Xiotech Corporation v. Express Data Products Corporation et al

Filing 12

MEMORANDUM-DECISION AND ORDER granting 9 Motion for TRO: ORDERED that plaintiffs motion for a modification of the existing temporary restrainingorder is GRANTED (Dkt. No. 9), it is further ORDERED that pending a decision on plaintiffs application for a preliminary injunction, defendants, their agents, servants, employees, and attorneys and all persons in active concert or participation with them who receive actual notice of this order, be, and hereby are, enjoined from transferring or withdrawing any funds from account numbers 5673050052 and 7000933443 maintained at NBT Bank, N.A. pending further order of the Court. Signed by U.S. District Judge Mae A. D'Agostino on 8/2/13. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
XIOTECH CORPORATION,
Plaintiff,
vs.

6:13-CV-861
(MAD/TWD)

EXPRESS DATA PRODUCTS CORPORATION,
ESI, LLC, and RUDY C. D’AMICO,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

PINNISI & ANDERSON
520 Cayuga Heights Road
Ithaca, New York 14850
Attorneys for Plaintiff

Michael D. Pinnisi, Esq.

EDWARD J. FINTEL & ASSOCIATES
120 Walton Street, Suite 203
P.O. Box 6451
Syracuse, New York 13217
Attorneys for Defendants

Edward J. Fintel, Esq.

Mae A. D’Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
INTRODUCTION
Presently before the Court is plaintiff’s “emergency motion” to modify the existing
temporary restraining order. (Dkt. No. 9). Defendants Express Data Corporation & ESI LLC
have opposed the motion. (Dkt. No. 11).
BACKGROUND
On July 25, 2013, plaintiff filed a motion for a preliminary injunction and temporary
restraining order. On July 25, 2013, this Court entered an Order setting forth an expedited

briefing schedule for plaintiff’s motion for a preliminary injunction. With respect to the
application for a temporary restraining order, the order noted:
ORDERED that pending further order of the Court, the defendants,
their subsidiaries, assigns, agents, officers, directors, members and any
person or entity having notice of this Order are temporarily restrained
and enjoined from making any payment or transfer to NBT Bancorp,
Inc.
On August 1, 2013, plaintiff filed a motion seeking an Order modifying the existing Order
to “temporarily restrain and enjoined from withdrawing or transferring or drawing upon or
otherwise reducing the balance of funds maintained by or for Express Data Systems Corp. and/or
ESI, LLC in accounts maintained at NBT Bank, N.A., including but not limited to account
numbers 5673050052 and 7000933443, and in any other accounts maintained by or for those
entities at NBT Bank, N.A. and at any other financial institution, and are further restrained and
enjoined from pledging any or all such funds as collateral or otherwise encumbering the same
pending further order of the Court.”
DISCUSSION
“When modifying a preliminary injunction, a court is charged with the exercise of the
same discretion it exercised in granting or denying injunctive relief in the first place.” U.S.
Commodity Futures Trading Com'n v. Arista LLC, 2013 WL 3866627, at *1 (S.D.N.Y. 2013)
(citing inter alia Sierra Club v. U.S. Army Corps of Eng'rs, 732 F.2d 253, 256 (2d Cir. 1984)).
“The same is true for equitable relief, like [a] TRO [. . . ]”. Id. (citation omitted). “[A] court may
properly exercise its equitable power to modify an injunction that has become inequitable.”
Board of Governors of Federal Reserve System v. Pharaon, 140 F.R.D. 642, 648 (S.D.N.Y. 1991)
“The rationale for reexamination and modification of an injunction has been explained by
the Second Circuit as follows:
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While changes in fact or in law afford the clearest bases for altering
an injunction, the power of equity has repeatedly been recognized as
extending also to cases where a better appreciation of the facts in light
of experience indicates that the decree is not properly adapted to
accomplishing its purposes.”
Id. (citing inter alia King–Seeley Thermos Co. v. Aladdin Indus., Inc., 418 F.2d 31, 35 (2d Cir.
1969)).
Here, plaintiff argues that modification is necessary due to a change in circumstances and
has submitted documentary evidence supporting its position. The Court has thoroughly reviewed
those submissions which include documentation recently received from NBT Bancorp. pursuant
to a subpoena. Counsel for defendants Express Data Products Corporation & ESI LLC asserts
that they have “legitimate and ordinary course business expenses that need to be paid from the
enumerated bank accounts as they wind up their affairs such as rent and utilities”. However,
defendants’ opposition does not include any affidavit or declaration from any principal or owner
of the corporation. Moreover, defendants’ counsel vaguely asserts that expenses cannot be paid
but does not provide any estimated possible loss or identified any specific hardship defendants
will endure. Pursuant to this Court’s prior Order, the motion for a preliminary injunction will be
fully briefed on or before August 9, 2013. A decision from this Court shall be issued forthwith.
Accordingly, the Court finds that the balance of hardships favors plaintiff. See PCS Wireless LLC
v. A to Z Wireless Solutions Inc., 841 F.Supp.2d 649, 654 (E.D.N.Y. 2012). However, while the
Court finds that the presently existing restraining order should be modified, the alterations sought
are overly broad. Accordingly, the Court issues the following Order:
IT IS HEREBY
ORDERED that plaintiff’s motion for a modification of the existing temporary restraining
order is GRANTED (Dkt. No. 9), it is further
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ORDERED that pending a decision on plaintiff’s application for a preliminary injunction,
defendants, their agents, servants, employees, and attorneys and all persons in active concert or
participation with them who receive actual notice of this order, be, and hereby are, enjoined from
transferring or withdrawing any funds from account numbers 5673050052 and 7000933443
maintained at NBT Bank, N.A. pending further order of the Court.
IT IS SO ORDERED.
Dated: August 2, 2013
Albany, New York

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