1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-25-1999

Nutrasweet Co v. Vit Mar Entr Inc

Precedential or Non-Precedential:

Docket 98-5027

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Nutrasweet Co v. Vit Mar Entr Inc" (1999). 1999 Decisions. Paper 49.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/49
Filed 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 Circuit Judge for the 

Eighth Circuit Court of Appeals, sitting by designation. 
 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 granting 

NutraSweet possession of goods that were allegedly 

acquired by fraud. Tekstilschik (Tek), an intervenor and the 

purported owner of the goods, challenges both the 

preliminary injunction and writ of replevin. We lack 

jurisdiction to consider Tek's challenge to the writ of 

replevin and dismiss that portion of the appeal. Although 

we have jurisdiction to consider the validity of the 

preliminary injunction, we find that the issue is moot as a 

result of the District Court's modification of the writ of 

replevin. Therefore, we will reverse and remand with 

instructions to vacate. 

I. 

This is the second time these parties have appeared

before this Court in this case. In deciding the previous 

appeal, this Court thoroughly explained the genesis of this 

lawsuit and the relationships and transactions between 

NutraSweet, Tek, and the named defendants. See 

NutraSweet Co. v. Vit-Mar Enters., Inc., 112 F.3d 689 (3d 

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

disposition of this appeal. 

NutraSweet produces a sugar substitute called "Equal 

Sweetener with NutraSweet" (Equal). In 1995, Vit-Mar 

Enterprises (Vitmar) and The Shiba Group (Shiba) proposed 

to distribute Equal to the Ukraine and Russia. NutraSweet 

agreed and sold several containers of Equal to Vitmar and 

Shiba for approximately $1.5 million. 

NutraSweet shipped the Equal with bills of lading that 

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 United 

States.1 In May 1996 NutraSweet learned that U.S. 

Customs was prepared to release a shipment of the Equal 

into the U.S. market. NutraSweet filed a complaint and an 

Order to Show Cause in federal district court, seeking a 

writ of replevin and temporary restraining order (TRO). 

NutraSweet argued that the goods were obtained by fraud 

and that it was likely to succeed in recovering title to the 

goods. The District Court granted NutraSweet's request 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, it 

intervened in this case to challenge the TRO. Initially the 

District Court refused to lift the TRO. After considering 

Tek's appeal, we instructed the District Court to vacate the 

TRO as to Tek because it had the effect of a preliminary 

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 requisite 

findings of fact. See id. at 695. 

_________________________________________________________________ 

1. NutraSweet also alleges that several containers were diverted before 

leaving the United States and distributed in the domestic market. 

2. Tek alleges that it acquired title to the Equal shipment at issue in 

this 

appeal through a barter transaction with another Russian entity. 

3. Tek did not challenge the writ of replevin in its first appeal to this 

Court. See NutraSweet, 112 F.3d at 691 n.3. 

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

entertained argument concerning the propriety of a 

preliminary injunction. After a hearing, the District 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, selling, 

or otherwise distributing the shipments of Equal." In 

addition to opposing the preliminary injunction, Tek sought 

to vacate the writ of replevin, but the District Court denied 

its motion. The District Court later modified the writ of 

replevin to allow NutraSweet to take possession of the 

Equal, and NutraSweet increased its bond to $658,000. 

II. 

Tek first argues that the District Court erred in granting 

the preliminary injunction. We agree. 

We have appellate jurisdiction to review a district court's 

interlocutory order granting a preliminary injunction under 

28 U.S.C. S 1292(a)(1). We review a district court's order 

granting a preliminary injunction for abuse of discretion, its 

factual findings for clear error, and its determinations 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 likely to 

succeed on the merits; (2) denial will result in irreparable 

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 plaintiff's 

failure to establish any element in its favor renders 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 finding 

that NutraSweet's relationships with its domestic customers 

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 found. 

 4 
Nevertheless, whether or not there was a possibility of 

irreparable harm to NutraSweet at the time NutraSweet 

applied for a preliminary injunction, it now appears that 

NutraSweet can suffer no harm because, as explained

above, NutraSweet has obtained possession of the Equal by 

the District Court's order modifying the writ of replevin. 

Because the writ of replevin now adequately protects 

NutraSweet's interest in preventing distribution of the 

goods in the United States during the pendency of this 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 there exists 

a threat of irreparable harm such that legal remedies are 

rendered inadequate."). Thus, the question of whether a 

preliminary injunction was warranted by earlier 

circumstances is now moot and the preliminary injunction 

previously entered must be vacated. See United States 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 challenge to 

the writ of replevin because we lack appellate jurisdiction.4 

Congress has conferred jurisdiction on the courts of 

appeal over interlocutory orders in limited situations. See 

28 U.S.C. S 1292. Section 1292(a) allows courts of appeal to 

hear challenges to "[i]nterlocutory orders of the district 

court of the United States . . . granting, continuing, 

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 section 

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 complaint 

in more than a [temporary] fashion." Cohen v. Board of 

_________________________________________________________________ 

4. Although the parties did not raise this Court's jurisdiction to 

consider 

the validity of the writ of replevin, this Court, as a court of limited 

jurisdiction, must sua sponte raise the issue of appellate jurisdiction. 

See 

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

 5 
Trustees 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 definition of 

"injunction." Unlike an injunction, the writ of replevin in 

this case was directed to the U.S. Marshals, not to a party 

to the suit against whom the order could be enforced by 

threat of contempt. Cf. Santana Prods., Inc. v. Compression 

Polymers, Inc., 8 F.3d 152, 155 (3d Cir. 1993) (party cannot 

be held in contempt for failing to comply with an order that 

contains no provision with which it must comply). 

Furthermore, the writ, as modified, does accord NutraSweet 

some of the relief it ultimately desires (possession of the 

Equal), but it is only a provisional remedy, and the District 

Court reserved the right to order NutraSweet to return the 

Equal to Tek if NutraSweet does not ultimately prevail. J.A. 

at 352. Because the writ of replevin is not an injunction for 

purposes of section 1292(a)(1), we hold that it is not an 

appealable interlocutory order. See, e.g., HBE Leasing Corp. 

v. Frank, 48 F.3d 623, 632 (2d Cir. 1995) ("the provisional 

remedies of attachment and replevin . . . do not constitute 

injunctions for the purposes of section 1292(a)(1)"); FDIC v. 

Elio, 39 F.3d 1239, 1249 (1st Cir. 1994) ("attachments are 

not among the interlocutory orders appealable under 28 

U.S.C. S 1292(a)"); Cohen, 867 F.2d at 1464 ("orders 

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 Wright, Miller 

& Cooper, Federal Practice & Procedure S 3922.3, at 116 

(1996) ("Enforcement of such traditional security devices as 

attachment and replevin ordinarily is thought not to involve 

an injunction within the meaning of S 1292(a)(1)."). 

IV. 

For the foregoing reasons, we will reverse and remand 

 6 
with instructions to vacate the preliminary injunction.5 We 

dismiss Tek's appeal of the writ of replevin for lack 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 from entering another 

preliminary injunction if it develops the record and makes adequate 

findings of fact that satisfy the requirements for a preliminary 

injunction. 

 7