United States District Court, S.D. New York
August 17, 2005.
ABAX Incorporated, Petitioner,
THE MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK, on behalf of itself and its constituent Local 78, Respondent.
The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
Petitioner ABAX Incorporated ("ABAX") brings this motion for a
temporary restraining order to enjoin Respondent from proceeding
with the grievance procedure established by the collective
bargaining agreement ("CBA") entered between the parties. The
parties are scheduled to appear before a Joint Arbitration Board
on August 18, 2005 concerning a grievance filed against ABAX by
Respondent's constituent, Local 78. For the reasons set forth
below, Petitioner's motion is denied.
This Court treats ABAX's letter to the Court, dated August 16,
2005, ABAX's Petition filed in the Supreme Court of the State of
New York, dated August 9, 2005 and the supporting Affidavit of
John Bleckman of the same date ("Bleckman Aff.") as a motion for
a temporary restraining order under Rule 65 of the Federal Rules
of Civil Procedure. Such relief may be granted only where a
movant can demonstrate "first, irreparable injury, and, second,
either (a) likelihood of success on the merits, or (b)
sufficiently serious questions going to the merits and a balance
of hardships decidedly tipped in the movant's favor." Green
Party of New York State v. New York State Bd. of Elections,
389 F.3d 411, 418 (2d Cir. 2004); Prayze FM v. F.C.C., 214 F.3d 245, 249 (2d Cir. 2000); Rosen v. Siegel,
106 F.3d 28, 32 (2d Cir. 1997); see also Wenner Media LLC v.
N. Shell N. Am. Ltd., No. 05 Civ. 1286 (CSH), 2005 WL 323727, at
*3 (S.D.N.Y. Feb. 8, 2005).
A showing of probable irreparable harm is "the single most
important prerequisite" for the issuance of a temporary
restraining order and therefore, "a moving party must first
demonstrate that such injury is likely before the other
requirements . . . will be considered." Reuters Ltd. v. United
Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir. 1990) (internal
quotation marks and citations omitted); see also Johnson
Controls Inc. v. A.P.T. Critical Sys., Inc.,
323 F. Supp. 2d 525, 531 (S.D.N.Y. 2004). Further, ABAX must show the harm "to be
imminent, not remote or speculative, and the alleged injury must
be one incapable of being fully remedied by monetary damages."
Reuters, 903 F.2d at 907 (citations omitted); see also
Wenner, 2005 WL 323727, at *3.
Petitioner has not demonstrated any imminent irreparable harm.
Petitioner seeks to stay arbitration. It is undisputed, however,
that the proceeding before the Joint Arbitration Board on August
18, 2005 is not an arbitration proceeding, but rather a stage of
the grievance procedure pursuant to the terms of the CBA.
(Transcript of Hearing on August 16, 2005 at 14, 18.) Because no
arbitration has yet been invoked pursuant to Step 4 of the CBA,
this Court concludes that Petitioner's motion for a temporary
restraining order is premature. CONCLUSION
For the foregoing reasons, Petitioner's motion for a temporary
restraining order is denied without prejudice.
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