MEMORANDUM AND ORDER
Pending before the Court are the objections of Plaintiff, The
Southland Corporation ("Southland"), to the February 26, 1998
Report and Recommendation of Magistrate Judge Viktor V.
Pohorelsky. The Report recommended that this Court deny both
Southland's motion for a preliminary injunction, and Defendant
Richard Froelich's ("Froelich") motion for injunctive relief.
Upon de novo review of the report and recommendation, pursuant
to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), the Court
adopts the recommendation to deny Froelich's motion, but declines
to adopt the recommendation to deny Southland's motion.
Southland initiated this action on March 27, 1997 against
defendant Richard Froelich,*fn1 the operator of one of
Southland's well-known 7-Eleven franchises. The complaint
contains twelve causes of action, ten of which pertain to
On April 9, 1997, Southland moved by Order to Show Cause
("OSC") for a preliminary injunction, pursuant to Fed. R.Civ.P.
65. Through the OSC, Southland sought to enjoin Froelich from
using Southland's 7-Eleven service marks, trade dress, trade
name, and trademarks during the pendency of the action. The OSC
also sought to compel Froelich to vacate and surrender the
premises of his franchise 7-Eleven store, located at Peconic
Street and First Avenue in Lakeland, New York. Southland further
sought, pursuant to Fed.R.Civ.P. 64, to seize from Froelich and
deliver to Southland the inventory and other goods held for sale,
and also the equipment that had been leased to the store.
On June 24 and 25, 1997, Magistrate Judge Pohorelsky conducted
an evidentiary hearing on Southland's motion for a preliminary
injunction.*fn3 Prior to a decision being rendered, Southland
brought a supplemental order to show cause asserting additional
grounds for the issuance of the injunction. Magistrate Judge
Pohorelsky conducted additional hearings on December 2 and 3,
1997. Approximately three weeks later, Froelich cross-moved by
order to show cause for an injunction compelling Southland to
permit him to sell his interest in the Peconic Street 7-Eleven
store. That application also was referred
to Magistrate Judge Pohorelsky, but no further evidentiary
hearings were held.
The magistrate judge issued his Report and Recommendation on
February 26, 1998, recommending that both motions for injunctive
relief be denied. On March 16, 1998, Southland filed its
objections to the Report and Recommendation. Froelich did not
object to the Report and Recommendation, and did not reply to
Southland's objections. Therefore, the recommendation to deny
Froelich's motion for injunctive relief is ADOPTED in its
entirety, and the magistrate judge's recommendation to deny
Southland's application for a preliminary injunction is
considered solely on the basis of Southland's submissions to the
A. Standard of Review of Magistrate Judge Pohorelsky's Report
Pursuant to Fed.R.Civ.P. 72(c), a party objecting to the
recommended disposition of a matter may file specific, written
objections to the magistrate judge's report and recommendation.
"The district judge to whom the case is assigned shall make a de
novo determination upon the record . . . [and] may accept,
reject, or modify the recommended decision, receive further
evidence, or recommit the matter to the magistrate judge with
instructions." Fed. R.Civ.P. 72(c).
B. Standard for Issuance of a Preliminary Injunction
The issuance of a preliminary injunction in the Second Circuit
is dependent upon the movant's demonstration of (1) irreparable
harm and (2) either a likelihood of success on the merits, or
a sufficiently serious question as to the merits of the case to
make them a fair ground for litigation and a balance of
hardships tipping decidedly in its favor. Tom Doherty Assoc.,
Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33 (2d Cir.
1995). Such relief is extraordinary and should not be granted
indiscriminately. Patton v. Dole, 806 F.2d 24, 28 (2d Cir.
1986). "Irreparable harm" means injury that is actual and
imminent. Tom Doherty Assoc., 60 F.3d at 37. If a monetary
award will provide adequate compensation for the injury suffered,
a preliminary injunction should not issue. Id. at 37-38.
However, where the requested preliminary injunction will do
more than preserve the status quo, the court "should require a
more substantial showing of likelihood of success" on the merits.
S.E.C. v. Cavanagh, 155 F.3d 129, 136 (2d Cir. 1998) (quoting
S.E.C. v. Unifund SAL, 910 F.2d 1028, 1039 (2d Cir. 1990)). In
other words, the moving party must demonstrate a. clear or
substantial likelihood of success on the merits
where (1) the injunction sought `will alter, rather
than maintain, the status quo' — i.e., is properly
characterized as a "mandatory" rather than
"prohibitory" injunction; or (2) the injunction
sought `will provide the movant with substantially
all the relief sought, and that relief cannot be
undone even if the defendant prevails at a trial on
Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (quoting
Tom Doherty Assoc., 60 F.3d at 33-34); see also Koppell v. New
York State Bd. of Elections,