                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 17 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


EAGLE VIEW TECHNOLOGIES, INC.,                    No. 13-35014

              Plaintiff - Appellant,              D.C. No. 2:12-cv-01913-RSM

  v.
                                                  MEMORANDUM*
XACTWARE SOLUTIONS, INC.,

              Defendant - Appellee.


                   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


        *
             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.
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


                                           2
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


                                            4
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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