464 F2d 1025 Telex Corporation v. International Business Machines Corporation

464 F.2d 1025

1972 Trade Cases P 74,184

The TELEX CORPORATION, Appellee,
v.
INTERNATIONAL BUSINESS MACHINES CORPORATION, Appellant.

No. 72-1447.

United States Court of Appeals,

Eighth Circuit.

Submitted July 27, 1972.
Decided July 28, 1972.

Thomas D. Barr, New York City, Faegre & Benson, by John D. French, Minneapolis, Minn., for appellant International Business Machines Corp.; Cravath, Swaine & Moore, New York City, of counsel.

Robert F. Henson, Minneapolis, Minn., for appellee The Telex Corp.

Before JOHNSEN, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.

PER CURIAM.

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1

This matter was heard on an expedited appeal from the district court's entry of a "temporary restraining order" dated July 21, 1972. The order entered by the district court enjoins I.B.M. inter alia from announcing certain new products on or about August 2, 1972, and until such time that Telex Corporation's motion for preliminary injunction is heard and submitted to the district court on or before September 1, 1972. In view of the fact that the lower court's order exceeds the ten day limitation as set forth in Rule 65(b) of the Federal Rules of Civil Procedure, this court finds that the order so entered is tantamount to an issuance of a preliminary injunction and that the order entered on July 21, 1972, is an appealable order. See Pan American World Airways, Inc. v. Flight Engineer's International Association, 306 F.2d 840 (2 Cir. 1962); Missouri-Kansas-Texas R.R. v. Randolph, 182 F.2d 996 (8 Cir. 1950).

2

The district court on entering its order of July 21, 1972, states that it does not make any finding at this time on the "ultimate probable success on the merits nor of permanent irreparable injury to Telex." The order fails to require the giving of security by the applicant as required by Rule 65(c) and as set forth fails to make any specific finding of injury or irreparable harm as required for the issuance of a preliminary injunction.

3

Upon review of the entire matter this court determines that the preliminary injunction entered by the court on July 21, 1972, should be, and hereby is, ordered dissolved. This opinion and judgment dissolving the July 21, 1972, order of the district court is without prejudice and is not intended to reflect on any findings the district court might make and any relief deemed appropriate from such findings which may arise from the September 1, 1972, hearing on plaintiff's motion for preliminary injunction.

4

It is so ordered.