                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



 JURRIAAN STROBOS,

          Plaintiff,
                 v.                                           Civil Action No. 15-1994 (JEB)
 RXBIO, INC.,

          Defendant.


                           MEMORANDUM OPINION AND ORDER

        Plaintiff Jurriaan Strobos claims that Defendant RxBio, Inc. owes him nearly $700,000 in

unpaid salary, expenses, and severance pay. See ECF No. 1 (Complaint), ¶¶ 36, 41. Defendant,

in turn, counterclaims that it is Strobos – not the Company – who has violated their employment

agreement by, inter alia, retaining certain documents that he should have returned after resigning

from his post. See ECF No. 6 (Answer) at 24, 33-34. Rather than await a ruling on the merits of

these claims, both sides now move for preliminary-injunctive relief. See ECF Nos. 25 (Motion),

32 (Cross-Motion). Having held a hearing on December 16, 2016, at which the Court announced

that it would deny both Motions, it now explains in more detail why neither side has shown a

likelihood of irreparable harm.

I.      Legal Standard

        “[I]njunctive relief” is “an extraordinary remedy that may only be awarded upon a clear

showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish [1] that he is

likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of

preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in

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the public interest.” Id. at 20. Before the Supreme Court’s decision in Winter, courts weighed

the preliminary-injunction factors on a sliding scale, allowing a weak showing on one to be

overcome by a strong showing on another. See, e.g., Davenport v. Int’l Bhd. of Teamsters, 166

F.3d 356, 360-61 (D.C. Cir. 1999). This Circuit, however, has suggested, without deciding, that

Winter should be read to abandon the sliding-scale analysis in favor of a “more demanding

burden” requiring plaintiffs to independently demonstrate both a likelihood of success on the

merits and irreparable harm. See Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011)

(quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). Whether

a sliding-scale analysis still exists or not, courts in our Circuit have held, both before and after

Winter, that “if a party makes no showing of irreparable injury, the court may deny the motion

for injunctive relief without considering the other factors.” Dodd v. Fleming, 223 F. Supp. 2d

15, 20 (D.D.C. 2002) (citing CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747

(D.C. Cir. 1995)); see Safari Club Int’l v. Jewell, 47 F. Supp. 29, 32 n.5 (D.D.C. 2014).

II.    Analysis

       As neither party here has shown that its asserted injuries form a basis for preliminary

relief, the Court need only discuss this factor and will not engage in an analysis of the merits of

the litigants’ claims. It considers each side’s Motion in turn.

       A. Plaintiff’s Motion

       Strobos seeks an injunction directing Defendant to preserve certain funds that it was

recently paid on a government contract so that the Company will be able to pay a future

judgment for his deferred wages. See Mot. 2. In the absence of such relief, he maintains that he

will lose out on the sums he is due because RxBio is on the verge of insolvency and may transfer




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the funds – owed to him under his employment contract – to other creditors. Id. The likelihood

he may never obtain his money, he believes, constitutes irreparable injury.

       The law of this Circuit, however, is clear that “[a]n injunction freezing assets is only

permissible when a party has demonstrated an equitable claim to the assets.” Ellipso, Inc. v.

Mann, 480 F.3d 1153, 1160 (D.C. Cir. 2007) (emphasis added) (citing Grupo Mexicano de

Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 310, 332-33 (1999)); see also United

States ex rel. Rahman v. Oncology Assos., P.C., 198 F.3d 489, 497 (4th Cir. 1999) ("[W]e must

begin with an analysis of the claims in [this] suit to determine whether they seek cognizable

relief in equity involving assets of the defendant."). The Supreme Court in Grupo Mexicano

previously indicated that federal “courts cannot issue preliminary injunctions based solely on the

solvency of debtors where the plaintiffs’ underlying claims primarily seek monetary damages,”

rather than equitable relief. Vis Vires Grp. v. Endonovo Therapeutics, Inc., 149 F. Supp. 3d 376,

393 (E.D.N.Y. 2016) (citing Grupo Mexicano and collecting cases); Oak Leaf Outdoors, Inc. v.

Double Dragon Int’l, Inc., 812 F. Supp. 2d 944, 947 (C.D. Ill. 2011) (“As Grupo Mexicano

makes clear, this Court does not have the authority to issue a preliminary injunction preventing

Oak Leaf from disposing of its assets – in the form of a constructive trust, escrow, asset freeze,

or some other similar relief – pending adjudication of DDI’s contract claim for money

damages.”).

       Plaintiff’s Complaint here has asserted no equitable claim to the money he now seeks to

encumber. It instead asserts a right only to damages under a breach-of-contract theory or,

alternatively, under a District of Columbia law that prevents the dilatory payment of wages. See

Compl., ¶¶ 37-41 (Breach of Contract), ¶¶ 42-47 (D.C. Wage Payment and Collection Law).

Neither of these claims sounds in equity. As a result, Grupo Mexicano and the law of this



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Circuit foreclose issuance of the preliminary injunction he seeks. See 527 U.S. at 332 (holding

federal courts lack authority to freeze assets in action for money damages where no lien or

equitable interest in assets is claimed).

