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. e du/thir dc ir c uit_1999/49Filed February 25, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-5027

THE NUTRASWEET COMPANY,

v.

VIT-MAR ENTERPRISES, INC., a/k/a VITMAR; THE
SHIBA GROUP; ROMANO FASHIONS, INC.; MANOJ PAREKH; NIMISHA PAREKH; HERSHEY'S TRUCKING & WAREHOUSE, INC.; HARRY OBERLANDER; JOHN DOES, X, Y, & Z, BEING ANY OTHER PERSONS OR ENTITIES

PARTICIPATING IN THE DOMESTIC IMPORT SALE OR TRANSPORT OF THE SUBJECT SHIPMENT,

Tekstilschik, a "John Doe",

Appellant.

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. No. 96-cv-02172) (District Judge: Nicholas H. Politan)

ARGUED: October 30, 1998

BEFORE: SLOVITER, GARTH, and MAGILL,* Circuit Judges

(Opinion Filed February 25, 1999)

___________________________________________________ ______________

*Honorable Frank Magill, Senior United States Circu it Judge for the Eighth Circuit Court of Appeals, sitting by designa tion.Paul J. Dillon (ARGUED)

Bloom Rubenstein Karinja & Dillon,

P.C. 70 South Orange Avenue, Suite 215 Livingston, NJ 07039 Counsel for Appellant

Rodney A. Brown (ARGUED)
Eileen Fox
Cori Sherman Brown & Fox, P.C.
110 East 59th Street New York, NY 10022 Counsel for Appellee

OPINION OF THE COURT

MAGILL, Senior Circuit Judge.

The NutraSweet Company (NutraSweet) obtained a preliminary injunction and writ of replevin grantin g NutraSweet possession of goods that were allegedly acquired by fraud. Tekstilschik (Tek), an interveno r and the purported owner of the goods, challenges both the preliminary injunction and writ of replevin. We lac k jurisdiction to consider Tek's challenge to the wri t of replevin and dismiss that portion of the appeal. Al though we have jurisdiction to consider the validity of th e preliminary injunction, we find that the issue is m oot as a
result of the District Court's modification of the writ of replevin. Therefore, we will reverse and remand wit h
instructions to vacate.

I.

This is the second time these parties have appeared before this Court in this case. In deciding the pre vious appeal, this Court thoroughly explained the genesis of this lawsuit and the relationships and transactions betw een NutraSweet, Tek, and the named defendants. See NutraSweet Co. v. Vit-Mar Enters., Inc., 112 F.3d 6 89 (3d

2Cir. 1997). We recite below only those facts releva nt to the

disposition of this appeal.

NutraSweet produces a sugar substitute called "Equa l Sweetener with NutraSweet" (Equal). In 1995, Vit-Ma r Enterprises (Vitmar) and The Shiba Group (Shiba) pr oposed to distribute Equal to the Ukraine and Russia. Nutr aSweet agreed and sold several containers of Equal to Vitm ar and Shiba for approximately $1.5 million.

NutraSweet shipped the Equal with bills of lading t hat specifically restricted distribution to Russia and the Ukraine. Despite NutraSweet's attempts to restrict distribution of the Equal to Russia and the Ukraine , several containers were allegedly imported back into the Un ited States.1 In May 1996 NutraSweet learned that U.S. Customs was prepared to release a shipment of the E qual into the U.S. market. NutraSweet filed a complaint and an Order to Show Cause in federal district court, seek ing a writ of replevin and temporary restraining order (T RO). NutraSweet argued that the goods were obtained by f raud and that it was likely to succeed in recovering tit le to the goods. The District Court granted NutraSweet's requ est for a TRO and writ of replevin. After NutraSweet posted a $329,000 bond, the U.S. Marshals seized the Equal.

When Tek2 learned that the goods had been seized, i t intervened in this case to challenge the TRO. Initi ally the
District Court refused to lift the TRO. After consi dering Tek's appeal, we instructed the District Court to v acate the TRO as to Tek because it had the effect of a prelim inary injunction but had been entered without development of a preliminary injunction record and findings of fact. See NutraSweet, 112 F.3d at 694.3 However, we left the door open for the District Court to enter a preliminary injunction after it developed a proper record and made the req uisite findings of fact. See id. at 695.

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1. NutraSweet also alleges that several containers were diverted before leaving the United States and distributed in the do mestic market.

2. Tek alleges that it acquired title to the Equal shipment at issue in
this appeal through a barter transaction with another Ru ssian entity.

3. Tek did not challenge the writ of replevin in it s first appeal to this Court. See NutraSweet, 112 F.3d at 691 n.3.

3On remand, the District Court vacated the TRO, but

entertained argument concerning the propriety of a preliminary injunction. After a hearing, the Distri ct Court entered a preliminary injunction, prohibiting Tek, its agents, and those acting in concert with Tek from " taking possession, control, or custody and/or marketing, s elling, or otherwise distributing the shipments of Equal." In addition to opposing the preliminary injunction, Te k sought to vacate the writ of replevin, but the District Co urt denied
its motion. The District Court later modified the w rit of replevin to allow NutraSweet to take possession of the Equal, and NutraSweet increased its bond to $658,00 0.

II.

Tek first argues that the District Court erred in g ranting the preliminary injunction. We agree.

We have appellate jurisdiction to review a district court's interlocutory order granting a preliminary injuncti on under 28 U.S.C. S 1292(a)(1). We review a district court' s order granting a preliminary injunction for abuse of disc retion, its factual findings for clear error, and its determina tions of questions of law de novo. See Acierno v. New Castle County, 40 F.3d 645, 652 (3d Cir. 1994).

