully divert Yellow Cab's business for the benefit of a third taxi service, City Cab Courier or City Cab Company." (Pl. Mem. in Supp. at 3.) These tactics, the plaintiff alleges, cause "actual and continuing confusion among consumers and is strategically designed to pirate Yellow Cab's good will and reputation." (Pl. Mem. in Supp. at 3.)
This court takes issue with the plaintiff's exclusive reference to the defendants in the Complaint and Memorandum in Support of Preliminary Injunction as "the Deceivers." Derrogatory terms are inappropriate and have no place in the pleadings of this, or any, court.
B. The Motion for Preliminary Injunction
The plaintiff, Yellow Cab, seeks to prevent the defendants from using in any way, in the greater Charlottesville/Albemarle community, the YELLOW CAB trade name or service mark or any taxicab that is painted yellow; from falsely designating the origin, sponsorship, or affiliation of the defendants' business and services; and from otherwise unfairly competing with the plaintiff in any manner whatsoever, and specifically: (1) using as part of the defendants' business or trade name in the Charlottesville/Albemarle community the words YELLOW CAB, either alone or in combination with other words or phrases, or any other words confusingly similar to YELLOW CAB; (2) using in conjunction with any advertising, promotion, or solicitation for the defendants' business, trade or services in the community the words YELLOW CAB, either alone or with other words, or any words confusingly similar; (3) maintaining any telephone listings in the community that has ever been associated in any way with any of the defendants' business, trade, or services that used the words YELLOW CAB, either alone or with other words, or any words confusingly similar; (4) operating any taxicab in the community that is painted yellow; and (5) committing any other act that constitutes unfair competition against the plaintiff. (Pl. Mem. in Supp. at 2.)
II. Standard for Awarding Preliminary Injunctions
A preliminary injunction "is an extraordinary remedy, to be granted only if the moving party clearly establishes entitlement to the relief sought." Hughes Network Systems v. Interdigital Communications Corp., 17 F.3d 691, 693 (4th Cir. 1994) (quoting Federal Leasing, Inc. v. Underwriters at Lloyd's, 650 F.2d 495, 499 (4th Cir. 1981)). The purpose of an injunctive order is to "preserve the status quo during the course of a litigation, in order to prevent irreparable injury to the moving party and in order to preserve the ability of the court to render complete relief." Federal Leasing, 650 F.2d at 499. A preliminary injunction should only be granted where necessary to accomplish such goals. "Indeed, granting a preliminary injunction requires that a district court, acting on an incomplete record, order a party to act, or refrain from acting, in a certain way. `[T]he danger of a mistake' in this setting `is substantial.'" Hughes, 17 F.3d at 693 (quoting American Hosp. Supply Corp. v. Hospital Prods., Ltd., 780 F.2d 589, 593 (7th Cir. 1986)). For this and other problems associated with the issuance of a preliminary injunction, the Supreme Court requires that the harm to the plaintiff be irreparable in order to obtain a preliminary injunction. See Sampson v. Murray, 415 U.S. 61, 90 (1974), cited in Hughes, 17 F.3d at 694. The Court explained, "Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm."
Sampson, 415 U.S. at 90 (quoting Virginia Petroleum Jobbers Assoc. v. Federal Power Comm'n, 259 F.2d 921, 925 (D.C. Cir. 1958)), cited in Hughes, 17 F.3d at 694.
Four Factors and Balancing Test
The determination of whether to grant a preliminary injunction must be made after consideration of four factors articulated in Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 196 (4th Cir. 1977): (1) "the likelihood of irreparable harm to the plaintiff if the preliminary injunction is not granted; (2) the likelihood of harm to the defendant if the preliminary injunction is granted; (3) the likelihood that plaintiff will succeed on the merits; and (4) the public interest." Hughes Network Systems v. Interdigital Communications Corporation, 17 F.3d 691, 693 (4th Cir. 1994) (citing Blackwelder, 550 F.2d at 195-96). Not all of these factors are to be accorded equal weight. The Fourth Circuit counsels that the most important consideration under the standard is the "balance of hardships" to the plaintiff and the defendant. See Hughes, 17 F.3d at 693 (citing Blackwelder, 550 F.2d at 196). Comparing the relevant harms to the plaintiff and the defendants is the most important determination, which dictates how strong a likelihood of success showing the plaintiff must make. See id. If the plaintiffs fail to establish that the balance of hardships tips in its favor, an injunction should only be granted if the plaintiff establishes a "substantial likelihood of success" on the merits. See Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 818 (4th Cir. 1991). This court weighs the factors bearing in mind Judge Wilkinson's caution that issuance of a preliminary injunction should be the exception, not the rule and that the ultimate decision of whether to grant or deny preliminary injunctive relief lies with the district court's sound discretion. See Hennon v. Kirklands, Inc., 870 F. Supp. 118, 120 (W.D. Va 1994) (citing Hughes, 17 F.3d at 693-94).
