                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-1924



HCI TECHNOLOGIES, INCORPORATED,

                                              Plaintiff - Appellant,

           versus


AVAYA, INCORPORATED,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (1:06-cv-00778-TSE)


Argued:   May 22, 2007                      Decided:   July 12, 2007


Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge, and Benson E.
LEGG, Chief United States District Judge for the District of
Maryland, sitting by designation.


Affirmed by unpublished per curiam opinion.


Thomas M. Brownell, HOLLAND & KNIGHT, L.L.P., McLean, Virginia, for
Appellant. Rodney F. Page, BRYAN & CAVE, L.L.P., Washington, D.C.,
for Appellee.   ON BRIEF: Brandon H. Elledge, HOLLAND & KNIGHT,
L.L.P., McLean, Virginia; Matthew A. Clary, III, Fairfax, Virginia,
for Appellant.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      HCI Technologies, Inc. (“HCI”) appeals the district court’s

orders denying its motion for a temporary restraining order and

preliminary injunction and dismissing its claims against Avaya,

Inc. (“Avaya”) pursuant to the mandatory arbitration agreement in

the   parties’      contract.        HCI   argues   that    the        district    court

misapplied the four-part test governing motions for injunctive

relief    by   failing      to   recognize      that    each     of     the   relevant

considerations weighed in favor of HCI.                HCI further contends that

the   district      court    erred    in   dismissing      its    claims      in   their

entirety, because the contract did not require HCI to submit its

requests for permanent injunctive relief to arbitration.                       For the

reasons that follow, we affirm the district court’s orders.



                                           I.

                                           A.

      Avaya    is     a     world-wide      manufacturer         and     supplier    of

telecommunications systems, applications, and equipment, including

a line of “Private Branch Exchanges” (“PBX”s)1 and a line of IP

Telephony, or “Voice over IP Systems,” under a variety of names and

trademarks.      Avaya sells equipment directly and also through over

300 authorized sellers, known as “Business Partners.”                     Measured by



      1
      A PBX is a computer that switches and connects telephone
calls within a facility.

                                           2
revenue, Avaya and its Business Partners control approximately 20%

of the U.S. market for new PBX and related equipment.

     Avaya’s telephony equipment requires service and periodic

maintenance over its useful life.                 In the United States, service

and maintenance of Avaya products is performed by Avaya itself, by

many of its Business Partners, by independent service organizations

(ISOs), and by customers themselves. Business Partners have the

choice of providing their own maintenance services or reselling

Avaya    services     in   whole    or       in    part    to   complement    their

capabilities. Avaya competes with its Business Partners to provide

maintenance services to some PBX owners, and works in concert with

its Business Partners to supply maintenance to others.

     Proprietary      software     embedded        in   Avaya   PBXs    facilitates

service and maintenance of the PBXs.               Avaya, of course, has access

to its own propriety software. Avaya also licenses the software to

its Business Partners and to PBX owners.                The software enables the

licensee to identify and diagnose, and, in some cases, resolve,

maintenance    problems      remotely.              Licensees    access      Avaya’s

diagnostic/maintenance software through passwords called “login

codes” or “logins.”         Business partners receive access to the

software through logins called “DADMINs.”                 PBX owners may purchase

logins   called     “Maintenance    Software         Permissions”      (“MSPs”),   by

entering into a “Maintenance Assist” contract.                    Diagnostic and




                                         3
maintenance functions can be performed at the site of the equipment

without the use of Avaya’s proprietary software.

                                       B.

       HCI was an Avaya Business Partner until July 10, 2006, when

Avaya terminated its contract with HCI.             It is undisputed that HCI

acted    as   Business   Partner     through    a    series     of   increasingly

restrictive Master Reseller Agreements, entered into in 1999, 2003,

and 2005.     The parties dispute Avaya’s motivation in conditioning

its continued willingness to have HCI as a Business Partner on

HCI’s acceptance of more restrictive contractual terms.                       HCI

asserts that Avaya made a corporate business decision to take back

the service market from its Business Partners and used the new

restrictions to undermine the Business Partners.                 Avaya contends

that it insisted on additional protections after it came to believe

that    HCI   was   working   with   Verizon,       Inc.   to   disrupt   Avaya’s

relationships with its customers.

