779 F.2d 51
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.HIGHWAY EQUIPMENT COMPANY, Plaintiff-Appellant,v.CATERPILLAR TRACTOR COMPANY; CATERPILLAR OF DELAWARE, INC.,Defendants-Appellees.
85-3510
United States Court of Appeals, Sixth Circuit.
10/25/85

APPEAL DISMISSED
S.D.Ohio
ORDER
BEFORE:  ENGEL, KEITH and KRUPANSKY, Circuit Judges.


1
This matter is before the Court on the motion of appellee Caterpillar Tractor Co.  (Caterpillar) to dismiss the appeal as moot.  The appellant has responded in opposition thereto.


2
Appellant's complaint, filed March 29, 1985, sought to enjoin Caterpillar from terminating two contracts which authorized appellant to provide service for and sales of Caterpillar products.  Appellant also sought damages for wrongful termination of the contracts.  The district court denied appellant's motion for a preliminary injunction which would have enjoined Caterpillar from taking any action pursuant to its termination of the contracts.  Appellant appealed from that order and moved the district court for an injunction pending appeal.  By notation order, the district court denied the motion for injunction pending appeal.


3
On July 2, 1985, appellant moved this Court for an injunction pending appeal.  By order of August 2, 1985, this Court denied the motion.  Appellee now seeks to have the appeal dismissed as moot.


4
Appellee's motion to dismiss is based on the contention that the appeal is moot because the action appellant sought to enjoin--termination of the contracts--has already occurred.  As evidenced by the documentation tendered to this Court, it is clear that Caterpillar has terminated the contracts with appellant and contracted with another entity to act as the authorized Caterpillar dealer in southwestern Ohio.  The appeal, prosecuted solely from the district court order denying appellant's motion for a preliminary injunction, is moot because the action sought to be enjoined has already occurred.  See City of Romulus v. County of Wayne, 634 F.2d 347 (6th Cir. 1980).


5
The dismissal of the appeal will have no effect on appellant's claim for damages as requested in the complaint.  The merits of the litigation have not been disposed of in the district court.


6
For the foregoing reasons, it is ORDERED that the appeal be and hereby is dismissed.