1. Irreparable Injury to Plaintiffs
The plaintiff alleges that the defendants have caused it irreparable harm because "unfair competition attacks and erodes the good will that a competitor enjoys, and damage to a business's good will is incalculable." (Pl. Mem. at 12.) As evidence of harm, the plaintiff introduced testimony regarding public confusion about the taxicab services provided by the plaintiff and the defendants. According to the plaintiff, there have been instances when a member of the consuming public has telephoned the plaintiff under that mistaken impression that the plaintiff provided the services that the defendants provide (i.e. medicaid patient transportation). It is clear from the record that the opposite has also occurred, but the plaintiff admittedly cannot demonstrate how often clients have called the defendants expecting to reach the plaintiff.
The misdirected phone calls are the primary evidence introduced by the plaintiff to evidence irreparable harm to the plaintiff's good will. It is understandable that, from lack of first hand knowledge, the plaintiffs are unable to accurately calculate the amount of harm from this alleged public confusion, but the plaintiff does not allege specific damage done to its business. For example, this evidence does not demonstrate that any allegedly unprofessional or improper acts of the defendants are sullying the good name of the plaintiff in the eyes of consumers. The record only evidences that this may be causing monetary loss to the plaintiffs through the diversion of potential customers to the defendants' business. The Fourth Circuit recognizes the presumption that a preliminary injunction shall not issue where the harm suffered by the plaintiff may be remedied by monetary damages at the time of judgment. See Hughes, 17 F.3d at 693.
The defendants allege that the reason the plaintiff cannot calculate specific damages is because the defendants have not been diverting their customers. First, defendants' primary business, at present, is transportation of medicaid patients and medical products, not metered cab rides to individuals; therefore they allegedly occupy a distinct market niche and do not prey on the market of the plaintiff. Second, the defendants have stated that when they receive a call asking for door-to-door metered cab services, or for Yellow Cab specifically, they refer the call to the plaintiff. The defendants have stated that they will voluntarily continue this practice throughout the duration of these proceedings. Even if the defendants did not refer callers to the plaintiffs, the calls placed to the numbers listed for Albemarle Yellow Cab and Yellow Cab Coach are answered by someone stating "City Cab." A member of the public who was intending to call the plaintiff, upon hearing the name of a cab company with yellow nowhere in its title, would likely realize he did not telephone the plaintiff.
Other than the evidence regarding the phone calls, the plaintiff does not offer any other evidence to demonstrate the alleged irreparable harm to the plaintiff's good will. Although the plaintiff alleges incalculable damages to its good will, caused by the alleged unfair competition of the defendants, the plaintiff has failed to specifically articulate any irreparable harm that would tip the scales of the balancing test in the plaintiffs favor.
2. Injury to Defendant
The plaintiff alleges that the defendants' conduct was in bad faith and, therefore, the defendants are not in a position to complain of any harm. The intent of the defendants, while possibly important in deciding the merits of the case, has no bearing on whether the defendants would suffer harm as a result of the court's granting of injunctive relief.
Second, the plaintiff contends that the defendants will suffer no harm if the court grants the preliminary injunction because if they truly are not operating any independent taxicab services under the names Albemarle Yellow Cab Co. and Yellow Cab Coach Co., then they will not suffer any harm, financial or otherwise, if they are prohibited from using the YELLOW CAB trade name and service mark in the greater Charlottesville/Albemarle community. Nor will the defendants suffer if they are prohibited from using yellow taxis if they currently do not use yellow taxis. While these arguments by the plaintiff could cut in favor of a low demonstration of harm to the defendants, they also demonstrate that the harm to the plaintiffs by not issuing a preliminary injunction is not substantial. In other words, if Albemarle Yellow Cab and Yellow Cab Coach are not operating taxicabs, then they are not cutting into any business of the plaintiff, nor could they be providing poor service that would be mistaken for the service of the plaintiff, that might otherwise erode the plaintiff's good will. Thus, the fact that the operations of some of the defendant corporations are minimal at this time does not strongly support either party in the balance of hardships test.