       It is undisputed that HCI’s contracts with Avaya allowed HCI

to resell Avaya services only to end users and prohibited HCI from

serving as a subcontractor by reselling Avaya services to other

resellers.     Nevertheless, HCI did obtain authorization from Avaya

to sell Avaya products to AT&T solely for the benefit of a single

end user; this authorization was memorialized in an addendum to

HCI’s contract with Avaya.       And in 2002, Avaya allowed HCI to enter

into a teaming relationship with Verizon.


                                       4
     After Avaya came to believe that a goal of the HCI/Verizon

relationship was to interfere with Avaya’s business, however, Avaya

began to reevaluate its relationship with HCI.          In September 2003,

Avaya sent HCI a letter indicating that it did not intend to renew

its 2003 contract with HCI for another year.2            It is undisputed

that “Avaya . . . relent[ed] only when HCI entered into a New

Master Reseller Agreement of Business Partner Program . . . on

December 20, 2005,” which superseded the parties’ prior Agreement.

(J.A. at 8.)3    The December 2005 Agreement provided that either

party could terminate the contract “at any time without cause by

giving the other party twenty-four (24) hours written notice of the

termination.”    (J.A. at 179.)

     In February 2006, Avaya and Verizon each submitted a bid for

an   equipment   and     services   contract    with   Washington     Mutual.

Verizon’s bid indicated that HCI would act as a subcontractor to

provide   support      services   for   Avaya   communications    products.

Ultimately,   Washington     Mutual     accepted   Verizon’s   bid.    Avaya

believed that HCI violated its Master Reseller Agreement by teaming


     2
      Avaya’s September 23, 2003 Agreement with HCI superseded the
first agreement between the parties.      The September 23, 2003
Agreement had a term of one year and automatically renewed each
year unless either party provided notice of its intent not to renew
the Agreement 60 days prior to September 23 of that year.       The
September 23, 2003 Agreement also provided that either party could
terminate the Agreement without cause by giving the other party 60
days written notice of termination.
     3
      Citations to the “J.A.” refer to the contents of the joint
appendix filed by the parties in this appeal.

                                        5
with Verizon to win the Washington Mutual contract.                      Accordingly,

on May 16, 2006, Avaya sent HCI a notice of termination.                             The

notice of termination incorrectly relied on the 60 day notice

provision of the parties’ 2003 Agreement.

                                               C.

      Fifty-one days after receiving Avaya’s notice of termination,

on   July        5,   2006,      HCI   filed    a   Verified    Complaint   to   Enjoin

Threatened Termination of Business Partner/Dealer Contract in the

United States District Court for the Eastern District of Virginia.

The complaint alleged, among other things, that Avaya’s notice of

termination was defective because it relied upon and purported to

terminate the superseded 2003 Agreement.                       This prompted Avaya to

send,       on   July      10,   2006,   a     new,   twenty-four    hour   notice   of

termination           in   compliance     with      the   December   2005   Agreement,

terminating HCI as of July 11, 2006.

      HCI’s complaint named Avaya and Catalyst Telecom, Inc. (one of

two authorized dealers of Avaya hardware in the United States) as

defendants.4           The complaint stated nine causes of action: two

Sherman Act claims, a claim of race discrimination under 42 U.S.C.

§ 1981, and six pendant Virginia state law claims (which included

a claim for violations of the Virginia Equipment Dealers Protection

Act, two tortious interference with contract claims, and claims for


        4
      On August 3, 2006, HCI filed a Notice of Dismissal
voluntarily dismissing its claims against Catalyst Telecom.
Catalyst Telecom is not a party to this appeal.

                                                6
breach of contract, conspiracy to injure in trade or business, and

promissory estoppel).

