NOT RECOMMENDED FOR PUBLICATION File Name: 23a0429n.06
Case No. 23

- 1410
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

CHEETAH MINER USA, INC. , Plaintiff

- Appellee ,

v. 19200 GLENDALE, LLC , Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
OPINION
B efore : MOORE , READLER , and MURPHY , Circuit Judges. CHAD A. READLER, Circuit Judge. Cheetah Miner USA specializes in cryptomining , the validation of cryptocurrency (e.g., Bitcoin) transactions

. Even in this modern b usiness medium, however, the company is not immune from more traditional legal hurdle s, namely, a dispute over its commercial lease . Cheetah Miner maintains that its landlord violated Michigan state law by cutting off electric power to the lease d property

. To remedy the issue, Cheetah Miner sought a preliminary injunction requiring its landlord to restore power to the property

. The district court denied that request. Because Cheetah Miner has not established irreparable harm, a
necessary s howing in the quest for preliminary relief, we affirm. I. 19200 Glendale LLC owns a large industrial building on the west side of Detroit. Cheetah Miner agreed to lease space in th e building for a term of 60 months

. The lease contemplated that Cheetah Miner would use the premises for “ crypto currency mining equipment for the verificationCase No. 23

- 1410 , Cheetah Miner USA, Inc. v. 19200 Glendale, LLC

2 and production of Bitcoin. ” Despite these promising beginnings, tensions soon arose between the parties , so much so that , less than a year into the arrangement, the two began discussing terminati ng the lease. At that point, 19200 Glendale allegedly “ cut off

. . . electrical service by moving ” its lessee ’ s electrical account to its own name. Ten days passed without any electricity

. Then , Miranda Tan, Cheetah Miner ’s CEO , sent

a n email to 19200 Glendale ’s manager inquiring about the status of the lease termination. After mention ing that “ the power is off for our machines , ” Tan asked whether 19200 Glendale could

“ turn the power on . . . so we can keep mining [ until ] we finalize the lease termination. ” 19200 Glendale apparently never responded to the email . Another ten days later, Tan followed up . In this second email, she again express ed interest in “ mov[ing] forward on the lease termination ” and reiterat ed that “ [ 19200 Glendale ] turned off our power. ” A gain, no response by 19200 Glendale was forthcoming

. A few days later , Cheetah Miner ’ s lawyer contacted 19200 Glendale to reignite discussions

over terminating the lease . But just as those renewed conversations got underway, Cheetah Miner

“ fell silent. ” And it s tayed so until it filed this action against 19200 Glendale roughly two months after Cheetah Miner’s electric problems began

. Invoking the district court ’ s diversity jurisdiction , see 28 U.S.C. § 1332 , Cheetah Miner alleged that 19200 Glendale had left the c ompany with insufficient electrical capacity to operate its mining operation

. That conduct, C heetah Miner asserted , violated Michigan ’ s Anti

- Lockout Statute

— a state law creating a cause of action for tenants whose possessory interests have been

“ unlawfully interfered ” with by the landlord

. S ee M.C.L. § 600.2918(2 ). Cheetah Miner also contended that its landlord had breached the terms of the lease. According to Cheetah Miner’s complaint, t his collection of misconduct resulted in damages in the form of “lost profits.”Case No. 23

- 1410 , Cheetah Miner USA, Inc. v. 19200 Glendale, LLC

3 Along with its complaint, Cheetah Miner filed an emergency motion , invoking the Anti

Lockout Statute . In its motion, Cheetah Miner sought a preliminary injunction to “ immediately restore the same level of electric service as existed when [ the company ] took possession of the premises. ” After briefing and a hearing, the district court denied Cheetah Miner ’ s motion

. As the district court saw things, Cheetah Miner was unlikely to succeed on the merits of its claims and , in addition, had failed to establish any irreparable harm . The next day , Cheetah Miner filed an interlocutory appeal of the denial of its preliminary injunction mo tion. See 28 U.S.C. § 1292(a). II. A. We review a district court ’ s decision denying a preliminary injunction for an abuse of discretion , considering any embedded legal questions de novo and any factual findings for clear

error . Libertarian Party of Ohio v. Husted , 751 F.3d 403, 412 (6th Cir. 2014)