While the harm to the defendants from the prohibition from using yellow taxis would be minimal at best, other aspects of injunctive relief may very well cause harm to the defendants. The plaintiff's motion for preliminary injunction does not ask for the court to enjoin the defendants from operating taxicab services, it asks the court to enjoin the defendants from using their current trade names, which include the words YELLOW CAB. Not being able to use their current trade names will harm the defendants' business, regardless of whether they operate taxicab services or medicaid patient transportation services, because the current trade names of the defendants are the ones they have been using in building their business. The plaintiff also asks that the defendants be enjoined from using any telephone number that was ever associated with defendants' businesses that used the words YELLOW CAB. This would necessarily include the City Cab telephone number. The defendants would suffer harm to the operations of their existing business if suddenly forced to adopt new phone numbers without a published listing.
In Virginia Tech Foundation, Inc. v. Family Group Ltd., 666 F. Supp. 856, 860 (W.D.Va. 1987), Judge Kiser denied a preliminary injunction where "[a]t worst, the only harm the Plaintiff stands to suffer [a] continued gradual erosion of its image for a matter of months" and the defendant "would suffer an immediate tangible loss of its use of advertising and promotional material." In the present case, the plaintiff has not even alleged a gradual erosion of its image, but does resemble Virginia Tech Foundation in that the balance of the hardship weighs against the plaintiff and "the plaintiff is not asking the court to preserve the status quo, but to change it." Id.; see also Federal Leasing, Inc. v. Underwriters at Lloyd's, 650 F.2d 495, 499 (4th Cir. 1981) (purpose of injunctive order is to preserve the status quo during litigation).
3. Plaintiff's Likelihood of Success on the Merits
The requisite strength of the plaintiff's showing of likelihood of success on the merits is dependent on the outcome of the balance of hardships test. Because the balance of hardships does not tip decidedly in the plaintiff's favor, the plaintiff must establish a substantial likelihood of success on the merits in order to prevail on its claim for injunctive relief. See Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 818 (4th Cir. 1991); see also Federal Leasing, 650 F.2d at 499 ("a weaker showing of the likelihood of irreparable injury will necessitate a stronger showing of probability of success").
The plaintiff repeatedly asserts that its "primary claim" against the defendants is unfair competition pursuant to the Lanham Act, based on the plaintiff's exclusive right to the name or mark YELLOW CAB and to the yellow trade dress in the greater Charlottesville/Albemarle area. The plaintiff also asserts claims of common law unfair competition and trade name, service mark, and trade dress infringement, which supplement the Lanham Act claim. Although the plaintiff asserts violations of the Virginia Code in its complaint, these counts are never addressed and are barely alluded to in the plaintiff's memoranda in support of the preliminary injunction. Thus, this court will address the plaintiff's likelihood of success on the merits as to the Lanham Act and common law counts.
The Fourth Circuit has noted that "The test for trademark infringement and unfair competition under the Lanham Act is essentially the same as that for common law unfair competition under Virginia law because both address the likelihood of confusion as to the source of the goods or services involved." Lonestar Steakhouse and Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 930n.10 (4th Cir. 1995) (citing Food Fair Stores, Inc. v. Lakeland Grocery Corp., 301 F.2d 156, 160 (4th Cir. 1962), cert. denied, 371 U.S. 817, 83 S.Ct. 31, 9 L.Ed.2d 58 (1962); Philip Morris Inc. v. MidWest Tobacco, Inc., 9 U.S.P.Q.2d 1210, 1214, 1988 WL 150693 (E.D.Va. 1988); CPC Int'l, Inc. v. Skippy, Inc., 651 F. Supp. 62, 67 (E.D.Va. 1986)). To prove a federal claim of unfair competition under the Lanham Act, it is necessary to show (1) a valid, protectable trademark and (2) a likelihood of public confusion when the mark is applied to the second user's good. See Lonestar, 43 F.3d at 930.