       Perhaps recognizing the writing on the wall, Plaintiff nevertheless seeks to advance two

arguments in his Reply to distinguish his case from the holding in Grupo Mexicano. He first

asserts, in conclusory fashion, that “[u]nder RxBio’s theory of the [employment]

agreement . . . [,] the Court can find that [he] has asserted an equitable lien on the money at

issue.” ECF No. 34 (Reply) at 9. In other words, by his Reply, he requests that the Court

transform this preliminary-injunction Motion into one for an equitable lien on the Company’s

monetary assets. Id. This entreaty, though, comes too late. See Aleutian Pribilof Islands Ass’n,

Inc. v. Kempthorne, 537 F. Supp. 2d 1, 12 n.5 (D.D.C. 2008) (“[I]t is a well-settled prudential

doctrine that courts generally will not entertain new arguments first raised in a reply brief.”)

(citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)). Strobos, moreover,

nowhere describes what would be legally required for such a lien, nor does he make any effort to

argue that he qualifies for one on the facts of this case. See Johnson v. Panetta, 953 F. Supp. 2d

244, 250 (D.D.C. 2013) (explaining courts need not construct party’s legal arguments, for

“perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent

authority, are deemed waived”). His first salvo thus fails to develop a viable argument to

circumvent Grupo Mexicano.

       Strobos next asserts, again in rather conclusory fashion, that his second cause of action

under the D.C. Wage Payment and Collection Law “specifically provides the Court with the

ability to grant” the preliminary-injunctive relief that he seeks. See Reply at 9-10. In support, he

cites to a portion of that Act that provides:



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               Any employee or person aggrieved by a violation of this chapter
               . . . may bring a civil action in a court of competent jurisdiction
               against the employer or other person violating this chapter . . . and,
               upon prevailing, shall be awarded reasonable attorneys’ fees and
               costs and shall be entitled to such legal or equitable relief as may be
               appropriate to remedy the violation, including, without limitation,
               the payment of any back wages unlawfully withheld, reinstatement
               in employment, and injunctive relief.

D.C. Code § 32-1308(a)(1) (emphases added). This statutory authority, he claims, renders his

case more similar to United States v. First National City Bank, 379 U.S. 378 (1965), than to

Grupo Mexicano. See Reply at 10. In First National, the Supreme Court did in fact uphold a

preliminary injunction freezing the transfer of assets of a debtor held at a third-party bank in a

suit brought by the United States to enforce a tax assessment and tax lien. Id. Citing a statutory

provision that gave district courts the power to grant injunctions “necessary or appropriate for the

enforcement of the internal revenues laws,” the Court reasoned that preliminary relief was

“appropriate to prevent [both] further dissipation of assets” and foreign taxpayers from avoiding

tax obligations. Id. at 380, 385. Grupo Mexicano, moreover, distinguished First National’s

holding, rather than abrogating it. See 527 U.S. at 326.

       Plaintiff, however, overlooks key details in making his two-sentence argument on this

score. At the outset, the statute considered in First National was quite different from the D.C.

Code provision that he cites here. The First National provision specifically provided that federal

courts would have jurisdiction “to make and issue in civil actions, writs and orders of injunction

. . . and such other orders and processes, and to render such judgments and decrees as may be

necessary or appropriate for the enforcement of the internal revenue laws.” 379 U.S. at 388 n.3

(Harlan, J., dissenting) (quoting 26 U.S.C. § 7402(a) (1964 ed.)) (emphases added). Here, the

D.C. provision Strobos cites mentions only that injunctive relief may be issued after a Plaintiff

first “prevail[s]” on his claim. See D.C. Code § 32-1308(a)(1) (emphasis added). Strobos makes

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no effort to discuss the potential import of this language and points to no District of Columbia

court that has issued the sort of relief he seeks prior to a valid judgment. To the extent that he

hopes by this passing reference to go beyond Grupo Mexicano’s holding by invoking as well the

potentially thorny issue of whether a federal court sitting in diversity may, under Erie R. Co. v.

Tompkins, 304 U.S. 64 (1938), expand its general equity powers based on the law of the forum

State, the Court will not both construct and then consider such an argument for him. See, e.g.,

Grupo Mexicano, 527 U.S. at 318 n.3 (declining to consider same where not raised by parties).

       As the Supreme Court itself has explained, moreover, the situation that it faced in First

National was distinguishable from the one it considered in Grupo Mexicano on other critical

grounds, which Strobos fails to acknowledge do not apply to his request here. In particular, both

in granting the preliminary injunction in First National and in later affirming the propriety of that

decision, the Supreme Court noted that “[c]ourts of equity may, and frequently do, go much

farther both to give and withhold relief in furtherance of the public interest than they are

accustomed to go when only private interests are involved.” 379 U.S. at 383 (quoting Virginian

Ry. Co. v. Sys. Fed’n, 300 U.S. 515, 552 (1937)); Grupo Mexicano, 527 U.S. at 326. Federal

courts have since found this to be a dispositive factor when considering the propriety of

preliminary-injunctive relief in cases that do involve the public interest like First National, as

opposed to private claims like those at issue in Grupo Mexicano. See, e.g., Rahman, 198 F.3d at

494-97. No public interest is implicated by the private employment dispute at issue in this case,

and it thus more closely fits in the Grupo Mexicano camp.

