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CHAPMAN v. SOUTH BUFFALO RY. CO.

February 3, 1999

RICHARD P. CHAPMAN, PLAINTIFF,
v.
SOUTH BUFFALO RAILWAY COMPANY, DEFENDANT.



The opinion of the court was delivered by: Arcara, District Judge.

  ORDER

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.

IT IS SO ORDERED.

REPORT & RECOMMENDATION

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 denied.

BACKGROUND

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, ¶ 12).

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 defendant from:

  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 ...

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