The plaintiff will first have to show that its unregistered trade name, trademark, and trade dress are entitled to some form of protection. Although neither YELLOW CAB nor the yellow cab trade dress are a federally registered to the plaintiff, protection of the Lanham Act extends to some unregistered marks. See Ale House Management, Inc. v. Raleigh Ale House, Inc., 205 F.3d 137, 140 (4th Cir. 2000) (citing 15 U.S.C. § 1125(a)). In Ale House, the Fourth Circuit's most recent decision on point, the court explained, "To ascertain whether a mark is protected, we must determine whether it is (1) generic, (2) descriptive, (3) suggestive, or (4) arbitrary or fanciful." Ale House, 205 F.3d at 140 (citing Perini Corp. v. Perini Construction, Inc., 915 F.2d 121, 124 (4th Cir. 1990) (adopting the analytic model advanced by Judge Friendly in Abercrombie Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976))).
The defendants assert a defense to the plaintiff's complaint that YELLOW CAB and the yellow trade dress for taxicabs are generic. When a defendant asserts a defense of genericity and the plaintiff's marks are unregistered, the burden of proof shifts to the plaintiff to prove that the trademark, trade name, or trade dress is not generic. See Ale House, 205 F.3d at 140 (citing Mil-Mar Shoe Co. v. Shonac Corp., 75 F.3d 1153, 1156 (7th Cir. 1996)). "A generic mark refers to the genus or class of which a particular product is a member and can never be protected." Ashley Furniture Industries v. SanGiacomo N.A., Ltd., 187 F.3d 363, 368 (4th Cir. 1999).
In order to be successful on the merits on its primary claim, the plaintiff bears the burden of proving that YELLOW CAB and the yellow trade dress are not generic. Rather than focus on this burden in its brief, the plaintiff concentrates on allegations of willful copying by the defendants. In Ale House, the Fourth Circuit states:
Indeed, even if a party does "copy" a design and "sells" an almost identical product, "this it [may have] every right to do under the federal . . . laws." Sears, Roebuck Co. v. Stiffel Co., 376 U.S. 225, 231, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964). This is so because even intentional copying can benefit the public: "Sharing in the goodwill of an article unprotected by patent or trademark is the exercise of a right possessed by all — and in the free exercise of which the consuming public is deeply interested." Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 122, 59 S.Ct. 109, 83 L.Ed. 73 (1938). Accordingly, before considering the significance of [Plaintiff's] assertions of intentional copying, we must address whether [the plaintiff] had an exclusive proprietary interest in either the words "ale house" or the trade dress of its facilities.205 F.3d at 140.
The plaintiff argues that, even if this court were to find that YELLOW CAB and the trade dress are generic, the plaintiff is still likely to prevail on the merits because, according to the plaintiff, a finding of genericity does not foreclose a finding of unfair trade under the Lanham Act. The plaintiff bases this argument on the Second Circuit case of Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 149 (2d Cir. 1997), which holds that a defendant can still violate the Lanham Act for unfair competition even when the plaintiff's mark is generic. While the plaintiff accurately states the law of the Second Circuit, and assails the defendant for not relying on the Genesee holding, the plaintiff offers no support for this argument from any court in the Fourth Circuit. Only one case in the entire Fourth Circuit has cited Genesee, and the cite was not to the portion of the opinion relied on by the plaintiff. See America Online, Inc. v. ATT Corp., 64 F. Supp.2d 549, 561 (E.D. Va 1999) (citing Genesee for support of statement that generic marks "never qualify for the protections of the Lanham Act; are not registrable; and a registered mark can be terminated . . . upon a finding that the mark is, or has become, generic"). In fact, the only circuit court to cite Genesee has been the D.C. Circuit, also not for the reasons supporting the plaintiff's position. See Linder v. Dept. of Defense, 133 F.3d 17, 24 (D.C. Cir. 1998) (citing Genesee for abuse of discretion standard). The Fourth Circuit's failure to rely on the Genesee case would not ordinarily mean that this court could not consider Genesee as persuasive authority. However, the recent Ale House decision indicates that the Fourth Circuit may have a different position than that of the Second Circuit in Genesee.
