The opinion of the court was delivered by: JOHN E. SPRIZZO
Plaintiff pro se in the above-captioned action brings this application for a preliminary injunction. For the reasons that follow, plaintiff's application is granted.
This action arises out of a bitter controversy between defendant-Legal Services Staff Association ("Local 2320") and Legal Services for New York City ("LSNY"), of which Christopher H. Lunding, Esq., a partner in the plaintiff law firm of Cleary, Gottlieb, Steen & Hamilton ("Cleary Gottlieb"), is the Chairman of the Board of Directors. LSNY is the employer or (with the LSNY-funded offices) the co-employer for all unionized attorneys and staff members working at the LSNY-funded offices. Since at least 1980, LSNY has acted as the employer representative in collective bargaining negotiations with Local 2320 or its predecessor. Affidavit of Christopher H. Lunding, Esq. dated November 18, 1993 ("Lunding Aff.") P 8.
Plaintiff Cleary Gottlieb first became involved in this dispute in 1991, when the LSNY legal services workers union went on strike after negotiations with LSNY broke down. During that strike, approximately thirty (30) protestors, including defendant-Scott M. Sommer ("Sommer"), the President of Local 2320, and other members of Local 2320, engaged in a sit-in at the offices of Cleary Gottlieb, during which for several hours they chanted slogans directed at Lunding, that ended only when the police arrested the union members for trespassing. Lunding Aff. P 4.
Most recently, the conflict resumed on November 17, 1993, after the expiration of defendants' collective bargaining agreement, when members of Local 2320 began a concerted effort to disrupt Cleary Gottlieb's operations by sending over 400 copies of a single-page message to Lunding from facsimile machines located at several different LSNY-funded offices. Lunding Aff. P 11; see id. Ex. B and C. The large, shaded cartoon in the center of the pages of Exhibits B and C significantly slowed the machines and maximized the disruption of the firm's telecommunications department. Lunding Aff. P 11.
According to the plaintiff's affidavit, between 1:00 and 3:00 p.m. on November 17, all six Cleary Gottlieb facsimile machines dedicated to receiving incoming facsimiles were constantly jammed by the flood of paper sent by members of Local 2320. Between 3:00 and 4:30, three of these six machines were jammed. Members or Local 2320 immediately re-dialed Cleary Gottlieb's central facsimile number at the end of each transmission. As a result, clients, attorneys and others doing business with Cleary Gottlieb were unable to send correspondence to the firm's central facsimile number, and the firm's ability to carry on urgent communications was severely disrupted. At 4:30, the deluge suddenly stopped. Lunding Aff. P 12.
The facsimile numbers printed on Exhibit B to the Lunding affidavit indicate that the document was sent first by Local 2320 to one of the LSNY-funded offices and then retransmitted to Cleary Gottlieb. Sommer and the other individual defendants organized and encouraged members of Local 2320 to send as many copies of Exhibit B as possible with the intention of disrupting Cleary Gottlieb's business. Local 2320 also sent a notice to its members headed "Schedule of LSSA Activity" which states" "Tell LSNY Board Chair Chris Lunding to settle now! All day phoning and faxing to Lunding . . . . Do it once in the morning and again in the afternoon. Fax Chris the 'Road to Poverty' leaflet (attached)." Lunding Aff. P 13; id. Ex. D.
Shortly after this disruption began, Lunding contacted Dale Steven Johnson, the Executive Director of LSNY, and asked him to locate Sommer. Shortly after 3:00 p.m. on November 17, Johnson telephoned Sommer and told him that the effort to affect the collective bargaining negotiations by harassing Cleary Gottlieb was improper and should be stopped. Sommer responded that the disruption was planned to end that afternoon. However, when Johnson asked Sommer for his assurance that the union would not continue the harassment of Cleary Gottlieb after November 17, Sommer refused to respond and hung up the telephone. Lunding Aff. P 14; Affidavit of Dale Steven Johnson dated November 18, 1993 ("Johnson Aff.") PP 2-5.
The message disseminated by Local 2320 instructing its members to send facsimiles to Cleary Gottlieb also announced plans for what was described as "Breakfast at Cleary Gottlieb," for which Local 2320 directed "all members" to appear at the firm's offices at 8:30 a.m. on Tuesday, November 23, 1993. See Lunding Aff. Ex. D. That exhibit supports an inference that another attempt to disrupt the plaintiff's business on its property will occur at that time.
As a consequence, plaintiff Cleary Gottlieb brought this action on November 18, 1993 in New York Supreme Court. Defendants removed this action to federal court on November 22, 1993. This Court promptly scheduled a hearing on plaintiff's emergency application for a temporary restraining order and a preliminary injunction for 11:30 a.m. on November 22, 1993 and directed plaintiff to notify counsel for the defendants of the time of that hearing. Plaintiff pro se, represented by one of its partners, George Weisz, Esq., having advised the Court that it notified counsel for defendants of the hearing at 10:12 a.m., and no person having authority to represent defendant having appeared at 11:30 a.m., the Court indicated that it would grant the plaintiff's request for injunctive relief and ordered the plaintiff to submit a proposed order to that effect by 3:00 p.m.
At 12:00 p.m. on November 22, 1993, after the conclusion of the hearing, counsel for defendants, K. Dean Hubbard, Jr., Esq. ("Hubbard"), appeared. The Court heard Mr. Hubbard in chambers and related what had transpired, whereupon Mr. Hubbard submitted responsive papers, to wit a Memorandum of Law and the Affidavit of K. Dean Hubbard, Jr., Esq. dated November 22, 1993 ("Hubbard Aff.") and the Affidavit of Scott M. Sommer dated November 22, 1993 ("Sommer Aff."), which the Court reviewed in ...