United States District Court, D. Maine
TOTEM FOREST PRODUCTS, INC., & TOTEM STEEL INTERNATIONAL, INC., Plaintiffs,
T & D TIMBER PRODUCTS, LLC, Defendant.
ORDER ON PLAINTIFF'S MOTION FOR A TEMPORARY
LEVY U.S. DISTRICT JUDGE.
matter comes before the Court on the motion of Totem Forest
Products, Inc. and Totem Steel International, Inc.
(collectively “Plaintiffs”) for a Temporary
Restraining Order (ECF No. 4) (“Motion”).
Motion and supporting documents establish that the Plaintiffs
purchased 6, 124 8” x 4' x 16' timber crane
mats (“Mats”) from the Defendant pursuant to a
course of dealing that commenced in early December 2015. The
purchases were documented by a written purchase agreement,
purchase orders and written terms and conditions of sale. The
Defendant confirmed the Plaintiffs' purchase of the Mats
through invoices which were sent to the Plaintiffs for
payment after delivery of the Mats. Under the purchase
agreement, and the terms and conditions of sale, the
Defendant agreed to a bailment whereby it would store the
Mats for the Plaintiffs and keep the Mats segregated from
other materials on the Defendants' property. The
Defendant agreed to load out the Mats for shipment to the
Plaintiffs' customers when directed by the Plaintiffs.
November 30, 2016, the Plaintiffs' director of operations
visited the Defendants' business location in Biddeford.
At that visit, the Defendants' president pointed out over
4, 200 Mats as the Plaintiffs' inventory which were
segregated from the Defendant's other materials at the
Biddeford location. On December 9, 2016, the Defendants'
president confirmed that the inventory of Mats belonging to
the Plaintiffs was at locations in Biddeford, Jefferson,
Lyman and Lincoln as of December 5, 2016. The Plaintiffs made
additional purchases of Mats in December 2016 to bring the
total to 6, 214.
February 1, 2017, the Defendant's president informed the
Plaintiffs' director of operations that the
Defendants' business operations had been frozen by the
IRS. The Defendant has not allowed the Plaintiffs to inspect
the Plaintiffs' inventory of Mats, and has not made the
Mats available for shipment to the Plaintiffs' customers
since that time. On February 13, 2017, the Defendant notified
the Plaintiffs that the Defendant was in the process of
filing for bankruptcy protection. On February 14, 2017, the
Plaintiffs' director of operations flew in from Portland,
Oregon to inspect the Plaintiffs' Mats, but was refused
access to the Defendants' facility in Lyman. He then
drove to Biddeford, and observed from the street that the
Mats which were identified to him on November 30, 2016 had
Plaintiffs filed their complaint on February 23, 2017
together with its motion for a temporary restraining order,
supported by the Declaration of Trevor Sarazin. Notice of the
Plaintiffs' Motion was provided to the Defendant's
considering a request for a temporary restraining order, the
court must determine: “(1) the movant's likelihood
of success on the merits; (2) whether and to what extent the
movant would suffer irreparable harm if the request were
rejected; (3) the balance of hardships between the parties;
and (4) any effect that the injunction or its denial would
have on the public interest.” Wicked Good Charcoal,
Inc. v. Ranch-T, LLC, 2015 U.S. Dist. LEXIS 173255, at
*2-3 (D. Me. Dec. 30, 2015) (quoting Diaz-Carrasquillo v.
Garcia-Padilla, 750 F.3d 7, 10 (1st Cir. 2014)).
Likelihood of Success on the Merits
conclude at this preliminary stage that the Plaintiffs have
established a likelihood of success on the merits related to
the Plaintiffs' breach of contract, conversion and
trespass to personal property claims. The Plaintiffs
purchased the Mats from the Defendant pursuant to written
agreements whereby the Defendant also agreed to store the
Mats for the Plaintiffs separately from other materials until
the Plaintiffs needed to ship them to the Plaintiffs'
customers. The Defendant identified the Mats as having been
sold to, and stored for the Plaintiffs. The Defendant has
relocated the bulk of the Mats that were in Biddeford, and
refused to allow the Plaintiffs director of operations to
inspect the Mats.
Plaintiffs will suffer irreparable harm absent a temporary
restraining order. The Defendant is likely insolvent, has
represented that its business has been frozen by the IRS, and
has threatened to file bankruptcy. The Mats were
“entrusted” to the Defendant by the Plaintiffs,
and the Defendant is a merchant who deals in the same kind of
goods. Hence, the Defendant arguably has the power to
transfer title to the Mats to a buyer in the ordinary course
of business under the Uniform Commercial Code. See
11 M.R.S. § 2-403(2).