United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER AND PRELIMINARY
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE
THE COURT is the  Motion for Temporary Restraining Order
and Preliminary Injunction, filed by Defendant First Real
Estate, Inc. The Motion has been fully briefed. The Court
finds that a Temporary Restraining Order and Preliminary
Injunction should not issue.
filed an amended complaint for declaratory judgment, specific
performance, and damages under 28 U.S.C. § 2201 and
Fed.R.Civ.P. 57. The amended complaint concerns a lease
agreement between Winn-Dixie and First Real Estate for
premises at the Pearl River Shopping Center in Picayune,
Mississippi. The complaint alleges that First Real Estate
defaulted on its lease obligations by failing to repair the
parking lot, roof, and pylon sign on the premises. (Am.
Compl. 2, ECF No. 10). Winn-Dixie seeks a declaration of the
default regarding repairs to the parking lot, roof, and pylon
sign, and its rights to make repairs and deduct repair
expenses from rental payments otherwise due to First Real
Estate. In ruling on an earlier summary judgment motion, the
Court held that “the unambiguous terms of the lease
require First Real Estate to keep the roof in good repair and
if it does not do so, then Winn-Dixie may make necessary
repairs and deduct the cost from its rent payments.”
(Memo. Op. & Order Granting Mot. Partial Summ. J. 3, ECF
parties have disputed the condition of the roof since at
least 2015. It is not clear why Winn-Dixie decided it was
time to install a thermoplastic polyolefin
(“TPO”) roof, but it apparently notified First
Real Estate on September 22, 2017, that it intended to do so.
First Real Estate moves for a Temporary Restraining Order and
Preliminary Injunction to prevent Winn-Dixie from replacing
the roof in place with a TPO roof. First Real Estate contends
that replacement of the roof is neither necessary nor
advisable, while Winn-Dixie argues that “the roof is in
deplorable condition and a true repair is necessary.”
(Pl. Resp. 2, ECF No. 69).
obtain a preliminary injunction, the applicant must show: (1)
a substantial likelihood that he will prevail on the merits,
(2) a substantial threat that he will suffer irreparable
injury if the injunction is not granted, (3) that the
threatened injury outweighs the threatened harm to the party
whom the applicant seeks to enjoin, and (4) that granting the
preliminary injunction will not disserve the public interest.
Lake Charles Diesel, Inc. v. Gen. Motors Corp. 328
F.3d 192, 195-96 (5th Cir. 2003). The Fifth Circuit has
“cautioned repeatedly that a preliminary injunction is
an extraordinary remedy which should not be granted unless
the party seeking it has ‘clearly carried the burden of
persuasion' on all four requirements.” Id.
at 196 (quoting Miss. Power & Light Co. v. United Gas
Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985)).
Court proceeds directly to the irreparable harm element,
because it is dispositive of the injunction issue.
[A]n injury is irreparable only if it cannot be undone
through monetary remedies. Thus, the possibility that
adequate compensatory or other corrective relief will be
available at a later date, in the ordinary course of
litigation, weighs heavily against a claim of irreparable
harm. The absence of an available remedy by which the movant
can later recover monetary damages, however, may also be
sufficient to show irreparable injury.
Enter. Int'l, Inc. v. Corporacion Estatal Petrolera
Ecuatoriana, 762 F.2d 464, 472-73 (5th Cir. 1985)
(internal citations and marks omitted); see also DFW
Metro Line Serv. v. Sw. Bell Tel. Co., 901 F.2d
1267, 1269 (5th Cir. 1990) (there is no irreparable injury
where money damages would adequately compensate a plaintiff);
Deerfield Med. Ctr. v. City of
Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981)
addition to arguing that replacement of the roof is not
necessary or feasible, First Real Estate argues that its
building would be permanently and irreparably altered by the
installation of a TPO roof, and it objects to the alteration
of its property. First Real Estate argues that it would
suffer an abatement of rent for the value of a TPO roof that
it would not choose to purchase for its building.
Additionally, a TPO roof might be more expensive to First
Real Estate to maintain on an ongoing basis, and installing a
TPO roof would constitute spoliation of important evidence in
this case. Finally, First Real Estate argues that a TPO roof
might negatively impact a potential sale of the property it
is now negotiating.
relies on the following provision of the lease to install a
TPO roof over the objections of First Real Estate:
[I]f the Landlord after receipt of notice as above provided
fails or neglects to make with all due diligence such other
repairs . . . which are the responsibility of the Landlord,
the Tenant shall have the right to make such repairs and to
deduct from the rental installments then due or thereafter to
become due such sums as may be necessary to reimburse the
Tenant for the money expended or expense incurred by it in
making such repairs.
(Pl. Mot. Ex. A1, at 7, ECF No. 44-1). According to
Winn-Dixie, installation of a TPO roof ...