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INTNL. BROTHERHOOD TEAMSTERS L. 531 v. MIELE SANIT. CO.

March 14, 2002

TRUSTEES OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 531 SICK AND WELFARE FUND AND PRE-PAID LEGAL FUND, ET ANO., PLAINTIFFS,
V.
MIELE SANITATION CO. N.Y. INC. AND MIELE SANITATION COMPANY, DEFENDANTS



The opinion of the court was delivered by: Lewis A. Kaplan, District Judge

MEMORANDUM OPINION

This matter is before the Court on plaintiffs' motion for a mandatory preliminary injunction requiring defendants to submit to an audit, allegedly pursuant to a collective bargaining agreement ("CBA").

Facts

The defendants in this case are Miele Sanitation Company, a New Jersey corporation ("MSC"), and Miele Sanitation Co. N.Y. Inc., a New York corporation ("MSC NY"). In 1955, MSC entered into a CBA with Local 531 of the International Brotherhood of Teamsters (the "Union") which, it appears, obliged it to make contributions to plaintiffs in respect of benefits afforded to its union employees. The agreement, so far as the record reveals, contained no automatic or evergreen clause and existed for "the duration of the agreement."*fn1 It expired on January 31, 1997.*fn2 New agreements covering the period ending some time in 2003 appear to have been negotiated, although not signed.*fn3 In any case, however, MSC continued to submit monthly remittance reports and benefit plan contributions to plaintiffs through at least the beginning of February 2002.*fn4 There never was any CBA between the Union and MSC NY.*fn5

In or about July 2001, accountants retained by the plaintiffs sought to audit the books of "Miele," but "Miele" was unresponsive.*fn6 On August 9, 2001, the accountant wrote to demand an audit of MSC, but this too was ignored.*fn7 Subsequent overtures and letters demanding an audit of MSC met with the same fate until a Ms. Miele finally asked to schedule the audit for October 22, 2001.*fn8 This appointment was not kept, so the accountants ultimately wrote to say that they would arrive to conduct the audit on December 17, 2001. When they arrived, however, they were told that no audit would be permitted.*fn9

Plaintiffs thereupon commenced this action against MSC N.Y. to require that it submit to an audit. Soon thereafter they filed proof of service on MSC, not MSC NY. Then, apparently concluding that they had sued the wrong party or, at least, that plaintiffs should have sued MSC as well as MSC NY, the parties stipulated to add MSC as a defendant and to deem all claims previously asserted against MSC N.Y. also to have been asserted against MSC. On the following day, plaintiffs moved for a preliminary injunction requiring MSC N.Y. — but, for some reason, not MSC — to submit to an audit. Defendants papers, however, proceed on the assumption that the relief is sought against both companies,*fn10 so the Court proceeds accordingly.

Discussion

Preliminary Injunction Standard

Ordinarily, one seeking a preliminary injunction in this Circuit must "demonstrate a threat of irreparable injury and either (i) a likelihood of success on the merits, or (ii) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor."*fn11 A heightened standard applies, however, where the movant seeks mandatory relief or where the relief sought, if granted, would award substantially all of the relief that the movant would be entitled to if it prevailed on the merits.*fn12 In such circumstances, one "must make a `clear' or `substantial' showing of a likelihood of success" on the merits.*fn13 In any case, a clear showing of threatened irreparable injury is essential.*fn14

Irreparable Injury

In this case, plaintiffs have failed to establish any threat of irreparable injury. While plaintiffs protest that the refusal to permit an audit has prevented them from learning whether the defendants possess or have converted plan assets, they have adduced no evidence whatsoever to support any suspicion that assets have been diverted. Further, defendants have submitted an affidavit from an individual who is an officer of both companies denying that any books and records have been or will be destroyed or altered. There is no reason to suppose the contrary.

Further, plaintiffs quite plainly have been sitting on their rights for a considerable period of time. It took them nine months from the defendants' initial failure to respond to their demand to seek interlocutory relief in this case. This failure promptly to seek provisional relief seriously undermines any claim of threatened irreparable injury.*fn15 Accordingly, the Court finds that plaintiffs have failed to establish a serious threat of irreparable injury.

Likelihood of Success on the Merits

The foregoing is sufficient to dispose of this motion. In view of the possibility that a reviewing court might take a different view, however, the ...


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