     On July 6, 2006, HCI filed an Emergency Motion for Temporary

Restraining Order and for Preliminary Injunction.                In its motion,

HCI alleged that it would be irreparably harmed if Avaya terminated

HCI’s Business Partner status and denied HCI access to logins,

spare parts, and the support necessary for HCI to service its

customers’ Avaya PBXs.            HCI also alleged that sales of Avaya

equipment constituted 30% of its business, and maintenance and

support of Avaya equipment constituted another 40% of its business.

     On July 12, 2006, the district court held a hearing addressing

the motion for a temporary restraining order (TRO), but instructed

HCI that, pursuant to Federal Rule of Civil Procedure 65, it could

not issue a preliminary injunction.          See Fed. R. Civ. P. 65(a)(1)

(“No preliminary injunction shall be issued without notice to the

adverse party.”). The district court then entered an order denying

HCI’s motion for a TRO and preliminary injunction and dismissing

HCI’s    §   1981   and   state   law   claims   pursuant   to    the   parties’

arbitration agreement.5       The district court requested supplemental

briefing on the arbitrability of the antitrust claims.                     Upon


     5
      The parties’ December 2005 Agreement provides that “all
Disputes must be finally resolved by binding arbitration,” but also
contains a provision stating that “[e]ither party may, at its sole
discretion and at any time during the dispute resolution process,
seek injunctive relief in any court of competent jurisdiction
(including but not limited to preliminary injunctive relief).”
(J.A. at 179.)

                                        7
completion of the supplemental briefing, the district court entered

an order dismissing the two Sherman Act claims as well.

     HCI timely appealed the district court’s orders.                     We have

jurisdiction pursuant to 28 U.S.C.A. § 1292(a)(1) (West 2006)

(providing    for   appellate    jurisdiction        to   review   the    district

courts’ denial of injunctions) and 28 U.S.C.A. § 1291 (West 2006)

(providing for appellate jurisdiction over final decisions of the

district courts).



                                       II.

     We review the grant or denial of a preliminary injunction for

abuse of discretion.      Safety-Kleen, Inc. (Pinewood) v. Wyche, 274

F.3d 846, 859 (4th Cir. 2001).              We review the district court’s

findings   of   fact   for     clear   error,   and       we   review   its    legal

conclusions de novo.      Id.

     Before     turning   to    the    merits   of   HCI’s      appeal,   we   must

determine whether there remains a “live” controversy before us.

“‘[A] case is moot when the issues presented are no longer “live”

or the parties lack a legally cognizable interest in the outcome.’”

Kennedy v. Block, 784 F.2d 1220, 1222 (4th Cir. 1986) (quoting

Powell v. McCormack, 395 U.S. 486, 496 (1969)).6                And, “when a case

has become moot after the entry of the district court’s judgment,


     6
      The district court did not address the issue of mootness,
although Avaya terminated the Agreement the day before the motions
hearing.

                                        8
an appellate court no longer has jurisdiction to entertain the

appeal.”   Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003).

     Avaya argues that HCI’s appeal is moot, because the action

sought to be prevented, the termination of the parties’ December

2005 Agreement, has already occurred.   It is well established that

“[a]n appeal of the denial of an injunction to prohibit an act is

rendered moot by the happening of the act.”   Ry. Labor Executives

Ass’n v. Chesapeake W. Ry., 915 F.2d 116, 118 (4th Cir. 1990).

Accordingly, at oral argument, HCI conceded that its appeal is

“probably moot” to the extent that it challenges the termination of

the parties’ December 2005 Agreement.   Nevertheless, HCI contends

that its entire appeal is not moot because the relief it requested

from the district court is far broader than an injunction against

the termination of its reseller agreement with Avaya -- HCI also

sought continued access to spare parts, logins, and Avaya technical

support.   Because HCI continues to service Avaya equipment and

Avaya has not yet terminated HCI’s access to parts and logins, not

all of the actions sought to be enjoined have already occurred.

