Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1 :04-cv-00910-GIVIS Document 91 Filed 07/22/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

INTEGRATED HEALTH SERVICES )
OF CLIPF MANOR, INC., a Delaware corporation,) Civil Action No. 04-910
INTEGRATED HEALTH SERVICES AT )
RIVERBEND, INC., a Delaware Corporation, )
INTEGRATED HEALTH SERVICES AT )
SOMERSET VALLEY, INC., A Delaware )
corporation, ALPINE MANOR, INC., a )
Pennsylvania corporation, INTEGRATED )
HEALTH GROUP, INC., a Pennsylvania )
corporation, SPRING CREEK OF IHS, INC., a )
Pennsylvania corporation, FIRELANDS OF IHS, )
INC., a Pennsylvania corporation, ELM CREEK )
OF IHS, INC., a Pennsylvania corporation, H-IS )
LONG TERM CARE SERVICES, INC., a )
Delaware corporation, ) Related to Docket No. 86
)
Plaintiffs, )
)
v— )
I
THCI COMPANY LLC, )
)
Defendant. )
)
PLAIN'I`IFFS’ MEMORANDUM OF LAW
IN OPPOSITION TO PRELIMINARY INJUNCTION MOTION
This Memorandum of Law is submitted on behalf of plaintiffs, in opposition to the
motion by defendant (sometimes herein "TI—ICI") for a preliminary injunction.
The standards for a preliminary injunction in this Circuit are welt settled. "’In order to
obtain a preliminary injunction, the moving party must show (I) irreparable injury, (2) a
reasonable probability of success on the merits, (3) the harm to it outweighs the possible harm to
other interested parties, and (4) harm to the public.? Frank Russell Co. v. Wellington
Management Co., i54 F.3d 97, lOl (3d Cir. l998)” (BP Chemicals Ltd. v. Formosa Chemical &

Case 1 :04-cv-00910-GIVIS Document 91 Filed 07/22/2005 Page 2 of 4
Fibre Com., 229 F.3d 254, 263 [3d Cir. 2000]). "A plaintiffs failure to establish any element in
its favor renders a preliminary injunction inappropriate. See Opticians Ass’n of Ain. v. Indep.
Opticians of Am., 920 F.2d E8'}, 192 (3d Cir. l990)" (Nutrasweet Co. v. Vit-Mar Enters., 176
F.3d l5l, 153 [Bd Cir. 1999]). Since THCI, the movant here, fails tc meet all these criteria, its
motion cannot be granted.
A. THCI Has,_l§l0t Established Probable Success On The Merits.
The requirement of probable success on the merits ofcourse means the merits of the
action Q which _th,e_ preliminary injunction Q sgggg This point is so obvious that no reported
decision appears to have focused on it, because no one would argue to the contrary}
ln the case at bar, THCl has wholly failed to argue that it will succeed on the
merits ig t_l_1_i_s _a__c§:,_ip__n_, so much so that it has not discussed or even annexed the pleadings
demonstrating what its claim is in the case at har (Plaintiff has remedied the lack of pleadings,
see exhibits to accompanying Declaration of`Amos Alter). Instead, it has argued that it will
succeed on the merits of some other lawsuit or lawsuits it has not, as of this writing, even
brought, namely for eviction of plaintiffs-tenants from the premises wherein defendant is
landlord.
The relief TCHI seeks in its amended counterclaims, as set forth in its pleading, upon
which the "probable success" test should be applied, are the following: On the First
Counterclaim, declaring that plaintiff H·lS Long Term Care Services, Inc. ("LTC”), is liable as
guarantor ofthe Nine Leases here in controversy; on the Second Counterclaim, for mandatory
relief for “Required Information"; on the Third Counterclaim, enjoining LTC from disposing of
-1 See, however, @tgn_ v. National Collegiate Athletic Ass’n., 539 l*L2d l 197, ll99 (9m Cir l9`/6),
reversing the grant of a preliminary injunction: "In our opinion there is no showing of probable success on the
merits in this action. We express no view ofthe merits in She1ton’s other lawsuit "
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Case 1 :04-cv-00910-GIVIS Document 91 Filed 07/22/2005 Page 3 of 4
its assets to third parties; and on the Fourth Counterclaim, a judgment for money damages
against the nine tenants. THCl’s moving papers make no pretense whatsoever of supporting an
argument that it is likely to prevail on those claims. Instead, it seeks by this motion relief not
even related to the heads of relief it seeks in the action: According to the Motion, the relief here
sought is an order "directing [plaintiffs] to vacate nine nursing homes and enjoining
Plaintiffs from making any payments or distributions to LTC or any other related entities". Not
only is eviction not related to any of det`endants’ counterclaims in the action, but the
counterclaims of the answer seek to enjoin transfers _frj@ LTC, while the motion seeks a
preliminary injunction of transfers tg LTC.
There has thus been no showing, or even any attempt to show, the probable success on
the merits of thg that is an indispensable element of a preliminary injunction motion.
The motion should accordingly be denied.
B. '1`HCI Would Not Be Entitled To A Preliminary Injunction In The Actionjs) It Has Not
Brought.
Even had THC1 brought an action or actions for eviction against the tenants~defendants, it
would not be entitled to a preliminary injunction therein. Putting aside the fact that it would be
seeking by mandatory preliminary injunction the ultimate relief sought in its action, a use of a
preliminary injunction strongly frowned upon v. , 621 F.2d 578, 582 [Bd Cir.
1980}), there is clearly no reason why its remedy at law, namely the ultimate judgment of
eviction (plus money damages) that it seeks, would not be adequate. This would disqualify
THC} for preliminary injunctive relief, as it would not be suffering irreparable harm (Erapg
GMC Truck Center v. General Motors Corp., 847 F.2d 100, 102 {Bd Cir. 1988]; v.
ggg, 822 F.2d 364, 372 [3d Cir. l.987]).
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Case 1 :04-cv-00910-GIVIS Document 91 Filed 07/22/2005 Page 4 of 4
As to "t`HCI’s request for a preliminary injunction to tie up LTC’s assets during the
pendency ofthe action, such relief is simply not available, as the Supreme Court made clear in
Grupo Mexicano De Desarrollo v, Alliance Bond Fund, 527 U.S. 308 (1999)
Conclusion
As has been demonstrated, TI-1CIhas wholly failed to demonstrate the requisite elements
of a preliminary injunction. Its motion must therefore be in all respects denied.
Respectfully submitted,
Dated: July 22, 2005 DUANE MORRIS LLP
Wilmington, Delaware
yielfiel R. Lastoyvggi/( LD. 3892)
L_ Richard W. Rite DE LD. 4052)
Christopher M. Winter (DE 1.}). 4163)
1100 North Market Street, Suite 1200
Wilmington, DE 19801-1246
Telephone: (302) 657-4900
Facsimile: (302) 65 7-4901
cand-
TROUTMAN SANDERS LLP
Amos Alter, Esquire
The Chrysler Building
405 Lexington Avenue
New York, NY 10174
Telephone: (212) 704~6000
Facsimile: (212) 704—6288.
Att0r12eys_f0r Plaint@ Integrated Health Services
of C19? Manor, Inc, et nl.
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