Eagle View Technologies, Inc. v. Xactware Solutions, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EAGLE VIEW TECHNOLOGIES, INC.,
Plaintiff - Appellant,
v.
XACTWARE SOLUTIONS, INC.,
Defendant - Appellee.
No. 13-35014
D.C. No. 2:12-cv-01913-RSM
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted May 9, 2013
Seattle, Washington
Before: THOMAS and NGUYEN, Circuit Judges, and DEARIE, Senior District
Judge.**
Plaintiff-Appellant Eagle View Technologies, Inc. (“Eagle View”) appeals
from the district court’s order granting its motion for a preliminary injunction, but
FILED
JUL 17 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

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limiting the duration of that injunction to sixty days. Eagle View appeals only the
sixty-day limitation, pursuant to which the preliminary injunction would have
expired on February 18, 2013. On January 23, 2013, a motions panel of this court
stayed the expiration of the preliminary injunction pending this appeal. We affirm
in part and reverse in part.
We need not decide whether defendant-appellee Xactware Solutions, Inc.
(“Xactware”) can challenge the district court’s grant of injunctive relief absent a
cross-appeal, because we conclude that the district court did not abuse its
discretion in finding that Eagle View made a sufficient showing to warrant that
relief. See Winter v. Natural Res. Def. Council., Inc., 555 U.S. 7, 20 (2008)
(citations omitted). Moreover, on the limited record before us, we simply cannot
hold that preliminary injunctive relief is inappropriate for any of the various
collateral grounds Xactware asserts in its papers, such as equitable estoppel,
unclean hands, and the purported need for extensive court monitoring.
This brings us to the central issue on appeal: whether, having found that a
preliminary injunction should issue, the district court nevertheless erred in limiting
the duration of that injunction to sixty days. We have held that time limitations on
injunctive relief may be appropriate in certain circumstances. See Lamb-Weston,
Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974-75 (9th Cir. 1991). Moreover, as
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the Supreme Court held in Winter, 555 U.S. at 22, no preliminary injunction may
issue absent the movant’s demonstration of likely irreparable injury.
The district court concluded that the sixty-day deadline for notice of non-
renewal in Section 9 of the contract demonstrates that sixty days constitutes
sufficient time for Eagle View to extricate itself from its dependence on
Xactware’s network.1 We do not agree that Section 9, standing alone, provides an
appropriate basis for limiting the injunction to sixty days. The notice of non-
renewal provision does not expressly address the question of how long it would
take Eagle View to unwind from Xactware. Moreover, the only direct testimony
on the question comes from Eagle View CEO Craig Barrow, who asserts that sixty
days is not enough time for Eagle View and its customers to transition to a new
network, so long as the contractual exclusivity provision remains in place. We are
satisfied that Section 9 provides insufficient grounds to conclude that no likelihood
of irreparable injury persists after sixty days.
We must balance that conclusion against the consideration that, if Eagle
1 Indeed, we read the district court’s opinion as deriving this limitation
entirely from the sixty-day deadline for notice of nonrenewal under Section 9 of
the contract, not from the declining number of outstanding Hurricane Sandy
property damage claims. Therefore, we express no opinion on whether the decline
in Hurricane Sandy claims would have justified a shorter injunction.
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View loses access to Xactware’s network between now and trial and its business is
largely destroyed as a result, then no permanent injunction could possibly remedy
that irreparable harm. Trial is scheduled for October 15, 2013, approximately
thirteen weeks from now, and the parties assure us that they are committed to
proceeding on that date. In the meantime, prudence dictates that the injunction
remain in force for these additional weeks and through the trial, to eliminate the
very real risk that Eagle View ultimately prevails on the merits and yet finds itself
ruined and without recourse.
In short, on the current state of the record, we conclude that only a
preliminary injunction remaining in effect through trial will safely avoid the risk of
irreparable harm. We stress that nothing in this disposition should be read to
prejudge either party’s position on the merits; that the district court remains free to
modify its injunction upon appropriate application should changing circumstances
require; and that the district court also remains free to tailor the scope of any
permanent injunctive relief – including limitations on the duration of such relief –
if the facts adduced at trial support such action.
Because the district court’s injunction originally expired within sixty days,
the district court declined to consider whether Eagle View should post appropriate
security. Now that the injunction will remain in force, the district court should, if
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necessary, revisit the question upon appropriate application. Each party shall bear
its own costs.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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