Kramer, et al v. Pawlak, et al

Filing 30

ORDER adopting Report and Recommendation re 16 ; denying 7 Motion for TRO. Case remains on referral with Magistrate Judge Foschio. Signed by Hon. Richard J. Arcara on 11/26/2012. (JMB)

UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK

RICHARD J. KRAMER, CHRISTOPHER
GATES, GLEN E. W EBSTER, Individually
and on behalf of Nominal Defendant Armor
Electric Motor & Industrial Services, Inc.,
Plaintiffs,
DECISION AND ORDER
12-CV-813A
v.

THOMAS M. PAW LAK, LISA PAW LAK,
ARMOR ELECTRIC MOTOR & INDUSTRIAL
SERVICES, INC.,
Defendants.

This action, filed by minority shareholders of Armor Electric Motor &
Industrial Services, Inc. (“Armor Electric”), against majority shareholders and
officers of Armor Electric, Thomas M. Pawlak and Lisa Pawlak, is pending after
removal from state court on federal-question jurisdiction. The plaintiff minority
shareholders, Richard J. Kramer, Christopher Gates, and Glen E. W ebster, are
also employees of Armor Electric. Plaintiffs Kramer, Gates, and W ebster allege
corporate malfeasance by the defendants and Armor Electric amounting to civil
RICO violations pursuant to 18 U.S.C. §§ 1961 et seq. The action was referred
to Magistrate Judge Leslie G. Foschio for all pretrial proceedings, pursuant to 28
U.S.C. § 636(b)(1).

On September 18, 2012, plaintiff Kramer filed a motion for a temporary
restraining order and preliminary injunction against Armor Electric’s termination of
Kramer as an employee of Armor Electric. Plaintiff Kramer relied upon a
provision in a Stipulation and Order from the earlier, state-court phase of the
action, which provides Armor Electric will not change the amount of plaintiff
Kramer’s compensation as an employee during the litigation.
On September 26, 2012, Magistrate Judge Foschio filed a Report and
Recommendation, recommending that plaintiff Kramer's motion for a temporary
restraining order and preliminary injunction be denied. The Magistrate Judge
found that plaintiff Kramer failed to establish irreparable harm or a likelihood of
success on the merits.
Plaintiff Kramer filed objections to the Report and Recommendation on
October 10, 2012, and defendants filed a response. Oral argument on the
objections was held on November 16, 2012.
Pursuant to 28 U.S.C. § 636(b)(1), the Court must make a de novo
determination of those portions of the Report and Recommendation to which
objections have been made. Upon a de novo review of the Report and
Recommendation, after reviewing the parties’ submissions and oral argument,
the Court adopts the proposed findings of the Report and Recommendation.
Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and
Recommendation, plaintiff's motion for a temporary restraining order and
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preliminary injunction is denied.
The case remains with Magistrate Judge Foschio for pretrial proceedings
pursuant to the Text Order referring the case entered on September 6, 2012.

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: November 26, 2012

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