       Strobos also seems unlikely on the current record to be able to solve this problem simply

by amending his Complaint to assert an equitable claim to the assets he hopes to freeze. This is

because he appears to have no equitable interest in any specific monies held by the Company.



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Indeed, he is but one of several employees, along with other creditors, who might hope that

Defendant will use sums – reimbursed to the Company via its settlement with the government –

to pay an eventual legal judgment for monetary damages before any prospective insolvency. As

a result, Strobos’s case is distinct from the types of cases, like First National, where the Court

has affirmed the authority of a federal court to enter an injunction “in aid of the recovery sought

by the bill.” Deckert v. Indep. Shares Corp., 311 U.S. 282, 289 (1940) (authorizing injunction

freezing assets to aid in granting the ultimate equitable relief of rescission); see De Beers Consol.

Mines, Ltd. v. United States, 325 U.S. 212, 220 (1945) (confirming “preliminary injunction is

always appropriate to grant intermediate relief of the same character as that which may be

granted finally,” but denying injunction to freeze assets where pending adjudication of the merits

lay “wholly outside the issues in the suit”). Although he further claimed at oral argument and in

his Complaint, moreover, that the funds were essentially earmarked for him as part of an earlier

contract with the government, he does not point to evidence in the record to support such a

claim, nor does he discuss how any such earmarking might give rise to an equitable interest or

what impact the subsequent settlement might then have had on this interest.

       The gravamen of Plaintiff’s case, then, whether under a breach-of-contract theory or the

D.C. statutory claim, is for simple money damages, not vindication of an equitable interest in any

particular assets he seeks to encumber. See Deckert, 311 U.S. at 289 (describing “principal

object” of suit as rescission and restitution); see also Rahman, 198 F.3d at 494-97 (discussing

difference between equitable interest and money damages). Strobos’s claim to these monies, as

with the Grupo Mexicano plaintiffs, is simply one of a “general creditor (one without a

judgment)[, who] ha[s] no cognizable interest, either at law or in equity, in the property of his

debtor, and therefore c[an] not interfere with the debtor’s use of that property” prior to obtaining



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a judgment. See 527 U.S. at 319-20. As a result, Strobos fails to convince the Court that he is

entitled to the “extraordinary remedy” of a preliminary injunction freezing Defendant’s assets

prior to a judgment. Winter, 555 U.S. at 24.

       B. Defendant’s Motion

       Defendant likewise falls short in asserting its two bases for an injunction. It first

demands that Plaintiff escrow funds in anticipation of a judgment against him. As just discussed

for Strobos, RxBio has similarly put forward no equitable claim to the money it seeks from

Plaintiff. Its Counsel admitted as much at the hearing. In addition, it makes no real effort to

demonstrate that Strobos is in any way likely to be insolvent. Ellipso, 480 F.3d at 1160.

       Defendant’s second request, too, is built on a faulty premise. RxBio contends that it will

suffer irreparable harm if Strobos does not hand over documents he has retained because he

expressly agreed it would be so harmed by a clause in his employment contract. See Cross-Mot.

at 18-19. Such a provision, however, is “an insufficient prop” upon which to rest its cause here.

Smith, Bucklin & Assos., Inc. v. Sonntag, 83 F.3d 476, 481 (D.C. Cir. 1996); see also Dominion

Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1266 (10th Cir. 2004) (collecting

cases for proposition that such a contract clause is insufficient to warrant preliminary injunction

absent actual evidence of irreparable harm). In its rather short briefing of the issue, moreover,

RxBio fails to further describe the nature of the documents that it seeks or explain in any detail

how disclosure of those documents might irreparably harm its business beyond a vague claim

that they might contain “intellectual property” that is essential to its work. See Cross-Mot. at 18-

19. The Company also makes no effort to show that Strobos is likely to release any documents

of this sort to others, especially given the criminal penalties to which such an act might give rise

by Defendant’s own telling in its brief. Id. (citing penalties). Finally, Strobos has attested that



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he has turned over any such proprietary information in his possession and stands willing to

destroy any overlooked documents that the Company nevertheless reasonably identifies. See

ECF 35-2 (Declaration of Jurriaan Strobos), ¶¶ 17-20.

       In the absence of any showing, then, that RxBio has a likelihood of harm from his

holding on to any such vague and as-yet unidentified documents a bit longer, the Court must

conclude that Defendant fails to meet its burden for preliminary relief here.

III.   Conclusion

       The Court therefore ORDERS that:

       1. Plaintiff’s Motion for Preliminary Injunction is DENIED; and

       2. Defendant’s Cross-Motion for Preliminary Injunction is DENIED.

       SO ORDERED.

                                                     /s/ James E. Boasberg
                                                     JAMES E. BOASBERG
                                                     United States District Judge
Date: December 27, 2016




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