United States District Court, E.D. Virginia, Norfolk Division
CLIFFORD A. BROWN, III, Plaintiff,
BIMBO FOODS BAKERIES DISTRIBUTION, LLC, f/k/a BIMBO FOODS BAKERIES DISTRIBUTION, INC., a/k/a BIMBO BAKERIES USA and BIMBO FOOD BAKERIES, SUCCESSOR IN INTEREST TO GEORGE WESTON BAKERIES DISTRIBUTION, INC., Defendants.
REBECCA BEACH SMITH, CHIEF JUDGE.
matter is before the court on the Plaintiff's Motion for
Temporary Injunction ("Motion"), filed on August 4,
2016. ECF No. 3. On August 12, 2016, this court referred the
Motion to United States Magistrate Judge Douglas E. Miller,
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B)
and Federal Rule of Civil Procedure 72(b), to conduct
necessary hearings, and to submit to the undersigned district
judge proposed findings of fact and recommendations of law
for the disposition of the Motion. ECF No. 8.
August 19, 2016, the Defendant filed an "Opposition to
Plaintiff's Motion for a Temporary Injunction"
("Opposition"). ECF No. 10. On the same day, the
Defendant filed three declarations to accompany its
Opposition. ECF Nos. 11, 12, 13. On August 24, 2016, the
Plaintiff filed a "Reply to Defendant's Opposition
to Plaintiff's Motion for a Temporary Injunction"
("Reply"). ECF No. 17. On August 25, 2016, the
Plaintiff filed a correction to his Reply. ECF No. 18.
Magistrate Judge conducted hearings on the Motion on August
29, 2016, and filed a Report and Recommendation
("R&R") on September 13, 2016. ECF No. 25. The
Magistrate Judge recommended denying the Plaintiff's
Motion. Id. at 2. By copy of the R&R, the
parties were advised of their right to file written
objections to the findings and recommendations made by the
Magistrate Judge. See id. at 28. On September 27,
2017, the Plaintiff filed an "Objection to Magistrate
Judge's Report and Recommendation"
("Objections"). ECF No. 28. The Defendant filed a
Response to the Plaintiff's Objections
("Response") on October 11, 2016. ECF No. 30.
preliminary injunction is an extraordinary remedy never
awarded as of right." Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf
v. Geren, 553 U.S. 674, 689- 90 (2008)). In considering
a preliminary injunction, "courts *must balance the
competing claims of injury and must consider the effect on
each party of the granting or withholding of the requested
relief.'" Id. (quoting Amoco Prod. Co.
v. Village of Gambell, 480 U.S. 531, 542 (1987)).
Furthermore, courts "should pay particular regard for
the public consequences in employing the extraordinary remedy
of injunction." Id. (quoting Weinberger v.
Romero-Barcelo, 456 U.S. 305, 312 (1982) (internal
quotation marks omitted)). Overall, "[a] plaintiff
seeking a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an
injunction is in the public interest." Id. at
20; see also Centro Tepeyac v. Montgomery Cty., 722
F.3d 184, 188 (4th Cir. 2013).
Review of Magistrate Judge's R&R
to Rule 72(b) of the Federal Rules of Civil Procedure, the
court, having reviewed the record in its entirety, shall make
a de novo determination of those portions of the
R&R to which the Plaintiff has specifically objected.
Fed.R.Civ.P. 72(b). Objections must be "specific and
particularized." United States v. Midqette, 478
F.3d 616, 621 (4th Cir. 2007) . The court may accept, reject,
or modify, in whole or in part, the recommendation of the
magistrate judge, or recommit the matter to him with
instructions. 28 U.S.C. § 636(b)(1).
Plaintiff lists five (5) objections to the
R&R. Before ruling on the R&R, the court
will examine each in turn.
Plaintiff first objects that the Magistrate Judge's
"strict application" of the Winter test
will deny him his remedy under Pennsylvania law. Obj. at 6.
The Plaintiff complains that his failure to satisfy
Winter and obtain an injunction may jeopardize his
ultimate recovery under Pennsylvania law. But the
Plaintiff's failure to satisfy the Winter
standard is not a reason to disregard it and award "an
extraordinary remedy." Winter, 555 U.S. at 24.
Courts do "not impose an injunction lightly."
Cantley v. W.Va. Reg'l Jail & Corr. Facility
Auth., 771 F.3d 201, 207 (4th Cir. 2014).
to the Plaintiff's assertion, denial of his Motion does
not mean that the court has "disregard[ed] Pennsylvania
law." Obj. at 8; see R&R at 15 (reviewing
the elements of breach of contract under Pennsylvania law).
The Winter standard applies to requests for
preliminary injunctions, even under state substantive law.
same section of his first objection, the Plaintiff includes a
related objection that he describes as a second objection:
The R&R "sets the bar so incredibly high that
plaintiffs in this [c]ourt would rarely, if ever, be entitled
to injunctive relief." Id. at 10. But
preliminary injunctions are intended to be a rare,
extraordinary remedy. See Winter, 555 U.S. ...