Apollo argues an injunction is warranted in this case because Centrosphere "has no significant assets" and a money damages award would be "simply ineffective." Reply Brief at 14; Reply Brief at 3, 14. Absent statements by Apollo that Centrosphere failed to maintain its financial commitments under the Agency Contracts and borrowed money from Apollo, see Kukin Aff., P 9; Kukin Exhibits, Exs. 13-14, Apollo has not supplied any proof or documentation to support its contention that Centrosphere is without assets. Nor has Apollo supplied specific facts or figures to indicate that Centrosphere failed to carry its share of the financial burden.
While the circumstances cited by Apollo may indicate a lack of assets, insolvency is not the only explanation for such status. In addition, Centrosphere maintains that it "performed all its obligations under the contract." Reply Brief at 16. Where no clear factual record exists apart from the general statements of the plaintiff, a finding of irreparable injury is not warranted. Instant Air, 882 F.2d at 803; Arthur Treacher's, 689 F.2d at 1146. Similarly, a preliminary injunction cannot be issued when there are disputed issues of fact. Charles Simpkin, 289 F.2d at 29; Oxford-Evergreen, 769 F.Supp. at 1343; Hunterdon Transformer, 1990 U.S. Dist. LEXIS 1382 at *4.
Apollo also argues, without ever explaining, that damages in this case will be difficult to calculate. Moving Brief at 29; Reply Brief at 3. This argument is also without merit. As explained above, Apollo's potential damages from lost contracts and improperly used trade secrets are capable of calculation. See supra at pp. 109-114.
Because Apollo has failed to articulate and adduce proof of actual or imminent harm which cannot otherwise be compensated by money damages, it has failed to sustain the substantial burden of showing irreparable harm. Frank's GMC, 847 F.2d at 102-03.
4. Balance of Hardships
In deciding whether injunctive relief is appropriate, the hardships to the respective parties must be balanced. Opticians Ass'n, 920 F.2d at 197; Frank's GMC, 847 F.2d at 102. The purpose behind this balancing is to ensure that the issuance of an injunction would not harm the defendant more than a denial would harm the plaintiff. Opticians Ass'n, 920 F.2d at 197; Ecri, 809 F.2d at 226.
The balance of hardships in this case favors not issuing the requested injunction. Centrosphere was founded prior to its contact with Apollo for the purpose of supplying fuel additives and related technology to entities in the Philippines. Widjaja Aff., P 10; Opp. Brief at 2-3. By prohibiting Centrosphere from engaging in this activity, the Non-Compete Clause essentially prohibits Centrosphere from functioning at all. In contrast, if the injunction is not issued, Apollo still may pursue its negotiations with NAPOCOR and still may be awarded the contracts that have been suspended. Even if Apollo should lose these contracts, the loss is measurable and compensable by money damages following trial on the merits, if Apollo is successful.
Apollo suggests that, absent serious questions going to the merits, the balance of hardships need not be considered. Moving Brief at 30. Ever, if this is true, Apollo has not demonstrated the likelihood of its success on the majority of its claims. Moreover, the one claim for which Apollo has shown a likelihood of success, the claim that Centrosphere purported to act as Apollo's agent following the termination of its agency, is no longer relevant to a discussion of the ongoing harm to Apollo. Centrosphere is no longer purporting to act as Apollo's agent and NAPOCOR has been notified that Centrosphere is no longer authorized to act for Apollo. Kukin Aff., P 18; Becker Aff., P 51, Ex. P; Moving Brief at 6.
5. Public Interest
The final consideration in the preliminary injunction analysis is whether the issuance of a preliminary injunction furthers the public interest. Opticians Ass'n, 920 F.2d at 197. Neither party has argued nor does it appear that the public interest significantly affects the analysis in this case. Where the public interest has little to add to the other preliminary injunction factors, it is not considered. Hoxworth, 903 F.2d at 208; Instant Air, 882 F.2d at 803.
For the reasons set forth above, the Apollo motion for a preliminary injunction is denied and the Centrosphere cross-motion to dismiss for lack of personal jurisdiction and for improper process, or, if the preliminary injunction were to be granted, to make the preliminary injunction mutually enforceable, is also denied.
Dated: 25 September 1992