. Although the parties agree on the standard of review, the y part ways over what framework should have guided the district court ’ s a ssessment of whether injunctive relief was appropriate

. 19200 Glendale invokes the familiar four

- part test

— likelihood of success on the merits, irreparable harm, the balance of the equities, and the public interest

. Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008). Cheetah Miner has other ideas

. M ichigan ’s Anti

- Lockout Statute , the company notes, afford s wronged tenants the right to “ recover possession

. ” Accordingly, says the cryptominer , the
statu t e itself is all that must be satisfied for Che e tah Miner to obtain preliminary relief. In other words , Cheetah Miner believes injunctive relief is appropriate i f the district court agrees that the
company established a probable violation of Michigan ’ s Anti

- Lockout Statute. Our precedent, however, favors 19200 Glendale . In the preliminary injunction setting, “ we apply our own procedural jurisprudence regarding the factors to consider in granting a preliminary injunction ,” and apply state law only as to the question of whether a plaintiff has shown “ aCase No. 23

- 1410 , Cheetah Miner USA, Inc. v. 19200 Glendale, LLC

4 substantial likelihood of success on the merits of [the] underlying diversity action .” Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp. , 511 F.3d 535, 541 (6th Cir. 2007); see also Stryker Emp. Co., LLC v. Abbas , 60 F.4th 372, 382 (6th Cir. 2023) ; S. Glazer ’ s Distribs. of Ohio, LLC v. Great Lakes Brewing Co. , 860 F.3d 844, 849 (6th Cir. 2017 ); see also Vital Pharms., Inc. v. Alfieri , 23 F.4th 1282, 1293

– 99 (11th Cir. 2022) (Pryor, C.J., concurring)

. Southern Milk Sales, Inc. v. Martin , 92 4 F.2d 98 (6th Cir. 1991) , offers an illustrative example

. T he plaintiff there sought preliminary equitable relief to remedy Michigan statutory violations. Id. at 102. Like Cheetah Miner , the plaintiff argued that the Michigan law at issue “ necessarily authorizes the granting of preliminary injunctions, ” meaning “ the only prerequisite for issuing a preliminary injunction . . . is showing that [the Michigan law] has been violated. ” Id. We disagreed.
P reliminary relief , we explained, is procedural in nature as it “ merely ” preser ves the “ relative positions of the parties until a trial on the merits can be held

. ” Id. (citations omitted)

. That being the case, federal law

— that is, the four

- part test

— controlled. Id. In this analogous setting, wh at was true then remains true today. B. With the traditional four

- part test in mind, we can begin and end our analysis with the second factor: whether Cheetah Mine r demonstrated an irreparable injury. See D.T. v. Sumner Cnty. Sch s . , 942 F.3d 324, 32 6

– 2 7 (6th Cir. 2019) (recognizing that a preliminary injunction can be denied “ based solely on the lack of an irreparable injury ” ). Consistent with a preliminary injunction ’ s core purpose to preserve the status quo while litigation unfolds, see S. Milk Sales , 924
F. 2 d at 102 , an irreparable injury is a likely (not merely possible) harm that would later impair the
court ’ s ability to grant an effective remedy , Winter , 555 U.S. at 22. Hypothetical or theoretical threats will not do. D.T. , 942 F.3d at 327.Case No. 23

- 1410 , Cheetah Miner USA, Inc. v. 19200 Glendale, LLC

5 The district court did not abuse its discretion in finding Cheetah Miner’s case for irreparable ha r m wanting. Before the district court, Cheetah Miner focused nearly singularly on whether a violation of the Anti

- Lockout Statute occurred. When it came to demonstrating an injury, C heetah Miner primarily claim ed that 19200 Glendale ’s denial of electricity to the cryptominer prevented it from conducting Bitcoin mining, resulting in “ damages in the form of lost profits. ” M onetary injuries , however, are not irreparable. See D.T. , 942 F.3d at 327

. At the district court reply brief stage, Cheetah Miner unearthed a new theory for irreparable harm

— a supposed reputational injury and accompanying loss of customer goodwill caused by

“ being put unceremoniously out of business. ” R. 8, PageID#264. R eputational loss , of course, can constitute irreparable harm. ACT, Inc. v. Worldwide Interactive Network, Inc ., 46 F.4th 489, 503

