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Km Enterprises, Inc., Plaintiff v. Joan Mcdonald

February 16, 2012

KM ENTERPRISES, INC., PLAINTIFF,
v.
JOAN MCDONALD, IN HER CAPACITY AS COMMISIONER OF THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION, DEFENDANT.



The opinion of the court was delivered by: Arthur D. Spatt United States District Judge

ORDER

By: Assistant Attorney General Timothy P. Mulvey SPATT, District Judge.

The Plaintiff in this case, KM Enterprises, Inc. ("KME"), initially filed a complaint against the Defendant as well as a motion for a preliminary injunction in the Northern District of New York on October 5, 2011. The action was subsequently transferred to this district on October 20, 2011. In short, this is a case about a public procurement contract solicited by the Town of Brookhaven (the "Town") for a project to install traffic preemption equipment. The Plaintiff KME was one of two competing subcontractors (the other being Global Traffic Technologies ("GTT")), whose price quote was ultimately not accepted by the prime contractor, Hinck Electrical Contractor, Inc. ("Hinck"), although KME is of the belief that it submitted the lowest price quote.

This Court held a hearing on November 16, 2011, to address the Plaintiff's motion for a preliminary injunction. In particular, the Plaintiff seeks to enjoin the Defendant (1) from disbursing federal funds during the pendency of this action for the project known as "Town of Brookhaven, Traffic Preemption Control System Pin No. 1757.43, Invitation to Bid #11039" (the "Project"); and (2) from authorizing further performance of the contract for the Project during the pendency of this action. This Court referred the matter to United States Magistrate Judge E. Thomas Boyle for the purpose of holding a hearing and issuing a Report and Recommendation addressing the Plaintiff's order to show cause and motion for preliminary injunction.

Following a hearing on November 16, 2011, Judge Boyle issued a Report and Recommendation on January 5, 2012, which made the following findings: (1) that the Plaintiff failed entirely to demonstrate any irreparable harm in this action because the alleged injury can be adequately compensated by money damages; and

(2) that the Plaintiff failed to demonstrate a likelihood of success on the merits because nothing in the evidence or testimony supported the allegation that the Town interfered with the award of the equipment supply contract to GTT.

KME filed objections to Judge Boyle's Report and Recommendation on two legal grounds: (1) that it did provide evidence of irreparable harm; (2) that it did sufficiently prove likelihood of success on the merits. KME also objects to several findings of fact by Judge Boyle, including: (1) that GTT changed its price quote before the bid opening; (2) that the Town had no involvement in Hinck's decision to award the contract to GTT; and (3) that KME did not provide the lowest lawful bid, and that if KME believed that, it would be unreasonable.

After carefully reviewing the Plaintiff's objections, this Court adopts the Report and Recommendation in its entirety and denies the Plaintiff's request for a preliminary injunction.

I. DISCUSSION

A.Standard of Review

A court is required to make a de novo determination as to those portions of the Report and Recommendation to which objections were made. 28 U.S.C. § 636(b)(1)(C); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). The phrase " de novo determination" in Section 636(b)(1) - as opposed to "de novo hearing" - was selected by Congress "to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations." United States v. Raddatz, 447 U.S. 667, 676, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980). Section 636 does not require a court "to rehear the contested testimony in order to carry out the statutory command to make the required 'determination.'" Id. at 674, 100 S. Ct. 2406. Rather, in making such a determination, a court may in its discretion review the record and hear oral argument on the matter. See Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40 n.3 (2d Cir. 1990). Furthermore, a court may in its sound discretion afford a degree of deference to the magistrate's Report and Recommendation. See Raddatz, 447 U.S. at 676, 100 S. Ct. 2406, 65 L. Ed. 2d 424.

In a case where a party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (quoting Barratt v. Joie, No. 96 Civ. 324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002)). "Furthermore, even in a de novo review of a party's specific objections, the Court ordinarily will not consider 'arguments, case law and/or evidentiary material which could have been, but were not, presented to the magistrate judge in the first instance.'" Fairfield Financial Mortg. Group, Inc. v. Luca, No. 06 Civ. 5962, 2011 WL 3625589, at *2 (E.D.N.Y. Aug. 16, 2011).

B.KME's Objections

The Plaintiff KME asserts three main objections to Judge Boyle's Report and Recommendation. First, it alleges that it has adequately demonstrated irreparable harm, in part based upon precedent from this circuit. Second, the Plaintiff disputes Judge Boyle's findings of fact regarding the testimony of Paul Stram - a Hinck representative - because the Plaintiff alleges that his testimony lacked credibility as it changed several times. Finally, KME asserts that Judge Boyle did not correctly frame the question of likelihood of success on the merits, because according to the Plaintiff, the relevant inquiry is not whether the specific contract at issue should be awarded to any particular party but rather "the ...


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