     We agree with HCI that this appeal is not entirely moot.   In

its motion for a TRO and preliminary injunction, HCI alleged that

it would suffer irreparable harm if “Avaya is not enjoined from

Terminating HCI’s Master Reseller Agreement and if Avaya and

Catalyst Telecom are not barred from denying HCI access to Avaya

equipment and needed passwords, logins, and replacement part[s] to


                                 9
service equipment for HCI customers.”             (J.A. at 56.)     Thus, HCI

sought to prohibit Avaya from taking other actions in addition to

terminating its contractual relationship with HCI.                HCI asserts

that    it   continues   to   service     Avaya    equipment   despite    the

termination of the December 2005 Agreement, but it would be unable

to do so if Avaya terminated its access to parts and logins.

Moreover, Avaya concedes that although the contractual relationship

is at an end, as a practical matter, its relationship with HCI

cannot be dismantled overnight.          Avaya disclaims any intent “to

have this be an abrupt termination of service” to HCI’s customers.

(J.A. at 300.)

       Thus, not all of the actions HCI sought to enjoin have already

occurred, and, as a result, the appeal is not entirely moot.               It

is, however, moot to the extent that HCI challenges the termination

of the December 2005 Agreement.          See Ry. Labor Executives Ass’n,

915 F.2d at 118 (holding that a union’s appeal from the denial of

an injunction against a defendant’s “entire policy” of transferring

railway lines without bargaining was not entirely moot, but was

moot with regard to any transaction that had already been completed

by the time of the appeal).



                                  III.

       We now turn to the merits of HCI’s appeal.        HCI contends that

the district court erred by (1) denying its motion for a TRO and


                                    10
preliminary injunction, and (2) dismissing its claims in their

entirety      rather      than    severing      HCI’s      request        for    permanent

injunctive       relief    from     its    otherwise       arbitrable           claims    and

retaining jurisdiction over the resulting “injunction case.”                                  We

address each argument in turn.

                                           A.

     The grant of a preliminary injunction rests in the discretion

of the district court, which is exercised through the balancing of

factors set out in the four-part test in Blackwelder Furniture Co.

v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977), and its progeny.

Under this test, a court should consider (1) the likelihood of

irreparable harm to the plaintiff if a preliminary injunction is

denied,    (2)    the     likelihood       of   harm      to   the    defendant          if    a

preliminary injunction is granted, (3) the likelihood that the

plaintiff will succeed on the merits; and (4) the public interest.

In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir.

2003); see also Blackwelder, 550 F.2d at 196.                         “[T]he plaintiff

bears   the    burden     of     establishing      that    each      of   these     factors

supports      granting     the     injunction.”           Direx      Israel,       Ltd.       v.

Breakthrough      Med.     Corp.,    952    F.2d    802,       812   (4th       Cir.   1991)

(internal quotation marks and alteration omitted).

     In applying the Blackwelder test, “[t]he irreparable harm to

the plaintiff and the harm to the defendant are the two most

important factors.”            Rum Creek Coal Sales, Inc. v. Caperton, 926


                                           11
F.2d 353 (4th Cir. 1991).          If the balance of those two factors

“tips decidedly in favor of the plaintiff, . . . a preliminary

injunction will be granted if the plaintiff has raised questions

going   to   the   merits   so   serious,          substantial,     difficult,        and

doubtful, as to make them fair ground for litigation and thus for

more deliberate investigation.”          Id. (internal quotation marks and

citation omitted).       As the balance tips away from the plaintiff,

however, “a stronger showing on the merits is required.”                       Id.

       With regard to the potential for irreparable harm to HCI, the

district court found that HCI remained free to sell and service

Avaya products, albeit on less favorable terms than it enjoyed as

a Business Partner, and could also pursue strategic alternatives

such    as   expanding   its     sales    and       service   of    PBXs       made   by

manufacturers other than Avaya.               As a result, HCI’s allegations

that it would be driven out of business were not persuasive to the

district court, which concluded that HCI had failed to show that it

would   suffer     irreparable    harm        in    the   absence    of    a    TRO    or

preliminary injunction. The district court also noted that even if

HCI were driven out of business, “it [would] not necessarily follow

that this would constitute irreparable harm,” because the record

suggested that HCI’s damages could be quantified with precision.