In Ale House, the plaintiff's claims were based on many of the same statutes that the plaintiff in this case relies upon: false designation of origin of trade name and trade dress under 15 U.S.C. § 1125(a), trade name infringement, trade dress infringement, and unfair trade competition under federal common law and state law. See Ale House, 205 F.3d at 140 (plaintiff also alleges copyright infringement under 17 U.S.C. § 101 et seq.); (Pl. Compl. at 18-24). In Ale House, the Fourth Circuit held that "ale house" was generic, thus offering the plaintiff no protectable interest in those words. See 205 F.3d at 141. The Fourth Circuit never addressed the common law or state unfair trade and competition claims, but affirmed the district court's grant of summary judgment to the defendant. This indicates that, unlike the Second Circuit, the Fourth Circuit considered a finding that a trade name was generic to be dispositive in determining whether any allegations of unfair trade can be sustained. Thus, the plaintiff's heavy reliance on Genesee appears to be misplaced in this circuit.
The defendants are prepared to offer voluminous evidence in support of their claim that YELLOW CAB and the yellow trade dress are generic. The plaintiffs noted their objection to this evidence in a footnote, (Pl. Supplemental Mem. at 5n.5), but similar evidence has been admitted by the Fourth Circuit. See Ale House, 205 F.3d at 141; see also Glover v. Ampak, Inc., 74 F.3d 57, 59 (4th Cir. 1996) (listing possible sources for evidence that a mark had become generic). While the defendant's evidence is not definitive, the plaintiff will bear the burden of proof and, as of yet, have not demonstrated to this court the requisite substantial likelihood of success on the merits to obtain the extraordinary remedy of a preliminary injunction.
Because the Fourth Circuit appears to consider whether a trade name or dress is generic as a threshold question to whether it is entitled any form of protection, this court need not address the elements of other claims in controversy, such as secondary meaning, intent of the defendants, or the likelihood of confusion: all of which could have been factors in Ale House, but were not addressed after a finding that "ale house" was generic. This is not to say that this court finds YELLOW CAB or the yellow trade dress to be generic. While this court expresses no views on the merits of the issues, this court can say that their resolution is not immediately apparent. Although there is certainly a possibility of success on the merits for the plaintiff, at the present time, the record does not support a substantial likelihood of success on the merits.
4. Public Interest
Although the balance of hardships weighs the two most important Blackwelder factors considered to determine whether to issue a preliminary injunction, the public interest must always be considered. See Blackwelder, 550 F.2d at 196.
The Lanham Act is Congress's attempt at eliminating confusion from the marketplace with regard to the identification of goods and services. It was designed to protect not only businesses but the general public as well from the use of false trade descriptions. See Selchow Righter Co. v. Decipher, Inc., 598 F. Supp. 1489, 1495 (E.D.Va. 1984). The public interest is in the vindication of the Lanham Act.
The public does not appear to be suffering any irreparable harm at present. Even if the plaintiff ultimately wins this case on the merits, the public interest in fair trade and competition will not be unduly compromised if a preliminary injunction does not issue in this case. On the other hand, if the defendant wins this case on the merits, the public will have been harmed through deprivation of legitimate services pending the litigation. The immediate public impact of a decision on the preliminary injunction is minimal, and should not disturb this court's findings on the other three factors.
III.
Having found that (1) the balancing test does not tip overwhelmingly in favor of the plaintiffs; (2) the plaintiff has not adequately compensated for this by showing substantial likelihood of success on the merits; and (3) the public will not be harmed by preserving the status quo pending a final outcome of this case; this court holds that the plaintiff has not proven immediate and irreparable harm, and, accordingly, the plaintiff's Motion for Preliminary Injunction is DENIED.
An appropriate order shall this day enter.
ORDER
Upon consideration of (1) the plaintiff's February 10, 2000 Motion for Preliminary Injunction and Memorandum in Support thereof, (2) the defendants' April 27, 2000 Memorandum in Opposotion thereto, and (3) the plaintiff's May 1, 2000 Supplemental Memorandum in Support thereof, and for the reasons stated in the accompanying Memorandum Opinion, it is this day
ADJUDGED AND ORDERED
that the plaintiff's Motion for Preliminary Injunction shall be, and hereby is, DENIED.
The Clerk of the Court hereby is directed to send a certified copy of this Order and the accompanying Memorandum Opinion to all counsel of record.