Opinion
Civil Action No. 02-CV-8449
November 26, 2002
MEMORANDUM AND ORDER
TUCKER, J. November 26, 2002
Presently before the Court is Plaintiffs' Motion for Preliminary Injunction. For the reasons set forth below, upon consideration of Plaintiffs' Motion and oral argument held before the Court on Monday, November 25, 2002, the Court will grant plaintiffs' motion.
BACKGROUND
Plaintiffs filed this action for injunctive relief to recover the telephone numbers and telephone accounts for the Cottman Transmission Center, located in Egg Harbor, New Jersey (the "Egg Harbor Center") from the franchisee defendants for failure to comply with Section 9 and Section 14 of the License Agreement.
Defendants, Michael Banny and Jacquelyn Young ("Franchisee Defendants") entered into a License Agreement with Cottman Transmission Systems, Inc. on February 12, 1996, to own and operate a Cottman Transmission Center, now located in Egg Harbor, New Jersey. Pursuant to Section 9 of the License Agreement, franchisee defendants are required to pay plaintiffs a certain sum of money and/or percentage for advertising. Pursuant to Section 14 and Appendix C of the License Agreement, all telephone numbers and telephone accounts for the Egg Harbor Center are the property of Cottman and that Cottman has the sole and exclusive right and authority to transfer, terminate, and amend such telephone numbers.
Cottman Communications first established a telephone account for the numbers in dispute herein, (609) 484-0903, (609) 484-0904. and (609) 484-0905 (the "telephone accounts") on November 1, 1983 with New Jersey Bell Telephone Company, a predecessor to Verizon New Jersey, Inc. Since 1983, Cottman Communications has established and maintained the telephone accounts, first for use at the Pleasantville Center, then for the use at the Cardiff Center, and presently for use at the Egg Harbor Center. Thereafter, the telephone number (609) 484-9489 was added as the fax number.
LEGAL STANDARD
In considering whether to grant a motion for equitable relief in the form of a preliminary injunction, the following four factors must be considered: (1) the applicant's likelihood of success on the merits; (2) the probability of irreparable injury to the applicant in the absence of relief; (3) the risk of harm to the respondent if relief is granted; and (4) whether the public interest will be advanced by granting the requested relief Fechter v. HMW Indus., Inc., 879 F.2d 1111, 1115 (3d Cir. 1989).
DISCUSSION
A. Likelihood of Success
Plaintiffs have shown that they would likely to succeed on the merits because franchisee defendants have not fully complied with the License Agreement pursuant Section 9, Section 14, and Appendix C. Therefore, plaintiffs have met the likelihood of success requirement.
B. Irreparable Injury to the Applicant
___The possibility of irreparable injury to the plaintiffs is evident. Plaintiffs will suffer immediate and irreparable harm by being wrongfully deprived of the telephone numbers and telephone accounts to the Egg Harbor Center. Plaintiffs will also suffer immediate harm to their franchise systems and the ability to re-franchise the Center. Thus, plaintiffs have met the irreparable injury requirement.
C. Risk of Harm to the Respondent
The risk of harm to the defendants is that customers will not be able to contact Egg Harbor Center directly. In equity, the Court must provide a just and equitable resolution. A customer calling the Egg Harbor Center will receive a recording directing the customer to contact Cottman Transmission or Banny's Transmission Center at the telephone numbers provided. Therefore, the risk of harm to the defendants is minimal.
D. Public Interest
The public interest is best served by giving customers the opportunity to contact a Cottman Center that is operating in total compliance with the Cottman's system. The issuance of a preliminary injunction enjoining defendants from interfering with plaintiffs' right to direct and control the telephone accounts for the telephone numbers (609) 484-0903, (609) 484-0904, (609) 484-0905 and (609) 484-9489 is in the public's best interest.
CONCLUSION
Based on the foregoing reasons, the Court will grant plaintiffs' motion for preliminary injunction. An appropriate order follows.
ORDER
AND NOW, this 26th day of November 2002, upon consideration of Plaintiffs' Motion for Preliminary Injunction (Doc. 2), IT IS HEREBY ORDERED and DECREED that the Plaintiff's Motion for Preliminary Injunction Order is GRANTED. IT IS FURTHERED ORDERED that Defendants, their agents, servants, employees, representatives, successors, and assigns and all other persons, firms or corporations acting in concert, privity or participation with Defendants, are hereby PRELIMINARILY ENJOINED from the following:
1. Interfering with Plaintiffs' right to direct and control the telephone accounts for the telephone numbers (609) 484-0903, (609) 484-0904, (609) 484-0905 and (609) 484-9489.IT IS FURTHERED ORDERED that:
2. The Court finds that Cottman Transmission Systems, LLC and Cottman Transmission Communication Corporation ("Cottman") are the owners of the following telephone numbers in dispute ((609) 484-0903, (609) 484-0904, (609) 484-0905 and (609) 484-9489), pursuant to the Section 14 and Appendix C of the License Agreement entered into by Cottman Transmission Systems, Inc., Michael Banny, and Jacquelyn L. Young on February 12, 1996, and pursuant to the agreement of the defendants.
3. The Court finds that preliminarily the Franchisee Defendants are not in compliance with Section 9 of the License Agreement, as a result of their failure to pay, failure to make timely payments, and writing checks that were returned for insufficient funds for their advertisement fees after September 16, 2002.
4. The Court also finds that Cottman has a right to suspend advertisement of the Egg Harbor Cottman Transmission Center for failure to pay advertisement fees pursuant to Section 9 of the License Agreement.
5. Defendants shall transfer the control of the telephone accounts for the telephone numbers (609) 484-0903, (609) 484-0904, (609) 484-0905 and (609) 484-9489 to Cottman Transmission Corporation on or before Monday, December 2, 2002.
6. Defendants, Michael Banny and Jacquelyn Young and F E Management, shall facilitate a transcript, recording, or any other alternative method to convey the following message that "The number you have dialed (609) 484-0904 has changed. Calls are being taken by the following numbers. For Cottman Transmission Center, please call 1 (866) 268-8626. Toll-free. For Banny's Transmission Center, please call (609) 641-3638. Repeat. For Cottman Transmission Center, please call 1 (866) 268-8626. Toll-free. For Banny's Transmission Center, please call (609) 641-3638," on or before Monday, December 2, 2002.
Defendants may use Banny's Transmission Center or FE Management's Transmission Center.
7. Plaintiffs $10,000 bond or escrow shall remain in effect.
8. This Order shall remain in full force and effect until further Order of this Court.