(J.A. at 327.)

       On appeal, HCI challenges the district court’s conclusion that

HCI is unlikely to be driven out of business by reasserting that it


                                         12
will “suffer, directly or indirectly, the loss of 95% of its

business” and will “possibly be unable to continue in business.”

(Appellant’s Br. at 16.) HCI does not, however, offer any evidence

to support this allegation.     HCI offers no basis on which we could

conclude that the district court’s finding -- that because HCI

remains free to sell and service PBXs made by Avaya and other

manufacturers, it is unlikely to suffer the devastating loss of

income it alleges -- is clearly erroneous.        To the contrary, HCI,

in arguing that its appeal is not moot, admits that it has retained

its customer base and continues to serve customers that own Avaya

equipment.      And Avaya, for its part, has claimed to have no

interest in abruptly terminating HCI’s service to its existing

customers.     Nothing in the record indicates that Avaya’s position

in this respect has changed.          We therefore conclude that the

district court did not err in finding that HCI failed to show

irreparable harm.7

     The     district   court   was    required   to   “consider   each

[Blackwelder] factor in ruling on [HCI’s] motion for preliminary

injunction.”     Berry v. Bean, 796 F.2d 713, 716 (4th Cir. 1986).

Accordingly, it proceeded to analyze whether, despite HCI’s failure

to demonstrate a probability that it would suffer irreparable harm,


     7
      HCI also contests the district court’s alternative conclusion
that, in HCI’s case, being put out of business would not
necessarily constitute irreparable harm. We need not address this
issue, however, because HCI’s failure to show that it would be put
out of business renders the question academic.

                                  13
the balance of the factors might nevertheless weigh in favor of

issuing an injunction.   See Dan River, Inc. v. Icahn, 701 F.2d 278,

283 (4th Cir. 1983) (stating that “[i]f the likelihood of success

is great, the need for showing the probability of irreparable harm

is less” (internal quotation marks omitted)).

     With regard to HCI’s antitrust claims, the district court

concluded that HCI had “not presented even a ‘serious question’ on

the merits, to say nothing of a likelihood of success.”    (J.A. at

329.)   The district court’s analysis and HCI’s arguments on appeal

focus primarily on HCI’s “tying” claim under Section 1 of the

Sherman Act.   To establish this type of claim, a plaintiff must

show (1) the existence of two separate products, (2) an agreement

conditioning purchase of the tying product upon purchase of the

tied product (or at least upon an agreement not to purchase the

tied product from another party), (3) the seller’s possession of

sufficient economic power in the tying product market to restrain

competition in the tied product market, and (4) a not insubstantial

impact on interstate commerce.     (J.A. at 328 (citing Service &

Training, Inc. v. Data Gen. Corp., 963 F.2d 680, 683 (4th Cir.

1992).) HCI’s tying claim alleged that Avaya conditioned the right

to buy the “equipment, parts and software” it produced upon the

purchase of service contracts from Avaya.    (J.A. at 51, 15.)   The

district court concluded that HCI’s tying claim was unlikely to

prevail because there was “no merit in HCI’s contention that Avaya


                                 14
has market power because it has 100% of the market as defined by

sale of its own products,” and “a more correct relevant market

would be the market for all PBX products,” not just those produced

by Avaya.    (J.A. at 328.)       Because Avaya has only 20% of the

overall PBX market, the district court found it unlikely that HCI

could show Avaya had the requisite market power necessary to

sustain its claim.    The district court also noted that the tying

claim was unlikely to succeed in light of evidence in the record

suggesting   that   companies     other   than    Avaya    provide       76%   of