A preliminary injunction is an extraordinary remedy that should be granted only if "(1) the plaintiff is lik ely to succeed on the merits; (2) denial will result in ir reparable harm to the plaintiff; (3) granting the injunction will not result in irreparable harm to the defendant; and (4 ) granting the injunction is in the public interest." Maldonado v. Houstoun, 157 F.3d 179, 184 (3d Cir. 1998). A pl aintiff's failure to establish any element in its favor rende rs a preliminary injunction inappropriate. See Opticians Ass'n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 ( 3d Cir. 1990).

We had serious concern about the District Court's f inding that NutraSweet's relationships with its domestic c ustomers and distributors would be irreparably harmed in the absence of a preliminary injunction. In the absence of irreparable injury, no preliminary injunction would lie, even if the other three elements, noted above, were foun d.

4Nevertheless, whether or not there was a possibilit y of

irreparable harm to NutraSweet at the time NutraSwe et applied for a preliminary injunction, it now appear s that NutraSweet can suffer no harm because, as explained above, NutraSweet has obtained possession of the Eq ual by the District Court's order modifying the writ of re plevin. Because the writ of replevin now adequately protect s NutraSweet's interest in preventing distribution of the goods in the United States during the pendency of t his suit, the preliminary injunction entered by the District Court now becomes an unnecessary remedy that must be vacated. See Anderson v. Davila, 125 F.3d 148, 163 (3d Cir. 1997) ("An injunction is appropriate only where the re exists a threat of irreparable harm such that legal remedi es are rendered inadequate."). Thus, the question of wheth er a preliminary injunction was warranted by earlier circumstances is now moot and the preliminary injun ction previously entered must be vacated. See United Stat es v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950).

III.

Tek also contends that the District Court erred in issuing the writ of replevin. We decline to rule on Tek's c hallenge to the writ of replevin because we lack appellate juri sdiction.4

Congress has conferred jurisdiction on the courts o f appeal over interlocutory orders in limited situati ons. See 28 U.S.C. S 1292. Section 1292(a) allows courts of appeal to hear challenges to "[i]nterlocutory orders of the d istrict court of the United States . . . granting, continui ng, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions . . . ." 28 U.S.C. S 1292(a)(1). This Circuit has defined "injunctions" under sectio n 1292(a)(1) as: "Orders that are directed to a party
, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought by a c omplaint in more than a [temporary] fashion." Cohen v. Board of

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4. Although the parties did not raise this Court's jurisdiction to
consider the validity of the writ of replevin, this Court, a s a court of limited jurisdiction, must sua sponte raise the issue of ap pellate jurisdiction.

See Ortiz v. Dodge, 126 F.3d 545, 547 (3d Cir. 1997).

5Trustees of the Univ. of Med. & Dentistry of N.J., 867 F.2d

1455, 1465 n.9 (3d Cir. 1989) (en banc) (alteration in original; quotations omitted).

We lack jurisdiction to hear Tek's challenge to the writ of replevin because it does not fall within the defini tion of "injunction." Unlike an injunction, the writ of rep levin in this case was directed to the U.S. Marshals, not to a party to the suit against whom the order could be enforce d by threat of contempt. Cf. Santana Prods., Inc. v. Com pression Polymers, Inc., 8 F.3d 152, 155 (3d Cir. 1993) (par ty cannot be held in contempt for failing to comply with an o rder that contains no provision with which it must comply). Furthermore, the writ, as modified, does accord Nut raSweet some of the relief it ultimately desires (possessio n of the Equal), but it is only a provisional remedy, and th e District Court reserved the right to order NutraSweet to ret urn the Equal to Tek if NutraSweet does not ultimately prev ail. J.A. at 352. Because the writ of replevin is not an inju nction for purposes of section 1292(a)(1), we hold that it is not an appealable interlocutory order. See, e.g., HBE Leas ing Corp. v. Frank, 48 F.3d 623, 632 (2d Cir. 1995) ("the pro visional remedies of attachment and replevin . . . do not co nstitute injunctions for the purposes of section 1292(a)(1)" ); FDIC v. Elio, 39 F.3d 1239, 1249 (1st Cir. 1994) ("attachme nts are not among the interlocutory orders appealable under 28 U.S.C. S 1292(a)"); Cohen, 867 F.2d at 1464 ("order s attaching security for a judgment ultimately to be rendered have been held not to fall under section 1292(a)(1) , even though such orders have a significant impact on the parties whose property is affected" (citing cases)); United States v. Hansen, 795 F.2d 35, 39 (7th Cir. 1986) ("Orders of replevin and attachment are not appealable under 28 U.S.C. S 1292(a)(1)." (citing cases)); accord 16 Wr ight, Miller & Cooper, Federal Practice & Procedure S 3922.3, at 116 (1996) ("Enforcement of such traditional security d evices as attachment and replevin ordinarily is thought not t o involve an injunction within the meaning of S 1292(a)(1).")

.

IV.

For the foregoing reasons, we will reverse and rema nd

6with instructions to vacate the preliminary injunct ion.5 We

dismiss Tek's appeal of the writ of replevin for la ck of jurisdiction.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

___________________________________________________ ______________

5. The District Court is obviously not precluded fr om entering another preliminary injunction if it develops the record an d makes adequate findings of fact that satisfy the requirements for a preliminary injunction.

7