Defendant Swiderek has appealed to this court from the district court's grant of a preliminary injunction which prohibited Swiderek from printing, publishing, or selling a book of lock and key code numbers in competition with a book copyrighted by plaintiff Medeco. The books inform locksmiths how to produce various keys to fit Medeco's "high-security" locks and for many years Medeco has made its code book available only to those locksmiths who have purchased Medeco's key-making machines. Appellant contends that he obtained the
We do not believe the district court's granting of an injunction can be upheld. Our conclusion is not based upon the court's opinion on the merits of this controversy, but rather concerns the procedures utilized by the court in granting the injunction. It is well established that, in general, a motion for a preliminary injunction should not be resolved on the basis of affidavits alone. Normally, an evidentiary hearing is required to decide credibility issues. Forts v. Ward, 566 F.2d 849, 851 (2d Cir.1977) (citations omitted); Marshall Durbin Farms, Inc. v. National Farmers Org., Inc., 446 F.2d 353, 356 (5th Cir. 1971); Consolidation Coal Co. v. Disabled Miners of So. W. Va., 442 F.2d 1261, 1269-70 (4th Cir. 1971), cert. denied, 404 U.S. 911, 92 S.Ct. 228, 30 L.Ed.2d 184; SEC v. Great American Indus., Inc., 407 F.2d 453 (2d Cir. 1968), cert. denied, 395 U.S. 920, 89 S.Ct. 1770, 23 L.Ed.2d 237 (1969); Detroit & Toledo Shore Line R. Co. v. Bro. of Loc., F. & E., 357 F.2d 152 (6th Cir. 1966). The seminal case in this area is Sims v. Greene, 161 F.2d 87 (3d Cir. 1947), where the court held that a hearing was required prior to the issuance of a preliminary injunction when the pleadings and affidavits were conflicting:
Id. at 88 (footnotes omitted). This holding was reaffirmed in SEC v. Frank, 388 F.2d 486 (2d Cir. 1968), where the court applied a sliding-scale test to the question of whether or not a hearing must be provided on a motion for a preliminary injunction. Judge Friendly in writing for the court noted that the issue manifested the tension between the need for speedy action and the desire for certainty and complete fairness, and recognized that a hearing may not be necessary in those cases where the issues are clear and not in serious dispute (e.g., Socialist Workers Party v. Ill. St. Board of Elections, 566 F.2d 586, 587 (7th Cir. 1977), aff'd, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979); San Francisco-Oakland Newspaper Guild v. Kennedy, 412 F.2d 541, 546 (9th Cir. 1969)). However, in those cases where "everything depends on what happened and that is in sharp dispute," the court found "the inappropriateness of proceeding on affidavits attains its maximum...." 388 F.2d at 490-91.
We conclude that the application of these tests to the present case requires the holding of an evidentiary hearing prior to the issuance of the preliminary injunction. Here, the trial court's decision was reached without the holding of any hearing whatsoever and in the absence of any affidavits or even a verified complaint. The "facts" that the district court determined did not support appellant's defense were derived solely from the direct examination of appellant by Medeco during appellant's deposition, and the consequent "cross" examination of appellant by his own counsel. This foundation for the trial court's conclusion regarding the merits of appellant's defense was insufficient. Dopp v. Franklin National Bank, 461 F.2d 873, 879 (2d Cir. 1972). Practitioners rarely engage in extensive interrogation of their clients at depositions
VACATED AND REMANDED.