maintenance services on Avaya equipment in the United States.8

      On appeal, HCI disputes the district court’s conclusions

concerning its likelihood of success on its antitrust claims, but

does not make any arguments regarding its § 1981 and state law

claims.   HCI relies almost entirely on Eastman Kodak Co. v. Image

Technical Servs., Inc., 504 U.S. 451 (1992).              Essentially, HCI

contends that Kodak stands for the proposition that there can exist

two   separate   markets,   one   for   spare    parts   made   by   a    single



      8
      The district court also found that HCI was unlikely to
prevail on its other claims.     It noted that HCI had presented
virtually no evidence to support its § 1981 claim and that HCI had
based its state law claims on Virginia law despite a choice of law
provision in the parties’ contract specifying that New Jersey law
governs the parties’ disputes. Aside from suing under the law of
the wrong state, the district court reasoned that HCI would face
significant hurdles in asserting a claim under the Virginia
Equipment Dealer Protection Act, which only covers farm equipment,
and in pursuing contract/promissory estoppel claims based on
Avaya’s decision to exercise its contractual right to terminate the
December 2005 Agreement on 24-hours notice.

                                    15
manufacturer, and another for the service of that manufacturer’s

equipment, and it is possible to assert antitrust claims alleging

that the manufacturer illegally tied those two markets together or

monopolized the service market.

       Avaya argues that we need not address HCI’s likelihood of

success in establishing a relevant market, because HCI has not

suffered     an   antitrust     injury      and    therefore      lacks     antitrust

standing.     Congress “did not intend the antitrust laws to provide

a remedy in damages for all injuries that might conceivably be

traced to an antitrust violation.”               Associated Gen. Contractors v.

California State Council of Carpenters, 459 U.S. 519, 534 (1983)

(internal quotation marks and citation omitted).                   For a plaintiff

to    have   standing   to    bring    suit      under   the    antitrust    laws,    a

plaintiff must, among other things, have suffered an “antitrust

injury,” that is, an “injury of the type the antitrust laws were

intended to prevent and that flows from that which makes the

defendants’ acts unlawful.”           Brunswick Corp. v. Pueblo Bowl-O-Mat,

Inc., 429 U.S. 477, 489 (1977); see also Deiter v. Microsoft Corp.,

436 F.3d 461, 467 (4th Cir. 2006) (stating that an antitrust injury

is an element of an antitrust plaintiff’s prima facie case).                         As

the    district   court      noted    at   the    motions      hearing,   “antitrust

protects competition, not competitors.”                  (J.A. at 317); see also

Brunswick Corp., 429 U.S. at 488 (stating that “[t]he antitrust




                                           16
laws . . . were enacted for the protection of competition not

competitors” (internal quotation marks omitted)).9

       We agree that HCI will likely prove unable to establish

antitrust standing.           HCI has offered no evidence to suggest that

competition for the provision of service and maintenance of Avaya

PBXs       has   decreased.      Rather,   HCI   bases   its   claims    on   the

possibility that the market may soon have one less competitor: HCI.

We have previously recognized that “the elimination of a single

competitor, standing alone, does not prove [the] anticompetitive

effect” necessary to establish antitrust injury.               Military Servs.

Realty, Inc. v. Realty Consultants of Virginia, 823 F.2d 829, 832

(4th Cir. 1987).        When pressed to identify other competitors who

were in danger of being forced out of business by Avaya’s allegedly

anticompetitive activity, HCI has been unable to do so.                 Instead,

HCI simply referenced the existence of United Asset Coverage, Inc.

v. Avaya, Inc., 409 F. Supp. 2d 1008 (N.D. Ill. 2006), a case Avaya

cited in its appellate brief.         That case, however, does not aid HCI

in establishing an antitrust injury.             The decision, which denied


       9
      Although the district court did not make HCI’s likely
inability to establish antitrust standing an express basis of its
ruling, it expressed skepticism at the motions hearing that HCI had
demonstrated the existence of “a practice . . . that is injurious
to competition.”    (J.A. at 317.)    In its written opinion, the
district court described HCI’s suit as essentially a breach of
contract dispute in which HCI, having chosen to “bite the
proverbial hand that fed it” by pursuing teaming arrangements to
Avaya’s detriment, was not entitled to enjoin Avaya from exercising
its contractual right to terminate its Agreement with HCI. (J.A.
at 331.)

