OPINION OF THE COURT
SEITZ, Circuit Judge.
This is an appeal from an order of the district court, 320 F.Supp. 816, granting plaintiff's motion for a preliminary injunction against defendant's licensing or contracting to license the showing of a particular motion picture at any theatre within the Philadelphia area other than that owned by plaintiff.
In April of 1970, defendant (Columbia), a motion picture distributor, granted to plaintiff (The 1812), the owner and operator of The 1812 Theatre, a license for the exclusive first-run Philadelphia exhibition of a motion picture entitled "Husbands." Shortly after the licensing agreement was executed, however, Columbia notified The 1812 that it would not be able to deliver "Husbands" on or about the proposed delivery date of July 8, 1970
After a hearing on plaintiff's motion for a preliminary injunction, the district court interpreted the licensing agreement as not being subject to termination by Columbia merely because of the producer's
As a prerequisite to the issuance of a preliminary injunction the moving party must generally show: (1) a reasonable probability of eventual success in the litigation, and (2) that it will be irreparably injured pendente lite if relief is not granted to prevent a change in the status quo. Ikirt v. Lee National Corp., 358 F.2d 726, 727 (3d Cir. 1966). In applying these criteria, a district court must have considerable discretion because of the infinite variety of situations which may confront it. Nevertheless, its discretion is not unlimited and must be guided by the traditional principles of equity. Without reaching the substantial question of contractual interpretation decided by the district court, we find that plaintiff has failed to satisfy the second of the above prerequisites for interlocutory injunctive relief.
Admittedly, the denial of a preliminary injunction in this case would permit Columbia to resolicit bids on "Husbands," with the resulting possibility that plaintiff's asserted rights to the film will be lost. This injury cannot be considered "irreparable," however, unless plaintiff demonstrates that its legal remedies are either inadequate or impracticable. Generally speaking a breach of contract results in irreparable injury warranting equitable relief in two types of cases:
4 Pomeroy, Treatise on Equity Jurisprudence § 1401, at 1033-34 (5th Ed. 1941) (emphasis in original); see Philadelphia Ball Club v. Lajoie, 202 Pa. 210, 51 A. 973, 974 (1902).
Against this legal background, plaintiff asserts that its injury from the denial of a preliminary injunction cannot be adequately compensated by monetary damages because "Husbands," like all movies, is a unique production which will have a distinctive effect upon The 1812's "theatre momentum." Plaintiff further contends that damages would be impracticable because, if The 1812 does not acquire this particular picture, the value of its lost "momentum" will be impossible to calculate with any reasonable degree of certainty. Despite these contentions,
It is true that every motion picture is unique in the sense that no two are identical, but such a characterization does not end our inquiry since the inability to obtain a particular film does not of itself show that "nothing can answer the justice of the case but the performance of the contract in specie * * *." Philadelphia Ball Club v. Lajoie, supra at 974. Here, although the parties entered into a commercial contract whose primary purpose was one of mutual pecuniary benefit, The 1812 maintains that "Husbands" has a value which is so extraordinary that the theatre's mere recovery of lost profits would be inadequate. In so doing, it seizes upon what it describes as a definite, though intangible, asset known as "theatre momentum." The 1812 argues that there is intense competition among "first-class" motion picture theatres to create a special image which will enhance their drawing power. If large numbers of people are attracted to one particularly outstanding movie, plaintiff says, they will also gain an impression of the theatre's atmosphere, personnel, and type of clientele and will be exposed to trailers of coming attractions so that they will later return to the same theatre on the strength of its image as a pleasant place where fine pictures are shown. Plaintiff describes this combination of circumstances as similar to good will in that it promotes the forward movement of the theatre's business by maintaining and increasing patronage. Each good picture, it says, adds an increment to the momentum, and a withholding of any increment will in some way forever retard the growth of momentum.
Even assuming that an asset such as theatre momentum does exist and that its value is not measurable in monetary terms, the record here does not disclose that plaintiff's failure to acquire "Husbands" will cause any irreparable damage to this asset. Although, as previously stated, all motion pictures are somewhat "unique," certainly some pictures are fungible with respect to their effect upon theatre momentum.
Thus, even if a breach of contract is ultimately found, the only cognizable injury which The 1812 has established that it may sustain is a loss of income — the difference between the income which could have been earned by showing "Husbands" as contracted for and that actually earned during the same period. This is capable of measurement and can adequately be remedied by monetary damages if The 1812 succeeds on the merits. D.W.H. Corp. v. Twentieth Century-Fox Film Corp., 182 F.Supp. 912, 913 (E.D.Pa.1960). In addition, we see nothing to prevent The 1812 from successfully rebidding for "Husbands"
Because there is no evidence that plaintiff will be irreparably injured pendente lite by the denial of interlocutory relief, we find that the district court abused its discretion in preliminarily enjoining Columbia's resolicitation of bids.
The order of the district court will be reversed.
In its request for new bids, Columbia will propose a guaranteed minimum run of 12 weeks instead of 8 weeks as guaranteed in its agreement with The 1812. There will also be a proposed minimum monetary guarantee by the exhibitor to Columbia of $150,000. The agreement with The 1812 contains no such provision.