The opinion of the court was delivered by: Arcara, District Judge.
The above-referenced case was referred to Magistrate Judge
Carol E. Heckman pursuant to 28 U.S.C. § 636(b)(1)(B), on
November 3, 1998. On January 11, 1999, Magistrate Judge Heckman
filed a Report and Recommendation, recommending that plaintiff's
motion for a preliminary injunction should be denied and removing
plaintiff's motion for an expedited hearing from the docket.
The Court has carefully reviewed the Report and Recommendation,
the record in this case, and the pleadings and materials
submitted by the parties. No objections having been timely filed,
it is hereby
ORDERED, that pursuant to 28 U.S.C. § 636(b)(1), and for the
reasons set forth in Magistrate Judge Heckman's Report and
Recommendation, plaintiff's motion for a preliminary injunction
is denied and plaintiff's motion for an expedited hearing is
removed from the docket as moot. The case is referred back to
Magistrate Judge Heckman for further proceedings.
Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), this matter has
been referred to the undersigned by order of the Honorable
Richard J. Arcara, U.S.D.J., for all pretrial
matters, including hearing and reporting on any dispositive
motions (Item 6). Plaintiff filed this action pursuant to the
Federal Employers Liability Act, 45 U.S.C. § 151-60, and the
Federal Safety Appliance Acts, 45 U.S.C. § 1-26 (Item 1).*fn1
On November 4, 1998, plaintiff moved for a preliminary injunction
pursuant to Rule 65 of the Federal Rules of Civil Procedure (Item
7). In addition, plaintiff moved for an expedited hearing on the
motion (item 9). Oral argument was heard on December 14, 1998.
For the reasons set forth below, plaintiff's motion should be
At the time of the events giving rise to this complaint,
plaintiff was an employee of the South Buffalo Railway Company.
Plaintiff alleges that at approximately 10:00 A.M. on July 9,
1998, he was working near or with the coupler of a railroad car
when he was caught between a draft of railroad cars and the car
on which he was working (Item 1, ¶ 10). As a result of the
accident, plaintiff alleges he sustained multiple injuries
including an extensive crushing injury to his pelvis, a torn anus
with permanent damage, permanent urethra damage, removal of his
gall bladder, extensive vascular damage within his left leg,
extensive nerve damage to his lower torso and lower extremities,
injury to his lumbar spine, and emotional distress (Item 1, ¶
Some time after the accident, defendant apparently contacted
plaintiff in an attempt to investigate the accident. Plaintiff's
attorney notified defendant on August 18, 1998, that a lawsuit
was filed and that defendant was "in violation of the Rules of
court by attempting to contact [plaintiff]" (Item 7, at Pl.Ex.
B). Defendant was asked to "cease and desist from all contact
with [plaintiff]. Any information concerning this matter that you
desire will be obtained from [plaintiff's counsel]" (Item 7, at
Pl.Ex. B). On August 25, 1998, defendant's counsel replied to the
August 18 letter by advising plaintiff's counsel that
"[plaintiff] is required to provide a statement concerning his
accident" (Item 7, at Pl.Ex. C). The letter continued, indicating
that "the requirement is contained within his term of employment.
His failure to provide a statement may result in disciplinary
proceedings including his possible discharge from employment. . .
." (Item 1, at Pl.Ex. C). Plaintiff's counsel replied to this
letter by requesting copies of any accident reports plaintiff is
required to complete (Item 1, at Pl.Ex. D).
On September 15, 1998, defendant sent a letter to plaintiff
notifying him of his obligations under the employer's Policy and
Conduct rules to participate in the accident investigation (Item
7, Pl.Ex. E; Item 12, Def.Ex. D). In addition, the letter stated
that if plaintiff was "being advised that [he] should not, or
that you are not required to answer questions concerning the
incident from any counsel, be assured such counsel or advice is
wrong. Your refusal to answer questions for whatever reason
places your employment relationship in jeopardy" (Item 7, Pl.Ex.
E; Item 12, Def.Ex. D). The letter also warned that "refusal to
comply with this directive will result in the termination of your
wage continuance" (Item 7, Pl.Ex. E; Item 12, Def.Ex. D).
On October 5, 1998, a letter was sent to plaintiff from
defendant's Equipment and Facilities Manager notifying plaintiff
that a disciplinary hearing was scheduled for October 15, 1998
(Item 7, Pl.Ex. F; Item 12, Def.Ex. E). Plaintiff was charged
with violating Policy and Conduct Rules number 27, 28, and 29,
gross insubordination for failing to comply with the letter of
September 15, 1998, and insubordination for failing to comply
with the letter of September 15, 1998 (Item 7, Pl.Ex. F;
Item 12, Def.Ex. E).*fn2 The presiding officer of the
disciplinary hearing found plaintiff guilty of the charges (Item
12, Def.Ex. F). The hearing officer recommended that the
employment relationship between plaintiff and defendant be
terminated due to the seriousness of the charges and plaintiff's
"indifference and total lack of cooperation after being placed on
notice of his responsibility to cooperate" (Item 12, Def.Ex. F).
On November 23, 1998, plaintiff was mailed a letter from the
Equipment and Facilities Manager notifying him that his
employment with defendant was terminated (Item 12, Def.Ex. G).
On November 4, 1998, plaintiff filed a motion for a preliminary
injunction (Item 7). Plaintiff seeks an order prohibiting
a. Holding any hearing, inquiry, investigation, etc.
concerning [plaintiff's] failure to comply with its
requests and/or orders to present himself to
railroad officials ...