                                        17
United    Asset   Coverage   (“UAC”)’s   motion   for   a    preliminary

injunction, stated that UAC “d[id] not itself provide maintenance

for Avaya PBXs,” and had offered     “no evidence” that the number of

service providers competing with Avaya to provide maintenance

services had decreased.      Id. at 1044.10

     Moreover, the record evidence indicating that 76% percent of

maintenance services on Avaya equipment are not performed by Avaya

undermines HCI’s contention that Avaya has unlawfully inhibited

competition among service providers.      In fact, HCI conceded in its

complaint that Avaya “lacks power in the market for installation,

maintenance and support services for its equipment,” and alleged

that Avaya frequently came in second to HCI and its teaming

partners in competition due to HCI’s superior reputation for

service, lower overhead, and status as a minority contractor.

(J.A. at 15.)     HCI simply cannot turn Avaya’s termination of its

Reseller Agreement into an antitrust violation.             Accordingly,



     10
      At oral argument, HCI’s counsel also claimed that there were
“other cases . . . pending around the country with several other
Business Partners who got into the bad graces of Avaya for reasons
similar to [HCI]’s” and claimed to have seen documents indicating
that the number of Avaya Business Partners has decreased from
approximately 1500 to roughly 300. HCI did not, however, provide
any supporting documentation to the court. And vague allusions to
other Business Partners falling into Avaya’s “bad graces” are not
probative of an injury to competition caused by an attempt to
restrain trade. To the contrary, they suggest, if anything, that
the Business Partners Avaya terminated did not fall victim to a
generalized scheme to eliminate competition, but rather took some
action that prompted Avaya to reconsider its relationship with
those particular resellers.

                                   18
because HCI is unlikely to establish antitrust standing, we agree

that HCI has not raised a serious question, let alone demonstrated

a likelihood of success, on the merits of its antitrust claims.

      HCI also contends that the district court gave too little

weight to two factors -- the public interest and the harm to Avaya

-- in concluding that HCI was not entitled to an injunction.              HCI

argues that the public interest would be served by a grant of

temporary injunctive relief, because HCI provides services to

government customers, including the Department of Homeland Security

(DHS) and the White House, and the public has a strong interest in

ensuring     that    these   customers’      phone    service       continues

uninterrupted.      The district court did not explicitly address this

contention, but implicitly rejected HCI’s argument by finding that

HCI could continue to service its customers’ Avaya PBXs, albeit on

less favorable terms. As discussed above, HCI continues to provide

maintenance services to its existing customers, and Avaya has no

interest in causing an abrupt termination of service to these

customers.      Thus, HCI has failed to establish that the public

interest would be served by an injunction.

      According to HCI, an injunction is nevertheless warranted,

because it is clear that Avaya will suffer no harm at all if a TRO

or   preliminary     injunction   is    granted.     This   claim    is   also

unfounded.    First, HCI cites no authority that would support the

conclusion that a district court abuses its discretion by denying


                                       19
an injunction to a plaintiff that has not shown that it faces

irreparable harm, that it is likely to succeed on the merits, or

that the public interest would be served if the requested relief

were granted simply because the defendant faces little or no harm.

Second, HCI has admittedly used its status as an Avaya Business

Partner to act as a subcontractor by reselling Avaya services to

other resellers, a practice that Avaya considers subversive to its

business model and that is therefore prohibited by the parties’

contract.   Accordingly, Avaya faces harm from the imposition of an

injunction, as a grant of injunctive relief would effectively force

Avaya to continue to deal with a reseller that refuses to comply

with Avaya’s business model, but without the protections contained

in the terminated Reseller Agreement.   Cf. Roland Machinery Co. v.

