IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS
 
S. Ct. Case No. 2006-008
High Ct. Civil No. 2005-078

HAROLD NUKA / TOSHIKO NUKA
Plaintiff-Appellee,

-v-

REMA MORELIK, RINTA MORELIK, YODA NYSTA, and THE SECRETARY OF FINANCE,
Defendant-Appellant.

ORDER DENYING INJUNCTION

NOVEMBER 13, 2007

CADRA, C.J.

SUMMARY:
 Appellant requests the Supreme Court enjoin the Secretary of Finance from disbursing senior dri jerbal interest payments that the High Court ordered be paid to Appellee in accordance with the Traditional Rights Court's findings. The Supreme Court invoked its jurisdiction to entertain the motion for relief under Supreme Court Rule 8(a)(2)(A), but denied the motion, finding no threat of irreparable injury or harm. 

DIGEST:

1. APPEAL AND ERROR - Injunction Pending Appeal: The standard for granting a preliminary injunction governs a motion for stay or injunction pending appeal under Rule 8, Supreme Court Rules of Procedure. 

2. INJUNCTION - Preliminary Injunction: A party seeking a preliminary injunction must fulfill one of two standards: "traditional" or "alternative." Under the traditional standard, a court may issue preliminary relief if it finds that (1) the moving party will suffer irreparable injury if the relief is denied; (2) the moving party will probably prevail on the merits; (3) the balance of hardships favors the moving party; and (4) the public interest favors granting relief. Under the alternative standard, the moving party may meet its burden by demonstrating either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions exist and the balance of hardships tips sharply in its favor. 

3. INJUNCTION - Preliminary Injunction: Mere financial injury does not constitute irreparable harm if adequate compensatory relief will be available in the course of litigation.

I. INTRODUCTION/BACKGROUND 
 Defendant/Appellant Rema Morelik filed an "Application for an Injunction Pending Appeal" (Application) on October 11, 2007. Defendant's "Application" seeks an order pursuant to Supreme Court Rules of Procedure, Rule 8, "prohibiting and enjoining the Secretary of Finance from disbursing payments for the Senior Dri Jerbal share for Tolen Railk weto, Kio Island, and Ennylebagan (Carlos) Island, Kwajalien Atoll." The "Application" has been opposed by plaintiff/appellee Harold Nuka.

 The pertinent facts made available by the parties' briefing indicate that the High Court entered a judgment on September 22, 2006 against defendant/appellant. That judgment accepted the unanimous finding and opinion of the Traditional Rights Court plaintiff Toshiko Nuka is (was) the proper person to hold the Senior Dri Jerbal right, title and interest to the above referenced wetos; not defendant/appellant Rema Morelik. The High Court accordingly ordered that the Senior Dri Jerbal payments for these wetos, which had been held in escrow, be paid to Harold Nuka, the successor in interest to plaintiff Toshiko Nuka. 

 Defendant Rema Morelik filed a "Request for Stay of Judgment" which was denied by the High Court on September 26, 2006.

 Defendant then filed an "Application for Stay of the Judgment Pending Appeal" pursuant to Supreme Court Rule of Procedure 8 with the High Court on October 6, 2006. An Opposition was filed by plaintiff on October 8, 2006. There is no indication in the parties' briefing that defendant's "Request for Stay of Judgment" was ruled upon by the High Court.

 Defendant brings the instant "Application" claiming that it is "not practicable" to seek relief from the High Court. [(Rule 8(a)(2)(a)]. While the undersigned is not convinced that it is "not practical" to seek an order from the High Court enjoining disbursement of future payments (especially if there is a pending motion or application before the High Court), neither party claims the instant application is improperly before the Supreme Court. In the interests of expediting a decision, the undersigned addresses this "Application" as a single judge pursuant to Supreme Court Rule of Procedure 27(c) subject to the right of the adversely affected party to seek full panel review.

II. DISCUSSION
A.	 The legal standard for ruling on the instant motion/application.

[1] The parties agree that the standard for granting a preliminary injunction should govern resolution of the present "Application."

[2] A party seeking a preliminary injunction must fulfill one of two standards, described in the Ninth Circuit as "traditional" and "alternative." Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987). Under the traditional standard, a court may issue preliminary relief if it finds that (1) the moving party will suffer irreparable injury if the relief is denied; (2) the moving party will probably prevail on the merits; (3) the balance of hardships favors the moving party; and (4) the public interest favors granting relief. Id. Under the alternative standard, the moving party may meet its burden by demonstrating either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions exist and the balance of hardships tips sharply in its favor. This latter formulation represents two point on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d 1374, 1376 (9th Cir. 1985).

 For purposes of ruling on the instant application, the parties agree to application of the "traditional test." In applying the "traditional test," this Court need not make findings on whether the defendant has demonstrated a "strong likelihood of success on the merits" or "whether the public interest favors granting the injunction" because there has been an inadequate showing of "irreparable harm."

B.	 Defendant has failed to make an adequate showing of "irreparable harm" which would justify granting the "Application."

 Defendant is seeking restraint of payment of the Senior Dri-Jerbal's share of payments (money) due on the subject wetos. It is defendant's financial interest in these payments which defendant seeks to protect by the requested relief.

[3] It is clear that mere financial injury does not constitute irreparable harm if adequate compensatory relief will be available in the course of litigation. Sampson v. Murray, 415 U.S. 61, 89-90, 39 L.Ed.2d 166, 94 S.Ct. 937 (1974); Goldie's Bookstore v. Superior Court of the State of California, 739 F.2d 466, 471 (9th Cir. 1984).

 Should defendant prevail on appeal and ultimately be determined entitled to the subject payments, the court can enter a judgment against plaintiff for the amount of those payments wrongfully received plus interest. Defendant has an adequate remedy at law. While a preliminary injunction may be warranted where irreparable harm would result from inability to collect a money judgment (see, e.g., Tri-State v. Shoshone, 805 F.2d 351, 355 (10th Cir. 1986)), there has been no showing and there is no evidence that the plaintiff will be unable to satisfy such a potential judgment. There is no factual basis for finding that plaintiff is insolvent, lacks sufficient resources or will be otherwise unable to reimburse defendant for payments received on these wetos.

 Under the traditional test the threshold inquiry is whether the movant has shown the threat of irreparable injury or harm. Where the movant had failed to sustain that burden the inquiry is ended and the denial of the injunctive relief is warranted. See, e.g., Glenwood Bridge, Inc. v. Minneapolis, 940 F.2d 367, 371 (8th Cir. 1991). Defendant has failed to meet his burden of demonstrating irreparable harm. The "Application" is DENIED.