United States District Court

for the

Southern District of Florida

AvMed, Inc., Plaintiff,

v.

Transaction Applications Group, 

Inc., Defendant.

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Civil Action No. 20-21838-Civ-Scola

Order Denying Motion for Preliminary Injunction

Now before the Court is the Plaintiff AvMed, Inc.’s motion for a preliminary 

injunction, in which Avmed requests that the Court enter an injunction 

compelling the Defendant Transaction Applications Group, Inc. (“NTT”) to 

perform the contract. For the reasons set forth below, the Court denies AvMed’s 

motion for a preliminary injunction (ECF No. 6).

1. Background

NTT is an IT services company that provides technology implementation 

services to clients who are changing their information technology systems. 

AvMed is a health insurer who contracted with NTT to “entirely transform 

AvMed’s enterprise systems and information technology.” (ECF No. 1 at ¶¶ 16-

19.) According to AvMed, NTT demanded additional money to complete the 

already-agreed-upon work, and NTT also threatened to stop work if AvMed did 

not pay the additional money. (ECF No. 6 at 6-8.) According to NTT, AvMed 

changed the scope of the project agreed to in their contract, and therefore NTT 

demanded additional money merely to compensate it for its additional work. 

(ECF No. 25 at 5-10.) Now, AvMed requests that the Court enter an injunction 

compelling NTT to perform the work required for AvMed to “go live” on the 

anticipated date, which is July 1, 2020.

2. Legal Standard

A preliminary injunction is “an extraordinary and drastic remedy not to be 

granted unless the movant clearly” meets the burden of persuasion as to the four 

requisite elements. All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 

F.2d 1535, 1537 (11th Cir. 1989). “Because a preliminary injunction is an 

extraordinary and drastic remedy, its grant is the exception rather than the rule, 

and the Plaintiff must clearly carry the burden of persuasion.” Siegel v. LePore, 

234 F.3d 1163, 1176 (11th Cir. 2000) (internal quotations omitted). To obtain a 

preliminary injunction, the movant must show: “(1) substantial likelihood of 

success on the merits; (2) irreparable injury will be suffered unless the injunction 

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issues; (3) the threatened injury to the movant outweighs whatever damage the 

proposed injunction may cause the opposing party; and (4) if issued, the 

injunction would not be adverse to the public interest.” All Care Nursing, 887 

F.2d at 1537. 

3. Discussion

AvMed argues that, without the injunction, it will suffer irreparable harm 

in the form of future business and extensive monetary damages that cannot be 

recovered. Specifically, AvMed claims that it will suffer reputational harm with 

“corporate clients that are expecting AvMed to be able to deliver new lines of 

business and product options shortly following the July 1, 2020 ‘go live’ date.” 

(ECF No. 6 at 14.) AvMed also claims that its monetary damages constitute 

irreparable harm because its contract with NTT contains a limitation of damages 

provision. (Id. at 15.) The Court does not agree. AvMed has failed to demonstrate 

that either of the alleged harms that it would suffer without an injunction 

constitute irreparable injury.1

First, AvMed’s potential loss of future business cannot be considered 

irreparable because that injury is too remote and contingent on possible future 

events. Irreparable harm “must be neither remote nor speculative, but actual 

and imminent.” Northeastern Florida Chapter of Ass’n of General Contractors of 

Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990). A preliminary 

injunction “will not be issued simply to prevent the possibility of some remote 

future injury. A presently existing actual threat must be shown.” 11A Charles 

Alan Wright, et al., Federal Practice and Procedure § 2948.1 (3d ed.). 

Here, AvMed states that it must meet the “go live” date “because several 

initiatives impacting several lines of business are all tied to and are dependent 

upon AvMed going live on the new enterprise system” by June 1, 2020. (ECF No. 

6-2 at ¶ 12.) It also claims that, without going live on June 1, AvMed will be 

unable to certify compliance with a local business association’s requirements.