Dresser Indus., Inc., 749 F.2d 380, 392 (7th Cir. 1984) (concluding

that forcing a manufacturer who had entered into a contract that

was of short duration and subject to short cancellation notice as

a means of protecting its right to “use its own judgment with

respect to those whom it wishes to appoint as its dealers” would

endure a “great hardship” if forced to continue for an indefinite

number of years a relationship with a dealer with whom it no longer

wished to be associated).

                                 B.

     We now turn to HCI’s argument that the district court erred in

dismissing its claims in their entirety, because the parties’


                                 20
December 2005 Agreement excludes claims for injunctive relief from

the   Agreement’s   mandatory   arbitration   clause.     The   Agreement

provides that “all Disputes must be finally resolved by binding

arbitration,” but also contains a provision stating that “[e]ither

party may, at its sole discretion and at any time during the

dispute resolution process, seek injunctive relief in any court of

competent jurisdiction (including but not limited to preliminary

injunctive relief).”    (J.A. at 179.)    HCI interprets this language

to allow its “injunction case” to remain before the district court.

HCI thus contends that the district court should have severed its

requests   for   permanent   injunctive   relief   from   the   otherwise

arbitrable claims and either proceeded on the merits or stayed the

“injunction case” pending arbitration.11

      Because HCI did not make this argument before the district

court, it is waived.    See Muth v. United States, 1 F.3d 246, 250

(4th Cir. 1993) (stating that “issues raised for the first time on

appeal generally will not be considered” and “exceptions to this

general rule are made only in very limited circumstances, such as

where refusal to consider the newly raised issue would be plain


      11
      HCI uses the term “claim” in reference to the relief
requested on each cause of action, not the cause of action itself.
HCI included permanent injunctive relief among the remedies
requested on every count included in its complaint; it is not
arguing that the district court could properly dismiss some counts
but not others. Rather, HCI contends that the district court was
required to sever each cause of action according to the relief
requested and conduct a parallel proceeding on HCI’s “injunction
case” while the arbitrator determined HCI’s entitlement to damages.

                                   21
error or would result in a fundamental miscarriage of justice”).

HCI had ample opportunity to raise this issue after the district

court dismissed seven of its claims and requested supplemental

briefing on the arbitrability of its antitrust claims. In inviting

the parties to file supplemental briefs, the district court made

clear that the issue to be addressed was “whether the parties’

obligation    to   go   to     arbitration   .   .   .    includes     the   federal

antitrust claims.”           (J.A. at 319.)        HCI argued only that the

antitrust    claims     were    not   arbitrable     as   a   matter    of   law   (a

contention it does not reassert on appeal). It never asserted that

its obligation to arbitrate the dispute did not apply to the extent

that HCI sought injunctive relief as a remedy to an otherwise

arbitrable claim.       Accordingly, there is no reason to abandon the

general rule barring consideration of issues raised for the first

time on appeal.12




     12
      We note that HCI argues only that it is not required to
arbitrate its “injunction case,” not that injunctive relief would
be unavailable in arbitration.     We have previously noted that
“[a]rbitrators enjoy broad equitable powers” and “may grant
whatever remedy is necessary to right the wrongs within their
jurisdiction.” Gilmer v. Interstate/Johnson Lane Corp., 895 F.2d
195, 199 (4th Cir. 1990), aff’d, 500 U.S. 20 (1991). Although the
December 2005 Agreement limits the arbitrator’s authority to award
damages, it does not restrict the arbitrator’s ability to grant
injunctive relief if necessary.

                                        22
                                   IV.

      In sum, we conclude that the district court did not abuse its

discretion in denying HCI’s motion for a TRO and preliminary

injunction. We also conclude that HCI has waived its argument that

the   district   should   have   severed   its   request   for   permanent

injunctive relief from its otherwise arbitrable claims and allowed

the resulting “injunction case” to proceed before the court.           We

therefore affirm the district court’s orders denying HCI’s motion

for a TRO and preliminary injunction and dismissing HCI’s claims

pursuant to the parties’ arbitration agreement.

                                                                  AFFIRMED




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