Opinion
03 Civ. 1361(LTS)(AJP)
September 15, 2003
REPORT AND RECOMMENDATION
Plaintiff Guy Marshall, who was terminated from his job at the United States Postal Service ("USPS") in October 1999, has filed an "Urgent Motion for Preliminary Injunction" in this Title VII action. This action is at least the fourth lawsuit by Mr. Marshall in this Court relating to essentially the same events. Judge Swain dismissed two of those actions, 00 Civ. 3167 and 01 Civ. 3068 (2/3/03 Order), and a third action 02 Civ. 1754 was on the suspense docket and was just recently restored to the active docket. In this case, in addition to plaintiffs motion for a preliminary injunction, there are two motions to dismiss pending (by the National Labor Relations Board ["NLRB"] and the National Association of Letter Carriers ["NALC"]), which will be addressed in a separate Report and Recommendation.
For the reasons discussed below, plaintiff Marshall's preliminary injunction motion is frivolous and should be denied.
ANALYSIS
"[A] preliminary injunction may be granted when the party seeking the injunction establishes that'1) absent injunctive relief, it will suffer irreparable harm, and 2) either a) that it is likely to succeed on the merits, or b) that there are sufficiently serious questions going to the merits to make them a fair ground for litigation, and that the balance of hardships tips decidedly in favor of the moving party.'" No Spray Coalition. Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir. 2001) (per curiam) (quoting Otokoyma Co. v. Wine of Japan Import. Inc., 175 F.3d 266, 270 (2dCir. 1999)); accord. e.g., Merrill Lynch Inv. Managers v. Optibase. Ltd., 337 F.3d 125, 129 (2d Cir. 2003); Bronx Household of Faith v. Board of Educ. of City of New York, 331 F.3d 342, 348-49 (2d Cir. 2003); Motorola Credit Corp. v. Uzan, 322 F.3d 130, 135 (2d Cir. 2003).
See also, e.g., Warner-Lambert Co. v. Northside Dev. Corp., 86 F.3d 3, 6 (2d Cir. 1996); Waldman Publ'g Corp. v. Landoll. Inc., 43 F.3d 775, 779-80 (2d Cir. 1994); Polymer Tech. Corp. v. Mimran, 37 F.3d 74.77-78 (2d Cir. 1994): Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 314-15 (2d Cir. 1982): Jackson Dairy. Inc. v. H.P. Hood Sons. Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam);Jackson v. Johnson, 962 F. Supp. 391, 393 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.).
Plaintiff Marshall seeks the following relief in his preliminary injunction motion: First, that defendants the USPS and NALC stop giving negative employment references about him so as to "blacklist" him from getting other jobs with governmental agencies. (Motion at 1.) Second, he also moves for an injunction requiring the State Unemployment Insurance Board — which is not a defendant in this action — to give him unemployment insurance benefits (id. at 2), and further, that the New York City Department of Corrections — again, not a defendant here — be ordered to hire him. (Id.) Marshall asserts that his "termination and negative references" constitute irreparable harm. (Id.)
The motion is frivolous, and while plaintiff is pro se, that does not excuse him from the consequences of violating Rule 11 of the Federal Rules of Civil Procedure. Plaintiff is on notice that he may be sanctioned in the future for frivolous conduct in this or his other federal lawsuits.
First, the Court cannot grant a preliminary injunction against parties not before the Court. Fed.R.Civ.P. 65(d) (injunction "is binding only upon the parties to the action . . ."); see. e.g., Motorola Credit Corp. v. Uzan, 322 F.3d at 138. Thus, the Court cannot grant a preliminary injunction against the New York City Department of Corrections or the State Unemployment Insurance Board, since they are not parties to this action.
Second, as to defendants USPS and NALC, since Marshall is asking for a mandatory injunction to change the status quo instead of an injunction to preserve the status quo, he must make an even higher showing to obtain a preliminary injunction. See. e.g., Bronx Household of Faith v. Board of Educ. of City of New York, 331 F.3d at 349 ("[A]n even higher standard of proof comes into play when the injunction sought will alter rather than maintain the status quo. In such case, the movant must show a 'clear' or 'substantial' likelihood of success."); Motorola Credit Corp. v. Uzan, 322 F.3d at 135 n. 3 ("[A] plaintiff who seeks a 'mandatory' injunction, rather than a 'prohibitory' injunction, must demonstrate a 'clear' or 'substantial' likelihood of success."). Marshall cannot do so.
Plaintiff Marshall was terminated in 1999, and the evidence he submits to support his preliminary injunction motion as to negative references is a November 28, 2000 letter to him from the City Department of Corrections (Motion Ex. A). Thus, the actions that Marshall complains of have been known to him and ongoing for several years. A preliminary injunction is not warranted on that ground alone. See. e.g., Cunningham v. English, 78 S.Ct. 3, 4 (1957) (Warren, Cir. J.) (Preliminary injunctions relief denied where allegations were based on events known "months and years" before filing); Citibank. N.A. v. City trust, 756 F.2d 273, 275-76 (2d Cir. 1985) (Plaintiff failed to show irreparable harm due in part to significant delay in applying for injunctive relief. "Preliminary injunctions are generally granted under the theory that there is an urgent need for speedy action to protect the plaintiffs' rights. Delay in seeking enforcement of those rights, however, tends to indicate at least a reduced need for such drastic, speedy action.").
Moreover, lack of employment can be compensated with back pay awards should plaintiff Marshall prevail in this action. E.g., Sampson v. Murray, 415 U.S. 61, 89-92, 94 S.Ct. 937, 952-54 (1974); American Postal Workers Union. AFL-CIO v. United States Postal Serv., 766 F.2d 715, 721 (2d Cir. 1985), cert. denied, 475 U.S. 1046, 106 S.Ct. 1262 (1986);Piercy v. Federal Reserve Bank, 02 Civ. 5005, 02 Civ. 9291, 2003 WL 115230 at *3 (S.D.N.Y. Jan. 13, 2003) (Chin, DJ.) ("In the employment context, '[c]ourts are loathe to grant preliminary injunctions,' because injuries often associated with employment discharge, such as damage to reputation, financial distress, and difficulty finding other employment, do not constitute 'irreparable harm' Plaintiffs wrongfully discharged from employment generally may be made whole by monetary damages and reinstatement after a full trial on the merits."); United States v. New York City Board of Educ., No. 96-CV-374, 02-CV-256, 2002 WL 31663069 at *3 (E.D.N.Y. Nov. 26, 2002) (same, citing cases). Thus, Marshall has not shown irreparable harm. See also, e.g., Venconsul N.V. v. Tim Intl. N.V., 03 Civ. 5387, 2003 WL 21804833 at *4 (S.D.N.Y. Aug. 6, 2003) (Swain, D.J.) ("'Where money damages are adequate compensation a preliminary injunction should not issue.'") The Court therefore need not further address the question of Marshall's likelihood of success on the merits.
CONCLUSION
Plaintiff Marshall's "urgent" motion for a preliminary injunction should be DENIED (and he should consider himself lucky that he has not been sanctioned under Rule 11).
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, Room 1205, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Swain. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985): IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992): Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).