(ECF No. 6 at 14.) If it were to lose its certification with the business association, 

it would “have a downstream impact on AvMed’s relationships with current and 

potential clients in the small group market who are heavily involved” with the 

association. (Id.) The possible loss of future business and the possible loss of 

some current business is not an irreparable harm because these harms are 

remote and contingent on third party decision making. See Tropical Fruit Trading, 

 1 The Court need not address the other three elements—substantial 

likelihood of success on the merits, the public interest, and that the threatened 

injury outweighs whatever damage the proposed injunction may cause—because 

AvMed must meet the burden of persuasion as to all four elements in order to 

succeed on a motion for preliminary injunction.

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Inc. v. AgroFarms, LLC, 2016 WL 4376747, *4 (S.D. Fla. Aug. 17, 2016) (Gayles, 

J.) (“a preliminary injunction will not be issued simply to prevent the possibility

of some remote future injury,” such as a “likelihood that Tropical will be run out 

of business”) (emphasis in original). As NTT points out in its response, AvMed 

does not contend that it cannot continue to operate its business if the new 

platform is not live by July 1. (ECF No. 25 at 6.) Without demonstrating that the 

viability of its business would be seriously threatened without the issuance of 

an injunction, AvMed has not demonstrated irreparable harm. See Pizza Fusion 

Holdings, Inc. v. Burton Holdings LLC, 2015 WL 11197817, at *1 (S.D. Fla. 

February 2, 2015) (Plaintiff did not show that that “the viability of its business 

would be seriously threatened,” and thus the only injury asserted is economic, 

which can be compensated through monetary damages). In short, the possibility 

that AvMed may lose some business from NTT’s threatened breach is not an 

irreparable harm.

Second, AvMed’s asserted harms caused by NTT’s breach of contract 

(which the parties agree has not yet occurred) can be adequately compensated 

by money damages and are therefore not irreparable. Harm is considered 

irreparable only if it cannot be undone through monetary remedies. Ferrero v. 

Associated Materials, Inc., 923 F.2d 1441, 1449 (11th Cir. 2001). “Mere injuries, 

however substantial, in terms of money, time and energy necessarily expended 

in the absence of a stay, are not enough.” Northeastern Florida Chapter of Ass’n 

of General Contractors, 896 F.2d at 1285. “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. 

Id. This is a contractual dispute that can be remedied in favor of one side or the 

other by an award of damages at a later date. Because the harm can be “undone 

through monetary remedies,” the Court declines to find that the economic harm 

here is irreparable. Id.

AvMed nevertheless argues that the threatened monetary harm is 

irreparable here because its contract with NTT contains a limitation of damages 

provision. (ECF No. 6 at 15.) It cites no authority to support its proposition that 

an agreed-upon, contractual damages cap can transform an economic harm into 

irreparable injury. The cases cited are not analogous because they do not 

concern a contractual damages limitation provision. See Odebrecht Constr., Inc. 

v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1289 (11th Cir. 2013) (monetary 

damages were irreparable because they could not be recovered against a state 

agency due to Eleventh Amendment immunity); Bonds v. Heyman, 950 F. Supp. 

1202, 1215 n. 15 (D.D.C. 1997) (“While the existence of a statutory damages cap 

should obviously not allow for the carte blanche awarding of injunctions, in this 

case it makes her injury that much more irreparable in light of the facts”). As 

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NTT points out in its response, this theory would allow contracting parties to 

manufacture irreparable harm by bargaining away its ability to recover 100% of 

any potential damages. (ECF No. 25 at 15.) In light of the lack of legal authority 

and common sense, AvMed’s argument fails.

4. Conclusion

In sum, the Court denies AvMed’s expedited motion for preliminary 

injunction (ECF No. 6).

Done and ordered at Miami, Florida, on May 15, 2020.

________________________________

Robert N. Scola, Jr.

United States District Judge

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