– 04 (6th Cir. 2022) (observing that “ interference with customer relationships and damage to reputation are precisely the sorts of inj uries [that] are difficult to quantify monetarily, and thus constitute irreparable harm ” ). As the thinking goes, a ny accompanying loss of customer goodwill may be impossible for a court to later quantify, as such losses would turn on the activity of unknowable, future clients. See Hall v. Edgewood Partners Ins. Ctr., Inc. , 878 F.3d 524, 530 (6th Cir. 2017). Yet e ven then, the burden remains on the movant to show more than a speculative risk to its reputation. See D.T. , 942 F.3d at 327. And o n that front, we agree with the district court that Cheetah Miner failed to articulate how its reputation would be harmed absent a preliminary injunction. See Cheetah Miner USA Inc. v. 19200 Glendale, LLC , No. CV 23

- 10812, 2023 WL 3223856, at *5 (E.D. Mich. May 3, 2023).
T he evidence that Cheetah Miner brought to the district court ’ s attention amounted to conclusory assertions that the cryptominer “ suffered and will suffer . . . reputational injury. ” R. 9, PageID#287. That le ft the district court t o speculate on a number of fronts. W hat was CheetahCase No. 23

- 1410 , Cheetah Miner USA, Inc. v. 19200 Glendale, LLC

6 Miner ’ s reputation as a cryptominer before its electricity was cut off ? Were its current and potential customers aware of Cheetah Miner ’ s electricity problems ? A nd how would a court order restoring Cheetah Miner’s electricity thereby preserve its reputation ? Few answers were forthcoming

. Cheetah Miner offered little more than “ pronouncements [that] are grounded in platitudes rather than evidence ,” well short of the evidentiary level needed to demonstrate reputational harm. Herb Reed Enters. , LLC v. Fla. Ent. Mgmt., Inc. , 736 F.3d 1239, 1250 (9th Cir. 2013); see also Dexter 345 Inc. v. Cuomo , 663 F.3d 59, 63

– 64 (2d Cir. 2011). Nor did Cheetah Miner act like an entity fac ing adversity that threatened an irreparable inju ry . Remember , i t took the company a considerable time under the circumstances to seek a preliminary injunction

— more than 60 days from the time it lost electricity

. Ten more days passed until Cheetah Miner first mentioned the possibility of an irreparable injury. Sitting in the dark (literally) for weeks “ undercuts the sense of urgency that ordinarily accompanies a motion for preliminary relief and suggests that t here is, in fact, no irreparable injury. ” Bourne Co. v. Tower Recs., Inc. , 976 F.2d 99, 101 (2d Cir. 1992) (citing Citibank, N.A. v. Citytrust , 756 F.2d 273, 277 (2d Cir. 1985)); see also Allied Erecting & Dismantling Co. v. Genesis Equip. & Mfg., Inc. , 511 F. App ’ x 398, 405 (6th Cir. 2013) ; Forry, Inc. v. Neundorfer, Inc. , 837 F.2d 259, 267 (6th Cir. 1988)

. Equally true, because Cheetah Miner’s alleged injury resulted when it was put “out of business” by the lack of electricity , it is hard to see how a preliminary injunction would have preserved whatever was left of Cheetah Miner’s reputation as a cryptominer, having been out of the cryptocurre ncy game for roughly 10 weeks. A dding all of this together , we cannot say that the district court abused its discretion in not finding an irreparable harm at stake here

.Case No. 23

- 1410 , Cheetah Miner USA, Inc. v. 19200 Glendale, LLC

7 With evidence of irreparable harm lacking, Cheetah Miner fault s the district court for failing to conduc t an evidentiary hearing to amass the necessary record . But it was Cheetah Miner ’ s job to establish a likelihood of irreparable harm , not the district court ’ s . Winter , 555 U.S. at 22. If Cheetah Miner thought it needed more evidence to do so , it could have argued for additional discovery or a n evidentiary hearing. I t did not. And it is too late now to do so

. PartyLite Gifts, Inc. v. Swiss Colony Occasions , 246 F. App’x 969, 975 (6th Cir. 2007)

. III.
W e affirm the district court ’ s denial of the motion for a preliminary injunction

.